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MahmoudAly

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[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant is a Moldovan national belonging to the German ethnic minority. He was born in 1978 and lived in Tiraspol until 2010. Since 2011 he has been an asylum-seeker in Switzerland.", "9. The Moldovan Government submitted that despite all their efforts they had been unable to verify most of the facts of the present case owing to a lack of cooperation on the part of the authorities of the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”). They had therefore proceeded, broadly speaking, on the basis of the facts as submitted by the applicant.", "10. The Russian Government did not make any submissions in respect of the facts of the case.", "11. The facts of the case, as submitted by the applicant and as may be determined from the documents in the case file, are summarised below.", "12. The background to the case, including the Transdniestrian armed conflict of 1991-92 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004 ‑ VII ) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, §§ 8-42, ECHR 2012).", "A. The applicant ’ s arrest, detention and release", "13. On 24 November 2008 the applicant was detained on suspicion of defrauding the company he worked for and another company belonging to the same group. The companies allegedly claimed initially that the damage had been 40,000 United States dollars (USD) and then increased that amount to USD 85,000. The applicant was asked to confess to the crime, which he claims he did not commit. He signed various confessions, allegedly following threats to him and his relatives. He claimed to have first been detained by his company ’ s security personnel and subjected to threats if he did not confess to the crime, before being handed over to the investigating authority.", "14. On 26 November 2008 the “Tiraspol People ’ s Court” remanded the applicant in custody for an undetermined period.", "15. On 5 December 2008 the “MRT Supreme Court” rejected an appeal by the applicant ’ s lawyer as unfounded. Neither the applicant nor his lawyer was present at the hearing.", "16. On 20 March 2009 the “Tiraspol People ’ s Court” extended the applicant ’ s detention for up to five months from the date of his arrest.", "17. On 21 May 2009 the “Tiraspol People ’ s Court” extended the applicant ’ s detention for up to eight months from the date of his arrest. That decision was upheld by the “MRT Supreme Court” on 29 May 2009. Neither the applicant nor his lawyer was present at the hearing.", "18. On 22 July 2009 the “Tiraspol People ’ s Court” extended the applicant ’ s detention until 24 September 2009.", "19. On 22 September 2009 the “Tiraspol People ’ s Court” extended the applicant ’ s detention until 24 November 2009. That decision was upheld by the “MRT Supreme Court” on 2 October 2009. The applicant ’ s lawyer was present at the hearing.", "20. On 4 November 2009 the applicant ’ s criminal case was submitted to the trial court.", "21. On 21 April 2010 the applicant ’ s detention was extended again until 4 August 2010.", "22. On 1 July 2010 the “Tiraspol People ’ s Court” convicted the applicant under Article 158-1 of the “MRT Criminal Code” of defrauding two companies, and sentenced him to seven years ’ imprisonment, suspended for five years. It ordered the confiscation of the money in his and his girlfriend ’ s bank accounts and of his personal car, which totalled the equivalent of approximately USD 16,000, and additionally ordered him to pay the two companies the equivalent of approximately USD 26,400. It also released him subject to an undertaking not to leave the city. No appeal was lodged against that decision. According to the applicant, in order to pay a part of the damages his parents sold his flat and paid USD 40,000 to the companies.", "23. On an unknown date shortly after 1 July 2010 the applicant left for treatment in Chișinău. In 2011 he arrived in Switzerland.", "24. On 25 January 2013 the “Tiraspol People ’ s Court” amended the judgment in the light of certain changes to the “MRT Criminal Code” providing for a more lenient punishment for the crime of which the applicant had been convicted. He was thus sentenced to six years and six months ’ imprisonment, suspended for a period of five years.", "25. By a final decision of 15 February 2013, the same court replaced the suspended sentence owing to the applicant ’ s failure to appear before the probation authorities, and ordered that the prison sentence be served in full.", "26. Following a request from the applicant ’ s lawyer of 12 October 2012, on 22 January 2013 the Supreme Court of Justice of the Republic of Moldova quashed the judgment of the “Tiraspol People ’ s Court” of 1 July 2010. With reference to Articles 114 and 115 of the Constitution and section 1 of the Law on the status of judges (see paragraphs 69 - 70 below), the court found that the courts established in the “MRT” had not been created in accordance with the Moldovan legislation and could not therefore lawfully convict the applicant. It ordered the materials in the criminal file to be forwarded to the prosecutor ’ s office with a view to prosecuting the persons responsible for the applicant ’ s detention and also to determining whether the applicant had breached the rights of other persons.", "27. On 31 May 2013 the Prosecutor General ’ s Office of the Republic of Moldova informed the applicant ’ s lawyer that it had initiated a criminal investigation into his unlawful detention. Within that investigation, “all possible procedural measures and actions [were] planned and carried out”. No further progress could be achieved owing to the impossibility of carrying out procedural steps on the territory of the self-proclaimed “MRT”.", "B. The applicant ’ s conditions of detention and medical treatment", "28. The applicant ’ s medical condition (bronchial asthma, an illness which he has had since childhood) worsened while in prison, and he suffered several asthma attacks. He was often moved from one temporary detention facility (IVS) to another (such as the IVS at Tiraspol police headquarters and the IVS in Slobozia, as well as colony no. 3 in Tiraspol and the IVS in Hlinaia), all of which allegedly provided inadequate conditions of detention.", "29. The applicant described the conditions at Tiraspol police headquarters as follows. There was high humidity, no working ventilation and a lack of access to natural light (since the detention facility was in the basement of the building), while the windows were covered with metal sheets with small holes in them. The cell was overcrowded (he was held in a 15 sq. m cell together with twelve other people). They had to take turns to sleep on the single large wooden platform, which was not covered. The applicant was allowed fifteen minutes of exercise daily, spending the remainder of the time in the cell. Many of the detainees smoked in the cell, which contributed to his asthma attacks. The metal truck he was transported in when being brought before the investigator was suffocating, and he was placed in a cell without a toilet for hours on end (while waiting to be interviewed by the investigator) and suffered numerous asthma attacks. Laundry could only be done in the cells, where wet clothes would also be hung out to dry. The food was scarce and inedible. The cells were full of parasites. There were no hygiene products except for those brought in by detainees ’ relatives. For several months the applicant was detained in a cell which became very hot in summer, causing him to suffer more asthma attacks.", "30. The applicant described in a similar manner the conditions of his detention in the Slobozia detention facility, where there were no hygiene products at all, he was transported in a crammed and unventilated truck, and was fully reliant on his parents for any sort of medication.", "31. As for colony no. 3 in Tiraspol, the applicant again noted the insufficient medical treatment, overcrowding (with one hour ’ s exercise per day, the remaining time being spent in the cell) and a lack of ventilation coupled with the heavy smoking of his cellmates. The food was inedible, full of worms and made from rotten produce. In the winter the heating was on for only a few hours a day and, as at the Tiraspol police headquarters, the detainees were allowed to shower only once a week (all the detainees in his cell had a combined total of twenty minutes in which to take a shower with cold water).", "32. In the IVS in Hlinaia the applicant was again placed in an overcrowded cell and received virtually no medical assistance.", "33. During his detention the applicant often complained about his medical condition and asked for medical assistance. His parents requested on many occasions that their son be seen by a lung specialist. On 12 March 2009 he was eventually seen and various tests were carried out. He was diagnosed with unstable bronchial asthma and prescribed treatment.", "34. In May 2009 the applicant was transferred to the Medical Assistance and Social Rehabilitation Centre of the “MRT Ministry of Justice” (“the Centre”). Doctors there confirmed his previous diagnosis and the fact that he suffered frequent asthma attacks and had second and third degree respiratory insufficiency, and that his medical condition was continuing to get worse. On 7 May 2009 the Centre informed the applicant ’ s relatives that it had neither a lung specialist nor the required laboratory equipment to treat the applicant properly. The doctors added that he needed to be transferred to the respiratory medicine department of the Republican Clinical Hospital, but that this would be impossible to arrange because the hospital was short ‑ staffed and had no one to guard the applicant during his stay.", "35. On an unknown date in 2009 the applicant ’ s mother asked for the applicant to be transferred to a specialist hospital, as bronchial asthma was one of the illnesses listed by the “MRT Ministry of the Interior” as a reason warranting a transfer to hospital. In its reply of 1 June 2009, the “MRT Ministry of the Interior” informed her that only convicted prisoners could be transferred to hospital on those grounds.", "36. On 21 September 2009 the Centre informed the applicant ’ s parents that since May 2009 their son had continued to be treated on an in-patient basis, but that his medical condition was continuing to get worse, with no visible improvement as a result of treatment.", "37. On 15 February 2010 a medical panel composed of four senior “MRT” doctors established as follows.", "“Despite the repeated treatment given, the respiratory dysfunction continues to increase and treatment is having no noticeable effect. A continuing downward trend is observed, with an increase in the frequency of asthma attacks and difficulty in stopping them.”", "In addition to the initial diagnosis of bronchial asthma and respiratory insufficiency, the panel found that the applicant had second degree post ‑ traumatic encephalopathy. It concluded that", "“[t]he [applicant ’ s] life expectancy/prognosis is not favourable. His continued detention in the conditions of [pre-trial detention centres] appears problematic owing to the absence of laboratory equipment and specially qualified medical staff at [the Centre] for the purposes of carrying out the required treatment and its monitoring.”", "38. Despite the panel ’ s findings, the applicant was transferred on the same day to the IVS in Hlinaia, which, as stated by the applicant and not contradicted by the respondent Governments, was less well equipped than the Centre. On 16 February 2010 the applicant ’ s mother was allowed to see him. He told her about his poor conditions of detention (lack of ventilation, heavy smoking by detainees, overcrowding) and said that he had already had two asthma attacks that day. The applicant ’ s mother was told by the prison staff that she had to bring her son the medication he required since there was none available in the prison.", "39. On 18 February 2010 the applicant ’ s mother asked the “MRT President” for the applicant to be transferred as a matter of urgency to a specialist hospital and for his release from detention pending trial in order to obtain the treatment he required. On 20 February 2010 she received a reply saying that her complaint had not disclosed any breach of the law.", "40. On an unknown date after 18 February 2010, the applicant was transferred to Prison no. 1 in Tiraspol. On 17 March 2010 he was again admitted to the Centre for in-patient treatment.", "41. In a letter to the applicant ’ s lawyer of 11 June 2010, the Centre ’ s director stated that, in addition to the applicant ’ s main diagnosis of asthma, he was also found to have terminal respiratory insufficiency, symptoms of a head injury with localised areas of brain damage, the first signs of hypertonic disease, an allergy in his lungs making treatment and the ability to stop his asthma attacks more difficult, post-traumatic encephalopathy, arterial hypertension, toxoplasmosis, giardiasis (a parasite), chronic gastroduodenitis, pancreatitis and pyelonephritis. His prognosis was worsening.", "42. In a number of replies to complaints by the applicant ’ s parents, the “MRT” authorities informed them that the applicant was seen regularly by various doctors. After his transfer from the Centre to the IVS in Hlinaia on 15 February 2010, his state of health had deteriorated and on 17 March 2010 he had been immediately transferred to the Centre for treatment.", "43. According to the applicant, his state of health improved after his release and the treatment he received in Chișinău. However, because he feared re-arrest by “MRT militia”, he fled to Switzerland and applied for asylum there (see paragraph 23 above).", "C. The applicant ’ s visits with his parents and his pastor", "44. From November 2008 until May 2009 the applicant was not allowed to see his parents, despite repeated requests (for instance on 5 March and 13, 16 and 30 April 2009). The first authorised visit took place six months after the applicant ’ s arrest, on 4 May 2009. On 9 December 2009 a judge of the “Tiraspol People ’ s Court” refused to allow a further visit because examination of the case was pending. Another request for a visit was refused on 15 February 2010. On 16 February 2010 a visit was authorised, but the applicant and his mother had to talk to each other in the presence of a prison guard. They were not allowed to speak their own language (German) and were made to speak Russian or risk the guard calling off the visit.", "45. In June and September 2009 pastor Per Bergene Holm from Norway attempted to visit the applicant at the latter ’ s request in order to provide him with religious services, including “listening to [the applicant ’ s] confession and giving him the sacraments”. He was denied access to the applicant, a refusal which he subsequently confirmed in a letter to the Court dated 29 September 2010. On 30 September 2009 an “MRT presidential adviser” acknowledged that there was no reason to refuse the pastor access and that such a refusal was incompatible with the “MRT Constitution and laws”. The pastor was finally allowed to see the applicant on 1 February 2010. As stated by the applicant and not disputed by the Governments, a guard remained in the room throughout the visit.", "D. Complaints to various authorities", "46. The applicant ’ s parents made several complaints to the Moldovan authorities and the Russian embassy in Moldova concerning their son ’ s situation.", "47. On 12 October 2009 the Centre for Human Rights of Moldova (the Moldovan Ombudsman) replied that it had no means of monitoring the applicant ’ s case.", "48. On 3 November 2009 the Moldovan Prosecutor General ’ s Office informed the applicant ’ s parents that it could not intervene owing to the political situation in the Transdniestrian region since 1992. It also referred to Moldova ’ s reservations in respect of its ability to ensure observance of the Convention in the eastern regions of Moldova.", "49. A complaint made on an unknown date to the Russian embassy in Moldova was forwarded to the “MRT prosecutor ’ s office”. The latter replied on 1 February 2010, saying that the applicant ’ s case was pending before the “MRT courts”, which alone were competent to deal with any complaints after the case had been submitted to the trial court. On 10 February 2010 the Russian embassy forwarded that reply to the applicant ’ s mother.", "50. The applicant also complained to the Joint Control Commission, a trilateral peacekeeping force operating in a demilitarised buffer zone on the border between Moldova and Transdniestria known as the “Security Area”. For further details, see Ilaşcu and Others (cited above, § 90). It is unclear whether he obtained any response.", "51. After notice of the present application had been given to the respondent Governments, the Moldovan Deputy Prime Minister wrote on 9 March 2010 to the Russian, Ukrainian and US ambassadors to Moldova, as well as to the Council of Europe, the European Union and the Organization for Security and Co-operation in Europe (OSCE), asking them to assist in securing the applicant ’ s rights.", "52. On 16 July 2010 the applicant asked the Moldovan Prosecutor General ’ s Office to provide witness protection to him and his parents, since the “MRT militia” had been looking for him at his home in Tiraspol while he was in hospital in Chișinău. On the same day the applicant was officially recognised as a victim. However, on 19 July 2010 the Bender prosecutor ’ s office refused his request to be provided with witness protection, since it had not been established that his life or health were at risk.", "53. On 6 August 2010, following a complaint by the applicant, the investigating judge of the Bender District Court in Moldova set aside the decision of 19 July 2010 on the grounds that the applicant had been unlawfully arrested and convicted and had had his property taken away from him. He ordered the Bender prosecutor ’ s office to provide witness protection to the applicant and his family. The parties did not inform the Court of any further developments in this regard.", "E. Information concerning alleged Russian support for the “MRT”", "54. The applicant submitted reports from various “MRT” media outlets. According to an article dated 13 April 2007 from Regnum, one of the leading Russian online news agencies at the relevant time, the Russian ambassador to Moldova had given a speech in Tiraspol the previous day in which he declared that Russia would continue its support for the “MRT” and would never give up its interests there. The diplomat added that “Russia has been here for more than a century. Our ancestors ’ remains are buried here. A major part of our history is situated here”.", "55. On 20 April 2007 the same news agency informed the public of a decision by the Russian Ministry of Finance to give the “MRT” USD 50 million in non-reimbursable aid, as well as USD 150 million in loans secured on “MRT” property.", "56. In a news report dated 23 November 2006, the Regnum news agency reported a statement by the “MRT President” to the effect that each “MRT Ministry” was working on harmonising the legislation of the “MRT” with that of Russia, and that a group of representatives of “MRT Ministries” was to travel to Moscow within the next few days to discuss the matter.", "57. According to the Moldovan Government, “the last and non-significant” withdrawal of armaments from the “MRT” to Russia took place on 25 March 2004. Almost twenty thousand tonnes of ammunition and military equipment are purportedly still stored on the territory controlled by the “MRT”. On 26 January 2011 Russian and Ukrainian officials were able to visit the Colbasna arms depot, while Moldovan officials were neither informed of nor invited to participate in the visit.", "58. In February 2011 the Russian ambassador to Moldova declared, inter alia, in public speeches that since 2003, when Moldova had refused to sign a settlement agreement with the “MRT” (the so-called “Kozak Memorandum”), Russia had no longer been able to withdraw arms from the “MRT” owing to the latter ’ s resistance.", "59. According to the Moldovan Government, Tiraspol Airport, which was officially closed down by the Russian authorities on 1 December 2005, continues to serve “MRT” military and civilian helicopters and aircraft. Russian military planes and helicopters are still parked there. Between 2004 and 2009, over eighty flights from that airport which were not authorised by the Moldovan authorities were recorded, some of which appear to have been bound for Russia.", "60. According to the Moldovan Government, the “MRT” received a total of USD 20.64 million in Russian aid in 2011, in the form of either the waiving of debts for natural gas consumed or of non-refundable loans. During 2010 the “MRT” consumed natural gas from Russia to a value of USD 505 million. It paid the Russian company Gazprom USD 20 million, about 4% of the price for that gas. At the same time, the local population paid the “MRT” authorities approximately USD 163 million for gas in 2010, a sum which remained largely at the disposal of the “MRT”." ]

[ "II. RELEVANT REPORTS OF INTER-GOVERNMENTAL AND NON ‑ GOVERNMENTAL ORGANISATIONS", "A. The United Nations", "61. The relevant parts of the Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, concerning his visit to the Republic of Moldova from 4 to 11 July 2008 (UN Human Rights Council, 12 February 2009, UN Doc. A/HRC/10/44/Add.3), read as follows.", "“ Transnistrian region of the Republic of Moldova", "...", "29. The Special Rapporteur also received information that in the Transnistrian region of the Republic of Moldova transfers of prisoners are conducted by the police. Prisoners are packed on top of each other in a metal wagon with only one tiny window. In the summer the heat in the wagon becomes unbearable after a few minutes but they have to stay inside for hours. Different categories of prisoners are mixed during these transports (adults, minors, sick, including those with open tuberculosis), which puts the prisoners at risk of contamination with diseases.", "...", "45. According to several of his interlocutors, including detainees, progress has been made with improving conditions in the penitentiary system, e.g. functioning heating, food quality improved, HIV treatment in prisons commenced in September 2007. However, complaints about the poor quality and sometimes lack of food were common. The Special Rapporteur also received reports that international programmes are often not extended into the Transnistrian region of the Republic of Moldova, which means less out-reach in terms of health care and problems in particular with regard to tuberculosis treatment and a higher percentage of persons sick with tuberculosis and HIV.", "46. The Special Rapporteur is concerned that many human rights violations flow from the legislation in force, which, for instance, requires solitary confinement for persons sentenced to capital punishment and to life imprisonment and which prescribes draconic restrictions on contacts with the outside world.", "47. Conditions in custody of the militia headquarters in Tiraspol were clearly in violation of minimum international standards. The Special Rapporteur considers that detention in the overcrowded cells with few sleeping facilities, almost no daylight and ventilation, 24 hours artificial light, restricted access to food and very poor sanitary facilities amounts to inhuman treatment.”", "62. The relevant parts of the “Report on Human Rights in the Transnistrian Region of the Republic of Moldova” (by UN Senior Expert Thomas Hammarberg, 14 February 2013) read as follows.", "“... the de facto authorities in Transnistria have ... pledged unilaterally to respect some of the key international treaties, including the two UN Covenants on human rights, the European Convention on Human Rights and the Convention on the Rights of the Child.” (p. 4)", "“The changes of the role of the Prosecutor and the creation of the Investigation Committee would have an impact on the functioning of the judiciary as well. If correctly implemented, it would be clear that the Prosecutor would not have an oversight or supervisory role in relation to the functioning of the courts.” (p. 17)", "“The Expert was confronted with many and fairly consistent complaints against the functioning of the justice system. One was that the accusations in a number of cases were ‘ fabricated ’; that procedures were used to intimidate persons; that the defence lawyers were passive; that people with money or contacts had an upper-hand compared to ordinary people; and that witnesses changed their statements because of threats or bribery – and that such tendencies sabotaged the proceedings.", "It is very difficult for an outsider to assess the basis for such accusations but some factors made the Expert reluctant to ignore them. They were strikingly frequent and even alluded to by a few high level actors in the system.” (p. 18)", "“ Comments", "Building a competent, non-corrupt and independent judiciary is a huge challenge in any system. However, it is an indispensable human right to have access to independent and impartial tribunals.", "The Transnistrian Constitution states that judges cannot be members of political parties or take part in political activities. It is as important that the judiciary avoids close relationships with big business or organized partisan interests.", "The procedures for the recruitment of judges should be impartial and reward professional skills and high moral standards. Corrupt behaviour and other breaches of trust should be investigated and punished through a credible and competent disciplinary mechanism. A reasonable salary level will also counter temptations of accepting bribes.", "The judge has a crucial role in protecting the principle of ‘ equality of arms ’. The Expert heard complaints that the defence in general was disadvantaged in comparison with the prosecution. Such perceptions undermine the credibility of the system and the sense of justice in general.", "The prestige of judges in society will of course depend largely on their competence, their knowledge of the laws and the case law as well as familiarity with problems in society. Update training is one way of meeting this need.", "Special training is needed for those judges involved in juvenile justice matters.", "The United Nations adopted a set of basic principles on the Independence of the Judiciary, which were unanimously endorsed by the General Assembly in [1985]. These principles, representing universally accepted views on this matter by the UN Member States, set out parameters to ensure independence and impartiality of the judges, condition of service and tenure, freedoms of expression and association and modalities for qualification, selection and trainings. [Office of the UN High Commissioner for Human Rights] and the International Bar Association have jointly developed extensive guidance material on human rights in the administration of justice, which might also be used for the training of legal professionals working in the Transnistrian region.", "The Expert considers that an evaluation ought to be undertaken on the present situation with regard to minors in detention, including, inter alia, their length of stay, their individual background as well as efforts to assist their reintegration in society.", "Such survey could serve as a background to a review of the whole approach to juvenile crime. The Expert feels that there is an acute need to develop preventive programmes and alternatives to institutional punishment.", "...", "The Expert was informed that there were, as of October 1, 2 858 inmates in these institutions, of whom 2 224 were convicted and 634 held on remand. This means that there are approximately 500 prisoners per every 100 000 persons, one of the highest figures in Europe.", "The number had gone down during 2012 from an even higher figure as a consequence of releases through reduction of sentences and pardons granted to a considerable number of prisoners.", "Furthermore, the Code of Criminal Procedure was amended in the autumn in order to reduce the number of persons kept on remand during investigations. Another amendment opened for alternatives to imprisonment, such as fines or controlled, non ‑ penitentiary community work, for the less serious crimes.", "Detention on remand", "When the Expert visited the remand facility in prison no. 3 in Tiraspol, there were 344 detainees kept there. Some were under investigation before trial. Others had been charged and were defendants at court proceedings. Still others had appealed a sentence in the first instance.", "None of these three categories had an unconditional right to receive visitors. The reason given was that visits might disturb the investigations. However, relatives may on request get permission from the investigator or the judge to pay a visit, though not in private.", "...", "The Expert talked with inmates who had been kept on remand longer than 18 months. One woman who had appealed an original sentence had been detained for four years. Her two small children had been taken to a children ’ s home and she had not been able to see them for the entire period of her detention.", "The Expert was told that the total detention period before and during a trial could be as long as seven years.", "...", "Penitentiary facilities in Tiraspol and Glinnoe", "The Expert visited the colony in Tiraspol (prison no. 2) in May and the one in Glinnoe (prison no. 1) in September. The former had at the time 1 187 inmates, of whom 170 were under strict special regime. The average sentence was 13 years, the Expert was told. Terms of 22-25 years are being served for murder, repeat offences and trafficking crimes.", "In Glinnoe, the Expert was told that there were 693 convicted prisoners; the number had gone down as a consequence of the recent revision of the Criminal Code. The Expert was told that the average sentence was 5 years though many prisoners had sentences of between 10 and 15 years.", "...", "The possibility of visits by relatives was limited. In Tiraspol no. 2, the basic rule was to allow visits four times a year, two short and two longer. Phone calls were allowed for 15 minutes once a month – with supervision except for discussions with the lawyer.", "Both visits and phone calls could be reduced as a method of disciplinary sanction. Such measures were taken in cases of infringements such as possessing alcohol or having a mobile telephone. Disciplinary measures could also include solitary confinement of up to 15 days.", "...", "Health situation in prisons", "Health service in the penitentiary institutions is also under the authority of the Transnistrian Ministry of Justice; doctors and nurses there are seen as part of the prison staff. The resources are limited and the Expert found the health situation, in particular in the Glinnoe prison, to be alarming and the care services substandard. There is limited communication with the civilian health system which results in low coverage with testing and treatment.", "...", "Few human resources and limited capacities of existing medical personnel create barriers to enjoying access to quality medical services in penitentiaries. The standard of health care in the Glinnoe prison appeared to the Expert to be especially bad on all accounts, including on record keeping and preventive measures such as diet control. There, the complaints about the quality of the food were particularly bitter.” (pp. 19 ‑ 23)", "B. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)", "63. In the report on its visit to Moldova between 21 and 27 July 2010 (CPT/Inf (2011) 8) the CPT stated that, following the refusal of the “MRT” authorities to allow members of the Committee to meet in private with detainees, the CPT had decided to call off its visit because a limitation of this kind ran counter to the fundamental characteristics of the prevention mechanism enshrined in its mandate.", "64. The relevant parts of the report of the CPT on its visit to Moldova between 27 and 30 November 2000 (CPT/Inf (2002) 35) read as follows.", "“40. At the outset of the visit, the authorities of the Transnistrian region provided the delegation with detailed information on the five penitentiary establishments currently in service in the region.", "In the time available, the delegation was not in a position to make a thorough examination of the whole of the penitentiary system. However, it was able to make an assessment of the treatment of persons deprived of their liberty in Prison No. 1, at Glinoe, Colony No. 2, at Tiraspol, and the SIZO (i.e. pre-trial) section of Colony No. 3, again at Tiraspol.", "41. As the authorities are certainly already aware, the situation in the establishments visited by the delegation leaves a great deal to be desired, in particular in Prison No. 1. The CPT will examine various specific areas of concern in subsequent sections of this report. However, at the outset, the Committee wishes to highlight what is perhaps the principal obstacle to progress, namely the high number of persons who are imprisoned and the resultant overcrowding.", "42. According to the information provided by the authorities, there are approximately 3,500 prisoners in the region ’ s penitentiary establishments i.e. an incarceration rate of some 450 persons per 100,000 of the population. The number of inmates in the three establishments visited was within or, in the case of Prison No 1, just slightly over their official capacities. Nevertheless, the delegation found that in fact the establishments were severely overcrowded.", "The situation was at its most serious in Prison No 1. The cells for pre-trial prisoners offered rarely more – and sometimes less – than 1 m² of living space per prisoner, and the number of prisoners often exceeded the number of beds. These deplorable conditions were frequently made worse by poor ventilation, insufficient access to natural light and inadequate sanitary facilities. Similar, albeit slightly better, conditions were also observed in the Sizo section of Colony No. 3 and in certain parts of Colony No. 2 (for example, Block 10).", "43. An incarceration rate of the magnitude which presently prevails in the Transnistrian region cannot be convincingly explained away by a high crime rate; the general outlook of members of the law enforcement agencies, prosecutors and judges must, in part, be responsible for the situation. At the same time, it is unrealistic from an economic standpoint to offer decent conditions of detention to such vast numbers of prisoners; to attempt to solve the problem by building more penitentiary establishments would be a ruinous exercise.", "The CPT has already stressed the need to review current law and practice relating to custody pending trial ... More generally, the Committee recommends that an overall strategy be developed for combating prison overcrowding and reducing the size of the prison population. In this context, the authorities will find useful guidance in the principles and measures set out in Recommendation No R (99) 22 of the Committee of Ministers of the Council of Europe, concerning prison overcrowding and prison population inflation ...", "...", "48. The CPT recognises that in periods of economic difficulties, sacrifices may have to be made, including in penitentiary establishments. However, regardless of the difficulties faced at any given time, the act of depriving a person of his liberty always entails a duty to ensure that that person has access to certain basic necessities. Those basic necessities include appropriate medication. Compliance with this duty by public authorities is all the more imperative when it is a question of medication required to treat a life-threatening disease such as tuberculosis.", "At the end of the visit, the CPT ’ s delegation requested the authorities to take steps without delay to ensure that all penitentiary establishments are supplied on a regular basis with medicines of various types and, in particular, with a suitable range of anti ‑ tuberculosis drugs. The CPT wishes to be informed of the action taken in response to that request.", "...", "49. Official health-care staffing levels in the penitentiary establishments visited were rather low and, at the time of the visit, this situation was exacerbated by the fact that certain posts were vacant or staff members on long-term leave had not been replaced. This was particularly the case at Prison No 1 and Colony No 2. The CPT recommends that the authorities strive to fill as soon as possible all vacant posts in the health-care services of those two establishments and to replace staff members who are on leave.", "The health-care services of all three penitentiary establishments visited had very few medicines at their disposal, and their facilities were modestly equipped. The question of the supply of medicines has already been addressed (cf. paragraph 48). As regards the level of equipment, the CPT appreciates that the existing situation is a reflection of the difficulties facing the region; it would be unrealistic to expect significant improvements at the present time. However, it should be possible to maintain all existing equipment in working order. In this context, the delegation noted that all the radiography machines in the establishments visited were out of use. The CPT recommends that this deficiency be remedied.", "On a more positive note, the CPT was very interested to learn of the authorities ’ plans for a new prison hospital, with a region-wide vocation, at Malaieşti. This is a most welcome development. The Committee would like to receive further details concerning the implementation of those plans.", "...", "51. The CPT has already highlighted the poor material conditions of detention which prevailed in the establishments visited and has made recommendations designed to address the fundamental problem of overcrowding (cf. paragraphs 42 and 43).", "In addition to overcrowding, the CPT is very concerned by the practice of covering cell windows. This practice appeared to be systematic vis-à-vis remand prisoners, and was also observed in cells accommodating certain categories of sentenced prisoners. The Committee recognises that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners. However, the imposition of such security measures should be the exception rather than the rule. Further, even when specific security measures are required, such measures should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy; moreover, the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis.", "It is also inadmissible for cells to accommodate more prisoners than the number of beds available, thereby compelling prisoners to sleep in shifts.", "Consequently, the CPT recommends that the authorities set the following as short-term objectives:", "i) all prisoner accommodation to have access to natural light and adequate ventilation;", "ii) every prisoner, whether sentenced or on remand, to have his/her own bed.", "Further, as measures to tackle overcrowding begin to take effect, the existing standards concerning living space per prisoner should be revised upwards. The CPT recommends that the authorities set, as a medium-term objective, meeting the standard of 4m² of floor space per prisoner.", "52. As the delegation pointed out at the end of its visit, material conditions of detention were particularly bad at Prison No 1 in Glinoe. The CPT appreciates that under the present circumstances, the authorities have no choice but to keep this establishment in service. However, the premises of Prison No 1 belong to a previous age; they should cease to be used for penitentiary purposes at the earliest opportunity. ”", "C. Organization for Security and Co-operation in Europe (OSCE)", "65. In its Annual Report for 2005, the OSCE referred to events in Transdniestria as follows.", "“The Mission concentrated its efforts on restarting the political settlement negotiations, stalled since summer 2004. The mediators from the Russian Federation, Ukraine, and the OSCE held consultations with representatives from Chisinau and Tiraspol in January, May and September. At the May meeting, Ukraine introduced President Victor Yushchenko ’ s settlement plan, Toward a Settlement through Democratization. This initiative envisages democratization of the Transdniestrian region through internationally conducted elections to the regional legislative body, along with steps to promote demilitarization, transparency and increased confidence.", "In July, the Moldovan Parliament, citing the Ukrainian Plan, adopted a law On the Basic Principles of a Special Legal Status of Transdniestria. During consultations in September in Odessa, Chisinau and Tiraspol agreed to invite the EU and US to participate as observers in the negotiations. Formal negotiations resumed in an enlarged format in October after a 15-month break and continued in December following the OSCE Ministerial Council in Ljubljana. On 15 December, the Presidents of Ukraine and the Russian Federation, Victor Yushchenko and Vladimir Putin, issued a Joint Statement welcoming the resumption of negotiations on the settlement of the Transdniestrian conflict.", "In September, Presidents Voronin and Yushchenko jointly requested the OSCE Chairman-in-Office to consider sending an International Assessment Mission (IAM) to analyse democratic conditions in Transdniestria and necessary steps for conducting democratic elections in the region. In parallel, the OSCE Mission conducted technical consultations and analyses on basic requirements for democratic elections in the Transdniestrian region, as proposed in the Yushchenko Plan. At the October negotiating round, the OSCE Chairmanship was asked to continue consultations on the possibility of organizing an IAM to the Transdniestrian region.", "Together with military experts from the Russian Federation and Ukraine, the OSCE Mission completed development of a package of proposed confidence- and security ‑ building measures, which were presented by the three mediators in July. The Mission subsequently began consultations on the package with representatives of Chisinau and Tiraspol. The October negotiating round welcomed possible progress on enhancing transparency through a mutual exchange of military data, as envisaged in elements of this package.”", "On the question of Russian military withdrawal, the OSCE observed:", "“There were no withdrawals of Russian arms and equipment from the Transdniestrian region during 2005. Roughly 20,000 metric tons of ammunition remain to be removed. The commander of the Operative Group of Russian Forces reported in May that surplus stocks of 40,000 small arms and light weapons stored by Russian forces in the Transdniestrian region have been destroyed. The OSCE has not been allowed to verify these claims.”", "In its Annual Report for 2006 the OSCE reported as follows:", "“... The 17 September ‘ independence ’ referendum and the 10 December ‘ presidential ’ elections in Transnistria – neither one recognized nor monitored by the OSCE – shaped the political environment of this work ...", "To spur on the settlement talks, the Mission drafted in early 2006 documents that suggested: a possible delimitation of competencies between central and regional authorities; a mechanism for monitoring factories in the Transnistrian military ‑ industrial complex; a plan for the exchange of military data; and an assessment mission to evaluate conditions and make recommendations for democratic elections in Transnistria. The Transnistrian side, however, refused to continue negotiations after the March introduction of new customs rules for Transnistrian exports, and thus no progress could be made including on these projects. Attempts to unblock this stalemate through consultations among the mediators (OSCE, Russian Federation and Ukraine) and the observers (European Union and the United States of America) in April, May and November and consultations of the mediators and observers with each of the sides separately in October were to no avail.", "...", "On 13 November, a group of 30 OSCE Heads of Delegations, along with OSCE Mission members, gained access for the first time since March 2004 to the Russian Federation ammunition depot in Colbasna, near the Moldovan-Ukrainian border in northern Transnistria. There were no withdrawals, however, of Russian ammunition or equipment from Transnistria during 2006, and more than 21,000 tons of ammunition remain stored in the region. ...”", "The Annual Report for 2007 stated:", "“The mediators in the Transnistrian settlement process, the Russian Federation, Ukraine and the OSCE, and the observers, the European Union and the United States, met four times. The mediators and observers met informally with the Moldovan and Transnistrian sides once, in October. All meetings concentrated on finding ways to restart formal settlement negotiations, which have nonetheless failed to resume.", "...", "The Mission witnessed that there were no withdrawals of Russian ammunition or equipment during 2007. The Voluntary Fund retains sufficient resources to complete the withdrawal tasks.”", "In its Annual Report for 2008 the OSCE observed:", "“Moldovan President Vladimir Voronin and Transnistrian leader Igor Smirnov met in April for the first time in seven years and followed up with another meeting on 24 December. Mediators from the OSCE, Russian Federation and Ukraine and observers from the European Union and the United States met five times. Informal meetings of the sides with mediators and observers took place five times. These and additional shuttle diplomacy efforts by the Mission notwithstanding, formal negotiations in the ‘ 5+2 ’ format were not resumed.", "...", "There were no withdrawals of Russian ammunition or equipment from the Transnistrian region during 2008. The Voluntary Fund retains sufficient resources to complete withdrawal tasks.”", "In its Annual Report for 2009 the OSCE observed:", "“ Withdrawal of Russian ammunition and equipment. The Mission maintained its readiness to assist the Russian Federation to fulfil its commitment to withdraw ammunition and equipment from Transdniestria. No withdrawals took place in 2009. The Voluntary Fund retains sufficient resources to complete withdrawal tasks. ”", "Subsequent OSCE reports describe the confidence-building measures taken and note the various meetings between those involved in the negotiations concerning the settlement of the Transdniestrian conflict. They do not contain any reference to the withdrawal of troops from the “MRT”.", "D. Other materials from international organisations", "66. In Catan and Others (cited above, §§ 64-73 ) the Court summarised the content of various reports by intergovernmental and non-governmental organisations concerning the situation in the Transdniestrian region of Moldova and the Russian military personnel and equipment stationed there during 2003 and 2009. It also summarised the relevant provisions of international law (ibid., §§ 74-76).", "67. In paragraph 18 of Resolution 1896 (2012) on the honouring of obligations and commitments by the Russian Federation, the Parliamentary Assembly of the Council of Europe noted as follows:", "“The opening of polling stations in Abkhazia (Georgia), South Ossetia (Georgia) and Transnistria (Republic of Moldova) without the explicit consent of the de jure authorities in Tbilisi and Chişinău, as well as the prior ‘ passportisation ’ of populations in these territories, violated the territorial integrity of these States, as recognised by the international community, including the Parliamentary Assembly.”", "68. On 10 May 2010 the International Committee of the Red Cross (ICRC) replied to a letter from the Permanent Mission of the Republic of Moldova concerning the applicant ’ s case, stating that an ICRC delegate and a doctor had seen the applicant on 29 April 2010. During their visit, they had met with the applicant in private and had been told that he had regular contact with his family and could receive parcels from them.", "III. RELEVANT DOMESTIC LAW AND PRACTICE OF THE REPUBLIC OF MOLDOVA", "69. The relevant provisions of the Constitution read as follows.", "Article 114 Administration of justice", "“Justice shall be administered in the name of the law only by the courts of law.”", "Article 115 Courts of law", "“1. Justice shall be administered by the Supreme Court of Justice, the courts of appeal and the courts of law.", "2. For certain categories of cases special law courts may operate under the law.", "3. The setting up of extraordinary courts shall be forbidden.", "4. The structure of the law courts, their sphere of competence and legal procedures shall be laid down by organic law.”", "70. Section 1 of the Law on the status of judges (no. 544, 20 July 1995, as in force at the time of the events) reads as follows.", "Section 1 Judges – bearers of judicial authority", "“(1) Judicial authority shall be exercised only by the courts, in the person of the judge, who shall be the sole bearer of such authority.", "(2) Judges shall be the persons constitutionally vested with judicial duties, which they shall exercise in accordance with the law.", "(3) Judges of the courts shall be independent, impartial and immovable, and shall obey only the law.", "...”", "71. Under Annexes 2 and 3 to the Law on judicial organisation (no. 514, 6 July 1995, as in force at the time of the events), six first-instance courts and one second-instance court (the Bender Court of Appeal), empowered to examine cases originating from the various settlements on the territory controlled by the “MRT” were created. On 16 July 2014 Parliament decided to close down the Bender Court of Appeal because it was examining a considerably smaller number of cases than the other Courts of Appeal. The judges working there were transferred to other Courts of Appeal, while the cases on its docket were transferred to the Chișinău Court of Appeal.", "72. In accordance with section 1 of the Law on compensation for damage caused by illegal acts of the criminal investigation bodies, the prosecution authorities or the courts (no. 1545, 25 February 1998), compensation may be sought in court where damage is caused by the unlawful actions of the criminal investigation bodies, the prosecution authorities or the courts within the framework of criminal or administrative-contravention proceedings.", "73. The Moldovan Government submitted examples of past rulings by the Moldovan Supreme Court of Justice similar to the decision of 22 January 2013 (see paragraph 26 above), in which that court quashed convictions imposed by various “MRT courts” on the grounds that they had been handed down by unlawfully created courts. They also referred to the cases of Topa v. Moldova ((dec.), no. 25451/08, 14 September 2010), Mătăsaru and Savițchi v. Moldova (no. 38281/08, §§ 60-76, 2 November 2010) and Bisir and Tulus v. Moldova (no. 42973/05, §§ 21 et seq., 17 May 2011) in support of their assertion that compensation for wrongful prosecution or conviction could be claimed under Law no. 1545 (1998).", "IV. OTHER RELEVANT MATERIALS", "74. On 19 May 2009 the press office of the “MRT prosecutor” published a report according to which a visit to the detention facilities in the Slobozia region of the “MRT” had revealed multiple regulatory breaches regarding hygiene, the physical conditions of detention and medical assistance.", "75. The applicant submitted copies of decisions of the “Tiraspol City Court” of 14 April 2009, 11 June 2010, 1 April 2011, 25 February 2012 and 18 November 2013 in cases not related to the present one, ordering the detention pending trial of persons accused of various crimes. None of these decisions specified the period of detention of the persons concerned.", "76. He also submitted the text of several provisions of the “MRT Code of Criminal Procedure”. According to Article 79, detention pending trial cannot exceed two months. If the investigation cannot be completed in that period, it may be extended by the court. Under Article 78, paragraph 15, a person accused of serious and extremely serious offences may be detained pending trial on the basis of the severity of the crime alone. Under Articles 212-1 and 212-2, the duration of detention of a person whose case is being examined by the trial court cannot exceed six months initially, but may be extended by the court. According to the applicant, the practice of the “MRT courts” is that, once a case has been submitted to the trial court, no further extension of the period of detention pending trial is required during the first six months of such detention.", "77. The applicant also submitted various news reports from the media published on the territory controlled by the “MRT” regarding the judiciary system in the region. Some of these reports refer to politically motivated persecution using the “courts” as a means of exerting pressure, or allege that the “MRT Supreme Court” is a “puppet court” of the “MRT President”. Others mention the appointment of new judges to the “MRT courts”, referring to the freshly appointed “judges” as having barely any experience, and citing examples such as that of a person who became a judge of the “Tiraspol City Court” at the age of 25, three years after graduating from the local university.", "THE LAW", "78. The applicant complained, inter alia, that he had been arrested and detained unlawfully by the “MRT” authorities. He further alleged that he had not been given the requisite medical assistance for his condition, had been held in inhuman conditions of detention and had been prevented from seeing his parents and his pastor. He submitted that both Moldova and Russia had jurisdiction and were responsible for the alleged violations.", "I. GENERAL ADMISSIBILITY ISSUES", "79. The Russian Government argued that the applicant did not come within their jurisdiction and that, consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. For their part, the Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”, but submitted that the applicant had failed to exhaust the remedies available to him in Moldova. The Court finds it appropriate, before examining the admissibility and merits of each complaint lodged by the applicant, to examine these two objections potentially affecting all of the complaints.", "A. Jurisdiction", "80. The Court must first determine whether, for the purposes of the matters complained of, the applicant falls within the jurisdiction of either or both of the respondent States, within the meaning of Article 1 of the Convention.", "1. The parties ’ submissions", "(a) The applicant", "(i) Jurisdiction of the Republic of Moldova", "81. The applicant submitted that, although Moldova lacked effective control over Transdniestria, the region clearly remained part of Moldovan national territory and the protection of human rights there remained Moldova ’ s responsibility.", "82. He argued that, apart from the general measures taken by Moldova aimed at resolving the conflict and ensuring observance of human rights in the Transdniestrian region, the authorities had failed to take measures to secure his individual Convention rights.", "(ii) Jurisdiction of the Russian Federation", "83. The applicant submitted that the Court ’ s findings of fact in Ilaşcu and Others ( v. Moldova and Russia [GC], no. 48787/99, §§ 379-91, ECHR 2004-VII), which had led it to conclude that Russia exercised a decisive influence over the “MRT” (§ 392), also applied to the present case. The “MRT” continued to survive only by virtue of Russia ’ s military, economic, financial, informational and political support. Russia had “effective control or at the very least a decisive influence” over the “MRT”.", "84. Furthermore, the actions of the Russian authorities in the present case sent out a different message from the country ’ s official position: it was unclear why the Russian embassy would send the complaint made by the applicant ’ s mother to the “MRT prosecutor ’ s office” (see paragraph 49 above) if Russia did not recognise the “MRT” as a lawfully created entity.", "(b) The Moldovan Government", "(i) Jurisdiction of the Republic of Moldova", "85. The Moldovan Government submitted that, according to the rationale of Ilaşcu and Others (cited above), the applicant fell within Moldova ’ s jurisdiction because, by claiming the territory and by trying to secure applicants ’ rights, the Moldovan authorities assumed positive obligations in respect of applicants. The Moldovan Government maintained that they still had no jurisdiction over the Transdniestrian territory in the sense of authority and control; nevertheless, they continued to fulfil the positive obligations established by Ilaşcu and Others and were intensifying their diplomatic efforts in that regard.", "86. For instance, the Moldovan authorities kept all the parties in the ongoing negotiations concerning the Transdniestrian region informed of all relevant developments; they also continued to request Russia ’ s withdrawal of its military equipment and personnel from the region and to ensure observance of human rights there. At Moldova ’ s insistence the European Union (EU) had been included in the negotiation format in 2005, and later that year the EU Border Assistance Mission to Moldova and Ukraine (EUBAM) had started its work of offering technical advice to Moldova and Ukraine in securing better control of their borders with the Transdniestrian region. Moldovan officials continued to ask Russia to honour its obligations in various international fora such as the United Nations, the Council of Europe, the European Union and the Organization for Security and Co-operation in Europe (OSCE).", "87. Moreover, still according to the Moldovan Government, they had – in response to the high number of complaints of alleged breaches of human rights in the “MRT” – set up a number of legal mechanisms aimed at guaranteeing constitutional rights, including the right to property, medical treatment, justice, education, and so forth. Hence, the Moldovan authorities had opened various amenities in settlements near the region, such as passport and other documentation offices, prosecutors ’ offices and courts.", "88. With regard to specific cases of alleged violations of human rights in the region such as that of the applicant, the Moldovan authorities were taking the only steps available to them, that is to say, asking for assistance from Russia and other countries and international organisations in influencing the “MRT” authorities to ensure the observance of such rights.", "(ii) Jurisdiction of the Russian Federation", "89. The Moldovan Government submitted a number of media reports from the “MRT” and Russia, which in their view confirmed that in 2010 the Russian Federation had continued to support the separatist regime. They referred to bans on selling Moldovan wine in Russia in 2006 and 2010; the continued payment of up to 50% of pensions and salaries in the public sector with money received from Russia; declarations by various Russian and “MRT” officials concerning close relations with and support from Russia; the continued delivery of natural gas from Russia to the “MRT” for only a nominal payment; the development of a common education system and textbooks and the recognition of “MRT” diplomas in Russia; allegations in the “MRT” media that by choosing which political parties received economic aid, Russia was able to influence politics there; messages from the Russian Foreign Minister, Sergei Lavrov, and the Russian ambassador to Moldova, Valeri Kuzmin, congratulating the separatist leaders on the twentieth anniversary of the self-proclamation of their independence; and the attendance of various Russian officials at the anniversary celebrations in Tiraspol.", "90. According to the Moldovan Government, the “MRT” continued to have Russia ’ s political, economic and financial support. The presence of Russian troops and the massive assistance given to the “MRT” complicated the negotiations aimed at settling the conflict.", "(c) The Russian Government", "(i) Jurisdiction of the Republic of Moldova", "91. The Russian Government did not comment on the jurisdictional position of the Republic of Moldova in the present case.", "(ii) Jurisdiction of the Russian Federation", "92. The Russian Government took issue with the Court ’ s approach to jurisdiction in Ilaşcu and Others (cited above). They contended that, in keeping with the Court ’ s reasoning in Loizidou v. Turkey ((preliminary objections), 23 March 1995, § 62, Series A no. 310) and Cyprus v. Turkey ([GC], no. 25781/94, § 76, ECHR 2001-IV), a State could be considered to be exercising extraterritorial jurisdiction if it (a) continued to exercise control through subordinate local authorities and (b) kept control over the whole territory owing to the presence of a large number of troops and “practically exercised a global control over” the relevant territory. Neither of these two conditions was met in the present case. The situation was similar to that in Banković and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001 ‑ XII), in which the Court had recognised that jurisdiction could only be extended extraterritorially in exceptional cases.", "93. Moreover, the concept of “effective control” as applied by the Court when establishing whether a State exercised extraterritorial jurisdiction was at variance with its meaning in public international law. The notion of “effective and overall control” had first appeared in the case-law of the International Court of Justice (ICJ), but had a different meaning there. Comparing the present situation to that in Military and Paramilitary Activities in and against Nicaragua ( (Nicaragua v. United States of America), Judgment of 27 June 1986, ICJ Reports 1986, §§ 109-15), the Russian Government argued that they had much less influence over the “MRT” authorities than the United States of America had had over the rebels in Nicaragua, notably in terms of the strength of Russia ’ s military presence in the “MRT”. In fact, Russia was one of the mediators of the conflict between Moldova and the self ‑ proclaimed “MRT”. The ICJ had confirmed its position in Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007, p. 43 – “the Bosnian Genocide case” ). The notion of “overall control” had been further developed by the International Criminal Tribunal for the former Yugoslavia. The Court ’ s interpretation of this notion differed from the interpretations of these international tribunals.", "94. Moreover, Russia had never engaged in the occupation of any part of Moldovan territory. It could not be said that Russia exercised jurisdiction in the present case, where the territory was controlled by a de facto government which was not an organ or instrument of Russia and which did not depend on Russia in any way. On the contrary, Russia considered the “MRT” to be an integral part of the Republic of Moldova. Russia ’ s military presence was restricted to a limited number of peacekeepers; therefore, there were no grounds for concluding that it exercised control through the strength of its military presence. The Russian Government referred in that connection to Al-Skeini and Others v. the United Kingdom ([GC], no. 55721/07, § 139, ECHR 2011) and Jaloud v. the Netherlands ([GC], no. 47708/08, § 139, ECHR 2014). They referred to a newspaper article submitted by the applicant, according to which there had been fewer than 400 Russian peacekeepers in the region in October 2006, “on a par with the number of military servicemen from the ‘ MRT ’ and Moldova”.", "95. In reply to a question by the Court as to whether there had been any relevant developments since the adoption of its judgment in Ilaşcu and Others (cited above), the Russian Government submitted that Moldova had in the meantime been accepted into the World Trade Organization (WTO) as an entire trade zone which included the Transdniestrian region. This, in their opinion, showed that there was scope for negotiation and cooperation between Moldova and the “MRT”.", "2. The Court ’ s assessment", "96. Article 1 of the Convention reads as follows:", "“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”", "In the present case, issues arise as to the meaning of “jurisdiction” with regard to both territorial jurisdiction (in the case of Moldova) and the exercise of extraterritorial jurisdiction (in the case of the Russian Federation).", "(a) General principles", "97. In Ilașcu and Others (cited above), the Court established the following principles regarding the presumption of territorial jurisdiction.", "“311. It follows from Article 1 that member States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their ‘ jurisdiction ’.", "The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.", "312. The Court refers to its case-law to the effect that the concept of ‘ jurisdiction ’ for the purposes of Article 1 of the Convention must be considered to reflect the term ’ s meaning in public international law (see Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, judgment of 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001 ‑ XII; and Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II).", "From the standpoint of public international law, the words ‘ within their jurisdiction ’ in Article 1 of the Convention must be understood to mean that a State ’ s jurisdictional competence is primarily territorial (see Banković and Others, cited above, § 59), but also that jurisdiction is presumed to be exercised normally throughout the State ’ s territory.", "This presumption may be limited in exceptional circumstances, particularly where a State is prevented from exercising its authority in part of its territory. That may be as a result of military occupation by the armed forces of another State which effectively controls the territory concerned (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, and Cyprus v. Turkey, §§ 76-80, cited above, and also cited in the above-mentioned Banković and Others decision, §§ 70 ‑ 71), acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned.", "313. In order to be able to conclude that such an exceptional situation exists, the Court must examine on the one hand all the objective facts capable of limiting the effective exercise of a State ’ s authority over its territory, and on the other the State ’ s own conduct. The undertakings given by a Contracting State under Article 1 of the Convention include, in addition to the duty to refrain from interfering with the enjoyment of the rights and freedoms guaranteed, positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory (see, among other authorities, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V).", "Those obligations remain even where the exercise of the State ’ s authority is limited in part of its territory, so that it has a duty to take all the appropriate measures which it is still within its power to take.", "...", "333. The Court considers that where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation, such as obtains when a separatist regime is set up, whether or not this is accompanied by military occupation by another State, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another State.", "Nevertheless, such a factual situation reduces the scope of that jurisdiction in that the undertaking given by the State under Article 1 must be considered by the Court only in the light of the Contracting State ’ s positive obligations towards persons within its territory. The State in question must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention.", "334. Although it is not for the Court to indicate which measures the authorities should take in order to comply with their obligations most effectively, it must verify that the measures actually taken were appropriate and sufficient in the present case. When faced with a partial or total failure to act, the Court ’ s task is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made. Determining that question is especially necessary in cases concerning an alleged infringement of absolute rights such as those guaranteed by Articles 2 and 3 of the Convention.”", "These principles were recently reiterated in Sargsyan v. Azerbaijan ([GC], no. 40167/06, § 128, ECHR 2015 ).", "98. As regards the general principles concerning the exercise of extraterritorial jurisdiction, the Court, in so far as relevant, summarised them as follows in Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, ECHR 2012.", "“103. The Court has established a number of clear principles in its case-law under Article 1. Thus, as provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” ( ‘ reconnaître ’ in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161; Banković and Others, cited above, § 66). “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others, cited above, § 311, and Al-Skeini and Others, cited above, § 130 ).", "104. A State ’ s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 86; Banković and Others, cited above, §§ 61-67; Ilaşcu and Others, cited above, § 312; and Al-Skeini and Others, cited above, § 131). Jurisdiction is presumed to be exercised normally throughout the State ’ s territory (see Ilaşcu and Others, cited above, § 312, and Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases (see Banković and Others, cited above, § 67, and Al-Skeini and Others, cited above, § 131).", "105. To date, the Court has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts (see Al ‑ Skeini and Others, cited above, § 132).", "106. One exception to the principle that jurisdiction under Article 1 is limited to a State ’ s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State ’ s own armed forces, or through a subordinate local administration ( see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI; and Al-Skeini and Others, cited above, § 138). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State ’ s military and other support entails that State ’ s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (see Cyprus v. Turkey, cited above, §§ 76-77, and Al-Skeini and Others, cited above, § 138).", "107. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State ’ s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94, and Al-Skeini and Others, cited above, § 139).", "...", "115. The Russian Government contend that the Court could only find that Russia was in effective control if it found that the ‘ government of the MRT ’ could be regarded as an organ of the Russian State in accordance with the approach of the International Court of Justice in the Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro ... The Court notes that in the judgment relied upon by the Russian Government, the International Court of Justice was concerned with determining when the conduct of a person or group of persons could be attributed to a State, so that the State could be held responsible under international law in respect of that conduct. In the instant case, however, the Court is concerned with a different question, namely whether facts complained of by an applicant fell within the jurisdiction of a respondent State within the meaning of Article 1 of the Convention. As the summary of the Court ’ s case-law set out above demonstrates, the test for establishing the existence of ‘ jurisdiction ’ under Article 1 of the Convention has never been equated with the test for establishing a State ’ s responsibility for an internationally wrongful act under international law. ”", "These principles were recently reiterated in Chiragov and Others v. Armenia ([GC], no. 13216/05, § 168, ECHR 2015).", "(b) Application of these principles to the facts of the case", "(i) Jurisdiction of the Republic of Moldova", "99. The Court must first determine whether the case falls within the jurisdiction of the Republic of Moldova. In this connection it notes that the applicant was at all times detained on Moldovan territory. It is true, as all the parties accept, that Moldova has no authority over the part of its territory to the east of the River Dniester, which is controlled by the “MRT”. Nevertheless, in Ilaşcu and Others (cited above), the Court held that individuals detained in Transdniestria fell within Moldova ’ s jurisdiction because it was the territorial State, even though it did not have effective control over the Transdniestrian region. Moldova ’ s obligation under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the [Convention] rights and freedoms”, was, however, limited in the circumstances to a positive obligation to take the diplomatic, economic, judicial or other measures that were both in its power to take and in accordance with international law (ibid., § 331). The Court reached a similar conclusion in Ivanţoc and Others v. Moldova and Russia (no. 23687/05, §§ 105-11, 15 November 2011) and Catan and Others (cited above, §§ 109 ‑ 10).", "100. The Court sees no reason to distinguish the present case from those cited above. Although Moldova has no effective control over the acts of the “MRT” in Transdniestria, the fact that the region is recognised under public international law as part of Moldova ’ s territory gives rise to an obligation for that State, under Article 1 of the Convention, to use all the legal and diplomatic means available to it to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention to those living there (see Ilaşcu and Others, cited above, § 333, and Catan and Others, cited above, § 109). The Court will consider below (see paragraphs 151 - 55 ) whether Moldova has satisfied this positive obligation.", "(ii) Jurisdiction of the Russian Federation", "101. It follows from the Court ’ s case-law set out above (see paragraphs 97 - 98 ), that a State can exercise jurisdiction extraterritorially when, as a consequence of lawful or unlawful military action, it exercises effective control of an area outside its national territory (see paragraph 98 above and Loizidou (preliminary objections), cited above, § 62; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996 - VI; Cyprus v. Turkey, cited above, § 76; and Ilaşcu and Others, cited above, §§ 314-16; compare and contrast Banković and Others, cited above, § 70). Moreover, the Court reiterates that a State can, in certain exceptional circumstances, exercise jurisdiction extraterritorially through the assertion of authority and control by that State ’ s agents over an individual or individuals (see Al ‑ Skeini and Others, cited above, §§ 136 and 149, and Catan and Others, cited above, § 114). In the present case, the Court accepts that there is no evidence of any direct involvement of Russian agents in the applicant ’ s detention and treatment. However, it is the applicant ’ s submission that Russia has “effective control or at the very least a decisive influence” over the “MRT” and the Court must establish whether or not this was the case at the time of the applicant ’ s detention, which lasted from November 2008 until July 2010.", "102. The Russian Government submitted an argument based on the Bosnian Genocide case, as they had done in Catan and Others (cited above, § 96), and Nicaragua v. United States of America (see paragraph 93 above), which was part of the case-law taken into account by the Court in Catan and Others (cited above, § 76). In these cases the ICJ was concerned with determining when the conduct of a group of persons could be attributed to a State, with the result that the State could be held responsible under international law for that conduct. In the instant case, however, the Court reiterates that it is concerned with a different issue, namely whether the facts complained of by the applicant fall within the jurisdiction of a respondent State within the meaning of Article 1 of the Convention. As the Court has already found, the test for establishing the existence of “jurisdiction” under Article 1 of the Convention has never been equated with the test for establishing a State ’ s responsibility for an internationally wrongful act under international law (see paragraph 98 above, and Catan and Others, cited above, § 115).", "103. Although in Catan and Others the Court focused on determining whether Russia had jurisdiction over the applicants between 2002 and 2004, in establishing the facts of that case the Court referred to a number of developments that occurred subsequently. It thus took note, inter alia, of resolutions adopted by the Duma in February and March 2005 calling on the Russian government to ban imports of alcohol and tobacco from Moldova (see Catan and Others, cited above, § 29); the Russian government ’ s ban on meat products, fruit and vegetables from Moldova in 2005 (§ 30); the absence of any verified withdrawals of Russian military equipment from the “MRT” since 2004 (§ 36); the continued presence (by the date of the judgment in Catan and Others, October 2012) of approximately a thousand Russian military servicemen in the “MRT” to guard its arms store (§ 37); the economic support being provided through close cooperation with Russian military production companies or through the purchase by Russian companies of “MRT” companies, as well as the purchases of supplies in Transdniestria (§ 39); the close economic ties between the “MRT” and Russia, including the token payment to Gazprom of only approximately 5% of the cost of the natural gas consumed (data for 2011, § 40); the economic aid provided to the “MRT” between 2007 and 2010 (§ 41); and the number of “MRT” residents granted Russian citizenship (§ 42).", "104. In addition, various reports from intergovernmental organisations cited in Catan and Others (§§ 64-70) refer to the period from 2005 to 2008, and reports by non-governmental organisations (ibid., §§ 71-73) cover the period from 2004 to 2009.", "105. The Court further notes that some of its conclusions in Catan and Others, while referring to the period between August 2002 and July 2004, were based on factual findings in respect of which the parties in the present case have not submitted any new information. These concern the quantity of weapons and munitions stored at Colbașna (§ 117); the dissuasive effect of the relatively small Russian military presence in the Transdniestrian region and its historical background, namely the intervention of Russian troops in the 1992 conflict between the Moldovan authorities and the “MRT” forces, the transfer of weapons to the separatists and the arrival in the region of Russian nationals to fight alongside the separatists (§ 118); and the combination of the continued Russian military presence and the storage of weapons in secret and in breach of international commitments, sending “a strong signal of continued support for the ‘ MRT ’ regime” (§ 119).", "106. In Ivanţoc and Others (cited above, §§ 116-20) the Court analysed whether Russia ’ s policy of supporting the “MRT” had changed between 2004 and the date of the applicants ’ release in 2007. It concluded as follows.", "“118. ... the Russian Federation continued to enjoy a close relationship with the ‘ MRT ’, amounting to providing political, financial and economic support to the separatist regime.", "In addition, the Court notes that the Russian army (troops, equipment and ammunition) was at the date of the applicants ’ release still stationed on Moldovan territory in breach of the Russian Federation ’ s undertakings to withdraw completely and in breach of Moldovan legislation ...", "119. ... the Russian Federation continued to do nothing either to prevent the violations of the Convention allegedly committed after 8 July 2004 or to put an end to the applicants ’ situation brought about by its agents.”", "107. The Court also notes that Russia was criticised for opening polling stations in the “MRT” without Moldova ’ s consent and issuing passports to a large number of people in the Transdniestrian region as recently as 2012 (see paragraph 67 above).", "108. In Catan and Others (cited above), the Court concluded as follows.", "“121. ... the Russian Government have not persuaded the Court that the conclusions it reached in 2004 in Ilaşcu and Others (cited above) were inaccurate. The ‘ MRT ’ was established as a result of Russian military assistance. The continued Russian military and armaments presence in the region sent a strong signal, to the ‘ MRT ’ leaders, the Moldovan Government and international observers, of Russia ’ s continued military support for the separatists. In addition, the population were dependent on free or highly subsidised gas supplies, pensions and other financial aid from Russia.”", "The Court considers, given the absence of any relevant new information to the contrary, that this conclusion continues to be valid for the period under consideration, namely November 2008 to July 2010.", "109. Lastly, it should be noted that in the present case the Russian Government ’ s arguments concerning the jurisdictional issue are essentially the same as those which they advanced in Catan and Others (cited above). The only development cited by the Russian Government which occurred since the period covered by the two judgments in Ilaşcu and Others and Catan and Others (that is, the period prior to 2004), namely Moldova ’ s acceptance into the WTO (which, the Russian Government argued, provided scope for cooperation between Moldova and the “MRT”, see paragraph 95 above), does not, in the Court ’ s view, have a bearing on this issue.", "110. The Court therefore maintains its findings in Ilaşcu and Others, Ivanţoc and Others and Catan and Others (all cited above), to the effect that the “MRT” is only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russia ’ s military, economic and political support. In these circumstances, the “MRT ’ s” high level of dependency on Russian support provides a strong indication that Russia continues to exercise effective control and a decisive influence over the “MRT” authorities (see Catan and Others, cited above, § 122).", "111. It follows that the applicant in the present case falls within Russia ’ s jurisdiction under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government ’ s objections ratione personae and ratione loci.", "112. The Court must therefore determine whether there has been any violation of the applicant ’ s rights under the Convention such as to engage the responsibility of either respondent State.", "B. Exhaustion of domestic remedies", "1. The parties ’ submissions", "113. In paragraphs 114 and 115 of their observations of 31 October 2014, the Moldovan Government submitted that the applicant had not exhausted the remedies available to him in Moldova (see paragraph 79 above). In particular, they noted that, while he had obtained the quashing by the Supreme Court of Justice of his conviction by the “MRT court”, he had not applied, on the basis of the quashing of that judgment and relying on Law no. 1545 (1998) (see paragraph 72 above), for compensation from the Republic of Moldova for the breach of his rights.", "114. The applicant did not comment on this issue.", "2. The Court ’ s assessment", "115. According to the Court ’ s settled case-law, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996 ‑ IV; Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014; and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 84, 9 July 2015).", "116. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, § 66; Vučković and Others, § 71; and Gherghina, § 85, all cited above ). To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II; Vučković and Others, cited above, § 74; and Gherghina, cited above, § 85 ).", "117. In the present case the Court notes that section 1 of Law no. 1545 (1998) expressly states that it applies to cases where damage is caused by the unlawful actions of the criminal investigation bodies, the prosecution authorities or the courts (see paragraph 72 above). According to the Moldovan Government (see paragraph 129 below), only those authorities (in particular the courts) which were created in accordance with Moldovan law can be officially recognised as such. In the Court ’ s view, this seems to exclude any compensation for the unlawful acts of any “courts” or “prosecution” or other authorities created by the “MRT”.", "118. Moreover, despite the fact that the Moldovan Government submitted several examples in which the Supreme Court of Justice had quashed rulings handed down by the “MRT courts” (as in Ilașcu and Others, cited above, § 222), as well as cases where Law no. 1545 (1998) had served as a basis for successfully claiming compensation, they did not submit any example of an individual obtaining compensation from Moldova after the quashing of an “MRT court” conviction. The Court is not convinced that in such circumstances Law no. 1545 (1998) applies to the applicant ’ s case.", "119. The Court observes that in paragraph 129 of their observations of 31 October 2014 the Moldovan Government specified that the domestic remedies to be exhausted by the applicant in Moldova “[were] available remedies, which [were] effective to the extent of the Government ’ s positive obligations and lack of effective control”. In the light of this statement, their objection can be understood as referring only to the possibility of obtaining compensation under Law no. 1545 (1998) for the four-month delay (see paragraphs 48 and 51 above) in fulfilling the positive obligation to take diplomatic, economic, judicial or other measures aimed at ensuring observance of the applicant ’ s Convention rights.", "120. However, the Court considers that there is nothing in Law no. 1545 (1998) that would allow the applicant to claim compensation for such a delay, since it deals with cases in which the various Moldovan investigating authorities or courts (see paragraphs 72 and 117 above) have breached an individual ’ s rights in the framework of criminal or administrative-contravention proceedings, and not with the delayed use or failure to make use of diplomatic or other means at the State level.", "121. In view of the above considerations, the Court rejects the Moldovan Government ’ s objection of non-exhaustion of domestic remedies.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "122. The applicant complained that he had been arrested and detained by unlawfully created militia and courts. He relied on Article 5 § 1 of the Convention, the relevant part of which reads as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;", "...”", "A. Admissibility", "123. The Court notes that the complaints under Article 5 § 1 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "124. The applicant complained that his detention had been unlawful. The Court ’ s case-law in respect of the requirement of lawfulness referred primarily to the observance of domestic law. Since the applicant ’ s detention had been ordered by “MRT courts”, created in breach of the relevant Moldovan legislation (see paragraphs 69 - 70 above), it could not be considered “lawful” within the meaning of Article 5 § 1 of the Convention. Moreover, the principle of ex injuria jus non oritur dictated that acts which were contrary to international law could not become a source of legal acts for the wrongdoer.", "125. Referring to Ilașcu and Others (cited above, § 460), the applicant submitted in particular that the judicial system of the “MRT” did not reflect a legal tradition compatible with the Convention. The “MRT courts” lacked independence and impartiality. Relying on a number of documents, he argued that the appointment procedures for judges were not transparent and that judges were not sufficiently independent from the executive, in particular from the “President of the MRT”. In his view, there had been frequent incidents of corruption and abuse of criminal procedures for private business interests, and his own case provided an example. Moreover, the procedures which the “MRT courts” applied in respect of detention did not comply with Convention standards and did not offer guarantees against arbitrariness. The Court should therefore confirm the approach taken in Ilașcu and Others (cited above).", "126. The applicant argued further that there were important differences between the present case and the cases concerning the “Turkish Republic of Northern Cyprus” (“TRNC”). Firstly, the attitude of the State exercising effective control over the area differed. While Turkey recognised the “TRNC” as an independent State, Russia did not recognise the “MRT” and, as was clear from the Russian Government ’ s observations in respect of jurisdiction in the present case, continued to consider the “MRT” as part of the Republic of Moldova. Secondly, Moldova had established a parallel system of courts for the Transdniestrian region. The task of these courts, located on the territory controlled by Moldova, was to examine civil and criminal cases relating to the Transdniestrian region. Any recognition by the Court that the “MRT courts” could be regarded as “tribunals established by law” or that they could impose “lawful” detention would undermine the functioning of these legitimate Moldovan courts. Thirdly, in contrast to the situation in the “TRNC”, the “MRT courts” did not apply the laws of the Republic of Moldova or the laws of the Russian Federation, but rather their own legal system, which was not compatible with Convention standards.", "127. The applicant finally complained that after his case had been sent to the trial court his detention was unlawful since the last court order extending his detention had expired on 24 November 2009 and no new order was adopted until 21 April 2010.", "(b) The Moldovan Government", "128. The Moldovan Government argued that the Court should follow the approach taken in Ilașcu and Others (cited above, §§ 436 and 460-62).", "129. They referred to the judgment of 22 January 2013 of the Supreme Court of Justice of the Republic of Moldova (see paragraph 26 above) and stressed that it had confirmed the unlawful and arbitrary nature of the applicant ’ s conviction. They maintained that the “MRT courts” were organs of an illegal entity which had not been recognised by any State. The applicant ’ s detention as ordered by the courts of the “MRT” could not be regarded as “lawful” within the meaning of Article 5 § 1 of the Convention. In the Moldovan Government ’ s view, any conclusion to the contrary would imply a recognition of certain powers on the part of the unrecognised entity.", "130. The Moldovan Government also pointed out differences between the legal traditions of the “MRT” and the “TRNC” which had led to different conclusions being reached by the Court in Ilașcu and Others (cited above), on the one hand, and in Foka v. Turkey (no. 28940/95, 24 June 2008) and Protopapa v. Turkey (no. 16084/90, 24 February 2009), on the other. The same approach as in Ilașcu and Others should be taken in the present case. The legal system of the “MRT” was based on the old Soviet system and did not reflect any commitment to the Convention or other international human rights standards. The Moldovan Government referred in particular to the “Report on Human Rights in the Transnistrian Region of the Republic of Moldova” (see paragraph 62 above). In their view, this report showed that the judicial organisation of the “MRT” did not comply with the basic principles of independence and impartiality.", "131. Finally, the Moldovan Government submitted that they could not comment on the lawfulness of the applicant ’ s detention from the point of view of compliance with “MRT” law, since in any event that law was unconstitutional and the “MRT” legal system did not correspond to the principles of democracy, independence and impartiality of the judicial organisation.", "(c) The Russian Government", "132. The Russian Government did not submit any specific observations in this regard. Their position was that they did not have “jurisdiction” in the territory of the “MRT” and that they were therefore not in a position to make any observations on the merits of the case.", "2. The Court ’ s assessment", "133. The Court notes that the applicant was arrested on 24 November 2008 and subsequently held in detention pending trial from 26 November 2008 to 1 July 2010 (see paragraphs 13 and 22 above). Accordingly, Article 5 § 1 (c) of the Convention is applicable.", "134. It is well established in the Court ’ s case-law on Article 5 § 1 that any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law, but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, for example, Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013).", "135. In the present case, the question arises whether the applicant ’ s arrest and pre-trial detention can be regarded as “lawful” for the purpose of Article 5 § 1 of the Convention, given that they were ordered by organs of the “MRT”, an unrecognised entity. The Court therefore considers it appropriate to set out the general principles established in its case-law in respect of the lawfulness of acts adopted by the authorities of unrecognised entities.", "(a) General principles concerning the lawfulness of acts adopted by unrecognised entities", "136. The Court considers that this issue is to be viewed in the context of its general approach to the exercise of extraterritorial jurisdiction in unrecognised entities. In that context the Court has had regard to the special character of the Convention as an instrument of European public order for the protection of individual human beings and its mission, as set out in Article 19 of the Convention, to “ensure the observance of the engagements undertaken by the High Contracting Parties”. It has emphasised the need to avoid a vacuum in the system of human rights protection and has thus pursued the aim of ensuring that Convention rights are protected throughout the territory of all Contracting Parties, even on territories effectively controlled by another Contracting Party, for instance through a subordinate local administration (see Cyprus v. Turkey, cited above, § 78).", "137. In Cyprus v. Turkey (cited above, §§ 91-94) the Court examined the question whether applicants could be required to exhaust remedies available in the “TRNC”, that is, in an unrecognised entity. It drew inspiration, inter alia, from the stance of the ICJ in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion, ICJ Reports 1971, § 125). In that Advisory Opinion, the ICJ had found that, while official acts performed by the government of South Africa on behalf of or concerning Namibia after the termination of the mandate were illegal and invalid, this invalidity could not be extended to those acts such as, for instance, the registration of births, deaths or marriages, the effects of which could be ignored only to the detriment of the inhabitants of that territory. The Court found that use should be made of remedies available in the “TRNC” provided that it could be shown that they existed to the advantage of individuals and offered them reasonable prospects of success. On a more general level it noted that the absence of courts in the “TRNC” would work to the detriment of the members of the Greek-Cypriot community. The Court then concluded as follows.", "“96. ... the obligation to disregard acts of de facto entities is far from absolute. Life goes on in the territory concerned for its inhabitants. That life must be made tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by third States or by international institutions, especially courts, including this one. To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled.”", "138. The Court confirmed this approach in Demopoulos and Others v. Turkey ((dec.) [GC], nos. 46113/99 and 7 others, § 95, ECHR 2010). Again in the context of exhaustion of domestic remedies, the Court noted that those affected by the policies and actions of the “TRNC” came within the jurisdiction of Turkey, with the consequence that Turkey could be held responsible for violations of Convention rights taking place within that territory. It went on to say that it would not be consistent with such responsibility under the Convention if the adoption by the authorities of the “TRNC” of civil, administrative or criminal-law measures, or their application or enforcement within their territory, were to be denied any validity or regarded as having no “lawful” basis in terms of the Convention. Furthermore it noted (ibid., § 96) as follows:", "“... The right of individual petition under the Convention is no substitute for a functioning judicial system and framework for the enforcement of criminal and civil law. ...”", "139. In Cyprus v. Turkey (cited above) the Court also had to deal with another issue of relevance in the present context. The applicant Government complained under Article 6 that Greek Cypriots in northern Cyprus were denied the right to have their civil rights and obligations determined by independent and impartial courts established by law. The Court held as follows.", "“231. As to the applicant Government ’ s claim that ‘ TRNC ’ courts failed to satisfy the criteria laid down in Article 6, the Commission noted, firstly, that there was nothing in the institutional framework of the ‘ TRNC ’ legal system which was likely to cast doubt either on the independence and impartiality of the civil courts or the subjective and objective impartiality of judges, and, secondly, those courts functioned on the basis of the domestic law of the ‘ TRNC ’ notwithstanding the unlawfulness under international law of the ‘ TRNC ’’ s claim to statehood. The Commission found support for this view in the Advisory Opinion of the International Court of Justice in the Namibia case ... Moreover, in the Commission ’ s opinion due weight had to be given to the fact that the civil courts operating in the ‘ TRNC ’ were in substance based on the Anglo-Saxon tradition and were not essentially different from the courts operating before the events of 1974 and from those which existed in the southern part of Cyprus.", "...", "236. As to the applicant Government ’ s challenge to the very legality of the ‘ TRNC ’ court system, the Court observes that they advanced similar arguments in the context of the preliminary issue concerning the requirement to exhaust domestic remedies in respect of the complaints covered by the instant application ... The Court concluded that, notwithstanding the illegality of the ‘ TRNC ’ under international law, it cannot be excluded that applicants may be required to take their grievances before, inter alia, the local courts with a view to seeking redress. It further pointed out in that connection that its primary concern in this respect was to ensure, from the standpoint of the Convention system, that dispute-resolution mechanisms which offer individuals the opportunity of access to justice for the purpose of remedying wrongs or asserting claims should be used.", "237. The Court observes from the evidence submitted to the Commission (see paragraph 39 above) that there is a functioning court system in the ‘ TRNC ’ for the settlement of disputes relating to civil rights and obligations defined in ‘ domestic law ’ and which is available to the Greek-Cypriot population. As the Commission observed, the court system in its functioning and procedures reflects the judicial and common-law tradition of Cyprus (see paragraph 231 above). In its opinion, having regard to the fact that it is the ‘ TRNC domestic law ’ which defines the substance of those rights and obligations for the benefit of the population as a whole it must follow that the domestic courts, set up by the ‘ law ’ of the ‘ TRNC ’, are the fora for their enforcement. For the Court, and for the purposes of adjudicating on ‘ civil rights and obligations ’ the local courts can be considered to be ‘ established by law ’ with reference to the ‘ constitutional and legal basis ’ on which they operate.", "In the Court ’ s opinion, any other conclusion would be to the detriment of the Greek-Cypriot community and would result in a denial of opportunity to individuals from that community to have an adjudication on a cause of action against a private or public body ... It is to be noted in this connection that the evidence confirms that Greek Cypriots have taken successful court actions in defence of their civil rights.”", "140. In several judgments concerning Turkey, the Court has applied the principles established in Cyprus v. Turkey to criminal matters (see Foka, cited above, § 83, where the arrest of the Greek-Cypriot applicant by a “TRNC” police officer was found to be lawful for the purpose of Article 5; Protopapa, cited above, § 60, where both the pre-trial detention and the detention after conviction imposed by the “TRNC” authorities were considered to be lawful for the purpose of Article 5 and a criminal trial before a “TRNC” court was found to be in accordance with Article 6; and also Asproftas v. Turkey, no. 16079/90, § 72, 27 May 2010; Petrakidou v. Turkey, no. 16081/90, § 71, 27 May 2010; and Union européenne des droits de l ’ homme and Josephides v. Turkey (dec.), no. 7116/10, § 9, 2 April 2013).", "141. In Ilaşcu and Others (cited above, § 460 ), when examining whether the applicants ’ detention following their conviction by the “MRT Supreme Court” could be regarded as “lawful” under Article 5 § 1 (a) of the Convention, the Court formulated the general principle as follows.", "“In certain circumstances, a court belonging to the judicial system of an entity not recognised under international law may be regarded as a tribunal ‘ established by law ’ provided that it forms part of a judicial system operating on a ‘ constitutional and legal basis ’ reflecting a judicial tradition compatible with the Convention, in order to enable individuals to enjoy the Convention guarantees (see, mutatis mutandis, Cyprus v. Turkey, cited above, §§ 231 and 236-37).”", "(b) Application of these principles to the present case", "142. With reference to the above general principles established in its case-law, the Court considers that the primary concern must always be for Convention rights to be effectively protected throughout the territory of all Contracting Parties, even if a part of that territory is under the effective control of another Contracting Party (see paragraph 136 above). Accordingly, it cannot automatically regard as unlawful, for the limited purposes of the Convention, the decisions taken by the courts of an unrecognised entity purely because of the latter ’ s unlawful nature and the fact that it is not internationally recognised.", "143. In line with this rationale the Court finds it already established in its case-law that the decisions taken by the courts of unrecognised entities, including decisions taken by their criminal courts, may be considered “lawful” for the purposes of the Convention provided that they fulfil certain conditions (see Ilaşcu and Others, cited above, § 460 ). This does not in any way imply any recognition of that entity ’ s ambitions for independence (see mutatis mutandis, Cyprus v. Turkey, cited above, § 92).", "144. At the same time, the Court has long held that “[t]he Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). It is insufficient to declare that the Convention rights are protected on a certain territory – the Court must be satisfied that such protection is also effective. A primary role in ensuring that such rights are observed is assigned to the domestic courts, which must offer guarantees of independence and impartiality and fairness of proceedings. Consequently, when assessing whether the courts of an unrecognised entity satisfy the test established in Ilașcu and Others, namely whether they form “part of a judicial system operating on a ‘ constitutional and legal basis ’ ... compatible with the Convention” (cited above, § 460), the Court will attach weight to the question whether they can be regarded as independent and impartial and are operating on the basis of the rule of law.", "145. In verifying whether the “MRT courts” which ordered the applicant ’ s detention, namely the “Tiraspol People ’ s Court” and the “MRT Supreme Court” satisfy the above criteria, the Court must start from the findings made in its previous case-law concerning this unrecognised entity. In Ilaşcu and Others (cited above, §§ 436 and 461 ), referring to “the patently arbitrary nature of the circumstances in which the applicants were tried and convicted” in 1993, the Court found that the “Supreme Court of the MRT” “ belongs to a system which can hardly be said to function on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention” (§ 436). At the same time, it cannot be excluded that the situation has evolved since that judgment was rendered in 2004. This makes it necessary to verify whether what was established in Ilaşcu and Others with respect to the “MRT courts” before the Republic of Moldova and the Russian Federation became Parties to the Convention in 1997 and 1998 respectively continues to be valid in the present case.", "146. The Court notes that the parties were asked, with specific reference to its case-law, to comment on the question whether the “MRT courts” could order the applicant ’ s lawful arrest and detention within the meaning of Article 5 § 1 of the Convention. Moreover, they were asked to comment on the specific legal basis for the applicant ’ s detention in the “MRT”. The Moldovan Government commented briefly that the legal system of the “MRT” was based on the former Soviet system and that the “MRT courts” lacked independence and impartiality (see paragraph 130 above). As to the legal basis for the applicant ’ s arrest and detention, they stated that they could not submit such information. The Russian Government referred to their position concerning their lack of jurisdiction and did not make any comments on the merits. The applicant, for his part, alleged in particular that the “MRT courts” lacked independence and impartiality.", "147. In the Court ’ s view, it is in the first place for the Contracting Party which has effective control over the unrecognised entity in issue to show that its courts form “part of a judicial system operating on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention” (see paragraph 144 above). As the Court has already established (see paragraph 111 above), in the case of the “MRT” it is Russia which has such effective control. To date, the Russian Government have not submitted to the Court any information on the organisation of the “MRT courts” which would enable it to assess whether they fulfil the above requirement. Nor have they submitted any details of the “MRT” law which served as a basis for the applicant ’ s detention. Furthermore, the Court notes the scarcity of official sources of information concerning the legal and court system in the “MRT”, a fact which makes it difficult to obtain a clear picture of the applicable laws. Consequently, the Court is not in a position to verify whether the “MRT courts” and their practice fulfil the requirements mentioned above.", "148. There is also no basis for assuming that there is a system reflecting a judicial tradition compatible with the Convention in the region, similar to the one in the remainder of the Republic of Moldova (compare and contrast with the situation in Northern Cyprus, referred to in Cyprus v. Turkey, cited above, §§ 231 and 237). The division of the Moldovan and “MRT” judicial systems took place in 1990, well before Moldova joined the Council of Europe in 1995. Moreover, Moldovan law was subjected to a thorough analysis when it requested membership of the Council of Europe (see Opinion No. 188 (1995) of the Parliamentary Assembly of the Council of Europe on the application by Moldova for membership of the Council of Europe), with amendments proposed to ensure compatibility with the Convention, which Moldova finally ratified in 1997. No such analysis was made of the “MRT legal system”, which was thus never part of a system reflecting a judicial tradition considered compatible with Convention principles before the split into separate judicial systems occurred in 1990 (see paragraph 12 above, and Ilașcu and Others, cited above, §§ 29-30).", "149. The Court also considers that the conclusions reached above are reinforced by the circumstances in which the applicant in the present case was arrested and his detention was ordered and extended (see paragraphs 13 - 15 and 17 above, in particular the order for his detention for an undefined period of time and the examination in his absence of the appeal against the decision to extend that detention), as well as by the case-law referred to by the applicant (see paragraph 75 above) and the various media reports which raise concerns about the independence and quality of the “MRT courts” (see paragraph 77 above).", "150. In sum, the Court concludes that its findings in Ilașcu and Others (cited above, §§ 436 and 460-62) are still valid with respect to the period of time covered by the present case. It therefore finds that the “MRT courts” and, by implication, any other “MRT authority”, could not order the applicant ’ s “lawful arrest or detention” within the meaning of Article 5 § 1 (c) of the Convention. Accordingly, the applicant ’ s detention based on the orders of the “MRT courts” was unlawful for the purposes of that provision.", "3. Responsibility of the respondent States", "(a) The Republic of Moldova", "151. The Court must next determine whether the Republic of Moldova fulfilled its positive obligations to take appropriate and sufficient measures to secure the applicant ’ s rights under Article 5 § 1 (see paragraph 100 above). In Ilaşcu and Others (cited above, §§ 339-40), the Court held that Moldova ’ s positive obligations related both to measures needed to re-establish its control over the Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for individual applicants ’ rights. The obligation to re-establish control over Transdniestria required Moldova to refrain from supporting the separatist regime and to act by taking all the political, judicial and other measures at its disposal for re ‑ establishing control over the territory. The Court took the same approach in Catan and Others (cited above, § 145).", "152. As regards the first aspect of Moldova ’ s positive obligation, to re-establish control, the Court found in Ilaşcu and Others (cited above, §§ 341 ‑ 45) that from the onset of the hostilities in 1991-92 until July 2004, when judgment was given, Moldova had taken all the measures in its power to re-establish control over Transdniestrian territory. The Court found no reason to depart from that finding in Catan and Others (cited above, § 146). In the present case, the parties did not submit any new argument on the issue. There is nothing to indicate that the Moldovan Government changed their position in respect of Transdniestria in the intervening years up to the period of the applicant ’ s detention from November 2008 to July 2010. The Court therefore sees no reason to reach a different conclusion in the present case.", "153. Turning to the second aspect of the positive obligation, namely to ensure respect for the applicants ’ rights, the Court found in Ilaşcu and Others (cited above, §§ 348-52) that Moldova had failed to comply fully with its positive obligations to the extent that from May 2001 it had failed to take all the measures available to it in the course of negotiations with the “MRT” and Russian authorities to bring an end to the violation of the applicants ’ rights. In the present case, however, the Court considers that the Moldovan Government made considerable efforts to support the applicant. In particular, the authorities made a number of appeals to various intergovernmental organisations and foreign countries, notably Russia, asking them to assist in securing the applicant ’ s rights (see paragraph 51 above). When the applicant asked the Moldovan Supreme Court of Justice to quash his conviction, he obtained such a decision (see paragraph 26 above) and the prosecutor ’ s office did eventually take whatever steps it could to investigate the applicant ’ s allegations relating to his unlawful detention (see paragraphs 52 - 53 above).", "154. It is true that the Prosecutor General ’ s Office and the Human Rights Centre did not intervene when the applicant ’ s parents complained to them (see paragraphs 47 - 48 above). However, this may be seen against the background of the efforts made by other authorities, including those at the highest level, to ensure the protection of the applicant ’ s rights. Considering the number of complaints concerning breaches of Convention rights by the “MRT” authorities and the inevitable delay in dealing with all of them at a high diplomatic level, the Court cannot conclude that the initial lack of reaction amounts, by itself, to a failure by Moldova to take whatever steps it could in order to secure the applicant ’ s rights.", "155. In the light of the foregoing, the Court considers that the Republic of Moldova fulfilled its positive obligations in respect of the applicant. It therefore finds that there has been no violation of Article 5 § 1 of the Convention by the Republic of Moldova.", "(b) The Russian Federation", "156. The Court notes that there is no evidence that persons acting on behalf of the Russian Federation directly participated in the measures taken against the applicant.", "157. Nevertheless, the Court has established that Russia exercised effective control over the “MRT” during the period in question (see paragraph 110 above). In the light of this conclusion, and in accordance with the Court ’ s case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Catan and Others, cited above, §§ 106 and 150). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia ’ s responsibility under the Convention is engaged as regards the violation of the applicant ’ s rights.", "158. In conclusion, and having found that the applicant ’ s detention was unlawful under Article 5 § 1 of the Convention (see paragraph 150 above), the Court holds that there has been a violation of that provision by the Russian Federation.", "159. Having reached this conclusion, the Court finds it unnecessary to examine separately the additional complaint under Article 5 § 1 (see paragraph 127 above).", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "160. The applicant complained that he had been absent from some of the court hearings concerning his detention pending trial. He relied on Article 5 § 1 of the Convention. The Court considers that this complaint is to be examined under Article 5 § 4 of the Convention, which reads as follows:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "161. The Moldovan Government did not make any specific submissions in respect of this complaint.", "162. The Russian Government did not make any submissions on this point.", "163. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. However, in view of the reasons for finding that the applicant ’ s detention was unlawful (see paragraph 150 above), the Court considers that it is unnecessary to examine separately the complaint under Article 5 § 4.", "IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "164. The applicant complained of the authorities ’ failure to provide him with the requisite medical assistance for his condition. He argued that this failure exposed him to a real risk to his life, contrary to Article 2 of the Convention, the relevant part of which reads as follows:", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”", "A. Admissibility", "165. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "166. The applicant submitted that in view of the acute nature of his condition and the many asthma attacks he suffered, coupled with the unfavourable prognosis he had been given by the doctors, the “MRT” authorities ’ failure to provide him with the requisite medical assistance for his condition or to release him pending trial in order to seek medical assistance in civilian hospitals had exposed him to a real risk of suffocating to death. Moreover, after a medical panel had established that risk, and in the absence of appropriate medical equipment at the Centre, he had in fact been transferred on 15 February 2010 to an ordinary prison which was even less well equipped (see paragraph 38 above).", "167. The Moldovan Government submitted that they were unable to verify the facts of the case. As well as taking general measures aimed at ensuring observance of human rights in the Transdniestrian region, on being informed of the application lodged with the Court they had taken all the measures available to them by asking various intergovernmental organisations and foreign embassies to assist in securing the applicant ’ s rights.", "168. The Russian Government submitted that all questions concerning the protection of the applicant ’ s rights were to be answered exclusively by Moldova. They added that in the absence of any means of confirming the facts of the case, such as medical evidence, they could not assess the conditions of the applicant ’ s detention or the quality of the medical treatment he had received.", "2. The Court ’ s assessment", "169. The Court has established that there may be a positive obligation on a State under the first sentence of Article 2 § 1 to protect the life of an individual from third parties or from the risk of life-endangering illness (see Osman v. the United Kingdom, 28 October 1998, §§ 115-22, Reports 1998 ‑ VIII; Yaşa v. Turkey, 2 September 1998, §§ 92-108, Reports 1998 ‑ VI; and L.C.B. v. the United Kingdom, 9 June 1998, §§ 36-41, Reports 1998 ‑ III). At the same time, it is only in exceptional circumstances that physical ill-treatment by State agents which does not result in death may disclose a violation of Article 2 of the Convention (see Makaratzis v. Greece [GC], no. 50385/99, § 51, ECHR 2004 ‑ XI).", "170. In the present case the Court notes that, despite the applicant ’ s unfavourable overall prognosis, the doctors at no point established that there was an immediate risk to his life. They were able to stop the applicant ’ s asthma attacks, even though doing so required the use of medication brought in by his parents.", "171. That being so, the Court considers that the facts complained of by the applicant do not call for a separate examination under Article 2 of the Convention, but would be more appropriately examined under Article 3 instead (see, mutatis mutandis, Ilaşcu and Others, cited above, § 418).", "V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "172. The applicant complained that he had not been given the requisite medical assistance for his condition and had been held in inhuman conditions of detention. He relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "173. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "174. The applicant complained that the two respondent Governments had failed to secure his rights under Article 3, particularly with regard to the provision of medical assistance and the conditions of his detention.", "175. The Moldovan Government submitted that they were unable to verify the facts of the case. As well as taking general measures aimed at ensuring observance of human rights in the Transdniestrian region, on being informed of the application lodged with the Court they had taken all the measures available to them by asking various intergovernmental organisations and foreign embassies to assist in securing the applicant ’ s rights.", "176. According to the Russian Government, in the absence of any jurisdiction within the meaning of Article 1 of the Convention over the territory of Transdniestria, they could neither verify the facts as described by the applicant nor comment on the merits of his complaint.", "2. The Court ’ s assessment", "177. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill ‑ treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000 ‑ XI; Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III; Enea v. Italy [GC], no. 74912/01, § 55, ECHR 2009; and Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015 ).", "178. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła, cited above, § 94, and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 116, ECHR 2014) and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, § 94, and Idalov v. Russia [GC], no. 5826/03, § 93, 22 May 2012 ). In most of the cases concerning the detention of persons who were ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this regard that, even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Pakhomov v. Russia, no. 44917/08, § 61, 30 September 2010, and Gladkiy v. Russia, no. 3242/03, § 83, 21 December 2010 ).", "179. In the present case the Court notes that, although the doctors considered the applicant ’ s condition to be deteriorating and the specialists and equipment required to treat him to be lacking, the “MRT” authorities not only refused to transfer him to a civilian hospital for treatment but also exposed him to further suffering and a more serious risk to his health by transferring him to an ordinary prison on 15 February 2010 (see paragraph 38 above). It is indisputable that the applicant suffered greatly from his asthma attacks. The Court is also struck by the fact that the applicant ’ s illness, while considered serious enough to warrant the transfer to a civilian hospital of a convicted person, was not a ground for the similar transfer of a person awaiting trial (see paragraph 35 above). In view of the lack of any explanation for the refusal to offer him appropriate treatment, the Court finds that the applicant did not receive adequate medical assistance.", "180. The Court will now turn to the conditions of the applicant ’ s detention. According to him, the cell was very hot, humid and poorly ventilated and lacked access to natural light. It was overcrowded and full of cigarette smoke as well as parasitic insects. He ldid not have access to a toilet for hours on end and was unable to dry clothes outside the cell. The food was inedible and there were no hygiene products. Throughout his detention he did not receive the medical assistance required by his condition (see paragraphs 28 - 41 above).", "181. While the respondent Governments have not commented on the description provided by the applicant (see paragraphs 28 - 38 above), it is largely confirmed by the reports of the CPT and the United Nations Special Rapporteur on visits to various places of detention in the “MRT” (see paragraphs 61 - 64 above). The Court notes in particular that the latter ’ s visit took place in July 2008, some four months before the applicant was taken into detention.", "182. On the basis of the material before it, the Court finds it established that the conditions of the applicant ’ s detention amounted to inhuman and degrading treatment within the meaning of Article 3, in particular on account of severe overcrowding, lack of access to daylight and lack of working ventilation which, coupled with cigarette smoke and dampness in the cell, aggravated the applicant ’ s asthma attacks.", "3. Responsibility of the respondent States", "183. The Court considers that there is no material difference in the nature of each respondent State ’ s responsibility under the Convention in respect of the various complaints made in the present case. Accordingly, for the same reasons given in respect of the complaint under Article 5 § 1 of the Convention (see paragraphs 151 - 55 above), the Court finds that there has been no violation of Article 3 of the Convention by the Republic of Moldova.", "184. For the same reasons as above (see paragraphs 156 - 59 ), the Court finds that there has been a violation of Article 3 of the Convention by the Russian Federation.", "VI. ALLEGED VIOLATION OF ARTICLES 8 AND 9 OF THE CONVENTION", "185. The applicant further complained that for no apparent reason he had been unable to see his parents for a considerable length of time, and that during the visits that had eventually been authorised they had not been allowed to speak their own language. He had also been prevented from seeing his pastor. He relied on Articles 8 and 9 of the Convention, which read as follows:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 9", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "186. The Court notes that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "187. The applicant submitted that for a considerable length of time during the investigation he had been unable to see his parents. When they were finally allowed to see each other they had been asked to speak Russian rather than their native language. He had also been unable to see his pastor, and when this was eventually allowed a prison guard had been present. No reasons had been advanced as to why such strict measures had been implemented in his case, and it had been at the discretion of the investigator in charge of the criminal case against him whether to allow such visits.", "188. The Moldovan Government submitted that in view of the content of the letter of the International Committee of the Red Cross (ICRC) (see paragraph 68 above), they doubted the veracity of the applicant ’ s complaint concerning the visits with his parents.", "189. The Russian Government did not make any submissions on this point.", "2. The Court ’ s assessment", "190. The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a prisoner ’ s right to respect for family life that the authorities enable him or, if need be, help him, to maintain contact with his close family (see, among many other authorities, Messina v. Italy (no. 2), no. 25498/94, §§ 61-62, ECHR 2000 ‑ X; Lavents v. Latvia, no. 58442/00, § 139, 28 November 2002; and Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015 ). At the same time the Court recognises that some measure of control over prisoners ’ contact with the outside world is called for and is not of itself incompatible with the Convention (see Khoroshenko, cited above, § 123).", "191. In the present case the applicant claimed that he had been completely denied visits by his parents during the first six months of his detention. The first visit had been authorised on 4 May 2009. He submitted evidence of his requests to see his parents submitted on 5 March and 13, 16 and 30 April 2009, 9 December 2009 and 15 February 2010. Moreover, when a visit had been allowed on 16 February 2010, the applicant and his mother had had to talk to each other in the presence of a prison guard and had been asked to speak Russian instead of their mother tongue, German (see paragraph 44 above).", "192. The Moldovan Government doubted the veracity of this claim, referring to the letter from the ICRC (see paragraph 68 above). The Court notes that the ICRC visited the applicant in April 2010, whereas his complaint referred to the period from 2009 until the visit of 16 February 2010. Moreover, the letter relied on by the Moldovan Government merely mentioned that the applicant was in regular contact with his family, without specifying the nature of that contact. In the light of the above, the Court sees no reason to doubt the applicant ’ s account of the facts and concludes that there was interference with his right to respect for his family life within the meaning of Article 8 § 1 of the Convention in that he was prevented from seeing his parents for a considerable length of time. It remains to be examined whether this interference was justified under the second paragraph of Article 8.", "193. The Court reiterates that Article 8 § 2 requires any interference to be “in accordance with the law”. It notes that the applicant did not argue that the interference with his rights under Articles 8 and 9 had been unlawful because it had been carried out pursuant to the decisions of unlawfully constituted courts or other authorities. In any event, the Court notes that the respondent Governments have not submitted any details, while the limited material available from the applicant is insufficient to form a clear understanding of the applicable “MRT” law. The Court is therefore not in a position to assess whether the interference complained of was “in accordance with the law” and whether it was based on any clear criteria or was at the investigator ’ s discretion, as submitted by the applicant. However, it notes that no reasons for refusing family visits are apparent from the documents in the file and it is clear that the applicant was unable to see his parents for six months after his initial arrest.", "194. The respondent Governments did not submit any explanation as to why it had been necessary to separate the applicant from his family for such a considerable length of time. It has therefore not been shown that the interference pursued a legitimate aim or was proportionate to that aim, as required under Article 8 § 2 of the Convention.", "195. Similarly, the Court finds it unacceptable in principle that a prison guard was present during family visits (compare Khoroshenko, cited above, § 146). It is clear that the guard was there specifically in order to monitor what the family discussed, given that they were at risk of having the visit cancelled if they did not speak a language he understood (see paragraph 44 above). Again, no explanation has been given as to why the visits had to be monitored so closely.", "196. The Court therefore finds that, regardless of whether there was a legal basis for the interference with the applicant ’ s rights, the restriction on prison visits from his parents did not comply with the other conditions set out in Article 8 § 2 of the Convention.", "197. Turning now to the applicant ’ s complaint that he was not allowed to see Pastor Per Bergene Holm, the Court reiterates that the authorities ’ refusal to allow a prisoner to meet a priest constitutes interference with the rights guaranteed under Article 9 of the Convention (see, for instance, Poltoratskiy v. Ukraine, no. 38812/97, § 167, ECHR 2003 ‑ V).", "198. The applicant alleged that the pastor who attempted to visit him was denied access in June and September 2009. This was confirmed by the pastor in a letter to the Court (see paragraph 45 above). The two respondent Governments have not made any submissions on this point. The Court sees no reason to doubt the description of the facts provided by the applicant and the pastor and accepts that there was interference with the applicant ’ s right to freedom of religion.", "199. Again, it is not clear whether there was a legal basis for the refusal to allow visits, and no reasons have been advanced to justify the refusal. The Court considers that it has not been shown that the interference with the applicant ’ s right pursued a legitimate aim or was proportionate to that aim, as required under Article 9 § 2 of the Convention.", "3. Responsibility of the respondent States", "200. The Court finds, for the same reasons given in respect of the complaint under Article 5 § 1 of the Convention (see paragraphs 151 - 55 above), that there has been no violation of Articles 8 and 9 of the Convention by the Republic of Moldova.", "201. For the same reasons as above (see paragraphs 156 - 59 ), the Court finds that there has been a violation of Articles 8 and 9 of the Convention by the Russian Federation.", "VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 2, 3, 5, 8 AND 9", "202. The applicant further complained that he had had no effective remedies in respect of his complaints under Articles 2, 3, 5, 8 and 9 of the Convention. He relied on Article 13 of the Convention, which reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "203. The Court notes that the complaint under Article 13 taken in conjunction with Articles 2, 3, 5, 8 and 9 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "204. The applicant submitted that he had had no means of asserting his rights in the face of the actions of the “MRT” authorities, and that the respondent Governments had not indicated any remedies that he should have exhausted.", "205. The Moldovan Government submitted that the applicant had had at his disposal the ordinary remedies available in Moldova, where courts, prosecutors ’ offices, notaries ’ offices and so forth had been created for the specific purpose of protecting the rights and interests of persons living in the Transdniestrian region.", "206. The Russian Government did not make any submissions on this point.", "2. The Court ’ s assessment", "207. The Court reiterates that the effect of Article 13 is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under that provision (see Chahal v. the United Kingdom, 15 November 1996, § 145, Reports 1996 ‑ V). The remedy required by Article 13 must be “effective”, both in practice and in law. However, such a remedy is required only for complaints that can be regarded as “arguable” under the Convention (see De Souza Ribeiro v. France [GC], no. 22689/07, § 78, ECHR 2012, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 148, ECHR 2014).", "208. The Court observes that it found no need to examine the complaint under Article 2 of the Convention separately, considering that the facts of the case were more appropriately examined under Article 3 (see paragraph 171 above). Similarly, it does not find it necessary to examine separately whether his complaint under Article 2 was arguable for the purposes of Article 13 as it will in any event deal with the matter under the head of Article 3. The Court observes that the applicant ’ s complaint under Article 3, as well as those under Articles 5, 8 and 9 of the Convention were arguable. However, as regards the applicant ’ s complaint under Article 5 § 1, the Court observes that Article 5 § 4, which the Court did not consider necessary to examine separately in the circumstances of the case (see paragraph 163 above ), is the lex specialis in relation to Article 13.", "209. The applicant was therefore entitled to an effective domestic remedy within the meaning of Article 13 in respect of his complaints under Articles 3, 8 and 9 of the Convention. Accordingly, the Court will examine whether such a remedy was available to the applicant.", "210. As far as the applicant ’ s complaint against Moldova is concerned, the Court refers to the considerations it set out above in respect of the Moldovan Government ’ s objection of non-exhaustion, which led it to the conclusion that the proceedings for damages the applicant could have pursued before the Moldovan courts could not be considered an effective remedy in respect of any of his complaints (see paragraphs 115 ‑ 21 ) above.", "211. As far as the applicant ’ s complaint against Russia is concerned, the Court reiterates that in certain circumstances applicants may be required to exhaust effective remedies available in an unrecognised entity (see Demopoulos and Others, cited above, §§ 89 and 92-96). However, there is no indication in the file, and the Russian Government have not claimed, that any effective remedies were available to the applicant in the “MRT” in respect of the above-mentioned complaints.", "212. The Court therefore concludes that the applicant did not have an effective remedy in respect of his complaints under Articles 3, 8 and 9 of the Convention. Consequently, the Court must decide whether any violation of Article 13 can be attributed to either of the respondent States.", "3. Responsibility of the respondent States", "(a) The Republic of Moldova", "213. The Court notes at the outset that the nature of the positive obligations to be fulfilled by the Republic of Moldova (see paragraphs 99 ‑ 100 above) does not require the payment of compensation for breaches by the “MRT”. Accordingly, the rejection of the preliminary objection concerning non-exhaustion of domestic remedies owing to the absence of a proven right to compensation from the Moldovan authorities for breaches of Convention rights by the “MRT” (see paragraphs 115 - 21 above) does not have any effect on the Court ’ s analysis concerning the fulfilment of positive obligations by the Republic of Moldova.", "214. The Court considers that it would be inconsistent for it to find that Moldova, while having no means of controlling the actions of the “MRT” authorities, should be held responsible for its inability to enforce any decisions adopted by the Moldovan authorities on the territory under the effective control of the “MRT”. The Court reiterates that the positive obligation incumbent on Moldova is to use all the legal and diplomatic means available to it to continue to guarantee to those living in the Transdniestrian region the enjoyment of the rights and freedoms defined in the Convention (see paragraph 100 above). Accordingly, the “remedies” which Moldova must offer the applicant consist in enabling him to inform the Moldovan authorities of the details of his situation and to be kept informed of the various legal and diplomatic actions taken.", "215. In this connection the Court notes that Moldova has created a set of judicial, investigative and civil-service authorities which work in parallel with those created by the “MRT” (see paragraph 205 above). While the effects of any decisions taken by these Moldovan authorities can only be felt outside the Transdniestrian region, they have the function of enabling cases to be brought in the proper manner before the Moldovan authorities, which can then initiate diplomatic and legal steps to attempt to intervene in specific cases, in particular by urging Russia to fulfil its obligations under the Convention in its treatment of the “MRT” and the decisions taken there.", "216. In the light of the foregoing, the Court considers that the Republic of Moldova has made procedures available to the applicant commensurate with its limited ability to protect the applicant ’ s rights. It has thus fulfilled its positive obligations. Accordingly, the Court finds that there has been no violation of Article 13 of the Convention by that State.", "(b) The Russian Federation", "217. In the present case, the Court has found that the Russian Federation continues to exercise effective control over the “MRT” (see paragraph 110 above). In accordance with its case-law it is thus not necessary to determine whether Russia exercises detailed control over the policies and actions of the subordinate local authority. Russia ’ s responsibility is engaged by virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive.", "218. In the absence of any submission by the Russian Government as to any remedies available to the applicant, the Court concludes that there has been a violation by the Russian Federation of Article 13 taken in conjunction with Articles 3, 8 and 9.", "VIII. ALLEGED VIOLATION OF ARTICLE 17 OF THE CONVENTION", "219. Lastly, the applicant complained of a breach of Article 17 of the Convention by both respondent States on account of their tolerance towards the unlawful regime installed in the “MRT”, which did not recognise any rights set forth in the Convention. Article 17 reads as follows:", "“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”", "220. The Moldovan Government submitted that Moldova had never tolerated the creation and continued existence of the “MRT” and had consistently called for the restoration of democracy, the rule of law and human rights in the Transdniestrian region. Moldova had never sought to act in a manner aimed at destroying the rights and freedoms protected by the Convention or setting new limitations on such rights.", "221. The Russian Government did not make any submissions on this point.", "222. The Court observes that Article 17 of the Convention can only be applied in conjunction with the substantive provisions of the Convention. In so far as it refers to groups and individuals, its purpose is to make it impossible for them to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention (see Lawless v. Ireland (no. 3), 1 July 1961, p. 45, § 7, Series A no. 3, and Orban and Others v. France, no. 20985/05, § 33, 15 January 2009). In so far as it refers to the State, Article 17 has been relied on in alleging that a State has acted in a manner aimed at the destruction of any of these rights and freedoms or at limiting them to a greater extent than is provided for in the Convention (see, for instance, Engel and Others v. the Netherlands, 8 June 1976, § 104, Series A no. 22).", "223. The Court considers that the complaint, as formulated by the applicant, alleging a breach of Article 17 on account of the respondent States ’ tolerance of the “MRT” falls outside the scope of that Article. In any case, the Court finds no evidence to suggest that either of the respondent States set out deliberately to destroy any of the rights relied on by the applicant in the present case, or to limit any of these rights to a greater extent than is provided for in the Convention.", "It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § § 3 (a) and 4 of the Convention.", "IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "224. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "225. The applicant claimed 74,538 euros (EUR) in respect of pecuniary damage. This included the cost of the medication, food and clothes brought to him in prison, as well as the money already paid (see paragraph 22 above) or which might be paid by his parents from the sale of his apartment in order to repay to the third party the damages awarded by the “Tiraspol People ’ s Court” as part of the applicant ’ s sentence.", "226. The Moldovan Government submitted that in the absence of a violation by the Republic of Moldova of any Convention rights no compensation was payable. In any event, there was no causal link between the violations complained of and the loss or potential loss of real estate.", "227. The Russian Government submitted that they should not be liable to pay compensation, since they could not be held responsible for any violation of the applicant ’ s rights. In any event, it was impossible to verify the sums claimed, which moreover appeared excessive.", "228. The Court notes that it has not found the Republic of Moldova responsible for any violation of the Convention in the present case. Accordingly, no award of compensation for pecuniary damage is to be made as regards this respondent State.", "229. The Court observes that it has found breaches by the Russian Federation of Articles 3, 5 § 1, 8, 9 and 13 of the Convention. However, it does not discern any causal link between the violation of these provisions and the payment of any sums of money following the applicant ’ s conviction. In this context it notes that no complaint under Article 6 was made and that the applicant ’ s conviction was not examined as part of the present case. It therefore rejects this part of the claim.", "230. Conversely, it awards the applicant EUR 5,000 in respect of the cost of his medication and treatment after his release from prison and the cost of the food and clothing the prison could not provide, to be paid by the Russian Federation.", "B. Non-pecuniary damage", "231. The applicant claimed EUR 50,000 in respect of non-pecuniary damage in compensation for the suffering caused to him.", "232. The Moldovan Government submitted that the sum claimed was excessive.", "233. The Russian Government made a similar submission to that made in paragraph 227 above.", "234. The Court notes that it has found that the Republic of Moldova was not responsible for any violation of the applicant ’ s rights protected by the Convention in the present case. Accordingly, no award of compensation for non-pecuniary damage is to be made with regard to this respondent State.", "235. Having regard to the violations by the Russian Federation found above and their gravity, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 20,000, to be paid by the Russian Federation.", "C. Costs and expenses", "236. The applicant also claimed EUR 1,575 for the costs and expenses incurred before the domestic courts and EUR 14,850 for those incurred before the Court. He relied on receipts for sums paid at domestic level and on a contract with the lawyers who represented him before the Court, which included an itemised list of the hours spent on the case (ninety-nine hours at an hourly rate of EUR 150).", "237. The Moldovan Government considered that both the number of hours worked on the case and the sum claimed were excessive.", "238. The Russian Government argued that, given that the applicant ’ s lawyer had relied heavily on the judgment in Ilaşcu and Others and had had to carry out only limited additional research, the sum claimed for legal costs was excessive.", "239. The Court notes that it has found that the Republic of Moldova, having fulfilled its positive obligations, was not responsible for any violation of the Convention in the present case. Accordingly, no award of compensation for costs and expenses is to be made with regard to this respondent State.", "240. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads, to be paid by the Russian Federation.", "D. Default interest", "241. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicants are six women from northern Iraq, born in 1950, 1970, 1951, 1939, 1949 and 1947 respectively. The first applicant brought the application on her own behalf and on behalf of her deceased son, Ismail Hassan Sherif. The remaining applicants brought the application on their own behalf and on behalf of their deceased husbands, Ahmad Fatah Hassan, Abdula Teli Hussein, Abdulkadir Izat Khan Hassan, Abdulrahman Mohammad Sherriff and Guli Zekri Guli respectively. The fourth applicant has also brought the application on behalf of her deceased son, Sarabast Abdulkadir Izzat.", "11. The facts of the case are in dispute between the parties.", "The applicants'version of the facts", "12. The applicants are shepherdesses who earn their living by shepherding sheep in the valleys and hills surrounding their village of Azadi in Sarsang province near the Turkish border. Their deceased relatives were likewise employed.", "13. On 1 April 1995 the applicants learned that the Turkish army, which had crossed earlier into Iraq, was in their area. They saw military activity and witnessed military helicopters transporting soldiers and food in the valley below their village.", "14. On the morning of 2 April 1995 Ismail Hassan Sherif, Ahmad Fatah Hassan, Abdula Teli Hussein, Abdulkadir Izat Khan Hassan, Abdulrahman Mohammad Sherriff, Guli Zekri Guli and Sarabast Abdulkadir Izatthe, together with the first, third, fourth and fifth applicants, left the village to take their flocks of sheep to the hills. The second and sixth applicants remained in the village to take care of their children.", "15. After the party of eleven shepherds (the first, third, fourth and fifth applicants and Ismail Hassan Sherif, Ahmad Fatah Hassan, Abdula Teli Hussein, Abdulkadir Izat Khan Hassan, Abdulrahman Mohammad Sherriff, Guli Zekri Guli and Sarabast Abdulkadir Izzat ) had walked for fifteen minutes in the direction of Spna, with the four women walking in front of the seven men, they met Turkish soldiers. The latter started to shout abuse at the eleven shepherds, hitting them with their rifle butts, kicking them and slapping them on the face. They separated the women from the men. They told the women to return to the village and then took the men away. The four applicants returned to the village and told the other villagers what had happened.", "16. In the meantime, the second and sixth applicants had begun to worry about their husbands. They had heard gunfire and had been told by a fellow villager that the Turkish army was nearby and that the shooting had come from the direction of a cave situated outside the village in the direction of Spna. The villager thought that Turkish soldiers had been firing inside the cave. As a result, the second and sixth applicants together with three other identified women decided to go to look for their men in the direction of the cave. This occurred before the first, third, fourth and fifth applicants had returned to the village. When the second and sixth applicants and the three other women reached the Turkish soldiers they saw the shepherds with them. The soldiers fired in their direction. The women left and went down into the valley. There they met another group of soldiers and requested permission to talk to the men. The soldiers pointed their guns at them and the women left.", "17. Instead of going to the village, the five women tried to hide in the valley but were spotted by the soldiers who threatened to kill them. Eventually the women reached the cave, but the men were not there. They saw a military helicopter land. They asked the soldiers for permission to see their men but the soldiers refused. The five women continued their search until about 1 p.m. with no success. They returned to the village and told their fellow villagers about what had happened.", "18. Some of the village men, accompanied by members of the Kurdistan Democratic Party (“the KDP”), went to Anshki, a nearby town where a bigger Turkish military unit was based. This unit was responsible for overseeing the military operation in the area. The village men asked the officer in charge to release the shepherds and to allow them to fetch their sheep from the hills. The officer claimed at first that he did not know anything about the shepherds. He subsequently promised the representatives of the KDP that the shepherds would be released. As this did not happen, the KDP representatives made several additional attempts to obtain information. The officer said that if the shepherds had been detained, they would be released. He eventually gave permission for the men to fetch the sheep. He denied that the shepherds had been detained, but warned the men not to look for them. When the men asked why not, the officer became angry and did not reply. When the men went to fetch the sheep, they looked for the shepherds but could not find them.", "19. On 3 April 1995 the Turkish army withdrew from the area around the village and the village men set off in the direction of Spna to look for the seven shepherds who had gone missing. In an area close to where the seven shepherds had last been seen with the Turkish soldiers they found the bodies of Ismail Hassan Sherif, Ahmad Fatah Hassan, Abdulkadir Izat Khan Hassan, Sarabast Abdulkadir Izat and Abdulrahman Mohammad Sherriff. The bodies had several bullet wounds and had been badly mutilated - ears, tongues and genitals were missing. The bodies were taken to the main road and from there to Azadi hospital in Dohuk where autopsies were conducted.", "20. On 4 April 1995 the KDP held a press conference in Dohuk. Mr SN, the KDP Chief for the Amedi region, stated that, upon receiving information that several shepherds had been arrested by Turkish soldiers, he had visited the Turkish army commander in Kadish and had asked for their release. He had handed him a list of names. The commander had told him that he would take action. The commander had radioed his troops and had told SN that the men and sheep would be released. SN had returned to his office. Having received no news, he had returned to the commander who had promised that the shepherds would be released after the military operation. SN made four or five representations to the commander during that day. The Turkish army having withdrawn during the night, SN returned to the commander the following morning. On that occasion the commander denied that the shepherds had been arrested. He told SN that they might have been killed. At the press conference SN exhibited the list he had given to the Turkish commander containing the names of the seven shepherds. The six applicants were also present at the conference and answered questions.", "21. On 5 April 1995 the bodies of Abdula Teli Hussein and Guli Zekri Guli were also found in a state similar to that of the bodies of the other five shepherds.", "22. On 5 April 1995 the husband of the first applicant was killed in a separate incident. The four brothers of the husband of the fifth applicant were also killed in a separate incident. These incidents do not form part of the present application.", "23. On 7 April 1995 the six applicants and other witnesses were interviewed by Dr RA and Mr Kerim Yildiz in the presence of the muhtar of the Tamim area of Sarsang province.", "24. The six applicants have since filed several petitions with the authorities of the region requesting that an investigation be conducted into the deaths of their relatives. They applied to the Governor of Dohuk and gave statements. The Governor said that the deaths would be investigated. However, the applicants have not been informed of any follow-up to the Governor's undertaking.", "The Government's version of the facts", "25. The respondent Government confirm that a Turkish military operation took place in northern Iraq between 19 March 1995 and 16 April 1995. The Turkish forces advanced to Mount Medina. The records of the armed forces do not show the presence of any Turkish soldiers in the area indicated by the applicants, the Azadi village being ten kilometres south of the operation zone. There is no record of a complaint having been made to any of the officers of the units operating in the Mount Medina region.", "Documents and materials submitted by the parties", "1. Written statements given by the applicants", "26. Following the events, the applicants'statements were taken on 7 June 1995 by Dr Rızgar Amin and Kerim Yıldız in the Azadi village of Sarsang province in the governorate of Dohuk ( Iraq ) close to the Turkish border.", "(a) Halima Musa Issa", "27. The applicant was the mother of Ismail Hassan Sheriff, who was allegedly killed under torture by members of the Turkish army on 2 April 1995, and the wife of Mala Hassan Mohammad Sheriff who was also allegedly killed by members of the Turkish army in a separate incident on 5 April 1995. The applicant claimed the following in relation to the alleged incidents:", "“ I and the rest of the villagers heard that the Turkish army was in the area the day before my son was killed. We had seen many military helicopters dropping soldiers and food in the valley near our village.", "In the morning of 2 April 1995, I prepared food for my shepherd son as usual. We decided to go out to herd sheep. We thought the Turkish army would not harm us. We (seven shepherds and four women) left the village and walked towards the Spna area. The women were walking in front of the men. Then we met many Turkish soldiers who immediately arrested us and began to hit us. They slapped us around the face, kicked us and were very angry and rude. Then they separated us and asked the women to go back to the village. We saw the soldiers take the seven shepherds towards the cave. We went back to the village and told the rest of the village about what had happened.", "Some of the men from the village went and asked one of the Turkish army officers to let them retrieve the flocks of sheep from the valley, but he refused and denied having arrested our men. Then some men went to Anshki and asked for the Turkish army officer in charge and requested him to release the shepherds and to let them recover their flocks of sheep. The men went at least five times that day to get information about the men. The Turkish army officer said that if the men were arrested they would be released. He gave permission for the men to bring back the flocks of sheep, but denied knowing anything about our shepherds and warned the men not to go and look for our shepherds. When they asked why they should not go looking for our shepherds, the officer got angry and did not answer.", "Once again, some villagers went to the valley to look for our shepherds. They found our flocks of sheep in the early afternoon but still did not know what had happened to our shepherds. We also informed the party (KDP). They said that they met with the Turkish military officers on many occasions but this did not change our men's fate.", "The following day, after the Turkish army withdrew from our area, the men went to the surrounding area to look for our shepherds. They found my son and four other shepherds that day. Their bodies were brought back to the main road and from there their bodies were taken to the hospital in Dohuk for medical examination. The other two bodies were found two days later.", "The witness replied to the following questions:", "Q: Where do you come from originally?", "A: We are originally from the village of Terina and have been living in Azadi collective village ever since being moved here under Saddam's regime.", "Q: How far is the place where they killed your son?", "A: Around ¼ hours'walk from our village.", "Q: How old was your son?", "A: He was 20 years'old.", "Q: Who were the other three women who were with you that day?", "A: Fatima Darwesh, Fatima Salim and Salia Shawan.", "Q: Can they give us testimonies?", "A: Yes.", "Q: How far from here is the place where they killed your son?", "A: About 15 minutes'walk.", "Q: Who do you think killed your son?", "A: The Turks.", "Q: How do you know that it was the Turks who killed your son?", "A: I know it was the Turks. My son was innocent like the other shepherds and the Turks killed them. I saw the Turkish soldiers take away my son and the rest of the shepherds.", "Q: Why would the Turkish army kill your son?", "A: I don't know. He did not do anything wrong. He was innocent. They killed an innocent man. They (the Turks) want to kill Kurds.", "Q: Was your son armed?", "A: No, apart from a lighter he did not have anything on him.", "Q: Do you have any witnesses that the Turkish army killed your son?", "A: Yes. We were four women who saw the Turkish army take away our men. You can also ask the Party (KDP) because they talked to the Turkish army officers.", "Q: How did they kill your son?", "A: They cut him to pieces. His ears were cut off, they took his tongue out of his mouth. I cannot describe it to you. They have not left anything. They have chained him and dragged him. His body was full of bullets, his genitals were cut.", "Q: Have you submitted a petition anywhere in relation to the Turkish army?", "A: Yes.", "Q: Where?", "A: In Sarsang, Dohuk, and I and the others have spoken to many foreign groups.", "Q: Is there an investigation into the killings?", "A: No, they [Dohok Governor] keep telling us that they will investigate. Each one takes statements from us and they say God will help you.", "Q: Have you been given autopsy reports on your son and husband?", "A: No, I haven't. I will try to get one for you.", "Q: Do you have anything more to add to your statement?", "A: I would not be able to tell you everything that happened because my heart is burning. I know my son and husband were innocent and did not have any problem with anybody. The Turks left me with my children and I do not know how I will live. Please help to find out the truth.”", "(b) Beebin Ahmad Omer", "28. The applicant was the wife of Ahmad Fatah Hassan, a shepherd who was allegedly killed by members of the Turkish army. In her statement the applicant alleged the following:", "“It was early in the morning, on 2 April, and I was at home when I heard the sound of gunshots in the distance. We had heard that the Turkish army was in the area and our shepherds were out with the sheep, so I was concerned. I went out to find out what was happening. Some other people were outside and a man was telling them that the Turkish army was near our village and that the shooting was coming from the direction of the cave. That is in the direction of Spna, not far from the village. The man said that it seemed to him that the Turkish troops were firing inside the cave.", "We talked about what to do and we thought that we would go to find the shepherds. I and the other women went out to look for the men. We thought that we would not be harmed if it was only women who went to look.", "When we saw the soldiers from a distance, our men were with them. The soldiers saw us and they began to fire at us to frighten us. We went away from them and watched what was happening. We saw our shepherds with the Turkish soldiers but we could not do anything. We saw some more soldiers down in the valley and we went over to them to ask them to let us go to the shepherds. We begged them, but they pointed guns at us so we went away from them.", "We spent some time searching for the men and checked the cave, but there was no one there. We were still looking for the shepherds when we saw a Turkish army helicopter land nearby. We went to another group of Turkish soldiers and asked them to let us see the shepherds but they didn't let us. We searched for a long time but we could not find the shepherds. Then we went back to the village to tell the men of the village about what had happened. They went to the KDP (Kurdistan Democratic Party Officials) to get help and some men went to the Turkish officers in the area to have the men released. The men, headed by the local KDP chief, went to the Turkish officer in charge at Anskhi to ask him to let the men go and to let the sheep be brought back but he said he did not know anything. We had seen our shepherds with the Turkish soldiers and so we were frightened for the safety of the shepherds.", "The next day some people went out again to search for the men. They found the five bodies near the cave. My husband's body was among them. The bodies were brought to the main road so they could be taken to Azadi hospital in Dohuk. The village people kept looking for the other two missing shepherds. Two days later they found their bodies. ”", "(c) Safia Shawan Ibrahim", "29. The applicant was the wife of Abdula Teli Hussein, one of the shepherds allegedly killed by members of the Turkish army. She stated:", "“That morning, the 2 nd of April 1995, I set out with my husband and the other shepherds and women to tend to the sheep. There were seven shepherds and four women including myself. We had not gone very far from the village when we met the Turkish soldiers. There was a large number of soldiers and they surrounded us. They started to attack us and hit us with their rifle butts and shouted abuse at us. They hit the women as well as the men. After some time they told the women to go back to the village. The men were still with the soldiers when we left. At this time there were seven shepherds with the soldiers.", "We went back to the village and told the men of the village what had happened.", "The men of the village set out to go to the Turkish army officers to ask them to let the shepherds go as they were not doing any wrong. The men made many representations to the army officials throughout the day and they went to Anshki to make further representations. They said that they were told to return to the village and warned not to look for the men. The men went out to look for the shepherds and found the flocks of sheep but there was no trace of the shepherds. The following day the village men once again went off to look for the shepherds. They found the bodies of five of them. Two days later the bodies of the other two were found.", "I saw the body of my husband. He had been killed by many bullets. The body was taken to the hospital.", "I want you to take the necessary action against the soldiers for what they have done to my husband. ”", "(d) Fatime Darwish Murty Khan", "30. The applicant was the mother of Sarbest Abdulkadir Izat and the wife of Abdulkadir Izat Khan (Hassan), who was allegedly killed under torture by members of the Turkish army between the 2 and 3 April 1995. She claimed the following:", "“From our village we could see the army down in the valley on the day before the incident in which my husband was killed.", "On the morning of 2 April 1995 I went with my husband and son to herd sheep. We met with the other women and men and set off in the direction of Spna. We went with the men because the men thought that if we were with them there would not be any trouble. We walked ahead of the men. There were seven men and four women in the group. The Turkish soldiers stopped us. They hit us and beat us with their rifle butts and humiliated us. I was frightened for my life. The soldiers told us to go back and they took our shepherds away with them. We ran back to the village and told the men in the village what had happened.", "We went back to the valley and spent the rest of the day looking for our shepherds. Some men went to the Turkish soldiers to ask them to let our shepherds go. Then some men went to Anshki and asked a high - ranking Turkish army officer to release our shepherds and to let us bring the sheep back. The men went many times that day to get information about our shepherds. Party (KDP) representatives also went to the Turkish army officers many times, but nothing happened.", "The next day the bodies of my husband and son were found with terrible things done to them. They were found in the cave. The bodies of three other shepherds were found with them. The other two shepherds'bodies were found a few days later.", "It was a terrible thing that was done to our shepherds. My husband and son did not do anything wrong. I do not know why they did this to him and the others. Please help us. We have nothing left. ”", "(e) Fahima Salim Muran", "31. The applicant was the wife of Mohammad Sheriff, who was allegedly killed under torture by the Turkish army between 2 and 3 April 1995. She stated:", "“The day of the incident I got ready to go out to herd sheep with my husband and the other shepherds. We had heard that the Turkish army was in the area but we did not feel in danger. We went to do our work. I was going with my husband to the hills to herd the sheep. We all went together. I walked with the other women. We were walking along when the soldiers appeared in front of us. They came all around us and attacked us with their rifle butts and beat us.", "They were shouting at us all the time they were beating us. Then we were told to go back to the village and the men were still with the soldiers. We saw the soldiers take our men towards the cave. There were seven men. We were four women. We went back to the village and told the rest of the villagers about what had happened.", "I know that some of the men went and asked one of the Turkish army officers to let them bring the flocks of sheep back from the valley and petitioned the officer to release the men. Later that day the men also went to Anshki to the larger military base and asked the officer in charge to let our men go and to return the flocks of sheep, but they did not get any information about our men. The men were warned not to go looking for the shepherds.", "The body of my husband was found the next day. His body was in pieces. He had been shot many times. I don't know why the Turks did this to him. He was an innocent man and we were on our way to herd our sheep. The Turks killed my husband and they also killed his four brothers [in a separate incident]. We had no trouble with the army and there was no reason to kill our men.", "The body of my husband was brought to the hospital in Dohuk for medical examination. The Turks are gone now, but I am left with my children with no father. I do not know who to petition about the terrible things that have happened to us. ”", "(f) Basna Rashid Omer", "32. The applicant was the wife of Guli Zekri Guli, one of the shepherds allegedly killed by members of the Turkish army. The applicant claimed the following in her statements:", "“It was early in the morning of 2 April 1995 and I woke up to prepare breakfast for my children. While I was preparing breakfast I heard the sound of gunfire. I was startled and went out of the house. I saw our villager and asked him what had happened.", "He told me that the Turkish army was near our village, and that the shooting came from the direction of the cave. The only cave near the village is in the direction of Spna. He told me that it seemed to him that the Turkish troops were firing inside the cave. After a while I and four other women, Beebin, Binafis, Safia, Bahia, left the village to go in the direction of the gunfire. We were very concerned about our husbands and sons who were grazing our animals in the mountains.", "Then we saw the shepherds with the Turkish soldiers. We went towards them and when we were still far away from them the Turkish troops suddenly fired on us without any warning. Probably they wanted to frighten us, so that we would not approach them. We saw our shepherds being taken away by the soldiers. We went further down in the valley and met some other Turkish soldiers. We begged them to release our shepherds and to let us talk to them. They told us that they would kill us if we did not go back to the village. Despite many pleas and much begging they forced us to go back to the village.", "We had to leave the soldiers and we went and hid ourselves in a place in the valley in order to be able to see what the soldiers were going to do next. Four soldiers saw us and came over to us and threatened us to go back to our village or we would be killed. They were very angry when they saw us and told us “We don't want to see you around again. Go back to your home, otherwise we will kill you.”", "We left our hiding place and went to the cave to look for the shepherds. Our men were not there. Then we saw a Turkish army helicopter land nearby. For the third time we tried to see our husbands and sons, so we went to the Turkish soldiers and asked them to let us see the shepherds, but they didn't let us. When we didn't see them in the cave we thought that they might have taken them somewhere else. We spent until about 1 p. m. in the area trying to find them. Then we decided to go back to the village. The village men came towards us when we were near the village and wanted to find out what had happened. We told them that the Turkish troops took the men, but we don't know what happened after that. The village men went to Anshki with the representatives of the party, [Kurdistan Democratic Party] KDP and met the military commander there. They told him the story and asked him to release our shepherds. The Turkish army commander first told him that he didn't know anything about the arrest of the shepherds. Later on, the Commander told the KDP people that they will soon release the shepherds, but this never happened. We were left confused and not knowing what to do. They went back to Anshki and once again asked the Turkish troops to let them see the shepherds, but they did not get any further news about our men. I can't remember everything the Turkish commander told the party men, but you can ask the party, they will tell you everything.", "The following day, the village people went to the valley once again to look for them and they found the dead bodies of five of them. They brought their bodies to the main road. Afterwards the village men took the bodies to Azadi hospital in Dohuk. The village people kept looking for the two other missing shepherds. Two days later they found their bodies. One of them was my husband's. They took their bodies to Azadi hospital in Dohuk.", "The following questions were asked.", "Q: How many soldiers were there?", "A: A lot, but I don't know how many, but the soldiers were everywhere.", "Q: How do you know that the soldiers were Turkish?", "A: Because they were speaking Turkish and it was the Turkish army which was around at the time. The Turks had been in the surrounding area over the previous few days. They were all over the place. We do not have any other army here. The Iraqi army left some time ago and their uniform was different from the Turkish army uniform.", "Q: You say you saw a Turkish helicopter landing nearby. How do you know it was a Turkish army helicopter and what happened?", "A: I told you, we haven't seen any other army in the area for sometime. The other alternative is the Iraqi army. But you see, we haven't seen the Iraqi army recently and we know what they look like. The soldiers were not Iraqi soldiers. They left some time ago. The helicopters dropped the soldiers and food in the valley.", "Q: You say the Turkish army threatened to kill you if you didn't leave the place? How?", "A: By pointing their guns at us and using bad words and shouting at us. We were asked to leave the place and this kind of thing.", "Q: Did you see your husband's body? Can you describe his body?", "A: I saw it for a short time. I saw that his ears were cut [crying] I can't describe to you, those who committed this crime cannot be human beings and I can't understand why they didn't just shoot him with a gun. Why did they kill him in this way? How can they cut the body of my husband like this? They are not human.", "Q: Was your husband armed?", "A: No, he has never carried a gun in his life.", "Q: Had your husband any connection with the PKK?", "A: No. We have never seen the PKK. We have never seen their peshmargas. We never had trouble with them.", "Q: So why did the Turkish troops kill your husband?", "A: I do not know. Because we are Kurds, maybe they do not like us. They kill us because we are defenceless and there is no one to defend us against them. ”", "2. Statement made by Mr Shookri Nerwayi, the KDP Chief in Amedi region in Iraq, during a press conference held in Dohok, a day after the bodies of the shepherds were found", "33. Mr Nerwayi claimed the following during the press conference:", "“I was in Amadia town when reports came to me that the Turkish army had attacked the Spna area and the Bawrki area at 4. 30 a.m.", "Past experience with the Turkish army has taught us that, wherever they go, they assault poor people. As an example, before the current incident two of our citizens were on their way back to Hemzeki village. The Turkish soldiers arrested them. After assaulting and beating them, killing one and wounding the other. I reported this incident to the Turkish army commander and asked him to keep us informed about their operations, so that we can ask the villagers to leave their villages before the operations to avoid civilian casualties.", "I heard about the Turkish army operation in Spna area, and I went early in the morning to the Turkish army commander in Kadish. I told him that I received information about the arrest of several shepherds by the Turkish army. I officially gave him this list (showing a list of names of the deceased) of the shepherds reported to have been arrested by the Turkish army. I told him that the people who had been arrested were shepherds and were known to us. I said that they were out herding their sheep and I asked the commander to send orders to release them as they were innocent people minding their own business.", "He told me he would take action. Indeed, he radioed his troops, and then told me that he ordered them to release the men and the sheep. I went back to my office in Kadish. During the day, as I had not heard any news of the shepherds, I made 4 or 5 representations to the Turkish army commander, asking him to release the men as soon as possible. Each time, he promised that he would order his soldiers to release them and made excuses for not releasing them. He told me after the military operation he would let the men go. The Turkish army withdrew (from the Spna area) during the night, and the following morning I went back to the Turkish army commander.", "At that time, he denied having arrested the men. He said go and look for them: they might have been killed. We told the shepherds'relatives, who went to the area once again and found the shepherds'bodies.", "I am giving this account so that you know that we made representations to the Turkish army and asked the Turkish army to release the shepherds, but they did not. I hope that you publicise the incident so that who killed these men is known. I hope that you will do something both to prevent future atrocities by Turkish army and end the oppression they bring upon us. ”", "3. Post- mortem forensic examination reports dated 4 April 1995", "34. A post-mortem examination was performed by Dr Abdula Salih, a specialist surgeon, at the Baghdad Forensic Medicine Institute of the Iraqi Ministry of Justice, on the bodies of Ahmed Fattah Hassan, Ismail Hasan Muhammed, Abdulmalik Hussein, Abdulkader Izzat Khan, Abdulrahman Muhammad Sherriff, Sarias Abdulkadir and Gulei Thekeri.", "35. Dr Abdula Salih diagnosed the cause of death as brain damage due to gunshot wounds. He noted the presence of gunshot wounds, cutting and other wounds on the bodies of the deceased.", "4. A copy of a video recording labelled “Documentaries from Turkish TV Stations”", "36. This video recording, compiled from various Turkish TV stations, contains pictures of Turkish army presence in northern Iraq between 19 March and 2 May 1995. It further comprises interviews and news reports about the operations conducted by the Turkish army in northern Iraq.", "5. A copy of a video recording about a press conference held by the Governor of Dahouk in northern Iraq regarding the killing of the applicants'relatives and pictures of the latter's mutilated bodies", "37. On 4 April 1995 the Governor of Dahouk held a press conference attended by of the representatives of international human rights organisations and agencies, representatives of the Kurdistan Democratic Party (“KDP”) and of the local assembly in northern Iraq as well as by the relatives of the deceased persons. The KDP spokesperson stated that the purpose of the press conference was to give information about the Turkish army's encroachment on northern Iraq since 19 March 1995.", "38. It was alleged that Turkish armed forces were in control of the Sersing, Amadia and Spna areas. As a result of the military campaign launched by the Turkish army at the relevant time, allegedly eleven persons had died, seven persons had been wounded, thirty one houses had been burned and the inhabitants of fifty-one villages had left their homes for reasons of insecurity.", "39. The KDP spokesperson alleged that on 2 April 1995 eleven persons had been arrested by members of the Turkish troops. These persons were Abdulkader Izzet, Serbest Abdulkader, Ismail Hassan Sheriff, Abdullatif Hüseyin, Abdurrahman Muhammet Sheriff, Goly Zikry, Ahmed Fatah, Fatma Darwish, Fahima Selim, Safia Zwa and Halima Mussa. The latter four persons, all women, were released and informed their relatives in their village. The villagers informed a KDP officer in charge of the Amadia region, Mr Shookri, about the arrest and detention of seven men by the Turkish army. Mr Shookri went to speak to the leader of the Turkish troops and asked him to release these men. He also submitted a petition containing the names of the persons under arrest. The leader of the Turkish troops promised that they would be released. However, following the withdrawal of the Turkish army troops, the villagers found the corpses of five of the seven men. Their bodies had been mutilated and some of them had been decapitated. At the end of the press conference, Mr Shookri took the floor and stated that the leader of the Turkish troops had denied that they had killed these men. On 4 April 1995 two men were still missing.", "40. The KDP spokesperson stated that they had condemned the acts of the Turkish army in the region and called on them to withdraw. He noted that they would seek compensation from the Turkish Government for the crimes committed by the Turkish army.", "41. The KDP spokesperson also called on the PKK to withdraw from northern Iraq. He remarked that the inhabitants were unable to construct houses and set up new villages along the Turkish border on account of PKK activity over the last four years. He underlined in this connection the difficulties in controlling the 340 kilometres of border.", "42. At the end of the press conference, the mutilated bodies of the deceased persons and bullets removed from them were shown.", "6. Statements and a report by a Turkish journalist, Koray Düzgören, who has written about the military operations of the Turkish army in northern Iraq", "43. In his written statements Koray Düzgören claimed that the Turkish army had carried out cross-border operations, called “hot pursuit actions”, against PKK militants in May 1983, August 1986, March 1987 before the Gulf war and on 5 September 1991, 11 October 1991, 1 6 May 1992 and 7 October 1992 after the Gulf war. He alleged that these operations were aimed at preventing the incursion of PKK militants into Turkey and from dissuading the Kurdish groups from setting up a Kurdish state in northern Iraq. He noted, with reference to the statements made by the former head of the General Staff, General Hüseyin Kıvrıkoğlu, in August 1992 that Turkish troops were positioned in the vicinity of a small airport in the Sersing area of northern Iraq.", "44. In his report dated 5 June 1996, Mr Düzgören noted that since 20 April 1996 seventeen villages had been subjected to intermittent attacks from artillery fire from the hills on the Turkish border or from helicopters and aircraft. The artillery fire discharged by the Turkish army caused damage to buildings and killed one person and wounded eleven others. In his opinion, the reason for these attacks was to create a buffer zone south of the border and to cut off the logistic support given to the PKK by the villagers in the region.", "7. Chronology of cross - border operations carried out by the Turkish army, prepared by a Turkish working group “Coming Together for Peace” in June 1996", "45. The Turkish security forces carried out fourteen major cross-border operations between January 1994 and November 1998. The largest operation, called “ Çelik (steel) operation” and carried out with the participation of seventy to eighty thousand troops accompanied by tanks, armoured vehicles, aircraft and helicopters, lasted almost six weeks between 19 March and 2 May 1995. The Turkish troops penetrated 40-50 kilometres southwards into Iraq and 385 kilometres to the east.", "8. A letter dated 23 October 2000 from Mr Safeen Dizayee, the head of the Kurdistan Democratic Party office in Ankara, to the Turkish Ministry for Foreign Affairs", "46. The Government submitted a document, furnished by the Kurdistan Democratic Party (“KDP”), one of the two main Kurdish factions in northern Iraq, which stated:", "“At the time of the incident Mr Newayi was a co-ordinator with the Turkish military and no accusations were made against the army since no investigation was conducted yet in order to come to any such conclusions. The families of the killed individuals, being Iraqi Kurdish citizens, approached the KDP and local authorities to report the incident, which is a natural thing to do.", "The PKK was active in the Bahdinan (Duhok province) region at the time of the incident and many confrontations were reported between KDP peshmergas and the PKK.”", "9. A newspaper article dated 5 October 2000 reporting the payment of compensation to Iraqi Kurds", "47. A daily newspaper, “ Binyıl”, reported in its edition of 5 October 2 000 that one of the Kurdish Iraqi leaders, Mr Mesut Barzani, had stated during his visit to Ankara that the Turkish Government had paid compensation to the relatives of thirty-eight persons who had lost their lives during an aerial campaign of the Turkish army in northern Iraq on 15 August. Mr Barzani said that a serious investigation had been carried out into the incident. He further noted that the attack had not been deliberate and that the families had received the compensation awarded to them. According to sources close to Mr Barzani, the payment, which was unprecedented, was made in cash.", "10. Report of Dr Chris Milroy, Forensic Pathologist", "48. After having viewed video footage showing the bodies of a number of Iraqi peasants (see paragraph 42 above), Dr Milroy observed the following:", "“ ... All the bodies show a number of gunshot wounds. The cameraman tends to concentrate on the larger wounds, but smaller circular wounds are also shown. The wounds all appear to be caused by high velocity bullets. A typical gun that would fire such bullets would be a 7.62 mm or 5.56 mm rifle. The larger wounds on the bodies are exit wounds of bullets, the wounds being made larger in some cases probably by bone fragments exiting the body. The smaller wounds are the entrance wounds of the bullets.", "It is not possible to determine the range at which these people were shot at from this vdeo. Some of the wounds are near the genitalia, but these all appear to be bullet wounds, and there is no evidence of any other weapon being used, or of deliberate genital mutilation.", "The video also shows bullet shells with the marking “MKE”. MKE is the mark of the manufacturer Makina Kimya Endustrisi Kurumu of Kırıkkale, Ankara, Turkey.", "Overall the bodies all show multiple gunshot wounds in keeping with bullets fired from high velocity rifles.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Turkish Criminal Code", "49. The Criminal Code makes it a criminal offence", "(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);", "(b) to subject an individual to torture or ill-treatment (Articles 243 and 245);", "(c) to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450);", "50. If the suspected authors of these criminal acts are military personnel, they may also be prosecuted for the above-mentioned crimes. Proceedings in these circumstances may be initiated by the persons concerned (non ‑ military) before the competent authority under the Code of Criminal Procedure or before the suspected persons'hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).", "B. Relevant International Legal Materials", "51. A description of relevant international legal materials can be found in Banković and Others v. Belgium and 16 other Contracting States (dec.) [GC], application no. 52207/99, §§ 14-27, ECHR 2001-XII.", "THE LAW", "I. PRELIMINARY ISSUE: THE GOVERNMENT'S PRELIMINARY OBJECTION CONCERNING JURISDICTION AND THE APPLICANTS'ESTOPPEL ARGUMENTS", "A. Parties'submissions", "1. The Government", "52. In their post-admissibility observations dated 9 July 2002, the Government submitted that the need had arisen to examine the issue of “jurisdiction” in the instant case, having regard to the Court's inadmissibility decision of 12 December 2001 in the case of Banković and Others cited above. They contended that in its Banković and Others decision the Court had departed from its previous case-law on the scope of interpretation of Article 1 of the Convention. Since the jurisdiction issue in the applicants'case had been left unresolved in the admissibility decision, which pre-dated the Banković and Others decision, the Court should address itself in the first place to the compatibility ratione loci of the application.", "2. The applicants", "53. The applicants replied that the Court in the Banković and Others case had merely refined and applied existing case-law on Article 1 to the facts of the Banković and Others case. In any event, it had already ruled on the admissibility of their complaints. On that account, the Government should be considered estopped from raising a new objection to admissibility at this late stage of the proceedings. The applicants, on the other hand, had addressed the issue of jurisdiction squarely both in their initial application and in their pre-admissibility pleadings. The Government never sought to rebut their claim that Turkey's jurisdiction was engaged on the facts of the case and confined themselves to challenging the admissibility of the application on the grounds set out in Article 35 § 1 of the Convention. To allow the Government to re-open admissibility issues at this stage would fundamentally offend against the principles of certainty and finality and would make a mockery of the principle of “equality of arms”.", "54. Furthermore, both the Government and the Court had already accepted jurisdiction in the present case. The applicants reasoned that, in their submissions to the Court in the Banković and Others case, the respondent Governments, including Turkey, expressly agreed with the Court's admissibility decision in Issa, describing it as “ ... a classic exercise of such legal authority or jurisdiction over those persons by military forces on foreign soil” ( Banković and Others, cited above, § 37). Thus, the Turkish Government can be said to have impliedly accepted the force of that argument and its application to the circumstances of the instant case. Likewise, the Court effectively accepted jurisdiction when it ruled on the issue of domestic remedies. For the applicants, it was inconceivable that the Court had not supposed Turkey's jurisdiction when ruling on admissibility. Its detailed examination of the general and political context as well as its cross-references to other judgments against Turkey is only intelligible on the basis that Turkey came within the terms of Article 1.", "B. The Court's assessment", "55. The Government did not explicitly raise the issue of jurisdiction prior to the admissibility decision in the instant case. However, they have at all times denied the factual basis of the applicants'allegations and, by implication, the applicants'specific and crucial contention that the deceased shepherds were under the control and authority of Turkish armed forces operating in northern Iraq at the relevant time and were, accordingly, within the jurisdiction of Turkey. In the Court's opinion, and notwithstanding the requirements of Rule 55 of the Rules of Court, the Government cannot be considered precluded from raising the jurisdiction issue at this juncture. That issue is inextricably linked to the facts underlying the allegations. As such, it must be taken to have been implicitly reserved for the merits stage. It would add that it cannot accept the applicants'arguments that the Court had accepted that Turkey had jurisdiction when it ruled on the admissibility of the application. It refers in this connection to the fact that the Grand Chamber in its Banković and Others decision pointed out that “in any event the merits of [the Issa case ] remain to be decided.” ( ibid. § 81).", "In conclusion, the question of jurisdiction must be seen as a live issue in the case before it and must therefore be examined.", "II. WHETHER THE APPLICANTS'RELATIVES CAME WITHIN THE JURISDICTION OF TURKEY", "A. Arguments submitted to the Court", "1. The Government", "56. The Banković and Others decision demonstrated that the Court's recognition of the exercise of acts of extra - territorial jurisdiction by a Contracting State was exceptional since such acts were subject to the sovereignty of another State. That decision also confirmed that the Convention was a treaty operating in an essentially regional context and in the legal space ( espace juridique ) of Contracting States and that jurisdiction would only be established when the territory in question was one that would normally be covered by the Convention.", "57. Iraq was an independent and sovereign State which exercised effective jurisdiction over its national territory. It was neither a member of the Council of Europe nor a signatory to the Convention. Accordingly, the acts imputed to Turkey could not fall under the Convention protection system and/or within the jurisdiction of a Contracting State. The applicants could not rely on the argument that, in the event of a ruling by the Court that it was not competent to decide the case, a vacuum or lacuna in the system of human rights system would thereby result.", "58. As they had done in their submissions on the admissibility of the application, the Government confirmed that Turkish troops had conducted an operation in northern Iraq between 19 March and 16 April 1995. However, no Turkish soldiers had been present in the area indicated by the applicants. During this military operation Turkish troops had advanced to Mount Medina. However, the scene of the impugned incident was ten kilometres to the south of Mount Medina, and thus beyond the zone of operations. The records of the armed forces showed that no Turkish soldiers were in the area indicated by the applicants. For the Government, the mere presence of Turkish armed forces for a limited time and for a limited purpose in northern Iraq was not synonymous with “jurisdiction”. Turkey did not exercise effective control of any part of Iraq and it had to be concluded that Turkey could not be held responsible for the acts imputed to it in the instant application.", "59. The Government further pointed out that no complaint had ever been made to any officer of the Turkish armed forces operating in the Mount Medina region at the relevant time, and no investigation could therefore be conducted into the incident of which Turkey was accused. As regards the video recording of statements made by the KDP Chief of the Amedi region, Mr Shookri Newayi, during a press conference held in Dohouk, the Government observed that the KDP office in Ankara had been contacted with a view to verifying the reliability of the statements made by Mr Nerwayi and to ascertaining the outcome of the investigations carried out by the local authorities. The KDP office replied that Mr Nerwayi was the contact person for the KDP with the Turkish army, that no accusations had been made against the Turkish army and that no investigation had been conducted into the incident (see paragraph 46 above). The KDP's letter also stated that at the relevant time the PKK had been active in the region and that there had been many confrontations between the KDP and the PKK. This information supported the views expressed in news reports at the time of the incident that the killing could have been carried out by members of the PKK operating in the region.", "60. Finally, the Government stressed that individuals who suffered pecuniary or non-pecuniary damage as result of misconduct by members of the Turkish armed forces received compensation on submission of their complaints to the competent authorities. They referred in this connection to a newspaper article which reported that the Turkish Government had paid compensation to the relatives of thirty-eight persons who had lost their lives during an aerial campaign of the Turkish army in northern Iraq (see paragraph 47).", "61. In sum, the Government concluded that, in view of the circumstances of the present case and having regard to the Court's interpretation of the notion of “jurisdiction” in the Banković and Others decision, Turkey's jurisdiction did not extend to northern Iraq for alleged violations of the Convention and its protocols and that Convention responsibility for the incident in the present case could not therefore be imputed to Turkey.", "2. The applicants", "62. The applicants claimed that the jurisdictional position of the applicants remained unaffected by the Banković and Others decision. With reference to the Convention institutions'jurisprudence and legal commentaries on the issue of jurisdiction, the applicants submitted that the victims of the atrocity were within the jurisdiction of the respondent State at the material time (see, Loizidou v. Turkey ( preliminary objections ), judgment of 23 March 1995, Series A no. 310, p. 23, § 62; Loizidou v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2 234, § 52; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001 -IV; Banković and Others, cited above, § § 54 and 70; Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, p. 29, § 91; Oppenheim's International Law, 9 th Edition 1992 (Jennings and Watts), Vol. 1, § § 136 and 137; Brownlie, Principles of International Law, 4 th Edition 1990, p. 2 98, 311; and Byers, Custom, Power and the Power of Rules, Cambridge University Press, 1999, p. 53 ).", "63. The applicants maintained that Turkey's ground operations in northern Iraq were sufficient to constitute “effective overall control” ( within the meaning of the Loizidou judgment ) of the area where the breaches of their relatives'human rights occurred. In their official statements on the conduct of military operations in northern Iraq at the relevant time, the Turkish authorities accepted that the area was under the authority of the Turkish State, and hence within its jurisdiction (see Government Statement. Subject: Military Operation in Northern Iraq. Permanent Mission of Turkey to the United Nations Office of the Press Counsellor, 20 March 1995 ). During those military operations, the Turkish Government deployed in excess of 35,000 ground troops, backed up by tanks, helicopters and F- 16 fighter aircraft ( Turkey: Anti ‑ Kurdish Offensive, Keesing's Record of World Events, News Digest for March 1995). Given the degree of control enjoyed by the Turkish armed forces of the area, the Turkish Government had de facto authority over northern Iraq and its inhabitants, as opposed to de jure sovereignty. The circumstances of the applicants'case were different from those in the Banković case since the deceased shepherds had been deliberately targeted, murdered and mutilated by Turkish armed forces. In their opinion, the fact that the decision ‑ making process that led to the military operation in northern Iraq took place in Turkey lent further weight to their submission that Turkey exercised jurisdiction at the relevant time.", "64. The applicants also stressed that the shepherds fell within the protected persons category defined in Article 4 of Fourth Geneva Convention of 1949, namely “those who at any given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals ”. Accordingly, the seven Iraqi shepherds were brought within the jurisdiction of the respondent State by virtue of the de minimis protection afforded by the Geneva Conventions. The fact that under international law the victims were clearly within the jurisdiction of Turkey reinforced their submission that the requirements for the applicability of Article 1 of the Convention were satisfied in this case.", "B. The Court's assessment", "1. General principles", "65. Article 1 of the Convention provides:", "“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”", "66. It follows from Article 1 that Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”.", "The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia, [GC], no. 48787/99, § 311, ECHR 2004 - ... ).", "67. The established case-law in this area indicates that the concept of “jurisdiction” for the purposes of Article 1 of the Convention must be considered to reflect the term's meaning in public international law (see Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, 14 May 2002; Banković and Others, cited above, §§ 59-61, and Assanidzé v. Georgia, [GC], no. 71503/01, § 137, ECHR 2004 -...).", "From the standpoint of public international law, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State's jurisdictional competence is primarily territorial (see Banković and Others, cited above, § 59 ), but also that jurisdiction is presumed to be exercised normally throughout the State's territory.", "68. However, the concept of “jurisdiction ” within the meaning of Article 1 of the Convention is not necessarily restricted to the national territory of the High Contracting Parties (see Loizidou v. Turkey, cited above, pp. 2235-2236 § 52). In exceptional circumstances the acts of Contracting States performed outside their territory or which produce effects there (“extra-territorial act”) may amount to exercise by them of their jurisdiction within the meaning of Article 1 of the Convention.", "69. According to the relevant principles of international law, a State's responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration ( ibid. § 52 ).", "70. It is not necessary to determine whether a Contracting Party actually exercises detailed control over the policies and actions of the authorities in the area situated outside its national territory, since even overall control of the area may engage the responsibility of the Contracting Party concerned ( ibid., pp. 2235-2236, § 56).", "71. Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State's authority and control through its agents operating – whether lawfully or unlawfully - in the latter State (see, mutatis mutandis, M. v. Denmark, application no. 17392/90, Commission decision of 14 October 1992, DR 73, p. 193; Illich Sanchez Ramirez v. France, application no. 2878 0/95, Commission decision of 24 June 1996, DR 86, p. 155; Coard et al. v. the United States, the Inter ‑ American Commission of Human Rights decision of 29 September 1999, Report No. 109/99, case No. 10.951, §§ 37, 39, 41 and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3 respectively ). Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory ( ibid .).", "2. Application of the above principles", "72. In the light of the above principles the Court must ascertain whether the applicants'relatives were under the authority and /or effective control, and therefore within the jurisdiction, of the respondent State as a result of the latter's extra ‑ territorial acts.", "73. In this connection, the Court notes that it is undisputed between the parties that the Turkish armed forces carried out military operations in northern Iraq over a six - week period between 19 March and 16 April 1995 (see paragraphs 58 and 63 above). It transpires from the parties'submissions and the documentary evidence contained in the case-file that the cross-border operation conducted at that time was extensive and was aimed at pursuing and eliminating terrorists who were seeking shelter in northern Iraq (see paragraphs 36, 43, 45, 58 and 63 ).", "74. The Court does not exclude the possibility that, as a consequence of this military action, the respondent State could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq. Accordingly, if there is a sufficient factual basis for holding that, at the relevant time, the victims were within that specific area, it would follow logically that they were within the jurisdiction of Turkey (and not that of Iraq, which is not a Contracting State and clearly does not fall within the legal space ( espace juridique ) of the Contracting States (see the above-cited Banković decision, § 80).", "75. However, notwithstanding the large number of troops involved in the aforementioned military operations, it does not appear that Turkey exercised effective overall control of the entire area of northern Iraq. This situation is therefore in contrast to the one which obtained in northern Cyprus in the Loizidou v. Turkey and Cyprus v. Turkey cases (both cited above). In the latter cases, the Court found that the respondent Government's armed forces totalled more than 30,000 personnel (which is, admittedly, no less than the number alleged by the applicants in the instant case - see § 63 above – but with the difference that the troops in northern Cyprus were present over a very much longer period of time) and were stationed throughout the whole of the territory of northern Cyprus. Moreover, that area was constantly patrolled and had check points on all main lines of communication between the northern and southern parts of the island.", "76. The essential question to be examined in the instant case is whether at the relevant time Turkish troops conducted operations in the area where the killings took place. The fate of the applicants'complaints in respect of the killing of their relatives depends on the prior establishment of that premise. The Government have vigorously denied that their troops were active in or around Azadi village in the Spna area (see paragraphs 25 and 58 above). The reasonableness of that assertion must be tested in the light of the documentary and other evidence which the parties have submitted to the Court, having regard to the standard of proof which it habitually employs when ascertaining whether there is a basis in fact for an allegation of unlawful killing, namely proof “beyond reasonable doubt” ( Orhan v. Turkey, no. 25656/94, § 264, 18 June 2002; Tepe v. Turkey, no. 27244/95, § 125, 9 May 2003; and İpek v. Turkey, no. 25760/94, § 109, ECHR 2004 ‑ ... (extracts) ), it being understood that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.", "77. The Court notes that the applicants have provided written statements describing the alleged course of events leading to the arrest and killing of their relatives. While the applicants were all unequivocal in their statements that the alleged acts were perpetrated by Turkish soldiers, they have not given any particulars as to the identity of the commander or of the regiment involved in the impugned acts (see paragraphs 26-33 above). Nor have they given a detailed description of the soldiers'uniforms. It is to be noted in this connection that there is no independent eye-witness account of the presence of Turkish soldiers in the area in question or of the detention of the shepherds.", "78. As regards the statements made by Mr Shookri Newayi and other KDP officials during a press conference held in Dohouk, the Court considers that no weight should be given to their assertions, having regard to the facts that the content of the letter from Mr Safeen Dizayee, who is the head of the KDP office in Ankara, contradicts them and that, in any event, they lack precise and sufficient information about the characteristics of the Turkish troops alleged to have been involved in the events in question (see paragraphs 33, 38-40 and 43 above).", "79. Furthermore, the Court is unable to determine, on the basis of the findings contained in the post-mortem reports and the video recording showing the bullet shells marked “MKE” allegedly removed from the shepherds'corpses, whether the deaths were caused by gunfire discharged by Turkish troops (see paragraphs 34, 35, 42 and 48 above). It notes that the post ‑ mortem reports submitted by the applicants do not mention that bullet shells with the marking “MKE” had been recovered from the corpses of the shepherds (see paragraphs 34 and 35 above). Accordingly, the Court cannot attach any decisive importance to the video footage since this is untested and at most circumstantial evidence. In this connection, the Court cannot overlook either the fact that the area where the applicants'relatives were killed was the scene of fierce fighting between PKK militants and KDP peshmergas at the relevant time (see paragraphs 41 and 46 above ). Moreover, although news reports and official records confirm the conduct of cross-border operations and the presence of the Turkish army in northern Iraq at the material time, these materials do not make it possible to conclude with any degree of certainty that Turkish troops went as far as the Azadi village in the Spna area (see paragraphs 36 and 43 ‑ 45 above).", "80. Finally, the Court has also had regard to the applicants'allegations that they appealed to Turkish army officers to secure the release of their relatives and, subsequent to the discovery of the bodies, for an investigation to be carried out by the Turkish authorities into the killings. However, given the failure of the applicants to provide any cogent and convincing evidence capable of rebutting the Government's contention that no such complaint was ever made to Turkish army officers in northern Iraq and having regard to the KDP's letter confirming the Government's stance (see paragraph 46 above), the Court cannot but conclude that these allegations are unsubstantiated.", "81. On the basis of all the material in its possession, the Court considers that it has not been established to the required standard of proof that the Turkish armed forces conducted operations in the area in question, and, more precisely, in the hills above the village of Azadi where, according to the applicants'statements, the victims were at that time.", "3. The Court's conclusion", "82. In the light of the above, the Court is not satisfied that the applicants'relatives were within the “ jurisdiction ” of the respondent State for the purposes of Article 1 of the Convention.", "This finding makes it unnecessary to examine the applicants'substantive complaints under Articles 2, 3, 5, 8, 13, 14 and 18 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1979.", "5. The applicant travelled to the United Kingdom from Uganda on 2 September 2002. She claimed that she had been raped several times in Uganda and that her purpose in travelling to the United Kingdom was to escape from the sexual and physical violence which she had experienced. She intended to work to support herself in the United Kingdom and to pursue further education.", "6. According to the applicant’s account, a relative named S. and a Mr A. helped her obtain a false passport and a visa to enable her to enter the United Kingdom. However, the applicant claimed that on arrival in the United Kingdom S. took her passport and travel documents and did not return them to her.", "7. The applicant lived for a number of months at various houses belonging to S. in London. She claimed that during this time he constantly warned her that she should not talk to people and that she could easily be arrested or otherwise come to harm in London. She was also shown violence on television and told that this could happen to her if she was not careful.", "8. In January 2003 S. introduced the applicant to a man called M. who ran a business providing carers and security personnel for profit. The applicant attended a short carers’ training course and thereafter did some overnight shifts as a carer and as a security guard in a number of locations. The applicant asserted that on each occasion payment was made by the client to M., who transferred a share of the money to S.’s bank account in the apparent belief that he would pass it on to her. However, she claimed that she did not receive any payment for the work that she did.", "9. In early 2003 the applicant began to work as a live-in carer for an elderly Iraqi couple (“Mr and Mrs K”). She found the role physically and emotionally demanding as Mr K. suffered from Parkinson’s disease and she was required to change his clothing, feed him, clean him and lift him as necessary. As a result, she was permanently on-call during the day and night. On one Sunday every month she was given a couple of hours leave but on these occasions she would usually be collected by M. and driven to S.’s house for the afternoon. She accepted that after a couple of years she was permitted to take public transport but said she was warned that it was not safe and that she should not speak with anyone.", "10. The applicant claimed that the GBP 1,600 Mr and Mrs K. paid every month for her services was sent directly to M. by cheque. A percentage of that money was passed by M. to S. on the apparent understanding that it would be paid to her. However, she received no significant payment for her labour. Occasionally Mr and Mrs K would give the applicant presents or second-hand clothes and from time to time S. would give her GBP 20 or GBP 40 when she went to his home on her monthly afternoon of leave. It was sometimes suggested that S. was saving up her income for her education, but she denied that any money was ever given to her.", "11. In August 2006 Mr and Mrs K. went on a family trip to Egypt. The applicant was unable to accompany them because she did not have a passport. In their absence, the applicant was taken to a house belonging to S. When he left for a business trip to Uganda, she remained in the house with his partner, H. The applicant asserted that H. effectively prevented her from leaving the house and warned her not to speak with anyone.", "12. On 18 August 2006 the applicant left the house. She went to a local bank, where she asked someone to call the police. Before the police arrived, she collapsed and was taken to St Mary’s Hospital, where she was diagnosed as HIV positive. She was also suffering from psychosis, including auditory hallucinations.", "13. The applicant remained in hospital for one month. H. visited the applicant in hospital and the applicant claimed that during these visits she tried to persuade her to return to S.’s house. In particular, she warned her that when she left the hospital she would have to pay for anti-retroviral medication and if she did not return to the house she would be “on the streets”.", "14. Following her discharge from hospital, the applicant was housed by the local authority. On 21 September 2006 she made an application for asylum. The application was refused on 16 January 2007. The Secretary of State for the Home Department considered that the applicant could access protection in Uganda to prevent further sexually motivated attacks. Moreover, he found that if she had been genuinely afraid of S., she would have tried to escape from him earlier. The applicant appealed. Her appeal was dismissed on 20 November 2007. In dismissing the appeal, the Immigration Judge expressed serious concerns about the applicant’s credibility and found much of her account to be implausible.", "15. In April 2007 the applicant’s solicitor wrote to the police and asked that they investigate her case. The Metropolitan Police Human Trafficking Team, a police unit specialising in the investigation of human trafficking offences, commenced an investigation to ascertain whether or not she had been the victim of a criminal offence. The police interviewed the applicant on 21 June 2007. During the investigation, the Human Trafficking Team sought the views of the United Kingdom Human Trafficking Centre in Sheffield, a multi-agency organisation which provided a central point of expertise in the field of human trafficking. However, the Centre advised that there was no evidence to substantiate the allegation that the applicant had been trafficked into the United Kingdom and observed that during her time working with Mr and Mrs K she had been well looked after.", "16. On 26 September 2007 the police informed the applicant’s former solicitor that there was “no evidence of trafficking for domestic servitude in the interview”.", "17. On 26 August 2008 the applicant’s current solicitor wrote to the police asking for the reasons for discontinuing the investigation. On 5 September 2008 the police noted that the Head of Legal Services at the United Kingdom Human Trafficking Centre had advised that there was no evidence to substantiate the applicant’s allegation that she had been trafficked into the United Kingdom. He further advised that while the applicant worked with the K family she was well looked after and given some money. There was, however, a dispute over money and it may have been that “her cousin kept more than he should have done”.", "18. On 5 September 2008 the police informed the applicant’s solicitor that “a decision was taken not to proceed with the matter as there was no evidence that she [the applicant] had been trafficked”. On 18 September 2008 the police reiterated that following the interview “it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted”.", "19. On 5 December 2008 the applicant’s solicitor wrote to the police to ask them to consider prosecutions for other offences, including a jus cogens offence of slavery or forced labour.", "20. On 18 December 2008 the applicant was assessed by the POPPY Project, a Government funded project providing housing and support for victims of trafficking. The POPPY Project concluded that she had been “subjected to five of the six indicators of forced labour” (as identified by the ILO). In particular, her movement had been restricted to the workplace, her wages were withheld to pay a debt she did not know about, her salary was withheld for four years, her passport was retained, and she was subjected to threats of denunciation to the authorities.", "21. On 5 January 2009 the police began to conduct further investigations. On 14 January 2009 the police noted that a statement had been obtained from the agent who arranged the applicant’s work with Mr and Mrs K (presumably the man previously identified as M.). He stated that he had been introduced to the applicant by a person he believed to be her relative. He was supplied with a passport, a national insurance number and a criminal records check. The agent stated that the applicant came to the agreement with her relative that her wages would be paid to him. She only complained about this arrangement in or around June 2006. The agent also stated that he feared the applicant’s relative, who was a wealthy and powerful man well-connected to the Ugandan government.", "22. The police were unable to make contact with Mr and Mrs K. Eventually they made contact with a member of the K family. However, no statement appears to have been taken as the (unidentified) woman told the police that she was leaving the country for medical treatment.", "23. On 25 February 2009 the police informed the applicant’s solicitor that the evidence did not establish an offence of trafficking. They noted that “at this stage there is no evidence that would support exploitation of any kind”.", "24. Police officers met with the applicant and her representative on 11 March 2009. The applicant’s solicitor asserted that at this meeting a police officer indicated that it was the Metropolitan Police’s provisional view, given expressly without formal authority, that there was no offence in English criminal law which applied to the facts of the case. The solicitor further asserted that the police apologised for the cursory manner in which the case had been dealt with previously and confirmed that the applicant’s account was credible.", "25. In an entry dated 27 March 2009 the police noted that:", "“It is clear that this female was not trafficked into the UK for labour exploitation. She having applied for a visa in her real name to come to the UK was refused. She then in agreement with her father then obtained a false passport with a forged visa stamp. These false documents were paid for by her father with the assistance of her uncle...", "She willingly commenced work that was arranged by her uncle as a live-in carer for an elderly couple.", "The family at first wanted to pay her wages direct. But on the request of the victim she stated the money should be paid to the agency and then the money should then be transferred to her uncle’s account who in turn would send the money back to Uganda. This agreement was made in order to hide from the authorities the fact that the victim did not have a national insurance number. If money was paid to her then she would have had to pay tax and her false identity would have come to the notice of the tax office and then to the [United Kingdom Border Agency]. This would then lead to her arrest and eviction from the UK...", "...There is no evidence to show that this female is/was a victim of slavery or forced labour. She willingly worked and was in fact paid but she choose that the money should go via her uncle in order to conceal being in the UK. It is basically a situation that one criminal (her uncle) has taken all the proceeds of their crime...”", "26. At that meeting the applicant’s solicitor pointed out that S. had taken the applicant’s identity documents from her upon her arrival in the United Kingdom and that this was grounds to prove possible forced labour. However, the police indicated that the documents taken from the applicant were false documents purchased by her and her father to enable her to enter the United Kingdom.", "27. On 31 March 2009 the police spoke again with the applicant’s solicitor. While they accepted that not every enquiry had been carried out, such as production orders relating to relevant bank accounts, it was important to ensure that the limited resources of the Human Trafficking Team were used to best effect and they could not, therefore, carry out any further investigation into the applicant’s complaints.", "28. The applicant was assessed by a clinical psychologist specialising in violence against women. The psychologist concluded in her 16 May 2009 report that the applicant was “suffering to a severe degree from a complex form of chronic Post-Traumatic Stress Disorder (PTSD), in conjunction with a Major Depressive Disorder and she presents a moderate risk of suicide.” In particular, she noted that the applicant presented “in ways consistent with a victim of trafficking and forced labour, in the context of a history of sexual assaults”.", "29. On 11 August 2009 the police noted that they would write to the applicant’s solicitor to confirm that “this particular case does not fulfil the requirements of human trafficking as per UK legislation and that legislation does not exist in relation to sole and specific allegations of domestic servitude where trafficking is not a factor”.", "30. On 12 August 2009 the police wrote to the applicant’s solicitor in the following terms:", "“I can confirm that after undertaking an investigation of the case including interviewing Ms N. a decision has been made to conclude the investigation. This decision is based on several factors, one being that after consultation with the legal representative of the Human Trafficking Centre the circumstances of Ms N.’s case did not appear to constitute an offence of trafficking people for the purposes of exploitation contrary to the Asylum and Immigration Act 2004.", "I am not aware of any specific offence of forced labour or servitude beyond that covered by section 4 of the Asylum and Immigration Act 2004 though regulation of working conditions are controlled by such areas as health and safety legislation and in certain instances the Gangmasters Act 2004...”", "31. Section 71 of the Coroners and Justice Act 2009, which received Royal Assent on 12 November 2009, made slavery, servitude and forced or compulsory labour criminal offences punishable by a fine and/or up to fourteen years’ imprisonment. Section 71 came into force on 6 April 2010 but did not have retrospective effect.", "i. make slavery and trafficking in human beings, and also forced marriage, offences in their criminal codes;", "... ... ...", "vi. protect the rights of victims of domestic slavery by:", "a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds;", "b. taking steps to provide them with protection and with social, administrative and legal assistance;", "c. taking steps for their rehabilitation and their reintegration, including the creation of centres to assist, among others, victims of domestic slavery;", "d. developing specific programmes for their protection;", "e. increasing victims’ time limits for bringing proceedings for offences of slavery;", "f. establishing compensation funds for the victims of slavery.”", "41. Recommendation 1663 (2004) further provides, as relevant, that:", "“The Assembly thus recommends that the Committee of Ministers:", "i. in general:", "a. bring the negotiations on the Council of Europe draft convention on action against trafficking in human beings to a rapid conclusion;", "b. encourage member states to combat domestic slavery in all its forms as a matter of urgency, ensuring that holding a person in any form of slavery is a criminal offence in all member states;", "c. ensure that the relevant authorities in the member states thoroughly, promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible;", "d. recommend that member states review their immigration and deportation policies, granting victims of domestic slavery at least temporary residence permits (if possible, in conjunction with work permits) and allowing them to file complaints against their abusive husbands or employers if they wish to do so;", "e. urge member states to provide an efficient support network for victims (including emergency accommodation, health care, psychological and legal counselling services) and attribute funds to non-governmental organisations working in this area;", "f. ensure that victims of slavery are provided with reparation, including compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition;", "ii. as concerns domestic servitude:", "a. elaborate a charter of rights for domestic workers, as already recommended in Recommendation 1523 (2001) on domestic slavery. Such a charter, which could take the form of a Committee of Ministers’ recommendation or even of a convention, should guarantee at least the following rights to domestic workers:", "– the recognition of domestic work in private households as “real work”, that is, to which full employment rights and social protection apply, including the minimum wage (where it exists), sickness and maternity pay as well as pension rights;", "– the right to a legally enforceable contract of employment setting out minimum wages, maximum hours and responsibilities;", "– the right to health insurance;", "– the right to family life, including health, education and social rights for the children of domestic workers;", "– the right to leisure and personal time;", "– the right for migrant domestic workers to an immigration status independent of any employer, the right to change employer and to travel within the host country and between all countries of the European Union and the right to the recognition of qualifications, training and experience obtained in the home country;", "b. recommend the introduction of a system of accreditation for agencies placing domestic workers, which would commit these agencies to certain minimum standards, such as charging reasonable fees, tracking the employees they have placed and providing emergency help in cases of difficulty. Accredited agencies could have visa applications put forward on their behalf validated automatically;", "c. ensure regular monitoring by appropriate authorities of the agencies accredited under the system referred to in sub-paragraph b above.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "32. Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 created the offence of trafficking people for exploitation. It provides that:", "“ (1) A person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the “passenger”) and—", "(a) he intends to exploit the passenger in the United Kingdom or elsewhere, or", "(b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.", "(2) A person commits an offence if he arranges or facilitates travel within the United Kingdom by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and—", "(a) he intends to exploit the passenger in the United Kingdom or elsewhere, or", "(b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.", "(3) A person commits an offence if he arranges or facilitates the departure from the United Kingdom of an individual (the “passenger”) and—", "(a) he intends to exploit the passenger outside the United Kingdom, or", "(b) he believes that another person is likely to exploit the passenger outside the United Kingdom.", "(4) For the purposes of this section a person is exploited if (and only if)—", "(a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour),", "(b) he is encouraged, required or expected to do anything as a result of which he or another person would commit an offence under the Human Organ Transplants Act 1989 (c. 31) or the Human Organ Transplants (Northern Ireland) Order 1989 (S.I. 1989/2408 (N.I. 21)),", "(c) he is subjected to force, threats or deception designed to induce him—", "(i) to provide services of any kind,", "(ii) to provide another person with benefits of any kind, or", "(iii) to enable another person to acquire benefits of any kind, or", "(d) he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that—", "(i) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and", "(ii) a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement.", "(5) A person guilty of an offence under this section shall be liable—", "(a) on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or", "(b) on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.”", "33. On 12 November 2009 the Coroners and Justice Act 2009 received Royal Assent. Section 71, which will come into force “on such day as the Secretary of State may by order appoint”, provides as follows:", "“71 Slavery, servitude and forced or compulsory labour", "(1) A person (D) commits an offence if—", "(a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or", "(b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour.", "(2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).", "(3) A person guilty of an offence under this section is liable—", "(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;", "(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both.", "(4) In this section—", "“Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950;", "“the relevant period” means—", "(a) in relation to England and Wales, 12 months;", "(b) in relation to Northern Ireland, 6 months.”", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE", "1. The ILO Forced Labour Convention", "34. Articles 1 and 2 of the Convention provide as follows:", "“Article 1", "1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.", "2. With a view to this complete suppression, recourse to forced or compulsory labour may be had, during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees hereinafter provided.", "3. At the expiration of a period of five years after the coming into force of this Convention, and when the Governing Body of the International Labour Office prepares the report provided for in Article 31 below, the said Governing Body shall consider the possibility of the suppression of forced or compulsory labour in all its forms without a further transitional period and the desirability of placing this question on the agenda of the Conference.", "Article 2", "1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.", "2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include--", "(a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character;", "(b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;", "(c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;", "(d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;", "(e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.”", "2. The ILO indicators of forced labour", "35. The ILO has developed indicators of forced labour which provide a valuable benchmark in the identification of forced labour. These indicators are:", "“1. Threats or actual physical harm to the worker.", "2. Restriction of movement and confinement to the work place or to a limited area.", "3. Debt bondage: where the worker works to pay off a debt or loan, and is not paid for his or her services. The employer may provide food and accommodation at such inflated prices that the worker cannot escape the debt.", "4. Withholding of wages or excessive wage reductions, that violate previously made agreements.", "5. Retention of passports and identity documents, so that the worker cannot leave, or prove his/her identity and status.", "6. Threat of denunciation to the authorities, where the worker is in an irregular immigration status.”", "3. The Council of Europe Convention on Action Against Trafficking", "36. The United Kingdom ratified the Convention on 17 December 2008 and it came into force on 1 April 2009.", "37. Article 4 defines “trafficking in human beings\" as follows:", "“(a) the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;", "(b) The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;", "38. Article 19 provides that:", "“Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph (a) of this Convention, with the knowledge that the person is a victim of trafficking in human beings.”", "4. The Slavery Convention 1926", "39. Article 5 of this Convention, which the United Kingdom ratified in 1927, provides that:", "“The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.", "It is agreed that:", "(1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes.", "(2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence.", "(3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.”", "5. Recommendations 1523 (2001) and 1663 (2004) of the Parliamentary Assembly of the Council of Europe", "40. Recommendation 1523 (2001) provides, as relevant, that:", "“1. In the last few years a new form of slavery has appeared in Europe, namely domestic slavery. It has been established that over 4 million women are sold each year in the world.", "2. In this connection the Assembly recalls and reaffirms Article 4, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits slavery and servitude, and also the definition of slavery derived from the opinions and judgments of the European Commission of Human Rights and the European Court of Human Rights.", "3. The Assembly also recalls Article 3 of the ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, and Article 6, which proclaims the right of access to a court in civil and criminal matters, including cases where the employer enjoys immunity from jurisdiction.", "... ... ...", "5. It notes that the victims’ passports are systematically confiscated, leaving them in a situation of total vulnerability with regard to their employers, and sometimes in a situation bordering on imprisonment, where they are subjected to physical and/or sexual violence.", "6. Most of the victims of this new form of slavery are in an illegal situation, having been recruited by agencies and having borrowed money to pay for their journey.", "7. The physical and emotional isolation in which the victims find themselves, coupled with fear of the outside world, causes psychological problems which persist after their release and leave them completely disoriented.", "... ... ...", "9. It regrets that none of the Council of Europe member states expressly make domestic slavery an offence in their criminal codes.", "10. It accordingly recommends that the Committee of Ministers ask the governments of member states to:", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION", "42. The applicant complained that at the time of her ill-treatment the Government were in breach of their positive obligations under Article 4 of the Convention to have in place criminal laws penalising forced labour and servitude. Article 4 of the Convention provides as follows:", "“1. No one shall be held in slavery or servitude.", "2. No one shall be required to perform forced or compulsory labour.", "3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include:", "(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention;", "(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;", "(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;", "(d) any work or service which forms part of normal civic obligations.”", "43. The Government contested that argument.", "A. Admissibility", "44. The Government submitted that the application was manifestly ill ‑ founded and therefore inadmissible because there was insufficient evidence to conclude that the applicant had been subjected to the kind of treatment prohibited by Article 4 and because the protection afforded by English law against conduct prohibited by Article 4 was sufficient to discharge the positive obligation on the State.", "45. The Court finds that the question of whether or not the applicant’s complaint under Article 4 is manifestly ill-founded is a matter to be determined on the merits.", "46. It notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicant", "47. The applicant submitted that the Government were under a positive obligation to enact domestic law provisions specifically criminalising the conduct prohibited by Article 4; they failed to enact such provisions until 2009; and, as she had made a credible allegation of ill-treatment contrary to Article 4 in 2006, any investigation into her complaints was ineffective as it was not directed at determining whether or not she had been a victim of treatment contrary to Article 4 and could not therefore result in a prosecution.", "48. The applicant noted that in Siliadin v. France, no. 73316/01, § 123, ECHR 2005 ‑ VII the Court defined servitude as a “particularly serious form of denial of freedom” which included “in addition to the obligation to perform certain services for others ... the obligation for the ‘serf’ to live on another person’s property and the impossibility of altering his condition”. She submitted that she was required to live with Mr and Mrs K., who demanded difficult care and needed her to be “on call” twenty-four hours a day. She did so under coercion by S. and M. and she received no notable remuneration. Her working hours and conditions, and the removal of her travel documents, were such as to render her unable to alter her own situation.", "49. In Siliadin the Court defined forced or compulsory labour with reference to the International Labour Organisation Forced Labour Convention, which included “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. The Court itself noted that the term brought to mind the idea of “physical or mental constraint”. In Siliadin the Court found this element to be present where the applicant was an adolescent girl, unlawfully present in a foreign land and living in fear of arrest by the police. In the present case, in light of the definition adopted by the Court and the ILO, and taking into consideration the reports by the POPPY Project and the consultant psychiatrist, the applicant submitted that the police’s conclusion that the lack of payment for the applicant’s work was no more than an absence of “honour among thieves” betrayed a fundamental disregard of the ILO’s key indicators of forced labour and a troubling ignorance of the vulnerabilities of illegal immigrants.", "50. The applicant submitted that the relevant domestic law provisions did not, at the relevant time, include the criminal offence of forced labour or servitude. Indeed, the police confirmed to the applicant in writing that there was no offence known to them which encapsulated her situation. As a result, notwithstanding the strong evidence of treatment falling within the scope of Article 4 of the Convention, no effective investigation could be conducted into her treatment and no person had been arrested or prosecuted in relation to it. Moreover, there was not even a domestic offence akin to those relied on by the French Government in Siliadin, namely provisions criminalising the obtaining of performance of services for no payment or for manifestly disproportionate underpayment, and the subjection of another to living or working conditions incompatible with human dignity. The best that could be advanced by the British Government were general offences such as kidnapping, fraud, or psychological assault, none of which fulfilled the positive obligation under Article 4 of the Convention.", "51. The applicant submitted that the decision of the Court in Siliadin made it clear that what was required was legislation specifically criminalising conduct falling within the scope of Article 4. Ancillary offences which might also be committed during the course of forced labour or servitude did not provide sufficient protection under the Convention.", "52. Finally, the applicant submitted that in introducing section 71 of the Coroners and Justice Bill, which created specific offences of slavery, servitude and forced or compulsory labour, the Government had accepted that there was a “lacuna in the law” which needed to be filled.", "(b) The Government", "53. The Government did not accept that the applicant had been subjected to slavery, domestic servitude or forced or compulsory labour. First, an investigation into her complaints had been conducted by a specialist police unit. Having investigated the complaint, they reached three important conclusions: that the evidence was insufficient to establish that the applicant had been trafficked into the United Kingdom; that the evidence was insufficient to establish that whilst in the United Kingdom she had been held in slavery or required to perform forced or compulsory labour; and that the evidence was insufficient to establish that she had been the victim of any criminal offence.", "54. Secondly, the Government submitted that the police did not terminate the investigation or decide not to bring a prosecution on the basis that there was no specific offence in English law which criminalised the conduct complained of. On the contrary, the crime report of 26 March 2009 made it clear that the decision to terminate the investigation was taken on a substantive assessment of the evidence, which led to the conclusion that it could not be established that the applicant had been trafficked, held in slavery or required to perform forced or compulsory labour.", "55. Thirdly, the Government submitted that the conclusions of the police were reasonable and proper and were, in fact, reinforced by the Asylum and Immigration Tribunal, which found most of the applicant’s account to be implausible and had serious concerns about her credibility.", "56. In any case, the Government submitted that in the applicant’s situation the protections offered by domestic law were sufficient to comply with the positive obligation to have in place criminal law provisions which penalised the conduct falling within the scope of Article 4. Article 4 did not require that the effective protection against the prohibited conduct should be achieved by means of the adoption of a single, specific criminal offence. At the time of the conduct alleged by the applicant there were a number of offences in English law which criminalised the essential aspects of slavery, servitude and forced or compulsory labour. These included false imprisonment, for which the maximum sentence was life imprisonment; kidnapping, for which the maximum sentence was also life imprisonment; grievous bodily harm, which carried a maximum sentence of life imprisonment; assault, battery and causing physical or psychiatric harm, the more serious offences of which carried a maximum sentence of five years’ imprisonment; blackmail, which carried a maximum sentence of fourteen years’ imprisonment; harassment, which carried a maximum sentence of five years’ imprisonment; and a number of employment-related offences, such as those relating to the national minimum wage and working time limits.", "57. In addition, English criminal law now had a well-established offence of human trafficking introduced by section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. Section 4 made provision for offences of trafficking into, within and from the United Kingdom a person who had been exploited and, for the purposes of the offences, exploitation meant behaviour that contravened Article 4.", "58. Moreover, in England there was now a specific offence relating to the prohibition in Article 4. Section 71 of the Coroners and Justice Act 2009, which came into force on 6 April 2010, made provision for an offence of holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour. The Government rejected the applicant’s assertion that this offence was introduced to fill a lacuna in the domestic law; rather, they submitted that Parliament had considered it “useful to introduce a further bespoke offence” even though the new offences were “already covered by extensive legislation and regulations”. In any case, the Government submitted that even if the offence under section 71 had applied at the time of the conduct alleged by the applicant, the evidence in her case would have been insufficient to bring a prosecution.", "59. Finally, the Government submitted that the positive obligation under Article 4 of the Convention was discharged in the applicant’s case by the carrying out of an effective official investigation which went directly to the heart of her Article 4 complaint. The applicant was extensively and carefully questioned and further enquiries were undertaken. A witness provided a statement indicating that the applicant had agreed that her wages should be paid to S. and that she did not complain about this arrangement for over three years. On reviewing the evidence, the police concluded that it was not sufficient to establish that the applicant had been the victim of conduct prohibited by Article 4 of the Convention. Rather, the police concluded that she had entered the United Kingdom voluntarily, had worked voluntarily, and had agreed that her wages should be paid to a family member in order to avoid her detection by the authorities as an illegal immigrant.", "60. Consequently, the Government submitted that in the circumstances there was no arguable case that the applicant’s rights under Article 4 had been violated.", "(c) The third party interveners", "α. The Aire Centre", "61. The Aire Centre invited the Court to expand upon the notion of positive obligations which it had developed in its case-law on Article 4. It stressed that victims of human trafficking were particularly unlikely to be identified by the authorities as victims of crime and that States must therefore take a pro-active approach. An effective deterrent must mean an approach to human trafficking and any other conduct contrary to Article 4 that recognised the subtle ways in which individuals might fall under the control of another. It also required a considered response to allegations of such treatment in all cases.", "β. The Equality and Human Rights Commission", "62. The Commission submitted that since the ratification of ILO Convention no. 29 in 1931 the United Kingdom had been under a positive obligation to formally penalise the exaction of forced labour and to adequately enforce such penalties. However, until 6 April 2010 there was no specific prohibition on servitude and forced labour despite strong evidence of severe exploitation and forced labour within the United Kingdom. Indeed, the Commission indicated that from 1 December 2004 to March 2010 there were 22 prosecutions under section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, and yet 207 individuals were recognised as victims of trafficking between 1 April 2009 and 1 April 2010 alone. In fact, in a number of cases, particularly involving domestic workers, victims had to resort to judicial review because of a lack of investigation of their complaints by the police.", "63. The Commission further submitted that there had been a number of cases which in substance concerned forced labour or servitude but which had not been adequately investigated or prosecuted and there was therefore a need for clarity on what amounted to forced labour as distinct from exploitation. Moreover, the Commission did not consider section 71 of the Coroners and Justice Act 2009 to be of assistance because it merely reproduced the text of the Convention without explaining it in light of present day conditions. There was therefore a risk that the new statute would not result either in clear deterrence or effective prosecutions, and would not improve the failures in investigation.", "64. Finally, the Commission submitted that there was no adequate system of compensation for victims of servitude and forced labour.", "2. The Court’s assessment", "(a) General principles", "65. The Court reiterates that, together with Articles 2 and 3, Article 4 enshrines one of the basic values of the democratic societies making up the Council of Europe ( Siliadin, cited above, § 82). Unlike most of the substantive clauses of the Convention, Article 4 § 1 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation.", "66. In its Siliadin judgment the Court confirmed that Article 4 entailed a specific positive obligation on member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour (cited above, §§ 89 and 112; see also C.N. and V. v. France, no. 67724/09, § 105, 11 October 2012).", "67. In its Rantsev judgment, the Court held that as with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of treatment in breach of that Article (see, mutatis mutandis, Osman, cited above, § 115; and Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000-III). In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities were aware, or ought to have been aware that an identified individual had been, or was at real and immediate risk of being subjected to such treatment. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk (see, mutatis mutandis, Osman, cited above, §§116 to 117; and Mahmut Kaya, cited above, §§ 115 to 116).", "68. Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis, Osman, cited above, § 116).", "69. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate where there is a credible suspicion that an individual’s rights under that Article have been violated. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002-II). For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests (see, mutatis mutandis, Paul and Audrey Edwards, cited above, §§ 70 to 73).", "(b) Application of the general principles to the present case", "70. In the present case the applicant alleges that there was a failure properly to investigate her complaints and that this failure was at least in part rooted in defective legislation which did not effectively criminalise treatment falling within the scope of Article 4 of the Convention.", "71. The Court observes that in Rantsev, in the context of trafficking, it held that in order for an obligation to investigate to have arisen, the circumstances must have given rise to a “credible suspicion” that the applicant had been trafficked. Likewise, it considers that for an obligation to have arisen in the present case, it must be satisfied that the applicant’s complaints to the domestic authorities gave rise to a credible suspicion that she had been held in domestic servitude.", "72. The Court notes that the authorities were first made aware of the applicant’s claim to have been kept in conditions amounting to domestic servitude after she collapsed at the HSBC bank in Kilburn in August 2006. On 21 September 2006 she made an application for asylum, in the course of which she complained, inter alia, that she had been forced to work for the K family without remuneration. Furthermore, in April 2007 the applicant’s solicitor wrote to the police and asked that they investigate her case. She was interviewed by the Human Trafficking Team on 21 June 2007 and gave a detailed statement in which she set out her domestic servitude complaints. The Court does not consider that the applicant’s complaints concerning her treatment by S. and M. were inherently implausible. Indeed, it notes that the circumstances which she described were remarkably similar to the facts of the Siliadin case, the only notable differences being that the applicant was older than the applicant in Siliadin and that it was an agent – and not her “employers” – who she claimed were responsible for the treatment contrary to Article 4 of the Convention. Although the Government have submitted that the applicant’s account was not in fact credible, the Court observes that this was a conclusion reached following further investigation of her complaints. Indeed, the fact that the domestic authorities conducted any investigation into the applicant’s complaints strongly indicates that, at least on their face, they were not inherently implausible. Consequently, the Court considers that the applicant’s complaints did give rise to a credible suspicion that she had been held in conditions of domestic servitude, which in turn placed the domestic authorities under an obligation to investigate those complaints.", "73. It is clear that the domestic authorities did investigate the applicant’s complaints. However, the applicant submits that the investigation was deficient because the lack of specific legislation criminalising domestic servitude meant that it was not directed at determining whether or not she had been a victim of treatment contrary to Article 4 of the Convention.", "74. It is not in dispute that at the time the applicant alleged that she was subjected to treatment falling within the scope of Article 4 of the Convention, such conduct was not specifically criminalised under domestic law. There were, however, a number of criminal offences which criminalised certain aspects of slavery, servitude and forced or compulsory labour. In particular, the Government directed the Court’s attention to the offences of trafficking, false imprisonment, kidnapping, grievous bodily harm, assault, battery, blackmail and harassment.", "75. In Siliadin, the Court found that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably required greater firmness in assessing breaches of the fundamental values of democratic societies. ( Siliadin v. France, cited above, § 148). In that case, the Court found that Articles 2250-13 and 225-14 of the French Criminal Code, which concerned exploitation through labour and subjection to working and living conditions incompatible with human dignity, were not sufficiently specific and were too restrictive to protect the applicant’s rights under Article 4 of the Convention.", "76. In view of the Court’s findings in Siliadin, it cannot but find that the legislative provisions in force in the United Kingdom at the relevant time were inadequate to afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, § 179, ECHR 2003 ‑ XII). Instead of enabling the authorities to investigate and penalise such treatment, the authorities were limited to investigating and penalising criminal offences which often – but do not necessarily – accompany the offences of slavery, servitude and forced or compulsory labour. Victims of such treatment who were not also victims of one of these related offences were left without any remedy.", "77. Consequently, the Court considers that the criminal law in force at the material time did not afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention.", "78. Nevertheless, the Government have submitted that the reason no action was taken following investigation of the applicant’s complaints was not the absence of appropriate legislation but rather the absence of evidence to support the facts alleged by her. In short, the domestic authorities simply did not believe the applicant’s account. The Court must therefore consider whether the lack of specific legislation criminalising domestic servitude prevented the domestic authorities from properly investigating the applicant’s complaints, or whether her complaints were properly investigated but no evidence was found to support them. In carrying out this assessment, the Court reiterates that it is not its task to replace the domestic authorities in the assessment of the facts of the case.", "79. The Court recalls that the investigation into the applicant’s complaints was commenced by the Metropolitan Police Human Trafficking Team, a police unit specialising in the investigation of human trafficking offences. On 26 September 2007 they informed the applicant’s solicitor that there was “no evidence of trafficking for domestic servitude”. Likewise, on 5 September 2008 they noted that there was “no evidence to substantiate the applicant’s allegation that she had been trafficked into the United Kingdom”. She had been well looked after by the K family, although there had been a dispute over money and it may have been that “her cousin kept more than he should have done”. Again, on 18 September 2008 the police stated that “it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted” and on 25 February 2009 they noted that “there is no evidence that would support exploitation of any kind”. Later, on 27 March 2009, the police recorded that “there is no evidence to show that this female is/was a victim of slavery or forced labour”. Finally, on 12 August 2009 the police wrote to the applicant’s solicitor, indicating that her case did not appear to constitute an offence of trafficking for the purposes of exploitation and that they were “not aware of any specific offence of forced labour or servitude”.", "80. While the Court notes the credibility concerns voiced by the domestic authorities, it cannot but be concerned by the investigating officers’ heavy focus on the offence of trafficking for exploitation as set out in section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. In particular, it observes that the investigation into the applicant’s complaints was carried out by a specialist trafficking unit and while investigators occasionally referred to slavery, forced labour and domestic servitude it is clear that at all times their focus was on the offence enshrined in section 4 of the 2004 Act. As indicated by the Aire Centre and the Equality and Human Rights Commission in their third party interventions, domestic servitude is a specific offence, distinct from trafficking and exploitation, which involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance. A thorough investigation into complaints of such conduct therefore requires an understanding of the many subtle ways an individual can fall under the control of another. In the present case, the Court considers that due to the absence of a specific offence of domestic servitude, the domestic authorities were unable to give due weight to these factors. In particular, the Court is concerned by the fact that during the course of the investigation into the applicant’s complaints, no attempt appears to have been made to interview S. despite the gravity of the offence he was alleged to have committed (see, by way of comparison, M. and Others v. Italy and Bulgaria, no. 40020/03, §§ 104 - 107, 31 July 2012). For the Court, the lacuna in domestic law at the time may explain this omission, together with the fact that no apparent weight was attributed to the applicant’s allegations that her passport had been taken from her, that S. had not kept her wages for her as agreed, and that she was explicitly and implicitly threatened with denunciation to the immigration authorities, even though these factors were among those identified by the ILO as indicators of forced labour.", "81. Consequently, the Court finds that the investigation into the applicant’s complaints of domestic servitude was ineffective due to the absence of specific legislation criminalising such treatment.", "82. Accordingly, there has been a violation of Article 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "83. The applicant further complained under Article 8 of the Convention that her right to respect for her private and family life was profoundly violated by the treatment she was subjected to between 2002 and 2006.", "84. The Court does not consider the applicant’s complaint under Article 8 to be manifestly ill-founded within the meaning of Article 35 §§ 3 of the Convention. It further notes that it is not inadmissible on any other grounds and must, therefore, be declared admissible. However, having regard to its findings under Article 4 (see paragraphs 70 – 82, above), the Court considers that no separate issue arises under Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "85. Finally, the applicant complained that the absence of any specific criminal offence of domestic servitude or forced labour denied her an effective remedy in respect of her complaints under Articles 4 and 8 of the Convention.", "86. The Court does not consider the applicant’s complaints under Article 13 to be manifestly ill-founded within the meaning of Article 35 §§ 3 of the Convention. It further notes that they are not inadmissible on any other grounds and must, therefore, be declared admissible. However, having regard to its findings under Article 4 (see paragraphs 70 – 82, above), the Court considers that no separate issue arises under Article 13 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "87. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "88. The applicant claimed ten thousand euros (EUR 10,000) in respect of non-pecuniary damages. She considered this figure to be appropriate in light of the recent case of M.C. v. Bulgaria (cited at paragraph 76, above) and K.U. v. Finland, no. 2872/02, ECHR 2008, and taking into account the duration of the ill-treatment.", "89. The Government submitted that the finding of a violation would in itself provide just satisfaction and that it would not be necessary for the Court to make an award of non-pecuniary damages. In the alternative, they submitted that if the Court considered an award of damages to be appropriate, it should not exceed the sum of EUR 8,000 awarded in M.C. v. Bulgaria.", "90. In view of its recent findings in M.C. v. Bulgaria, the purely procedural nature of the violation found, and the Government’s genuine concerns about the applicant’s credibility, the Court awards her EUR 8,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "91. The applicant also claimed GBP 38,275.86 for costs and expenses incurred before the Court.", "92. The Government submitted that this figure was excessive. The Government did not consider it necessary for the applicant to have instructed Queen’s Counsel. However, having appointed Queen’s Counsel, they considered the solicitor’s hourly rate of GBP 240 to be excessive. Moreover, the total number of hours claimed by the three representatives – 157 hours in total – appeared to be more than was reasonable for a case which was not exceptionally complicated. They therefore submitted that recovery of the applicant’s legal costs should be capped at GBP 9,000.", "93. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 20,000 for the proceedings before the Court.", "C. Default interest", "94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. PARTICULAR CIRCUMSTANCES OF THE CASE", "9. The applicant is a Belgian national born in 1952. He resides in Antwerp where he exercises the profession of avocat (lawyer). After being enrolled as a pupil avocat on 27 September 1976, he at once opened his own chambers without ever working in the chambers of another avocat; his pupil-master, however, entrusted him with a number of cases and gave him some payment for the work done in regard to them.", "Mr. Van der Mussele terminated his pupillage on 1 October 1979 and has since then been entered on the register of the Ordre des avocats (Bar Association).", "10. On 31 July 1979, the Legal Advice and Defence Office of the Antwerp Bar appointed Mr. Van der Mussele, pursuant to Article 455 of the Judicial Code, to defend one Njie Ebrima, a Gambian national. The latter, who had been arrested two days earlier on suspicion of theft and of dealing in, and possession of, narcotics, had applied under Article 184 bis of the Code of Criminal Procedure for the assistance of an officially appointed avocat.", "11. On 3 and 28 August 1979, Mr. Ebrima appeared before a Chamber (chambre du conseil) of the Antwerp Court of First Instance (tribunal de première instance), which was supervising the investigation, for the purpose of a decision as to whether the warrant of arrest issued against him by the investigating judge should remain in force. The Chamber confirmed the warrant on both occasions. It also added to the initial charges a further count of publicly using a false name. Mr. Ebrima appealed against these two orders, but the Indictments Chamber of the Antwerp Court of Appeal upheld them on 14 August and 11 September respectively.", "On 3 October 1979, the Court of First Instance sentenced him to six months ’ and eight days ’ imprisonment for theft, public use of a false name and illegal residence; he was acquitted on the remaining charges. On his appeal, the Court of Appeal on 12 November reduced the length of the sentence to that of the period he had spent in detention on remand.", "The applicant had acted for Mr. Ebrima throughout these proceedings and estimated that he devoted from seventeen to eighteen hours to the matter. Mr. Ebrima was released on 17 December 1979 following representations made by the applicant to the Minister of Justice; he had in the meantime been placed at the disposal of the immigration police with a view to deportation.", "12. The following day, the Legal Advice and Defence Office notified Mr. Van der Mussele - whose pupillage had finished more than two and a half months earlier (see paragraph 9 above) - that it was releasing him from the case and that because of Mr. Ebrima ’ s lack of resources no assessment of fees and disbursements could be made against him. The latter amounted on this occasion to 3,400 BF, made up of 250 BF for preparation of the case-file, 1,800 BF for correspondence, 1,300 BF for travel to and from the prison, the Court of First Instance and the Court of Appeal, and 50 BF in respect of court costs for the copy of a document.", "13. The applicant stated that during his pupillage he had dealt with approximately 250 cases, including about 50 cases - representing some 750 hours of work - on which he had acted as officially appointed avocat. He also said that his net monthly income before tax was only 15,800 BF in his first and second years, increasing to 20,800 BF in the third." ]

[ "II. RELEVANT LEGISLATION AND PRACTICE", "A. The profession of avocat in Belgium, in general", "14. Although it is in various respects regulated by legislation, the profession of avocat in Belgium is a liberal profession; under Article 444 of the Judicial Code, \"avocats exercise their profession freely in the interests of justice and truth\".", "15. In each of the country ’ s twenty-seven judicial districts, there is an Ordre des avocats; it is independent of the executive and endowed with legal personality in public law and its Council takes decisions \"without appeal\" with regard to entry on the register of avocats and admission to pupillage (Articles 430 and 432 of the Judicial Code).", "A pupillage normally lasting three years is a pre-requisite to entry on the register of avocats (Article 434 and the second paragraph of Articles 435 and 436). Subject to the powers of the General Council of the National Ordre, the Council of the district Ordre determines the obligations of pupils (Articles 435 and 494). In the main these consist of attending at a pupil-master ’ s chambers, attending hearings, following courses on the rules of professional conduct and the art of advocacy (Article 456, third paragraph) and acting as defence counsel in cases assigned by the Legal Advice and Defence Office (Article 455). The Council of the Ordre ensures that these obligations are complied with and may, if need be, prolong the pupillage \"without prejudice to the right to refuse entry on the register\"; any pupil who is unable, after five years at the latest, to show that he or she has satisfied the said obligations \"may be omitted from the roll\" of pupils (Article 456, second and fourth paragraphs).", "Pupils in principle enjoy the same rights as their colleagues who are already entered on the register of avocats. However, they may not plead before the Court of Cassation or the Conseil d ’ État (Article 439), vote in elections of the chairman or other members of the Council of the Ordre (Article 450) or deputise for judges and members of the public prosecutor ’ s department.", "16. In the oath that he takes at the end of his pupillage, the avocat undertakes, amongst other things, not to advise or appear in any case which he does not consider to the best of his knowledge and belief to be just (Article 429). Subject to the exceptions provided for by law, for example in Article 728 of the Judicial Code and Article 295 of the Code of Criminal Procedure, avocats - including pupil avocats - enjoy an exclusive right of audience before the courts (Article 440 of the Judicial Code). They pay a subscription to the Ordre (Article 443) and social security contributions.", "17. The Council of the Ordre sanctions or punishes as a disciplinary matter offences and misconduct, without prejudice, where appropriate, to proceedings before the courts (Article 456, first paragraph). It will hear disciplinary cases on application made by its chairman, either of his own motion or following a complaint or after a written notification from the procureur général (public prosecutor) (Article 457). The Council may, depending on the circumstances, warn, censure, reprimand, suspend for a maximum of one year or strike a name off the register of avocats or the roll of pupils (Article 460).", "Both the avocat concerned and the procureur général may challenge such a decision - finding the avocat guilty or not guilty - by applying to the competent disciplinary appeal board (Articles 468 and 472). The disciplinary appeal board is composed of a chairman (who is the first president of the Court of Appeal or a president of a chamber delegated by him), four assessors (who are avocats) and a secretary (who is a member or former member of the Council of the Ordre des avocats); the procureur général or a judicial officer from his department delegated by him fulfils the functions of prosecuting authority (Articles 473 and 475).", "The avocat concerned or the procureur général may refer the decision of the disciplinary appeal board to the Court of Cassation (Article 477).", "B. Officially appointed avocats", "1. At the time of the facts in issue", "18. In Belgium, as in many other Contracting States, there exists a long tradition that the Bar should provide legal representation, if need be on a free basis, for indigent persons. At the time of the relevant facts, the Council of the Ordre des avocats was under a duty to make provision for \"the assistance of persons of insufficient means\" by setting up a \"Legal Advice and Defence Office\" in such manner as it should determine (Article 455, first paragraph, of the Judicial Code). \"Obviously ill-founded cases [were not to] be allocated\" (second paragraph of the same Article), but in criminal matters the Legal Advice and Defence Office had to make an officially appointed - or \"pro Deo\" - avocat available to any indigent accused who so requested at least three days before the hearing (Article 184 bis of the Code of Criminal Procedure).", "Officially appointed avocats were thus designated by the Office by virtue of a statutory competence conferred by the State. In Antwerp and Liège a system of rotation was used whereas in Brussels the matter was dealt with on a more flexible basis. The Office almost always selected pupil avocats who, if need be, had to continue acting in the case even after the end of their pupillage, as occurred in the present circumstances (see paragraph 12 above). It nonetheless happened - in less than one per cent of the cases - that a difficult case was entrusted to a more experienced avocat.", "19. Under the third paragraph of Article 455 of the Judicial Code, pupil avocats were required to \"report to the [Legal Advice and Defence] Office on the steps they [had] taken in the cases entrusted to them\"; such cases accounted on average for approximately one quarter of their working time, especially during their third year. The Ordres des avocats would decline to enter a pupil avocat on the register unless he had acted as officially appointed avocat on a sufficient number of occasions; the Antwerp Ordre enjoyed considerable discretion in the matter since no minimum or maximum was laid down in its pupillage regulations.", "Pupil avocats could invoke the so-called \"conscience clause\" laid down in Article 429 of the Judicial Code (see paragraph 16 above) or objective grounds of incompatibility. In the event of an unjustified refusal to deal with cases that the Office wished to allocate to him, the Council of the Ordre could extend the pupillage of a pupil avocat to a maximum period of five years, strike his name off the roll of pupils or refuse his application for entry on the register of avocats for failure to perform fully his obligations (Article 456, second and fourth paragraphs).", "20. Officially appointed avocats were entitled neither to remuneration nor to reimbursement of their expenses. Nevertheless, the Legal Advice and Defence Office could, \"depending upon the circumstances, .... fix the amount which the [assisted] party [was] required to pay either by way of advance provision or as fees\" (Article 455, final paragraph, of the Judicial Code). In practice such awards tended to be somewhat exceptional - in approximately one case out of four at Antwerp - and, what is more, pupil avocats only succeeded in actually recovering a fraction - roughly one quarter - of the amounts so fixed.", "2. The Act of 9 April 1980", "21. The position described in the preceding paragraph has changed in one respect subsequent to the end of the applicant ’ s pupillage: an Act of 9 April 1980 \"intended to furnish a partial solution to the problem of legal aid and regulating the remuneration of pupil avocats appointed to provide legal aid\" has amended Article 455 by, inter alia, inserting the following provisions:", "\"The State shall grant to the pupil avocat appointed by the Legal Advice and Defence Office compensation in respect of the services which he was appointed to render.", "After obtaining the opinion of the General Council of the National Ordre des avocats, the King shall prescribe, by Decree laid before the Council of Ministers, the conditions governing the granting, scale and manner of payment of such compensation.\"", "In certain circumstances, the State will be able to take action against the assisted person to recover the compensation awarded.", "The Act is not retroactive. Furthermore, for the moment it remains inoperative since budgetary reasons have up till now prevented the bringing into force of the Royal Decree provided for under Article 455.", "C. Official appointment, official assignment, legal aid", "22. The official appointment of an avocat should not be confused with two other possibilities which are likewise often included in the notion of legal aid, namely", "- \"official assignment\", which is provided for under the law in various circumstances where the intervention of an avocat is obligatory, independently of the means of the person concerned (Articles 446, second paragraph, and 480 of the Judicial Code, Article 290 of the Code of Criminal Procedure, etc.);", "- \"legal aid\" in the narrow sense, which \"consists of exempting, in whole or in part, persons whose income is insufficient to meet the costs of proceedings, including extrajudicial proceedings, from paying stamp duty, registration duty, registry and copying fees and any other expenditure involved\", and of providing \"the services of public and publicly appointed officers free\" for such persons (Articles 664 and 699 of the Judicial Code).", "D. Legal aid and public or publicly appointed officers", "23. Indigent persons requiring the services of notaries, bailiffs or avocats of the Court of Cassation may apply for the appointment by the Legal Aid Bureau (see paragraph 22 above) of the persons who are under a duty to give their services free of charge (Articles 664, 665, 685 and 686 of the Judicial Code).", "The State reimburses the latter persons for their out-of-pocket expenditure (Article 692) but grants no remuneration, the one exception being bailiffs who receive the equivalent of one quarter of their usual fees (Article 693).", "PROCEEDINGS BEFORE THE COMMISSION", "24. In his application of 7 March 198O to the Commission (no. 8919/80), Mr. Van der Mussele called in question his appointment by the Antwerp Legal Advice and Defence Office to assist Mr. Njie Ebrima; he complained, not of this appointment as such, but because a refusal to act would have made him liable to sanctions and because he had not been entitled to any remuneration or reimbursement of his expenses. In his submission, these circumstances gave rise both to \"forced or compulsory labour\" contrary to Article 4 § 2 (art. 4-2) of the Convention and to treatment incompatible with Article 1 of Protocol No. 1 (P1-1). He further claimed that, in breach of Article 14 of the Convention taken in conjunction with Article 4 (art. 14+4), there was discrimination in this respect between avocats and certain other professions.", "25. The Commission declared the application admissible on 17 March 1981. In its report of 3 March 1982 (Article 31 of the Convention) (art. 31), the Commission concluded that there had been no breach of", "- Article 4 § 2 (art. 4-2) of the Convention, by ten votes to four;", "- Article 1 of Protocol No. 1 (P1-1), by nine votes to five;", "- Article 14 of the Convention, taken in conjunction with the two above-mentioned Articles (art. 14+4-2, art. 14+P1-1), by seven votes to seven, with the casting vote of the President (Rule 18 § 3 of the Commission ’ s Rules of Procedure).", "The report contains two dissenting opinions.", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "26. At the hearings on 22 February 1983, counsel for the Government reaffirmed in substance the final submissions set out in the memorial of 25 November 1982 in which the Government requested the Court to hold", "\"that Mr. Van der Mussele has not been the victim of any violation of the rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that accordingly application no. 8919/80 lodged by him is without foundation\".", "AS TO THE LAW", "I. SCOPE OF THE PRESENT CASE", "27. Mr. Van der Mussele complained essentially of the fact that he had been required to defend Mr. Ebrima without receiving any remuneration or being reimbursed his expenses. This was, in his eyes, a typical example that he had selected in order to call in question the obligations imposed on Belgian avocats, and in particular on pupil avocats, in connection with pro Deo cases. He mentioned similar appointments in about fifty other cases, but formally speaking his grievances do not relate to those other appointments.", "In proceedings originating in an \"individual\" application (Article 25 of the Convention) (art. 25), the Court has to confine its attention, as far as possible, to the issues raised by the concrete case before it. However, it appears from the material before the Court that the appointment complained of cannot be reviewed from the standpoint of the Convention without putting it in the general context both of the relevant Belgian legislation applicable at the time and of the practice followed thereunder; the Commission ’ s Delegates rightly drew attention to this.", "II. RESPONSIBILITY OF THE BELGIAN STATE", "28. Before the Commission and in their memorial to the Court, the Government submitted that there was no primary or subordinate legislation that obliged avocats to accept work entrusted to them by a Legal Advice and Defence Office: their duty to act for indigent persons was said to derive solely from professional rules freely adopted by the Ordres des avocats themselves. According to the Government, the Belgian State did not prescribe either how appointments were to be made or their effects; it was therefore not answerable for any infringements of the Convention ’ s guarantees that might be occasioned by implementation of the professional rules.", "29. This argument, to which counsel for the Government did not revert at the hearings before the Court, was not accepted by the applicant or the Commission. Neither does it convince the Court.", "Under the Convention, the obligation to grant free legal assistance arises, in criminal matters, from Article 6 § 3 (c) (art. 6-3-c); in civil matters, it sometimes constitutes one of the means of ensuring a fair trial as required by Article 6 § 1 (art. 6-1) (see the Airey judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26). This obligation is incumbent on each of the Contracting Parties. The Belgian State - and this was not contested by the Government - lays the obligation by law on the Ordres des avocats, thereby perpetuating a state of affairs of long standing; under Article 455, first paragraph, of the Judicial Code, the Councils of the Ordres are to make provision for the assistance of indigent persons by setting up Legal Advice and Defence Offices (see paragraph 18 above). As was pointed out by the applicant, the Councils have \"no discretion as regards the principle itself\": legislation \"compels them to compel\" members of the Bar to \"defend indigent persons\". Such a solution cannot relieve the Belgian State of the responsibilities it would have incurred under the Convention had it chosen to operate the system itself.", "Moreover, the Government recognised at the hearings that \"the obligation\", for pupil avocats, \"to act as defence counsel in cases assigned by the Legal Advice and Defence Office\" arose from Article 455 of the Judicial Code; in paragraph 21 of their memorial, they had already conceded that Belgian law, by not making any provision for indemnifying pupil avocats, acknowledged at least implicitly that the latter have to bear the expenses incurred in dealing with the cases in question.", "In addition, the Belgian Bars, bodies that are associated with the exercise of judicial power, are, without prejudice to the basic principle of independence necessary for the accomplishment of their important function in the community, subject to the requirements of the law. The relevant legislation states their objects and establishes their institutional organs; it endows with legal personality in public law each of the Councils of the twenty-seven local Ordres and the General Council of the National Ordre (see paragraph 15 above).", "30. The responsibility of the Belgian State being thus engaged in the present case, it has to be ascertained whether that State complied with the provisions of the Convention and of Protocol No. 1 art. 4, art. 14, P1-1) relied on by Mr. Van der Mussele.", "III. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION, TAKEN ALONE (art. 4)", "31. The applicant maintained that he had had to perform forced or compulsory labour incompatible with Article 4 (art. 4) of the Convention. Under that Article (art. 4):", "\"1. ...", "2. No one shall be required to perform forced or compulsory labour.", "3. For the purpose of this Article (art. 4) the term \"forced or compulsory labour\" shall not include:", "(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 (art. 5) of this Convention or during conditional release from such detention;", "(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;", "(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;", "(d) any work or service which forms part of normal civic obligations.\"", "Four members of the Commission considered that this had been the case, but a majority of ten of their colleagues arrived at the opposite conclusion. The Government contended, as their principal submission, that the labour in question was not \"forced or compulsory\" or, in the alternative, that it formed part of the applicant ’ s \"normal civic obligations\".", "32. Article 4 (art. 4) does not define what is meant by \"forced or compulsory labour\" and no guidance on this point is to be found in the various Council of Europe documents relating to the preparatory work of the European Convention.", "As the Commission and the Government pointed out, it is evident that the authors of the European Convention - following the example of the authors of Article 8 of the draft International Covenant on Civil and Political Rights - based themselves, to a large extent, on an earlier treaty of the International Labour Organisation, namely Convention No. 29 concerning Forced or Compulsory Labour.", "Under the latter Convention (which was adopted on 28 June 1930, entered into force on 1 May 1932 and was modified - as regards the final clauses - in 1946), States undertook \"to suppress the use of forced or compulsory labour in all its forms within the shortest possible period\" (Article 1 § 1); with a view to \"complete suppression\" of such labour, States were permitted to have recourse thereto during a \"transitional period\", but \"for public purposes only and as an exceptional measure, subject to the conditions and guarantees\" laid down in Articles 4 et seq. (Article 1 § 2). The main aim of the Convention was originally to prevent the exploitation of labour in colonies, which were still numerous at that time. Convention No. 105 of 25 June 1957, which entered into force on 17 January 1959, complemented Convention No. 29, by prescribing \"the immediate and complete abolition of forced or compulsory labour\" in certain specified cases.", "Subject to Article 4 § 3 (art. 4-3), the European Convention, for its part, lays down a general and absolute prohibition of forced or compulsory labour.", "The Court will nevertheless take into account the above-mentioned ILO Conventions - which are binding on nearly all the member States of the Council of Europe, including Belgium - and especially Convention No. 29. There is in fact a striking similarity, which is not accidental, between paragraph 3 of Article 4 (art. 4-3) of the European Convention and paragraph 2 of Article 2 of Convention No. 29. Paragraph 1 of the last-mentioned Article provides that \"for the purposes\" of the latter Convention, the term \"forced or compulsory labour\" shall mean \"all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily\". This definition can provide a starting-point for interpretation of Article 4 (art. 4) of the European Convention. However, sight should not be lost of that Convention ’ s special features or of the fact that it is a living instrument to be read \"in the light of the notions currently prevailing in democratic States\" (see, inter alia, the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 34, § 95).", "33. It was common ground between those appearing before the Court that the services rendered by Mr. Van der Mussele to Mr. Ebrima amounted to \"labour\" for the purposes of Article 4 § 2 (art. 4-2). It is true that the English word \"labour\" is often used in the narrow sense of manual work, but it also bears the broad meaning of the French word \"travail\" and it is the latter that should be adopted in the present context. The Court finds corroboration of this in the definition included in Article 2 § 1 of Convention No. 29 (\"all work or service\", \"tout travail ou service\"), in Article 4 § 3 (d) (art. 4-3-d) of the European Convention (\"any work or service\", \"tout travail ou service\") and in the very name of the International Labour Organisation (Organisation internationale du Travail), whose activities are in no way limited to the sphere of manual labour.", "34. It remains to be ascertained whether there was \"forced or compulsory\" labour. The first of these adjectives brings to mind the idea of physical or mental constraint, a factor that was certainly absent in the present case. As regards the second adjective, it cannot refer just to any form of legal compulsion or obligation. For example, work to be carried out in pursuance of a freely negotiated contract cannot be regarded as falling within the scope of Article 4 (art. 4) on the sole ground that one of the parties has undertaken with the other to do that work and will be subject to sanctions if he does not honour his promise. On this point, the minority of the Commission agreed with the majority. What there has to be is work \"exacted ... under the menace of any penalty\" and also performed against the will of the person concerned, that is work for which he \"has not offered himself voluntarily\".", "35. The definition given in Article 2 § 1 of ILO Convention No. 29 leads the Court to inquire firstly whether there existed in the circumstances of the present case \"the menace of any penalty\".", "Had Mr. Van der Mussele refused without good reason to defend Mr. Ebrima, his refusal would not have been punishable with any sanction of a criminal character. On the other hand, he would have run the risk of having the Council of the Ordre strike his name off the roll of pupils or reject his application for entry on the register of avocats (see paragraph 19 above); these prospects are sufficiently daunting to be capable of constituting \"the menace of [a] penalty\", having regard both to the use of the adjective \"any\" in the definition and to the standards adopted by the ILO on this point (\"Abolition of Forced Labour\": General Survey by the Committee of Experts on Application of Conventions and Recommendations, 1979, paragraph 21).", "36. It must next be determined whether the applicant \"offered himself voluntarily\" for the work in question.", "According to the majority of the Commission, the applicant had consented in advance to the situation he complained of, so that it ill became him to object to it subsequently. Their argument ran as follows. On the eve of embarking on his career, the future avocat will make \"a kind of prospective assessment\": he will weigh up the pros and cons, setting the \"advantages\" of the profession against the \"drawbacks\" it entails. And here the drawbacks were \"perfectly foreseeable\" by the future avocat since he was not unaware either of the existence or of the scope of the obligations he would have to bear as regards defending clients free of charge, obligations that were \"limited\" both in quantity (about fourteen cases each year) and in time (the period of pupillage). He also had knowledge of the corresponding advantages: the freedom he would enjoy in carrying out his duties and the opportunity he would have of familiarising himself with life in the courts and of \"establishing for himself a paying clientele\". One of the distinctive features of compulsory labour was therefore lacking and this was sufficient to establish that there had not been a violation of Article 4 § 2 (art. 4-2).", "This argument, which was supported by the Government, correctly reflects one aspect of the situation; nevertheless, the Court cannot attach decisive weight thereto. Mr. Van der Mussele undoubtedly chose to enter the profession of avocat, which is a liberal profession in Belgium, appreciating that under its rules he would, in accordance with a long-standing tradition, be bound on occasions to render his services free of charge and without reimbursement of his expenses. However, he had to accept this requirement, whether he wanted to or not, in order to become an avocat and his consent was determined by the normal conditions of exercise of the profession at the relevant time. Nor should it be overlooked that what he gave was an acceptance of a legal régime of a general character.", "The applicant ’ s prior consent, without more, does not therefore warrant the conclusion that the obligations incumbent on him in regard to legal aid did not constitute compulsory labour for the purposes of Article 4 § 2 (art. 4-2) of the Convention. Account must necessarily also be taken of other factors.", "37. On the basis of jurisprudence of its own which dates back to 1963 (admissibility decision on application no. 1468/62, Iversen v. Norway, Yearbook of the Convention, vol. 6, pp. 327-329) and which it has subsequently re-affirmed, the Commission expressed the opinion that for there to be forced or compulsory labour, for the purposes of Article 4 § 2 (art. 4-2) of the European Convention, two cumulative conditions have to be satisfied: not only must the labour be performed by the person against his or her will, but either the obligation to carry it out must be \"unjust\" or \"oppressive\" or its performance must constitute \"an avoidable hardship\", in other words be \"needlessly distressing\" or \"somewhat harassing\". After examining the issue \"as a supplementary consideration\", the Commission concluded by a majority that the second condition was no more satisfied than the first condition.", "The Court would observe that the second criterion thus applied is not stated in Article 2 § 1 of ILO Convention No. 29. Rather it is a criterion that derives from Article 4 and the following Articles of that Convention, which are not concerned with the notion of forced or compulsory labour but lay down the requirements to be met for the exaction of forced or compulsory labour during the transitional period provided for under Article 1 § 2 (see \"ILO-internal minute - January 1966\", paragraph 2).", "Be that as it may, the Court prefers to adopt a different approach. Having held that there existed a risk comparable to \"the menace of [a] penalty\" (see paragraph 35 above) and then that relative weight is to be attached to the argument regarding the applicant ’ s \"prior consent\" (see paragraph 36 above), the Court will have regard to all the circumstances of the case in the light of the underlying objectives of Article 4 (art. 4) of the European Convention in order to determine whether the service required of Mr. Van der Mussele falls within the prohibition of compulsory labour. This could be so in the case of a service required in order to gain access to a given profession, if the service imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession, that the service could not be treated as having been voluntarily accepted beforehand; this could apply, for example, in the case of a service unconnected with the profession in question.", "38. The structure of Article 4 (art. 4) is informative on this point. Paragraph 3 (art. 4-3) is not intended to \"limit\" the exercise of the right guaranteed by paragraph 2 (art. 4-2), but to \"delimit\" the very content of this right, for it forms a whole with paragraph 2 (art. 4-2) and indicates what \"the term ‘ forced or compulsory labour ’ shall not include\" (ce qui \"n ’ est pas considéré comme ‘ travail forcé ou obligatoire ’ \"). This being so, paragraph 3 (art. 4-3) serves as an aid to the interpretation of paragraph 2 (art. 4-2).", "The four sub-paragraphs of paragraph 3 (art. 4-3-a, art. 4-3-b, art. 4-3-c, art. 4-3-d), notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is in the normal or ordinary course of affairs. The final sub-paragraph, namely sub-paragraph (d) (art. 4-3-d) which excludes \"any work or service which forms part of normal civil obligations\" from the scope of forced or compulsory labour, is of especial significance in the context of the present case.", "39. When viewed in the light of the foregoing considerations, the circumstances complained of can be seen to be characterised by several features, each of which provides a standard of evaluation.", "The services to be rendered did not fall outside the ambit of the normal activities of an avocat; they differed from the usual work of members of the Bar neither by their nature nor by any restriction of freedom in the conduct of the case.", "Secondly, a compensatory factor was to be found in the advantages attaching to the profession, including the exclusive right of audience and of representation enjoyed by avocats in Belgium as in several other countries (see paragraph 16 above); the exceptions to which the applicant drew attention (ibid.) do not divest the rule of its substance.", "In addition, the services in question contributed to the applicant ’ s professional training in the same manner as did the cases in which he had to act on the instructions of paying clients of his own or of his pupil-master. They gave him the opportunity to enlarge his experience and to increase his reputation. In this respect, a certain degree of personal benefit went hand in hand with the general interest which was foremost.", "Moreover, the obligation to which Mr. Van der Mussele objected constituted a means of securing for Mr. Ebrima the benefit of Article 6 § 3 (c) (art. 6-3-c) of the Convention. To this extent, it was founded on a conception of social solidarity and cannot be regarded as unreasonable. By the same token, it was an obligation of a similar order to the \"normal civic obligations\" referred to in Article 4 § 3 (d) (art. 4-3-d). The Court is not required on the present occasion to rule on the correctness of the argument of the minority of the Commission to the effect that the almost routine allocation of pro-Deo cases to pupil avocats might not be fully consonant with the need to provide effective legal aid to impecunious litigants (see the Artico judgment of 13 May 198O, Series A no. 37, pp. 15-16, § 33).", "Finally, the burden imposed on the applicant was not disproportionate. According to his own evidence, acting for Mr. Ebrima accounted for only seventeen or eighteen hours of his working time (see paragraph 11 above). Even if one adds to this the other cases in which he was appointed to act during his pupillage - about fifty in three years, representing, so he said, a total of some seven hundred and fifty hours (see paragraph 13 above) -, it can be seen that there remained sufficient time for performance of his paid work (approximately two hundred cases).", "40. In point of fact, the applicant did not challenge the principle, as such, of the obligation in question; his complaint was limited to two aspects of the manner in which the obligation was implemented, namely the absence of fees and more especially the non-reimbursement of incurred expenditure (see paragraphs 12, 20 and 24 above). He felt it unjust - and on this the minority of the Commission concurred with him - to entrust the free representation of the most needy citizens to pupil avocats who themselves were in receipt of insufficient resources and to make them bear the cost of a public service instituted by law. He drew attention to the fact that for many years the successive chairmen of the Ordre des avocats in Belgium have regarded such a state of affairs as intolerable.", "For their part, the Government acknowledged that the practice complained of was inspired by a \"paternalism\" that was now \"outmoded\". They asserted that the traditional stance of a profession jealous of its independence accounted for the fact that Belgium had delayed in \"endeavouring\", by means of the Act of 9 April 1980 (see paragraph 21 above), \"to bring its standards\" in this sphere to \"the level of other States, notably European\": until recent times, so the Government stated, the Bar had viewed with \"distrust\" State-payment of pupil avocats, the idea of an official scale of fees inspiring deep-rooted hostility amongst its members.", "The Commission also described as unfortunate a legal situation which in its opinion, while being compatible with Article 4 (art. 4), no longer meets \"the requirements of modern life\". Pointing out that if pupil avocats were remunerated their professional training would not suffer thereby, the Commission expressed the wish for a prompt and effective implementation of the Act of 9 April 1980.", "The Court has not overlooked this aspect of the problem. While remunerated work may also qualify as forced or compulsory labour, the lack of remuneration and of reimbursement of expenses constitutes a relevant factor when considering what is proportionate or in the normal course of affairs. In this connection, it is noteworthy that the respective laws of numerous Contracting States have evolved or are evolving, albeit in varying degrees, towards the assumption by the public purse of the cost of paying lawyers or trainee lawyers appointed to act for indigent litigants. The Belgian Act of 9 April 1980 is an example of this development; that Act, once it has been implemented, should bring about a significant improvement, without thereby threatening the independence of the Bar.", "At the relevant time, the state of affairs complained of undoubtedly caused Mr. Van der Mussele some prejudice by reason of the lack of remuneration and of reimbursement of expenses, but that prejudice went hand in hand with advantages (see paragraph 39 above) and has not been shown to be excessive. The applicant did not have a disproportionate burden of work imposed on him (ibid.) and the amount of expenses directly occasioned by the cases in question was relatively small (see paragraph 12 above).", "The Court would recall that Mr. Van der Mussele had voluntarily entered the profession of avocat with knowledge of the practice complained of. This being so, a considerable and unreasonable imbalance between the aim pursued - to qualify as an avocat - and the obligations undertaken in order to achieve that aim would alone be capable of warranting the conclusion that the services exacted of Mr. Van der Mussele in relation to legal aid were compulsory despite his consent. No such imbalance is disclosed by the evidence before the Court, notwithstanding the lack of remuneration and of reimbursement of expenses - which in itself is far from satisfactory.", "Having regard, furthermore, to the standards still generally obtaining in Belgium and in other democratic societies, there was thus no compulsory labour for the purposes of Article 4 § 2 (art. 4-2) of the Convention.", "41. In view of this conclusion, the Court need not determine whether the work in question was in any event justified under Article 4 § 3 (d) (art. 4-3-d) as such and, in particular, whether the notion of \"normal civic obligations\" extends to obligations incumbent on a specific category of citizens by reason of the position they occupy, or the functions they are called upon to perform, in the community.", "IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 4 (art. 14+4)", "42. The applicant also invoked Article 14 read in conjunction with Article 4 (art. 14+4). Article 14 (art. 14) provides as follows:", "\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "43. Article 14 (art. 14) complements the other substantive provisions of the Convention and the Protocols. It may be applied in an autonomous manner as breach of Article 14 (art. 14) does not presuppose breach of those other provisions. On the other hand, it has no independent existence since it has effect solely in relation to \"the enjoyment of the rights and freedoms\" safeguarded by the other substantive provisions (see, inter alia, the Marckx judgment of 13 June 1979, Series A no. 31, pp. 15-16, § 32). As the Court has found that there was no forced or compulsory labour for the purposes of Article 4 (art. 4), the question arises whether the facts in issue fall completely outside the ambit of that Article (art. 4) and, hence, of Article 14 (art. 14). However, such reasoning would be met by one major objection. The criteria which serve to delimit the concept of compulsory labour include the notion of what is in the normal course of affairs (see paragraph 38 above). Work or labour that is in itself normal may in fact be rendered abnormal if the choice of the groups or individuals bound to perform it is governed by discriminatory factors, which was precisely what the applicant contended had occurred in the present circumstances.", "Consequently, this is not a case where Article 14 (art. 14) should be held inapplicable; the Government, moreover, did not contest the point.", "44. In a memorial of 27 October 1980 filed before the Commission, Mr. Van der Mussele stated that he was not complaining of any discrimination between pupil avocats and avocats entered on the register He did not alter his attitude before the Court, and the Court sees no reason for examining the issue of its own motion.", "45. On the other hand, in the applicant ’ s submission, Belgian avocats are subject, in respect of the matters under consideration, to less favourable treatment than that of members of a whole series of other professions. In legal aid cases, the State accords remuneration to judges and registrars, pays the emoluments of interpreters (Article 184 bis of the Code of Criminal Procedure and Article 691 of the Judicial Code) and, \"in lieu of the legally aided person\", advances \"the travel and subsistence expenses of judicial, public or publicly appointed officers, the costs and fees of experts, the allowances of witnesses ..., the disbursements and one quarter of the salaries of bailiffs as well as the disbursements of other public or publicly appointed officers\" (Article 692 of the Judicial Code and paragraph 23 above). Medical practitioners, veterinary surgeons, pharmacists and dentists, for their part, are not required to provide their services free of charge to indigent persons. According to the applicant, these all represented instances of arbitrary inequality, being devoid of any \"objective and reasonable justification\" (see the judgment of 23 July 1968 in the \"Belgian Linguistic\" case, Series A no. 6, p. 34, § 10); they thereby contravened Articles 14 and 4 (art. 14+4) taken together. The minority of the Commission shared this view, at least to a large extent.", "46. Article 14 (art. 14) safeguards individuals, placed in analogous situations, from discrimination (see the above-mentioned Marckx judgment, Series A no. 31, p. 15, § 32). Yet between the Bar and the various professions cited by the applicant, including even the judicial and parajudicial professions, there exist fundamental differences to which the Government and the majority of the Commission rightly drew attention, namely differences as to legal status, conditions for entry to the profession, the nature of the functions involved, the manner of exercise of those functions, etc. The evidence before the Court does not disclose any similarity between the disparate situations in question: each one is characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect.", "On the basis of the applicant ’ s grievances, the Court accordingly does not find any breach of Articles 14 and 4 taken together (art. 14+4).", "V. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)", "47. Mr. Van der Mussele finally relied on Article 1 of Protocol No. 1 (P1-1), which reads:", "\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\"", "48. His arguments do not bear examination in so far as they relate to the absence of remuneration. The text set out above is limited to enshrining the right of everyone to the peaceful enjoyment of \"his\" possessions; it thus applies only to existing possessions (see, mutatis mutandis, the above-mentioned Marckx judgment, Series A no. 31, p. 23, § 50). In the instant case, however, the Legal Advice and Defence Office of the Antwerp Bar decided on 18 December 1979 that no assessment of fees could be made, because of Mr. Ebrima ’ s lack of means (see paragraph 12 above). It follows, as the Commission unanimously inferred, that no debt in favour of the applicant ever arose in this respect.", "Consequently, under this head, there is no scope for the application of Article 1 of Protocol No. 1 (P1-1), whether taken on its own or together with Article 14 (art. 14+P1-1) of the Convention; moreover, Mr. Van der Mussele invoked the latter Article solely in conjunction with Article 4 (art. 14+4).", "49. The matter cannot be put in the same terms as far as the non-reimbursement of expenses is concerned, since Mr. Van der Mussele was required to pay certain sums out of his own pocket in this connection (see paragraph 12 above).", "That does not suffice, however, to warrant the conclusion that Article 1 of Protocol No. 1 (P1-1) is applicable.", "In many cases, a duty prescribed by law involves a certain outlay for the person bound to perform it. To regard the imposition of such a duty as constituting in itself an interference with possessions for the purposes of Article 1 of Protocol No. 1 (P1-1) would be giving the Article a far-reaching interpretation going beyond its object and purpose.", "The Court sees no valid cause to think otherwise in the instant case.", "The expenses in question were incurred by Mr. Van der Mussele in acting for his pro Deo clients. Although in no wise derisory (the epithet bestowed on them by the Government), these expenses were relatively small and resulted from the obligation to perform work compatible with Article 4 (art. 4) of the Convention.", "Article 1 of Protocol No. 1 (P1-1), whether taken alone or in conjunction with Article 14 (art. 14+P1-1) of the Convention, is thus not applicable in this connection." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1963 and lives in Linz.", "6. The applicant is a practising lawyer. In July 2005 the applicant was informed by the Linz District Court that it planned to appoint him as legal guardian ( Sachwalter ) for K, who was suffering from a mental illness, and asked him to comment on the proposal. According to the document supplied by the court, there were no known relatives of K who could become guardians, and the association of guardians ( Verein für Sachwalterschaft ) had informed the court that it lacked the capacity to take over guardianship.", "7. The applicant submitted comments, stating that his wife objected to the proposal, since K might call the applicant at weekends and disturb their family life. His professional and spare-time activities would also not allow him to take on another duty. He added that he was not trained to deal with persons with a mental illness such as K and was not interested in acquiring the necessary training either. Furthermore, he argued that his professional insurance would not cover the risks associated with being a legal guardian; therefore, he would have to enter into a separate insurance agreement. The costs would have to be borne by K, who – according to the court file which the applicant had received – did not appear to have the money to cover them.", "8. By a decision of the Linz District Court of 15 September 2005 the applicant was appointed as legal guardian for K in matters of management of income and representation before the courts and other authorities. The court found that no other person, such as a relative, was suitable to be K’s legal guardian. The association of guardians did not have the capacity to appoint a legal guardian for K. The applicant was the next person on the list of possible legal guardians. This list, which is kept by the Linz District Court, contains the names of all lawyers and public notaries in the district. The court also found that the reasons submitted by the applicant were not sufficient to justify his refusal; it held that neither having two children, nor leading a church choir, nor being member of a supervisory board constituted a valid reason as to why he should be declared unsuitable for the task. The court also held that the duty for lawyers to act as legal guardians did not constitute forced labour, as helping weaker members of society was a civic duty and for practising lawyers, rendering help in legal matters was part of their core professional duties and was comparable to a normal civic obligation within the meaning of Article 4 § 2 of the Convention.", "9. The applicant appealed against the decision to the Linz Regional Court, arguing that if the duty were to constitute a normal civic obligation, it was discriminatory to put only lawyers and public notaries on the list, as other persons also had knowledge of law, such as judges, public servants who had studied law or lawyers working in companies. He also alleged that the tasks he had been ordered to perform did not require special legal knowledge as any adult person could manage their income; he further claimed that no court proceedings in which K was a party were pending, and thus it was not necessary to appoint a practising lawyer as his guardian.", "10. On 15 December 2005 the Linz Regional Court upheld the decision of the Linz District Court, holding that there was at least one trial involving K pending, and that any other tasks the applicant would have to perform in the present case were limited and did not place an excessive burden on him.", "11. The applicant lodged an extraordinary appeal on points of law to the Supreme Court, alleging a violation of Article 14 in conjunction with Article 4 of the Convention, as only lawyers and their associates ( Rechtsanwaltsanwärter ) and public notaries and their associates ( Notariatskandidaten ), but no other persons who had studied law, were placed on the list of possible guardians. He also complained that lawyers were in principle entitled to remuneration for their services, but this applied only in so far as this would not endanger the fulfilment of the basic needs of the person placed under guardianship. By a decision of 7 March 2006 the Supreme Court refused to deal with the matter, finding that it did not raise an important question of law." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "12. The rules on guardianship are contained in the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ), the relevant part of which was recently amended, and the Non-Contentious Proceedings Act ( Außerstreitgesetz ).", "13. The law in force at the relevant time provided that adult persons of unsound mind who could not handle all or some of their own affairs without the risk of disadvantages for them should be placed under guardianship (section 273 of the Civil Code).", "14. There were varying degrees of guardianship, ranging from a duty to carry out one specific transaction or enforce or contest a specific claim, to the carrying out of certain types of duties, such as management of a person’s entire assets or parts thereof, or taking care of all the affairs of the person concerned (section 272 of the Civil Code).", "15. Placement under guardianship was not permissible if and in so far as the person concerned could take care of his or her affairs to a sufficient degree with assistance, especially from the family or from institutions for people with disabilities (section 273 § 2 of the Civil Code).", "16. Section 281 of the Civil Code provided that guardians should be persons close to the persons placed under guardianship, unless the well ‑ being of the person concerned required otherwise (§ 1); if this was beneficial to the well-being of a person under guardianship, a person from a guardians’ association should be nominated as a guardian, where possible (§ 2). If taking care of the affairs of the person concerned required considerable knowledge of law, a practising lawyer (or lawyer’s associate) or public notary (or notary’s associate) was to be appointed as guardian (§ 3).", "17. Section 282 § 2 of the Civil Code provided that the guardian should be in contact with the person under guardianship and should try to ensure that medical and social assistance was given to the person concerned.", "18. A person whom the court planned to appoint as a guardian had to notify the court of any circumstances that might prevent him or her from carrying out the task. A particularly suitable person – according to the case ‑ law, a person belonging to the groups mentioned in section 281 § 3 of the Civil Code (see paragraph 16 above) – could refuse to carry out the task only if it was unacceptable to him or her (section 189 §§ 1 and 2 of the Civil Code).", "19. The guardian was entitled to remuneration, fees and reimbursement of expenses. If the guardian used his special professional knowledge and skills for tasks for which the services of another person would otherwise have to be engaged, the guardian was entitled to adequate remuneration for these tasks. Remuneration could only be granted in so far as the basic needs of the person under guardianship could still be satisfied from the person’s income (sections 266 and 267 of the Civil Code).", "20. Section 130 of the Non-Contentious Proceedings Act ( Außerstreitgesetz ) provided that a guardian had to report to the court about contacts with the person concerned, the life the person led and the person’s physical and mental state. The reports had to be drawn up at reasonable intervals, at least once every three years. The court could also require the guardian to draw up a report. Further duties listed in the Non-Contentious Proceedings Act concerned the keeping of accounts for the assets and income of the person under guardianship; the statements of account were subject to the court’s approval.", "21. Rule 86 § 2 of the Rules of Procedure of Courts of First and Second Instance ( Geschäftsordnung für die Gerichte I. und II. Instanz ) provides that each court has to have a list of lawyers and public notaries acting in the appropriate district; courts have to ensure that there is a reasonable alternation in the persons appointed as guardians.", "22. The Lawyers Act ( Rechtsanwaltsordnung ) contains the following provisions on the rights and duties of practising lawyers in Austria:", "Section 8", "“(1) The right of a lawyer to represent parties shall extend to all courts and authorities of the Republic of Austria and shall include the authority to represent parties in a professional capacity in all judicial and extrajudicial and in all public and private matters. ...", "(2) The authority to provide comprehensive professional representation to parties within the meaning of subsection (1) above shall be reserved for lawyers. This is without prejudice to the professional powers deriving from the Austrian regulations governing the professions of notaries, patent agents, chartered accountants and civil engineers.”", "Section 21a", "“(1) Before being admitted to practise, all lawyers shall be required to furnish proof to the Executive Committee of the Bar Association that they have taken out civil ‑ liability insurance with an insurance company authorised to carry on business in Austria to cover any claims for damages that may be brought against them as a result of their professional activities. They shall maintain the insurance cover throughout the duration of their professional activities and shall furnish proof thereof to the Bar Association on request.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION", "23. The applicant complained that the duty to act as a legal guardian breached the prohibition of forced and compulsory labour as provided in Article 4 of the Convention. Article 4, in so far as relevant, reads as follows:", "“1. ...", "2. No one shall be required to perform forced or compulsory labour.", "3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include:", "(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention;", "(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;", "(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;", "(d) any work or service which forms part of normal civic obligations.”", "24. The Government contested that argument.", "A. Admissibility", "25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The applicant’s arguments", "26. The applicant complained that he had been appointed as a legal guardian against his will. He submitted that the appointment was unacceptable as he had other professional and family duties, but that he was obliged to carry out the duty because of disciplinary law. Furthermore, he would not obtain remuneration for the task, as the person for whom he had been appointed as legal guardian did not have much money.", "27. The applicant pointed out that acting as a legal guardian could not be seen as a normal civic obligation. Courts only appointed practising lawyers and public notaries in cases where the person placed under guardianship required representation before the courts and authorities, yet persons who had studied law but were not practising lawyers or public notaries were not appointed in such cases.", "28. Furthermore, the applicant argued that his activities as a guardian would not be covered by his professional liability insurance, and that he would have to obtain further insurance, the costs for which he would have to bear himself.", "2. The Government’s arguments", "29. The Government argued that the duty to act as a legal guardian resulted from a freely chosen profession and formed part of the applicant’s professional activities. Persons choosing to become a practising lawyer usually knew that they might be required to act as a legal guardian. These professional groups also enjoyed a certain monopoly status for providing legal advice and representing clients before courts and other authorities.", "30. Whilst anyone could in principle expect to be appointed as a guardian, the Supreme Court’s case-law established that “particularly suitable persons” were obliged to act as legal guardians. Such particularly suitable persons were persons with special expert knowledge or facilities to carry out a certain task who were subject to special legal obligations in connection with their profession.", "31. The Government also argued that the appointment of lawyers as guardians was of relatively minor significance compared with other professional activities. Lawyers were rarely appointed as legal guardians under the present system, and the Rules of Procedure of Courts of First and Second Instance ensured an equal distribution between the lawyers and public notaries appointed. Furthermore, the Austrian legal system did not provide for the concept of specialist practising lawyers, as every lawyer underwent comprehensive training and was able to cover all areas of law. Therefore, the time and effort needed to become acquainted with matters of guardianship were relatively minor.", "32. Turning to the present case, the Government pointed out that the tasks with which the applicant was entrusted in the present case, namely dealing with income and property matters, were not of such a scale as to amount to an unacceptable burden, especially since the person concerned did not have much income or property. Furthermore, at the time of the applicant’s appointment as a guardian, court proceedings had in fact been pending against the person to be placed under guardianship.", "33. The Government submitted that guardians were normally remunerated for their work, unless such payment would endanger the fulfilment of the basic needs of the person placed under guardianship. If a lawyer acted as a guardian and used his or her special knowledge to carry out the task, the guardian was in principle also entitled to remuneration. If the person under guardianship was a party to proceedings where representation by counsel was mandatory, the lawyer, as guardian, had to apply for legal aid.", "34. Lastly, the Government pointed out that a lawyer’s acts as a guardian were normally covered by the general professional liability insurance for lawyers. In the event that this kind of risk had been excluded in the insurance policy, the cost of obtaining coverage for such kinds of risks would be reimbursed as expenses.", "35. Turning to the present case, the Government argued that only a few matters were to be managed by the applicant; therefore, the cash expenses seemed to be relatively low.", "3. The Court’s assessment", "36. The Court reiterates that the Convention does not contain a definition of the term “forced or compulsory labour”. In the case of Van der Mussele v. Belgium (23 November 1983, § 32, Series A no. 70; see also Siliadin v. France, no. 73316/01, §§ 115-116, ECHR 2005 ‑ VII and, as a recent authority, Stummer v. Austria [GC], no. 37452/02, §§ 117-118, 7 July 2011) the Court had recourse to ILO Convention No. 29 concerning forced or compulsory labour. For the purposes of that Convention the term “forced or compulsory labour” means “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. The Court has taken that definition as a starting point for its interpretation of Article 4 § 2 of the Convention.", "37. The Court has further noted the specific structure of Article 4. Article 4 § 3 of the Convention lists activities which do not constitute “forced or compulsory labour” within the meaning of Article 4 § 2. Thus, paragraph 3 serves as an aid for the interpretation of paragraph 2. The four subparagraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of affairs (see Van der Mussele, cited above, § 38; Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291 ‑ B; Zarb Adami v. Malta, no. 17209/02, § 44, ECHR 2006 ‑ VIII and Stummer, cited above, § 120). The final sub-paragraph, namely sub ‑ paragraph (d), which excludes “any work or service which forms part of normal civil obligations” from the scope of forced or compulsory labour, is of special significance in the context of the present case (see Van der Mussele, cited above, § 38).", "38. In the case of Van der Mussele, which concerned a pupil advocate’s duty to provide services under the legal-aid scheme without remuneration, the Court developed standards for evaluating what could be considered normal in respect of duties incumbent on members of a particular profession (ibid., § 39). These standards take into account whether the services rendered fall outside the ambit of the normal professional activities of the person concerned; whether the services are remunerated or not or whether the service includes another compensatory factor; whether the obligation is founded on a conception of social solidarity; and whether the burden imposed is disproportionate (see also Steindel v. Germany (dec.), no. 29878/07, 14 September 2010, concerning a medical practitioner’s duty to participate in an emergency service).", "39. In the present case, it has not been disputed that the refusal to act as a guardian can give rise to disciplinary sanctions for practising lawyers and public notaries. Therefore, there is an element of the “menace of [a] penalty”.", "40. The Court will therefore examine whether the applicant has “offered himself voluntarily” for the work in question. It observes that, when the applicant decided to become a practising lawyer, he must have been aware of the fact that he might be obliged to act as a guardian. As he chose to become a practising lawyer nonetheless, the Court finds that there is an element of prior consent to such tasks. However, this element alone is not sufficient to conclude that the duties incumbent on the applicant in his capacity as K’s legal guardian did not constitute compulsory labour for the purpose of Article 4 § 2 (see, mutatis mutandis, Van der Mussele, cited above, § 36).", "41. In the context of the present case, the Court considers that representation of a person before courts and authorities and managing a person’s property are not services outside the ambit of the normal activities of a practising lawyer. The Court also accepts that guardians are entitled to receive remuneration, and only in circumstances where the person concerned does not have sufficient means will guardians not receive remuneration for their services. However, in such cases it should be noted that the professional groups of practising lawyers and public notaries have certain privileges vis-à-vis other professional groups, such as the right to represent parties in certain kinds of court proceedings. The Court also notes that the applicant has not alleged that there were a significant number of cases in which he had to act as a guardian or that acting as K’s guardian was particularly time-consuming or complex. Thus, the burden placed on the applicant does not appear disproportionate.", "42. The aforementioned considerations enable the Court to conclude that the services the applicant was required to perform did not constitute forced or compulsory labour. Consequently, there has been no violation of Article 4 § 2 of the Convention.", "43. It is therefore not necessary to examine whether the duties at issue, which are imposed on a specific category of citizens, namely practising lawyers and public notaries, can be regarded as “normal civic obligations”, which are excluded from the notion of “forced or compulsory labour” by the specific provision of Article 4 § 3 (d) of the Convention (see Van der Mussele, cited above, § 41).", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4", "44. The applicant complained that the duty of practising lawyers and notaries to act as guardians violated Article 14 of the Convention taken in connection with Article 4 § 2.", "45. Article 14 of the Convention reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "46. The Government contested that argument.", "A. Admissibility", "47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The applicant’s arguments", "48. The applicant argued that persons who had studied law but who worked in professions other than as a practising lawyer or public notary were not obliged to act as guardians, even though they had the same legal knowledge as a result of their studies. By way of example, the applicant mentioned judges, public prosecutors, civil servants and lawyers who worked for private companies.", "49. The applicant further argued that even if legal representation before the courts were necessary on behalf of a person under guardianship, the guardian in question could always apply for a legal-aid lawyer to represent the person. In the applicant’s opinion, the fact that practising lawyers were appointed as guardians mainly to perform out-of-court duties also constituted discrimination.", "2. The Government’s arguments", "50. The Government contested that argument, pointing out that only different treatment without a factual and reasonable justification led to a violation of the Convention. Furthermore, the Convention granted States a certain margin of appreciation in determining which situations justified different treatment.", "51. The Government conceded that practising lawyers and public notaries were appointed as guardians more often than other legally trained persons. It was also provided for by law that such professional groups should be appointed as guardians if the affairs managed by the guardian mostly required legal knowledge.", "52. However, the preference given to these professional groups was not arbitrary and thus discriminatory, but was rooted in the fact that these professional groups were particularly suited to represent persons before offices, courts and other public authorities. Practising lawyers and public notaries were specially trained and experienced in dealing with courts and authorities. The professional groups of practising lawyers and public notaries also enjoyed special privileges and rights regarding representation of persons before courts and authorities: a person must be represented by counsel before district courts if the value of the claims in dispute exceeded a certain amount (at the time of the facts, the threshold was 4,000 euros (EUR)), and representation by counsel was also mandatory before the higher courts. Other legally trained professionals did not enjoy such privileges. Furthermore, practising lawyers and public notaries were subject to disciplinary law.", "53. The Government pointed out that Rule 86 § 2 of the Rules of Procedure of Courts of First and Second Instance stated that there must be a reasonable alternation among the persons appointed as guardians as far as lawyers and public notaries were concerned. Furthermore, under Section 189 § 2 of the Civil Code, a practising lawyer or notary who was to be appointed as a guardian could refuse the appointment if he or she could not reasonably be expected to act in that capacity.", "3. The Court’s assessment", "54. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. As it has no independent existence, Article 14 has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports of Judgments and Decisions 1997-I, and Petrovic v. Austria, 27 March 1998, § 22, Reports 1998-II).", "55. It has not been disputed in the present case that Article 14 taken together with Article 4 of the Convention applies. In the light of its case ‑ law, the Court sees no reason to reach a different conclusion (see, in particular, Van der Mussele, cited above, § 43, and also Karlheinz Schmidt, cited above, § 22, and Zarb Adami, cited above, §§ 44-49).", "56. According to the Court’s case-law, discrimination means treating persons in relevantly similar situations differently without an objective and reasonable justification (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). A difference in treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. Furthermore, a difference in treatment must not only pursue a legitimate aim, but there must be a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Petrovic, cited above, § 30).", "57. The Contracting State enjoys a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background (see Gaygusuz v. Austria, 16 September 1996, § 42, Reports 1996-IV, and Stec and Others v. the United Kingdom [GC], no. 65731/01, §§ 51 and 52, ECHR 2006 ‑ VI).", "58. Thus, while the Court has found that the duty to act as a guardian does not constitute forced or compulsory labour within the meaning of Article 4 § 2, it will now examine whether limiting this duty to public notaries and practising lawyers and their associates amounts to discriminatory treatment.", "59. The Court reiterates that the duties of practising lawyers and public notaries and their associates to act as guardians become applicable only if the case at hand requires legal knowledge, or if relatives or members of the guardians’ association cannot act as guardians (see “Relevant domestic law and practice”, paragraph 16 above).", "60. The Court accepts that the practice of appointing lawyers and public notaries as guardians, but not other persons who are also legally trained, amounts to a difference in treatment. In line with the principles cited above, it is now for the Court to decide whether these professional groups and the other group, consisting of persons who also have legal training, are in relevantly similar situations.", "61. The Court reiterates that in the case of Van der Mussele (cited above, § 46) it held:", "“... between the Bar and the various professions cited by the applicant, including even the judicial and parajudicial professions, there exist fundamental differences to which the Government and the majority of the Commission rightly drew attention, namely differences as to legal status, conditions for entry to the profession, the nature of the functions involved, the manner of exercise of those functions, etc. The evidence before the Court does not disclose any similarity between the disparate situations in question: each one is characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect.”", "62. Practising lawyers have as their main activity the representation of their clients before courts and various authorities. They are specially trained for these tasks and have to pass an examination before they can practise their profession. In discharging their professional duties, practising lawyers and public notaries are subject to disciplinary law. Practising lawyers have to take out insurance against damages claims incurred during their professional activities.", "63. Only practising lawyers, public notaries, judges and officials of the Auditor-General’s Department who have passed the bar exam for practising lawyers are exempt from the duty to be represented by counsel before courts in cases where representation is mandatory.", "64. Other persons who have studied law, and possibly received professional legal training, but who are not working as practising lawyers, are not allowed to represent parties before the courts in cases where representation is mandatory. Furthermore, it is possible that despite having obtained legal education and training, such persons do not work in a law ‑ related field.", "65. The Court thus notes that there is a significant difference between the professional groups of practising lawyers, whose rights and duties are governed by specific laws and regulations, and the group of other persons who might have studied law, and even received professional legal training, but are not working as practising lawyers. The foregoing considerations are sufficient to enable the Court to conclude that for the purposes of appointment as a guardian in cases where legal representation is necessary, the professional groups of lawyers and public notaries on the one hand, and other legally trained persons on the other hand, are not in relevantly similar situations.", "66. There has accordingly been no violation of Article 4 in connection with Article 14 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1968 and lives in Thessaloniki.", "6. On 15 September 1986 he was admitted to the Corps Officers’ Military Academy (medical section). He was paid a salary and was granted welfare benefits. He pursued academic studies free of charge at the University of Thessaloniki’s Faculty of Medicine, taking the six-year degree course for medical professionals in the national health system.", "7. On 3 June 1993, on completion of his studies, he was appointed to the rank of second lieutenant in the army medical corps.", "8. In accordance with Article 64 § 1 of Legislative Decree no. 1400/1973 on the status of officers of the armed forces, as applicable at the material time, the applicant had undertaken to serve in the armed forces for a period corresponding to three times the duration of his studies at the military academy – that is, eighteen years. The relevant provision was later amended by section 1 of Law no. 3257/2004 and the period in question was reduced to twice the duration of his studies – that is, twelve years.", "9. On 18 January 1996 the Army General Staff organised a competitive examination for the recruitment of medical specialists. Officers in the medical corps, such as the applicant, were invited to apply in order to acquire a specialist qualification. The applicant was attached to the 424 General Military Hospital in Thessaloniki, where he worked as an intern from 26 July 1996 to 30 July 1997. Subsequently, from 30 July 1997 to 27 July 2001, he occupied a paid supernumerary position (by virtue of section 8 of Law no. 123/1975) at the Papanikolaou General Regional Hospital in Thessaloniki as a junior doctor specialising in anaesthesiology.", "10. After completing his specialist training, which lasted approximately five years – during which time he was paid his salary as an army officer – the applicant gave an undertaking, in accordance with Article 64 § 7 of Legislative Decree no. 1400/1973, to serve in the army for a further five years. He provided a sworn declaration to that effect as required by Article 67 § 10 of the Legislative Decree.", "11. The applicant served in the armed forces until 22 January 2006, when he resigned at the age of 37 as an anaesthetist with the rank of colonel.", "12. By a notice of 12 September 2006, the Army General Staff informed the applicant that, pursuant to Article 64 of Legislative Decree no. 1400/1973, he was required either to serve in the armed forces for a further nine years, four months and twelve days or to pay the State a fee calculated on the basis of the period remaining to be served.", "13. In a decision of 26 May 2007, the accounts department of the Army General Staff assessed the amount of the fee at 106,960 euros (EUR). The decision stated that the applicant could apply to the Court of Audit for judicial review, but that the application would not have suspensive effect as far as the payment procedure was concerned.", "14. On 25 June 2007 the applicant applied to the Fifth Division of the Court of Audit for judicial review of the notice of 12 September 2006. He argued that Article 64 of Legislative Decree no. 1400/1973 was in breach of Article 22 § 4 of the Constitution (prohibition of all forms of compulsory labour) and Article 4 § 2 of the Convention, taken alone and in conjunction with Article 14. On 27 June 2007 the applicant also applied for a stay of execution of the decision of 26 May 2007.", "15. On 5 July 2007 a division president of the Court of Audit made an interim order staying the execution of the decision of 26 May 2007. On 29 October 2007 the Fifth Division of the Court of Audit confirmed the stay of execution sought by the applicant.", "16. In judgment no. 175/2009 of 13 February 2009, the Fifth Division of the Court of Audit dismissed the applicant’s application for judicial review as ill-founded. It held in particular that the fee to be paid by the applicant did not constitute the menace of a penalty, did not infringe the proportionality principle, had been calculated objectively and was designed to ensure that the State was refunded the expenses it had incurred in training regular members of the armed forces, who were also paid a salary throughout their basic and specialist training.", "17. On 3 March 2009 the applicant appealed on points of law to the plenary Court of Audit. On 4 March 2009 he applied to the same court for a stay of execution of the decision of 26 May 2007.", "18. On 17 March 2009 the President of the plenary Court of Audit made an interim order staying the execution of the decision in question. On 18 March and 9 April 2009, while those proceedings were ongoing, the Thessaloniki Tax Office ordered the applicant to pay the sum of EUR 106,960, plus EUR 2,139.20 in stamp duty and EUR 427.84 to the agricultural insurance fund.", "19. On 21 October 2009 the plenary Court of Audit confirmed the stay of execution sought by the applicant.", "20. On 10 May 2010 the Revenue Department of the Ministry of Finance informed the applicant that because the amount assessed in the decision of 26 May 2007 had not been paid by the end of the previous year, interest of EUR 13,143.24 had been charged for late payment. It also informed him that if he paid the outstanding amount by 31 May 2010, he would be entitled to an 80% discount on the interest.", "21. On 26 May 2010 the applicant deposited the sum of EUR 112,155.69 at the Thessaloniki Tax Office.", "22. In judgment no. 3230/2011 of 7 December 2011 (served on the applicant on 10 February 2012), the plenary Court of Audit partly allowed the appeal on points of law.", "23. It found that the failure to include a period of five years – which had been essential for the applicant to complete his specialist training – as part of his total length of service was in breach of the proportionality principle enshrined in Article 25 of the Constitution.", "24. It held that the period during which a medical officer worked towards obtaining a specialist qualification formed part of the officer’s actual military service. Accordingly, it quashed the Fifth Division’s decision as regards the finding that the applicant’s period of specialist training constituted years of study that should not be included in the calculation of his overall period of compulsory service.", "25. It dismissed as ill-founded the ground of appeal alleging a violation of the Convention, reasoning as follows:", "“Article 64 § 7 of [Legislative Decree no. 1400/1973] ... is compatible with the provisions of the Constitution, the Social Charter and the Convention, in view of the fact that during the period of five years the medical officer serves the armed forces that have trained him or her, and it achieves the aim pursued, namely providing supervisory personnel for the armed forces, without the officer being required to work. As to the fee to be calculated in accordance with Article 64 § 16, this is a means of offsetting the expenditure incurred by the State in training officers and on no account constitutes a penalty.”", "26. The plenary Court of Audit remitted the case to a different bench of the Fifth Division. The only question referred was that of the reassessment of the fee by counting the applicant’s five years of specialist training as part of his overall length of service.", "27. In judgment no. 4909/2013 of 12 December 2013 (served on the applicant on 10 January 2014), the Fifth Division of the Court of Audit varied the decision of 26 May 2007 issued by the accounts department of the Army General Staff by reducing the amount payable by the applicant to EUR 49,978.33.", "28. In particular, the Court of Audit held, firstly, that the decision of 26 May 2007 was lawful in that the applicant had left the army before completion of the period of eighteen years’ compulsory service. However, it found that the length of his remaining period of compulsory service was not nine years, four months and twelve days, as the Army General Staff had calculated, but four years, four months and ten days. It pointed out that the period already served by the applicant should have included his specialist training, which had begun on 26 July 1996 and ended on 27 July 2001, since, as judgment no. 3230/2011 had made clear, the period of specialist training was to be counted as part of the actual service performed.", "29. On 13 March 2014 the State reimbursed the applicant the sum of EUR 59,749.61, corresponding to the difference between the payment he had already made and the amount determined in judgment no. 4909/2013.", "30. According to information supplied by the Government, the applicant is now working in a large private hospital in Thessaloniki.", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 4 § 2 OF THE CONVENTION", "53. The applicant submitted that the requirement imposed on him by domestic law to remain in the armed forces for what he considered a very lengthy period or to pay an excessively large fee to the State in return for ending his engagement constituted forced or compulsory labour, since it imposed a disproportionate burden and an unnecessary restriction on his freedom of employment. He relied on Article 4 § 2 of the Convention, which provides:", "“No one shall be required to perform forced or compulsory labour. ”", "54. The Court considers it appropriate in the present case to refer in addition to the relevant parts of Article 4 § 3 :", "“3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include:", "...", "(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; ”", "...", "B. Merits", "1. The parties’ submissions", "(a) The Government", "68. The Government submitted that the situation complained of in the present case did not amount to forced labour within the meaning of Article 4 § 2 of the Convention. They contended that following the applicant’s studies at the military academy, his appointment to the rank of second lieutenant and his specialist training, he had freely undertaken to serve in the armed forces for a period of twelve years, plus a further five years. He had been aware of that obligation, which was expressly prescribed by law, since the relevant statutory provisions formed part of the legal framework governing the career of a military medical officer and he had even personally benefited from the procedures and privileges available within that framework.", "69. The Government further submitted that the applicant’s allegation that he had been required to obtain a specialist qualification was unfounded. There was no such obligation to undertake specialist training, which was a matter of relevance solely to the applicant’s own career. He had taken part of his own free will in the competitive examination organised by the army for the recruitment of medical specialists; he had been afforded preferential treatment in that military medical officers were offered supernumerary positions as specialists; and he had benefited from the promotion opportunities available as a result of his specialist qualification (being promoted to the rank of colonel). The applicant had also had the opportunity – by virtue of Article 63 § 4 of Legislative Decree no. 1400/1973 on the status of officers of the armed forces, according to the Government – to practise medicine on a private basis.", "70. In addition, the Government emphasised that the applicant had been offered a supernumerary position in order to obtain his specialist qualification, whereas civilian medical personnel had to wait for any vacancies to arise before being allocated a place, whether in order of merit or by drawing lots, when new posts were created. The applicant had thus acquired a specialist qualification without having to wait, complete any administrative formalities or incur any costs. Furthermore, throughout his specialist training he had received his salary as a military medical officer.", "71. The Government further argued that the applicant was not complaining of a breach of the proportionality principle in his case and that the Court therefore had no jurisdiction to examine that issue. He had not alleged, even in the alternative, that the duration of his compulsory period of service should have been shorter or that he should have paid a smaller fee, but had simply stated that he should have been able to end his engagement without any restrictions and to choose when to leave the army.", "72. As to the purpose and proportionality of the restrictions imposed on military medical officers by Article 64 of Legislative Decree no. 1400/1973, the Government referred to the reasoning of the Court of Audit’s judgments nos. 2763/2013 and 3822/2013 ...", "73. Lastly, the Government pointed out that the applicant had had the opportunity to avoid paying the sum to the tax office immediately and to await the judgment of the plenary Court of Audit by applying in advance for a stay of execution under Article 94 of Decree no. 721/1970 and Article 51 of Decree no. 1225/1981. He had also been entitled under domestic law to seek permission from the army to repay his debt in instalments. The Government were convinced that the army, enjoying discretion in such matters, would have taken into account the applicant’s financial circumstances, the amount he owed and practice in this area.", "(b) The applicant", "74. Relying on Van der Mussele v. Belgium (23 November 1983, §§ 34 ‑ 35, Series A no. 70) and Mihal v. Slovakia ((dec.), no. 23360/08, §§ 44-47, 28 June 2011), the applicant submitted that, while the burden imposed on him was not criminal in nature, it amounted to “the menace of a penalty”. In particular, it had had significant potential consequences that were sufficiently daunting to lead him to offer his services against his will under the “menace of a penalty”. In that connection, the Government had simply cited examples of similar regulations in other States and listed certain advantages that allegedly eased the burden on him.", "75. The applicant, stating that he was relying on the Van der Mussele precedent (cited above), asserted that he had never “offered himself voluntarily” for the work in question. He accepted that he had chosen to become an army officer and therefore was compelled to abide by all the requirements associated with that choice. However, he had merely accepted a general status, which in his submission could not be said to amount to explicit consent to assume obligations that were contrary to the rights enshrined in the Convention. Furthermore, the army authorities had never informed him of his supposed obligation to serve in the army for an additional five years. The invitation issued on 18 January 1996 to officers – including himself – had simply been aimed at encouraging them to apply to undergo specialist training and thereby to gain additional experience that could improve their career prospects in the army.", "76. As to whether the burden was reasonable, the applicant submitted that the opportunity for him to publish scientific articles or practise medicine on a private basis was not sufficient to counterbalance the burden imposed on him by the State. He pointed out that he was an anaesthetist and not a general practitioner. If the purpose of the fee in issue had been, as the Government maintained, to offset the costs borne by the State in training army officers, it should have been calculated on the basis of the training period (and not the entire period of compulsory service) and the amount of the corresponding expenses. Yet the Government had been unable to quantify the relevant sum.", "77. The applicant further alleged that, despite the Government’s submissions to that effect, the present case did not fall within the scope of paragraph 3 (b) of Article 4 of the Convention; that paragraph dealt with conscription and was not applicable to regular members of the armed forces.", "78. Lastly, the applicant asserted that not only had the authorities never given him the opportunity to pay the sum demanded in several instalments, but he had also been compelled to repay his debt by 31 May 2010 at the latest in order to avoid being charged the full amount of interest for late payment.", "2. The Court’s assessment", "(a) Scope of the case", "79. The Court reiterates that the first adjective in the phrase “forced or compulsory labour” brings to mind the idea of physical or mental constraint. As regards the second adjective, it cannot refer just to any form of legal compulsion or obligation. For example, work to be carried out in pursuance of a freely negotiated contract cannot be regarded as falling within the scope of Article 4 on the sole ground that one of the parties has undertaken with the other to do that work and will be subject to sanctions if he does not honour his promise. What there has to be is work “exacted ... under the menace of any penalty” and also performed against the will of the person concerned, that is, work for which he “has not offered himself voluntarily” (see Van der Mussele, cited above, § 34).", "80. As the Court has previously held, paragraph 3 of Article 4 is not intended to limit the exercise of the right guaranteed by paragraph 2, but to delimit the very content of this right, for it forms a whole with paragraph 2 and indicates what is not considered forced or compulsory labour (ibid., § 38). In accordance with sub-paragraph 3 (b), forced or compulsory labour does not include “any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service”.", "81. In its decision in W., X., Y. and Z. v. the United Kingdom (nos. 3435/67 and 3 others, Commission decision of 19 July 1968, Yearbook 11, p. 594), the European Commission of Human Rights held that Article 4 § 3 (b) applied not only to compulsory military service but to all military service, even when entered into voluntarily by regular members of the armed forces. This extensive interpretation of the exception in question, in relation to soldiers who had enlisted before reaching the age of majority, appears to have been based solely on the first part of sub-paragraph (b), which refers to “any service of a military character”.", "82. Nevertheless, the Court notes that in the present case the Government have not relied on the exception in Article 4 § 3 (b), apparently taking the view that that provision was not applicable in the case of the applicant, a regular member of the medical corps.", "83. In any event, the Court considers that sub-paragraph 3 (b) of Article 4 must be viewed as a whole. A reading of the entire sub-paragraph in its context suggests, for two reasons, that it applies to compulsory military service in States where such a system is in place: firstly, through the reference to conscientious objectors, who will obviously be conscripts and not professional military personnel and, secondly, through the explicit reference to compulsory military service at the end of the sub-paragraph. The Court refers in this connection to the general principle that exceptions to a rule must be strictly construed. This is all the more valid in that the prohibitions set forth in Article 4 §§ 1 and 2 of the Convention form part of the core Convention rights.", "84. The Court further notes that Article 2 § 2 (a) of the International Labour Organisation Convention no. 29 provides that forced or compulsory labour does not include “any work or service exacted in virtue of compulsory military service laws for work of a purely military character”, which implies that this exception applies solely in the case of conscription.", "85. Similarly, the Council of Europe’s European Committee of Social Rights has, when examining the issue of forced labour, made a distinction between the situation of regular members of the armed forces and that of conscripts. The Committee’s conclusions concerning various countries, including Greece, indicate that it has found that the excessive length of the period during which regular officers were required to remain in service was a ground for non-compliance with Article 1 § 2 of the European Social Charter, on the prohibition of forced labour ...", "86. Furthermore, Recommendation CM/Rec(2010)4 of the Committee of Ministers to member States on human rights of members of the armed forces states that the authorities should not impose on members of the armed forces a requirement to serve for a period which would be unreasonable and would amount to forced labour ...", "87. On the basis of all these factors, the Court considers, in accordance with the object and purpose of the Convention, that sub-paragraph 3 (b) of Article 4 does not cover work undertaken by regular members of the armed forces. The Court is therefore called upon in the present case to examine the question of compliance with Article 4 § 2.", "(b) Compliance with Article 4 § 2", "88. With this in mind, the Court must ascertain in the present case whether the applicant “offered himself voluntarily” for the work in question, having had prior knowledge of all the possible consequences, and whether his decision not to carry on performing the work up to the end of the period prescribed by law may have been affected by “the menace of a penalty”.", "89. The Court observes that the applicant was admitted to the Corps Officers’ Military Academy (medical section) in 1986, and on that basis enrolled on a six-year medical degree course at the University of Thessaloniki’s Faculty of Medicine. During that time he was paid a salary. On 3 June 1993, after completing the course, he was appointed to the rank of second lieutenant in the army medical corps and, in accordance with Article 64 § 1 of Legislative Decree no. 1400/1973, undertook to serve for a period corresponding to three times the duration of his studies – that is, eighteen years.", "90. Later, at the invitation of the army, the applicant decided to specialise in anaesthesiology and, through the army, obtained a placement as an intern in the 424 General Military Hospital in Thessaloniki from 26 July 1996 to 30 July 1997. He was subsequently offered a paid position, again through the army, in the Papanikolaou General Regional Hospital in Thessaloniki from 30 July 1997 to 27 July 2001, as a junior doctor specialising in anaesthesiology. After completing his specialist training, he was required by Article 64 § 7 of Legislative Decree no. 1400/1973 to serve in the armed forces for a further five years.", "91. The Court notes that while the applicant was undergoing his specialist training, a new Law (no. 3257/2004) came into force, altering the conditions for the early departure of officers. Section 1 of the Law reduced the length of compulsory service for officers to twice the duration of their studies at military academy, while maintaining the requirement for officers who had acquired a specialist qualification to serve for a further five years and affording them the opportunity to end their engagement before completing the prescribed term of service by paying the State a fee corresponding to the basic wage for their grade multiplied by the number of months remaining to be served. Accordingly, the Court’s examination of whether the work required of the applicant was forced or compulsory in nature will have regard to the legislative framework in force on 22 January 2006, the date of his decision to resign at the age of 37.", "92. The Court notes at the outset that the applicant cannot legitimately maintain that he was unaware of the rationale and scope of the obligations he had entered into when embarking on a career as an officer in the army medical corps. One of the main benefits deriving from enlistment in the armed forces is being able to study free of charge. The armed forces cover the tuition fees of the officers concerned during their course, pay them a salary and grant them access to the welfare benefits available to regular members of the forces. In return, they require them to undertake to serve for a certain number of years after obtaining their qualification.", "93. The Court notes that the requirement in the original version of Article 64 of Legislative Decree no. 1400/1973 for officers to serve for a period corresponding to three times the duration of their studies without the possibility of ending their engagement was found by the Supreme Administrative Court (judgment no. 1571/2010) to be in breach of Article 1 § 2 of the European Social Charter. This requirement was relaxed with the entry into force on 29 July 2004 of Law no. 3257/2004, which formed the basis for the calculation of the fee payable by the applicant.", "94. The Court considers that the requirement for army officers to continue serving for a specified period after the end of their training is an integral part of the duties they assume. The calculation of the length of the engagement of officers who have received training through the army and the conditions for ending their engagement are matters falling within the State’s margin of appreciation. The State’s concern to secure a return on investment in the training of army and medical corps officers and to ensure that the army has sufficient supervisory personnel for an appropriate period in relation to its needs justifies prohibiting officers from resigning for a certain time and making their early departure subject to a fee to cover the living expenses and tuition costs which the State covered during their training, when it also paid them a salary and granted them welfare benefits.", "95. In this connection, the Court considers it relevant to refer to the reasoning in the Court of Audit’s judgments nos. 2763/2013 and 3822/2013 to the effect that the regulations in issue were intended, among other things, to avoid sudden and premature mass departures of officers and the risk of undermining the country’s defence capabilities.", "96. It remains to be determined whether the applicant was subjected to a disproportionate burden, the only factor that could lead the Court to find a violation of Article 4 § 2 of the Convention in the present case.", "97. In Van der Mussele (cited above, § 37) the Court held that if a service that was required in order to gain access to a given profession imposed a burden which was so excessive or disproportionate to the advantages attached to the future practice of that profession that the service could not be treated as “having been voluntarily accepted”, the service in question fell within the prohibition of compulsory labour. In order to determine whether the obligations imposed on the applicant prevailed over the advantages linked to his chosen profession, the Court will not consider the situation at the time when he was admitted to the military academy and opted to acquire a specialist qualification, but rather in 2004, when the law amending Legislative Decree no. 1400/1973 took effect, since the Legislative Decree as amended was the law in force at the time when the applicant decided to end his engagement and he had to comply with the requirements set out therein.", "98. The Court cannot ignore the fact that it was through the intermediary of the army that the applicant pursued his medical studies and obtained his specialist qualification as an anaesthetist by working from 1996 to 2001, initially at the 424 General Military Hospital in Thessaloniki and later at the Papanikolaou General Regional Hospital in Thessaloniki. It observes in this connection that section 38(2) of Law no. 1397/1983 prohibited doctors from undertaking specialist training in hospitals beyond the number of available places, but provided that supernumerary positions of this kind could be created for regular medical officers in the armed forces, a possibility of which the applicant took advantage. Furthermore, Greek legislation gives officers such as the applicant a choice between serving for a specified period in the armed forces and resigning before the end of their fixed engagement in exchange for a fee.", "99. The Court also notes that, following the entry into force of the above-mentioned Law no. 3257/2004, officers in the army medical corps, such as the applicant, were permitted to practise medicine on a private basis outside their working hours.", "100. These aspects show that during their ordinary and specialist training, military medical officers are entitled to privileges that are not available to civilian medical students, such as job security. Bearing in mind the additional fact that military medical officers receive a salary for the duration of their studies, there is ample justification for the requirement for those wishing to leave the army before the end of their compulsory term of service to pay certain sums to the State by way of reimbursement of the expenses incurred in training them. The Court therefore considers that the actual principle of buying back the remaining years of service does not raise any issues in terms of the proportionality principle.", "101. However, the Court takes the view that the conditions governing the buying-back process may in certain cases contribute to upsetting the balance that has to be struck between the protection of the individual right of the officer concerned and that of the interests of the community.", "102. In the present case the Court notes, firstly, that when the applicant tendered his resignation the Army General Staff informed him that he was required to serve for a further nine years, four months and twelve days or, failing that, to pay the State a fee of EUR 106,960 (decision of 26 May 2007). It observes, secondly, that the Court of Audit eventually concluded on 12 December 2013 that the applicant’s five years of specialist training should be counted as part of the overall period of eighteen years’ compulsory service and accordingly reduced the fee payable to the State to EUR 49,978.33.", "103. The Court notes that neither the applicant nor the Government were able to indicate the precise amount of the salary and allowances received by the applicant during his degree course and his specialist training as an anaesthetist. However, it observes that according to their own estimations, the applicant and the Government agreed that he must have received a total amount of between EUR 86,976 and EUR 91,476 during the periods from September 1986 to June 1993 and from August 1996 to July 2001.", "104. The Court observes that the sum of EUR 49,978.33, which the applicant was eventually asked to pay in accordance with the Court of Audit’s judgment of 12 December 2013, represented less than two-thirds of the total amount he had received during the relevant time (between EUR 86,976 and EUR 91,476) and cannot on that account be considered unreasonable.", "105. The Court further notes that, following a request by the applicant to that effect, the President of the plenary Court of Audit made an interim order on 17 March 2009 staying the execution of the decision of 26 May 2007, and that the stay of execution was confirmed on 21 October 2009 by the plenary Court of Audit.", "106. The stay of execution did not prevent the Thessaloniki Tax Office from ordering the applicant, on 18 March and 9 April 2009, to pay the sum of EUR 109,527, comprising the above-mentioned fee of EUR 106,960, plus EUR 2,139.20 in stamp duty and EUR 427.84 to the agricultural insurance fund. On 10 May 2010 the Revenue Department of the Ministry of Finance informed the applicant that, because the amount due had not been paid by the end of the previous year, interest of EUR 13,143.24 had been charged for late payment. It also informed him that if he paid the outstanding amount by 31 May 2010, he would be entitled to an 80% discount on the interest. On 26 May 2010 the applicant deposited the sum of EUR 112,155.69 at the Thessaloniki Tax Office.", "107. Despite the stay of execution granted to the applicant, first by the President of the plenary Court of Audit and subsequently by the plenary Court of Audit itself, and notwithstanding the fact that the proceedings before the plenary Court of Audit had scarcely begun, the intervention of the Revenue Department of the Ministry of Finance on 10 May 2010 meant that he was required to pay the sum due, on which interest of between 12% and 13% had already been charged. If he had not agreed to pay that amount in full, it would have been increased even further on account of the time required by the Court of Audit to reach its decision.", "108. In addition, the Court notes that, while Article 3 § 1 of the State Revenue Collection Code and Article 96 of Legislative Decree no. 721/1970, as interpreted by Opinion no. 120/2002 of the State Legal Council, provide that debts owed by officers to the armed forces may be paid in instalments, that option has to be mentioned in the decision imposing the fee. However, no such information was included in the decision of 26 May 2007.", "109. Having regard to these circumstances, the Court has no doubt that the applicant was obliged under constraint to act as he did (see, mutatis mutandis, Deweer v. Belgium, 27 February 1980, § 51, Series A no. 35). The Court observes that the authorities disregarded two judicial decisions that were binding on them and persisted in enforcing their initial decision of 26 May 2007, which stated that the payment process could not be suspended in the event of an appeal by the applicant (see, mutatis mutandis, Georgoulis and Others v. Greece, no. 38752/04, § 25, 21 June 2007). By requiring the immediate payment of the sum of EUR 109,527, increased to EUR 112,155.69 with interest, the tax authorities imposed a disproportionate burden on the applicant.", "There has therefore been a violation of Article 4 § 2 of the Convention.", "..." ]

[ "13. The purpose of the Government ’ s application is to submit the De Wilde, Ooms and Versyp cases for judgment by the Court. On several points the Government therein expresses its disagreement with the opinion stated by the Commission in its report.", "14. The facts of the three cases, as they appear from the said report, the memorials of the Government and of the Commission, the other documents produced and the addresses of the representatives appearing before the Court, may be summarised as follows:", "A. De Wilde case", "15. Jacques De Wilde, a Belgian citizen, born on 11th December 1928 at Charleroi, spent a large part of his childhood in orphanages. On coming of age, he enlisted in the French army (Foreign Legion) in which he served for seven and a half years. As a holder of books for a fifty per cent war disablement pension and a military retirement pension, he draws from the French authorities a sum which in 1966 amounted to 3,217 BF every quarter. He has work, from time to time at any rate, as an agricultural labourer.", "16. The applicant reported on 18th April 1966 at 11.00 a.m. to the police station at Charleroi and declared that he had unsuccessfully looked for work and that he had neither a roof over his head nor money as the French Consulate at Charleroi had refused him an advance on the next instalment of his pension due on 6th May. He also stated that he had \"never\" up to then \"been dealt with as a vagrant\". On the same day at 12 noon, Mr. Meyskens, deputy superintendent of police, considered that De Wilde was in a state of vagrancy and put him at the disposal of the public prosecutor at Charleroi; at the same time, he asked the competent authorities to supply him with information about De Wilde. A few hours later, after being deprived of his liberty since 11.45 a.m., De Wilde attempted to escape. He was immediately caught by a policeman and he disputed the right of the police to \"keep him under arrest for twenty four hours\". He threatened to commit suicide.", "The information note, dated 19th April 1966, showed that between 17th April 1951 and 19th November 1965 the applicant had had thirteen convictions by courts of summary jurisdiction or police courts and that, contrary to his allegations, he had been placed at the Government ’ s disposal five times as a vagrant.", "17. On April 19th, at about 10 a.m., the police court at Charleroi, after satisfying itself as to \"the identity, age, physical and mental state and manner of life\" of De Wilde, decided, at a public hearing and after giving him an opportunity to reply, that the circumstances which caused De Wilde to be brought before the court had been established. In pursuance of Section 13 of the Act of 27th November 1891 \"for the suppression of vagrancy and begging\" (\"the 1891 Act\") the court placed the applicant \"at the disposal of the Government to be detained in a vagrancy centre for two years\" and directed \"the public prosecution to execute the order\".", "18. After being first detained at the institution at Wortel and then from 22nd April 1966 at that of Merksplas, De Wilde was sent on 17th May 1966 to the medico-surgical centre at St. Gilles-Brussels from where he was returned to Merksplas on 9th June 1966. On 28th June 1966, he was transferred to the disciplinary prison at Turnhout for refusal to work (Section 7, sub-section 2, of the 1891 Act), and on 2nd August 1966 to that of Huy to appear before the criminal court which, on 19th August, sentenced him to three months ’ imprisonment for theft from a dwelling house. He was returned to Turnhout shortly afterwards.", "19. On 31st May and 6th June 1966, that is, about a month and a half after his arrest and four weeks after sending his first letter to the Commission (3rd May 1966), the applicant wrote to the Minister of Justice invoking Articles 3 and 4 (art. 3, art. 4) of the Convention. He underlined the fact that on 6th May he had received 3,217 BF in respect of his pension and showed surprise that he had not yet been released. He also complained of being forced to work for the hourly wage of 1.75 BF. He added that he had refused to work in protest against the behaviour of the head of the block at Merksplas who had wrongfully claimed to be entitled to \"take\" from him 5% of his pension. Finally, he complained of the disciplinary measures taken on such refusal - punishment in a cell and confinement without privileges - and of hindrance to correspondence. On 7th June 1966, the Ministry of Justice requested the governor of the prison at St. Gilles to inform De Wilde \"that his request for release\" of 31st May would \"be examined in due course\".", "The applicant took up his complaints again on 13th June and later on 12th July 1966. In this last letter, he enquired of the Minister why he had been transferred to the prison at Turnhout. He also pointed out that there was no work available at this institution which would enable him to earn his \"release savings\". On 15th July, the Ministry had him notified that his release before the prescribed period had expired could \"be considered\" \"provided that his conduct at work (was) satisfactory\" and \"adequate arrangements for rehabilitation (had) been made\".", "De Wilde wrote again to the Minister on 8th August 1966. Due to his pension, he argued, he had \"sufficient money\"; in any case, \"the results of (his) work\" already amounted to more than 4,000 BF. As regards his rehabilitation, he stated that his detention made it \"impossible\"; it prevented him from corresponding freely with employers and the welfare officer had failed to help him. Nevertheless, on 12th August 1966, the Ministry considered that his application \"(could) not at present be granted\".", "On 13th August 1966, the applicant wrote once again to the Minister claiming he could find board and lodging and work on a farm.", "20. On 25th and 26th October 1966, the Ministry of Justice decided that, at the expiry of the sentence he had received on 19th August, the applicant could be released once his rehabilitation seemed ensured by the Social Rehabilitation Office of Charleroi (Section 15 of the 1891 Act).", "De Wilde regained his freedom at Charleroi on 16th November 1966. His detention had lasted a little less than seven months, of which three months were spent serving the prison sentence.", "21. According to a report of the Prisons ’ Administration, the applicant received only one disciplinary punishment between the beginning of his detention (19th April 1966) and the date of his application to the Commission (17th June 1966): for refusal to work at Merksplas, he was not permitted to go to the cinema or receive visits in the general visiting room until his transfer to Turnhout.", "22. In his application lodged with the Commission on 17th June 1966 (No. 2832/66) De Wilde invoked Articles 3 and 4 (art. 3, art. 4) of the Convention. He complained in the first place of his \"arbitrary detention\" ordered in the absence of any offence on his part, without a conviction and in spite of his having financial resources. He also protested against the \"slavery\" and \"servitude\" which, in his view, resulted from being obliged to work in return for an absurdly low wage and under pain of disciplinary sanctions.", "The Commission declared the application admissible on 7th April 1967; prior to this, the Commission had ordered the joinder of the case with the applications of Franz Ooms and Edgard Versyp.", "B. Ooms case", "23. On 21st December 1965 at 6.15 a.m., Franz Ooms, a Belgian citizen born on 12th April 1934 at Gilly, reported to Mr. Renier, deputy superintendent of police at Namur, in order \"to be treated as a vagrant unless one of the social services (could find him) employment where (he could) be provided with board and lodging while waiting for regular work\". He explained that of late he had been living with his mother at Jumet but that she could no longer provide for his upkeep; that he had lost a job as a scaffolding fitter at Marcinelle and, in spite of his efforts, had failed to find another job for over a month; that he no longer had any means of subsistence and that he had been \"convicted\" in 1959 for vagrancy by the police court at Jumet.", "24. On the same day at about 10 a.m., the police court at Namur, after satisfying itself as to \"the identity, age, physical and mental state and manner of life\" of Franz Ooms, considered at a public hearing and after giving him an opportunity to reply that the circumstances which had caused him to be brought before the court had been established. In pursuance of Section 16 of the 1891 Act, the court placed him \"at the disposal of the Government to be detained in an assistance home\" and directed \"the public prosecution to execute this order\".", "25. Ooms was detained partly at Wortel and partly at Merksplas. He also spent some weeks at the prison medico-surgical centre at St. Gilles-Brussels (June 1966).", "26. On 12th April 1966, that is less than four months after his arrest and about five weeks before applying to the Commission (20th May 1966), the applicant petitioned the Minister of Justice for his release. He alleged he was suffering from tuberculosis and that his family had agreed to take him back with them and place him in a sanatorium. On 5th May, the Ministry, after receiving the unfavourable opinion of the doctor and of the director of the institution at Merksplas, considered the request to be premature.", "Franz Ooms again made a petition for release on 6th June, this time to the Prime Minister. He pleaded that as \"he had been ill since his detention\" he had been unable to earn by his own work the 2,000 BF needed to make up his release savings, and repeated that his mother was willing to have him with her and to take care of him. The Ministry of Justice, to whom the Prime Minister ’ s office had transmitted the request, also considered it to be premature; on 14th June, it requested the governor of St. Gilles prison to inform the applicant accordingly.", "On 25th June 1966, the welfare department of the Salvation Army at Brussels certified that Franz Ooms would \"be given work and lodging in (their) establishments immediately on his release\". The applicant sent this declaration to the director of the welfare settlement at Wortel on 1st July, but without result.", "His mother, Mme. Ooms, confirmed her son ’ s declarations by letter of 15th July 1966 to the same director. In his reply of 22nd July, the director asked her to produce a certificate of employment, pointing out that \"at the time of his possible discharge\", the applicant had to have, besides a resting place, \"a definite job by which he (could) ensure his upkeep\".", "Mme. Ooms also wrote to the Minister of Justice on 16th July, asking for a \"pardon for (her) son\". On 3rd August 1966, the Ministry informed her that he would be freed when \"he (had) earned, by his prison work, the sum of money prescribed in the regulations as the release savings of vagrants interned for an indefinite period at the disposal of the Government\".", "In a report of 31st August 1966 drawn up for the Ministry of Justice, the director of the Wortel settlement pointed out that Franz Ooms had already received several criminal convictions, that this was his fourth detention for vagrancy, that his conduct could not be described as exemplary, and that his earnings amounted to only 400 BF. According to a medical certificate appended to the report, physical examinations of the applicant had revealed nothing wrong. As a result, on 6th September 1966, the Ministry instructed the director to inform the detainee \"that his complaints had been found groundless\".", "On 26th September 1966, Ooms again petitioned the Prime Minister. To justify this step, he cited the negative attitude of the Department of Justice. He stated that he was the victim of \"monstrous injustices\" which he attributed to his being a Walloon. He alleged, in particular, that on 23rd March 1966, at Merksplas, he had been punished with three days in the cells and a month ’ s confinement without privileges for refusing to sleep in a foul-smelling dormitory where the light was kept on all night, that he had been locked up naked and later \"lightly clad\" in a freezing cell which had brought on an attack of pneumonia and of tuberculosis for which he had had to spend three months in the sanatorium at the Merksplas institution. He also protested against the dismissal of the many petitions for release presented both by himself and by his mother. He finally declared his agreement to the opening of an enquiry for the purpose of verifying the truth of his allegations and he stated that he was ready to take action, if necessary, before a \"national authority\" within the meaning of Article 13 (art. 13) of the Convention.", "Two days later, the Prime Minister ’ s office informed the applicant that his letter had been transmitted to the Department of Justice.", "Ooms was released ex officio at Charleroi on 21st December 1966, one year to the day after being put at the disposal of the Government (Section 18, first sentence, of the 1891 Act).", "27. In his application lodged with the Commission on 20th May 1966 (No. 2835/66), the applicant mentioned that he was in the sanatorium of the Merksplas institution but that his mother had agreed to have him hospitalised in a \"civil\" clinic. He added that his illness completely prevented him from working and thereby earning the 2,000 BF for his release savings; in any case, he would need at least a year to earn such a sum, at the rate of 1.75 BF per hour. He was therefore surprised that the Ministry of Justice had considered his request for release to be premature.", "Ooms, who had meanwhile been transferred to the prison at St. Gilles-Brussels, supplemented his original application on 15th June 1966. He declared that he had for the moment been cured of his pulmonary disease caused by ill-treatment and undernourishment, but his illness had left \"traces\" which made it impossible for him to perform \"any heavy work\". He also stressed that his mother, who was in receipt of a pension, wanted him home with her. In these circumstances he considered he was entitled to be released, and he complained of the Belgian authorities ’ refusal to recognise this right. Invoking Article 6, paragraph (3) (b) and (c) (art. 6-3-b, art. 6-3-c), of the Convention he further maintained that on his arrest he had asked in vain for free legal aid; this fact was contested before the Court by the Government ’ s Agent.", "That part of the application where Franz Ooms complained – apparently in subsequent letters - of ill-treatment and of a violation of his liberty of conscience and religion (Articles 3 and 9 of the Convention) (art. 3, art. 9) was declared inadmissible on 11th February 1967 as manifestly ill-founded (Appendix II to the Commission ’ s report). On 7th April 1967, the Commission declared the remaining part of his application admissible, after having ordered its joinder with the applications of Jacques De Wilde and Edgard Versyp.", "C. Versyp case", "28. Edgard Versyp, a Belgian citizen born in Bruges on 26th April 1911, works, at least from time to time, as a draughtsman; he seems to have had his residence at Schaarbeek.", "On 3rd November 1965, at 9 p.m., he appeared before Mr. Meura, deputy superintendent of police at Brussels; he carried a letter from the Social Rehabilitation Office requesting that he be given a night ’ s shelter. He stated he had no fixed abode, no work or resources, and \"(begged) to be sent to a welfare settlement\"; he pointed out that he had \"previously (been) in Merksplas\" and did not wish for \"any other solution\". After spending the night in the municipal lock-up, where he had already been the night before, he was taken in charge by the Social Rehabilitation Office on 4th November at 9 a.m. On the same day, this office certified that so far as its services were concerned there was no objection to Versyp \"being but in the charge of the prosecuting officer with a view to his possible placement in a state welfare settlement\": he was \"well-known to both (the) after-prison care and vagrancy sections\" at the office and attempts so far to rehabilitate him had failed due to \"his apathy, idleness and weakness for drink\"; in any case, he refused \"any other welfare action\", except his detention. As a result, Versyp was immediately put at the disposal of the public prosecutor ’ s office.", "29. A few hours later, the police court in Brussels, having satisfied itself as to \"the identity, age, physical and mental state and manner of life\" of the applicant, considered, at a public hearing and after giving Edgard Versyp an opportunity to reply, that the circumstances which had caused him to be brought before the court had been established. In pursuance of Section 13 of the 1891 Act, the court placed him \"at the disposal of the Government to be detained in a vagrancy centre for two years\". It entrusted the execution of this order to the public prosecutor, who on that same day, 4th November 1965, required the director of the vagrancy centre of Merksplas to receive Versyp into his institution.", "30. Versyp was detained at different times at Wortel, Merksplas and Turnhout.", "31. On 7th February 1966, that is more than three months after his arrest and more than six months before applying to the Commission (16th August 1966), he wrote from Wortel to the Minister of Justice requesting his transfer to the solitary confinement division in Merksplas. His request was not transmitted to Brussels due to the imminent visit of the inspector-general who granted his request the next day.", "On 10th May 1966, the applicant requested his transfer form Merksplas to the prison at St. Gilles-Brussels where, he thought, the Head of the Social Rehabilitation Service could succeed in getting him \"work outside\" to allow him \"to live as an honest citizen\". He stated that living \"with other vagrants in Wortel and Merksplas\" had \"shattered\" his morale and that he had neglected his work as he had had to receive treatment in hospital twice; he promised, however, to attend to \"(his) business outside more efficiently in order to avoid a similar situation recurring\". In a report of 16th May, the director of the Merksplas institution pointed out that Versyp, who had nine criminal convictions and had been detained four times for vagrancy, had spent the greater part of his detention in solitary confinement and could not adapt himself to communal life; the director therefore suggested his transfer to a solitary confinement prison (op zijn vraag naar een celgevangenis ), in accordance with his request. As a result, he was sent on 23rd May to Turnhout Prison and not to that of St. Gilles; on 6th June, he complained of this to the Ministry of Justice, which ordered his return to Wortel.", "On 22nd August 1966, Versyp begged the Ministry to grant him the opportunity of rehabilitating himself \"in society according to (his) aptitudes through the good offices of the Brussels ’ Social Service\". On 6th September, the authorities of the Wortel settlement informed him, on the instructions of the Ministry, that his case would be examined when the amount of his release savings showed that he was capable of doing a suitable job of work.", "On 26th September, the applicant protested to the Ministry against this reply. According to him, he had been prevented \"by devious means\" from earning anything both at Wortel and Turnhout in order \"that (he) could then be held for an even longer period\". Thus, at Wortel they wanted to make him do work for which he was not fit - potato picking - and refused to give him other work which he was able to do. Furthermore, they had purported to forbid him to correspond with the Commission but without success as he had invoked the regulations and informed the public prosecutor ’ s office. In short, he felt himself exposed to hostility which made him want to leave Wortel for Merksplas, or better still, for St. Gilles prison where, he claimed, the Social Rehabilitation Service would find him a suitable job and accommodation \"in a hostel in Brussels \".", "The Ministry of Justice filed this letter without further action; on 28th September 1966, the director of the state welfare settlement at Wortel was requested so to inform the applicant.", "Versyp was released on 10th August 1967, by virtue of a ministerial decision of 3rd August (Section 15 of the 1891 Act) and after one year, nine months and six days of detention. On 1st August the authorities of the Wortel settlement had given a favourable opinion on the new request for release which he had made some time before; they noted, amongst other things, that he would more easily find a job at that time than at the expiry of the term fixed in 1965 by the Brussels magistrate, that is in the month of November.", "32. In the application which he lodged with the Commission on 16th August 1966 (No. 2899/66) and supplemented on 6th September 1966, the applicant invoked Articles 4, 5 and 6 (3) (c) (art. 4, art. 5, art. 6-3-c) of the Convention. He complained in the first place of his detention: he emphasised that he had a fixed abode at Brussels-Schaarbeek and had never begged and so he was surprised at having been placed in a vagrancy centre. He further alleged that he had had no opportunity of defending himself before the Brussels police court on 4th November 1965 as the hearing had lasted \"scarcely two minutes\" and he had not been granted free legal aid. He also complained of various features of the regime to which he was subjected. In order to prevent him accumulating the 2,000 BF required to constitute release savings, he had been left, he alleged, for several months without sufficient work. In a general way, he added, the directors of the various institutions acted in concert in order to prolong the detention of vagrants as much as possible; the Government, for its part, \"encouraged\" vagrancy which gave it a labour force almost without cost (1.75 BF per hour at manual work) and huge profits. Finally, Versyp maintained that his numerous letters addressed to the competent authorities, such as, for example, the inspector of prisons, the public prosecutor ’ s office (July 1966) and the Minister of Justice (June and August 1966), invariably returned \"to the director\" who filed them without further action; these letters were not the object of any decision or, like his request for a transfer to Brussels, met with a refusal. One of them, that addressed on 7th February 1966 to the Minister of Justice by registered post, had even been opened by the director of the Wortel settlement who had not sent it.", "On 7th April 1967, the Commission declared the application admissible; it had previously ordered its joinder with the applications of Jacques De Wilde and Franz Ooms.", "D. Factors common to the three cases", "33. According to Article 347 of the Belgian Criminal Code of 1867 \"vagrants are persons who have no fixed abode, no means of subsistence and no regular trade or profession\". These three conditions are cumulative: they must be fulfilled at the same time with regard to the same person.", "34. Vagrancy was formerly a misdemeanour (Criminal Code of 1810) or a petty offence (Act of 6th March 1866), but no longer of itself constitutes a criminal offence since the entry into force of the 1891 Act: only \"aggravated\" vagrancy as defined in Articles 342 to 345 of the present Criminal Code is a criminal offence and these articles were not applied in respect of any of the three applicants. \"Simple\" vagrancy is dealt with under the 1891 Act.", "35. According to Section 8 of the said Act \"every person picked up as a vagrant shall be arrested and brought before the police court\" - composed of one judge, a magistrate. The public prosecutor or the court may nonetheless decide that he be provisionally released (Section 11).", "\"The person arrested shall be brought before the magistrate within twenty-four hours and in his ordinary court, or at a hearing applied for by the public prosecutor for the following day\". If that person so requests \"he (shall be) granted a three days ’ adjournment in order to prepare his defence\" (Section 3 of the Act of 1st May 1849); neither De Wilde, nor Ooms nor Versyp made use of this right.", "36. Where, after having ascertained \"the identity, age, physical and mental state and manner of life\" of the person brought before him (Section 12), the magistrate considers that such person is a vagrant, Section 13 or Section 16 of the 1891 Act becomes applicable.", "Section 13 deals with \"able-bodied persons who, instead of working for their livelihood, exploit charity as professional beggars\", and with \"persons who through idleness, drunkenness or immorality live in a state of vagrancy\"; Section 16 with \"persons found begging or picked up as vagrants when none of the circumstances specified in Section 13 ... apply\".", "In the first case the court shall place the vagrant \"at the disposal of the Government to be detained in a vagrancy centre, for not less than two and not more than seven years\"; in the second case, the court may \"place (him) at the disposal of the Government to be detained in an assistance home\" for an indeterminate period which in no case can exceed a year (see paragraph 40 below).", "Section 13 was applied to Jacques De Wilde and Edgard Versyp and Section 16 to Franz Ooms.", "The distinction between the \"reformatory institutions\" referred to as \"vagrancy centres\" and \"assistance homes\" or \"welfare settlements\" (Sections 1 and 2 of the Act) has become a purely theoretical one; it has been replaced by a system of individual treatment of the persons detained.", "Detention in a vagrancy centre is entered on a person ’ s criminal record; furthermore, vagrants \"placed at the disposal of the Government\" suffer certain electoral incapacities (Articles 7 and 9 of the Electoral Code).", "37. Magistrates form part of the judiciary and have the status of an officer vested with judicial power, with the guarantees of independence which this status implies (Articles 99 and 100 of the Constitution). The Court of Cassation, however, considers that the decisions given by them in accordance with Sections 13 and 16 of the 1891 Act are administrative acts and not judgments within the meaning of Section 15, sub-section 1, of the Act of 4th August 1832. They are not therefore subject to challenge or to appeal nor - except when they are ultra vires (see paragraph 159 of the Commission ’ s report) – to cassation proceedings. The decisions of the highest court in Belgium are uniform on this point.", "As to the Conseil d ’ État, it has so far had to deal with only two appeals for the annulment of detention orders for vagrancy. In a judgment of 21st December 1951 in the Vleminckx case, the Conseil d ’ État did not find it necessary to examine whether the Brussels police court ’ s decision taken on 14th July 1950 in pursuance of Section 13 of the 1891 Act emanated from an authority which was \"acting as an administrative authority within the meaning of Section 9 of the Act of 23rd December 1946\"; the appeal lodged by Mr. Vleminckx on 31st July 1950 had been dismissed because:", "\"the decision appealed against (was) a preliminary decision which (had been) followed by the Government ’ s decision to detain the appellant in a vagrancy centre ...; the appellant (could) not establish that he (had) any interest in the annulment of a decision which merely (allowed) the Government to detain him, while the actual decision by which he was interned (had not) been appealed against\".", "As against this, on 7th June 1967, that is two months after the Commission had declared admissible the applications of Jacques De Wilde, Franz Ooms and Edgard Versyp, the Conseil d ’ État gave a judgment annulling the decision by which on 16th February 1965 the Ghent police court had placed a Mr. Du Bois at the disposal of the Government in pursuance of Section 16 of the 1891 Act. Before examining the merits, the Conseil d ’ État examined the admissibility - contested by the Minister of Justice - of the appeal lodged by Mr. Du Bois on 14th April 1965. In the light of the legislative texts in force, of the preparatory work thereto and of \"the consistent case-law of the ordinary courts\", the Conseil d ’ État considered that the placing of a vagrant at the disposal of the Government does not result from \"the finding of a criminal offence\" but amounts to \"an administrative security measure\" and that the decision ordering it is therefore \"of a purely administrative nature\" \"so that no form of appeal is open to the person concerned ... before the ordinary courts\". It added that \"such an administrative decision by the magistrate\" could not be considered as \"a preliminary measure enabling the Government to take the effective decision on the matter of detention but is itself the effective decision placing the person concerned in a different legal position and is therefore of itself capable of constituting a grievance\"; in any event, \"the person concerned is immediately deprived of his liberty without any further decision by the Government\".", "Section 20, sub-section 2, of the Act of 23rd December 1946 constituting the Conseil d ’ État provides that where both this body and \"an ordinary court rule that they are either competent or incompetent to entertain the same proceedings, the conflict of jurisdiction is settled, on the motion of the most diligent party, by the Court of Cassation\" in plenary session. No such conflict appears to have come before the highest court of Belgium in vagrancy matters up to the present time.", "The Belgian Government has had the reform of the 1891 Act under consideration for some time. According to the information given to the Court on 17th November 1970, the Bill which it is preparing to submit to Parliament provides in particular that an appeal against the magistrates ’ decisions may be made to the court of first instance.", "38. \"Able-bodied persons detained in a vagrancy centre or assistance home\" are \"required to perform the work prescribed in the institution\" (Section 6 of the 1891 Act). Persons who, like Jacques De Wilde, and Edgard Versyp, refuse to comply with this requirement without good reason, in the opinion of the authorities, are liable to disciplinary measures. \"Infirmity, illness or punishment may lead to a suspension, termination or stopping of work\" (Articles 64 and 95, read in conjunction, of the Royal Decree of 21st May 1965 laying down general prison regulations).", "\"Unless stopped for disciplinary reasons\", detained vagrants are entitled to \"a daily wage\" known as \"allowances\". Sums are retained \"for administrative expenses\" - \"for the benefit of the State\" – and \"to form the release savings\" which shall be \"granted ... partly in cash and partly in clothing and tools\". The Minister of Justice fixes the amount of the said release savings and, having regard to the various categories of detained persons and of work, the wages and the sums to be retained (Sections 6 and 17 of the 1891 Act; Articles 66 and 95, read in conjunction, of the Royal Decree of 21st May 1965).", "At the time of the detention of the three applicants, the amount of the release savings which had to be thus accumulated - sums of money which a vagrant may receive from other sources not being taken into account - was fixed at 2,000 BF, at least for the \"inmates\" of welfare settlements (ministerial circular of 24th April 1964 ).", "The minimum hourly allowance \"actually paid\" to detainees - save any deductions made for \"wastage and poor work\" - was 1,75 BF up to 1st November 1966, on which date it was increased by 25 centimes (ministerial circulars of 17th March 1964 and 10th October 1966). The allowance was not capable of assignment or liable to seizure in execution and was divided into two equal parts: \"the reserved portion\" which was credited to the person concerned and enabled him to form his release savings and the free portion which he received immediately (Articles 67 and 95, read in conjunction, of the Royal Decree of 21st May 1965).", "39. According to Articles 20 to 24 and 95 of the Royal Decree of 21st May 1965, the correspondence of detained vagrants - who, in this as well as in other respects, are assimilated to convicted persons - may be subjected to censorship except any correspondence with the counsel of their own choice, the director of the institution, the inspector-general and the director-general of the prison administration, the secretary-general of the Ministry of Justice, the judicial authorities, the ministers, the chairmen of the legislative Chambers, the King, etc. Their correspondence with the Commission is not mentioned in this Decree but the Minister of Justice informed the governors of prisons and Social Protection Institutions, including those at Merksplas and Wortel, that \"a letter addressed to this organ by a detainee is not to be censored but should be forwarded, duly stamped for abroad by the sender ..., to the Legal Department ... which shall undertake to transmit it to its destination\" (circular of 7th September 1957 as it was in force at the time of the detention of the applicants; see also paragraph 31 above).", "40. \"Persons detained in an assistance home\" - as Franz Ooms - may not \"in any case be kept against their will for more than one year\" (Section 18, first sentence, of the 1891 Act). They regain their freedom, as of right, before the expiry of this period \"when their release savings (have reached) the amount ... fixed by the Minister of Justice\", who shall, moreover, release them if he considers their detention \"to be no longer necessary\" (Sections 17 and 18, second sentence, of the 1891 Act).", "As regards vagrants detained in a vagrancy centre - such as Jacques De Wilde and Edgard Versyp - they leave the centre either at the expiry of the period varying from two to seven years \"fixed by the court\" or at an earlier date if the Minister of Justice considers \"that there is no reason to continue their detention\" (Section 15 of the 1891 Act); the accumulation of the release savings and any other means which the detainee might have do not suffice for this purpose.", "It seems that no detained vagrant has to date lodged an appeal with the Conseil d ’ État, under Article 9 of the Act of 23rd December 1946, for the annulment of a ministerial decision which had rejected his application for release.", "41. Before the Commission and Sub-Commission, the three applicants invoked Articles 4, 5 (1), 5 (3), 5 (4), 6 (1), 6 (3) (b) and (c), 7, 8 and 13 (art. 4, art. 5-1, art. 5-3, art. 5-4, art. 6-1, art. 6-3-b, art. 6-3-c, art. 7, art. 8, art. 13) of the Convention. Two of them, De Wilde and Versyp, also alleged that Article 3 (art. 3) had not been observed.", "42. In its report of 19th July 1969, the Commission expressed the opinion:", "- that there was a violation of Articles 4 (art. 4) (nine votes to two), 5 (4) (art. 5-4) (nine votes to two) and 8 (art. 8) (ten votes to one);", "- that there was no violation of Articles 3 (art. 3) (unanimous) and 5 (1) (art. 5-1) (ten votes to one);", "- that Articles 5 (3) (art. 5-3) (unanimous), 6 (1) (art. 6-1) (ten votes to one), 6 (3) (art. 6-3) (ten votes to one) and 7 (art. 7) (unanimous) were inapplicable.", "The Commission was further of the opinion that \"it (was) no longer necessary to consider Article 13 (art. 13)\" (unanimous).", "The report contains several individual opinions, some concurring, others dissenting.", "43. After the cases were brought before the Court the applicants repeated, and sometimes developed, in a memorandum which the Commission appended to its memorial, the greater part of their earlier arguments. They indicated their agreement or otherwise, according to the case, with the opinion of the Commission, to which De Wilde and Versyp \"bowed\" as regards Article 3 (art. 3) of the Convention." ]

[ "AS TO THE LAW", "I. ON THE QUESTIONS OF JURISDICTION AND ADMISSIBILITY RAISED IN THE PRESENT CASES", "44. In its memorials of February and June 1970, the Government requested the Court, principally,", "\"to declare that the applications introduced against Belgium by Jacques De Wilde on 17th June 1966, Franz Ooms on 20th May 1966 and Edgard Versyp on 16th August 1966, were not admissible as the applicants had failed to exhaust the domestic remedies and that therefore they should have been rejected by the European Commission of Human Rights under Article 26 and Article 27 (3) (art. 26, art. 27-3) of the Convention\".", "The Commission, for its part, requested the Court in its memorial of April 1970:", "\"(1) In the first place:", "- to hold inadmissible the Belgian Government ’ s request that it be declared that the Commission should have rejected the three applications under Articles 26 and 27, paragraph (3) (art. 26, art. 27-3), of the Convention, on the ground that the Court has no jurisdiction to pronounce on decisions by the Commission concerning the admissibility of applications;", "(2) alternatively:", "- to declare the said request inadmissible on the ground that the Belgian Government is debarred from making such a request to the Court since it did not raise the objection of non-exhaustion of domestic remedies before the Commission at the stage where the admissibility of the applications was under consideration;", "(3) in the further alternative:", "- to declare the said request ill-founded since, at the time when the three applications were submitted to the Commission, there was no effective remedy in Belgian law against decisions by magistrates in vagrancy cases\".", "45. At the oral hearings, the Agent of the Government submitted that it should please the Court:", "- \"to find that it is fully competent to decide on the admissibility of the applications in the cases now before it and in particular to verify whether the applicants have or have not exhausted the domestic remedies\";", "- \"to find that the applications ... are inadmissible since the applicants failed to observe the provisions of Article 26 (art. 26) of the Convention\".", "The failure to observe Article 26 (art. 26) is alleged to have consisted not only in the non-exhaustion of domestic remedies but also, in the case of Edgard Versyp, in a failure to observe the six-month time-limit.", "The Delegates of the Commission maintained without change the submissions on this point contained in their memorial of April 1970.", "46. The Court is thus asked to consider, before any examination of the merits:", "(1) whether it has jurisdiction to examine the contentions of the Government based on the alleged failure to comply with Article 26 (art. 26) of the Convention, either as regards the exhaustion of domestic remedies or as regards the six-month time-limit;", "(2) if so, whether the Government must be held to be precluded from raising the inadmissibility of the applications, either on the ground of non-exhaustion of domestic remedies or, alternatively, in the case of Versyp, on the ground of his being out of time;", "(3) if the Government is not held to be precluded, whether its contentions in regard to inadmissibility are well-founded.", "A. As to the jurisdiction of the court to examine the submissions of non-exhaustion of domestic remedies and of delay made by the government against the applications accepted by the commission", "47. In order to judge whether it has jurisdiction to examine the submissions of the Government objecting to the examination of the present applications, the Court refers to the text of the Convention and especially to Article 45 (art. 45) which determines its jurisdiction ratione materiae. This Article (art. 45) specifies that \"the jurisdiction of the Court shall extend to all cases (\" toutes les affaires\") concerning the interpretation and application of the ... Convention which the High Contracting Parties or the Commission shall refer to it in accordance with Article 48 (art. 48)\". Under this provision, as the Court pointed out in its judgment of 9th February 1967 (\"Linguistic\" case, Series A, p. 18), \"the basis of the jurisdiction ratione materiae of the Court is established once the case raises a question of the interpretation or application of the Convention\".", "48. The phrase \"cases concerning the interpretation and application of the ... Convention\", which is found in Article 45 (art. 45), is remarkable for its width. The very general meaning which has to be attributed to it is confirmed by the English text of paragraph (1) of Article 46 (art. 46-1) which is drafted in even wider terms (\"all matters\") than Article 45 (art. 45) (\"all cases\").", "49. True, it follows from Article 45 (art. 45) that the Court may exercise its jurisdiction only in regard to cases which have been duly brought before it and its supervision must necessarily be directed first to the observance of the conditions laid down in Articles 47 and 48 (art. 47, art. 48). Once a case is duly referred to it, however, the Court is endowed with full jurisdiction and may thus take cognisance of all questions of fact and of law which may arise in the course of the consideration of the case.", "50. It is therefore impossible to see how questions concerning the interpretation and application of Article 26 (art. 26) raised before the Court during the hearing of a case should fall outside its jurisdiction. That possibility is all the less conceivable in that the rule on the exhaustion of domestic remedies delimits the area within which the Contracting States have agreed to answer for wrongs alleged against them before the organs of the Convention, and the Court has to ensure the observance of the provisions relating thereto just as of the individual rights and freedoms guaranteed by the Convention and its Protocols.", "The rule of exhaustion of domestic remedies, which dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, is also one of the generally recognised principles of international law to which Article 26 (art. 26) makes specific reference.", "As for the six months ’ rule, it results from a special provision in the Convention and constitutes an element of legal stability.", "51. This conclusion is in no way invalidated by the powers conferred on the Commission under Article 27 (art. 27) of the Convention as regards the admissibility of applications. The task which this Article (art. 27) assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decisions to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence (see mutatis mutandis, the Lawless judgment of 14th November 1960, Series A, p. 11). The decision to accept an application has the effect of leading the Commission to perform the functions laid down in Articles 28 to 31 (art. 28, art. 29, art. 30, art. 31) of the Convention and of opening up the possibility that the case may be brought before the Court; but it is not binding on the Court any more than the Court is bound by the opinion expressed by the Commission in its final report \"as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention\" (Article 31) (art. 31).", "52. For the foregoing reasons, the Court considers it has jurisdiction to examine the questions of non-exhaustion and of delay raised in the present cases.", "B. As to estoppels (French\" forclusion \")", "53. The jurisdiction of the Court to rule on the submissions made by a respondent Government based on Article 26 (art. 26) as a bar to claims directed against it, does not in any way mean that the Court should disregard the attitude adopted by the Government in this connection in the course of the proceedings before the Commission.", "54. It is in fact usual practice in international and national courts that objections to admissibility should as a general rule be raised in limine litis. This, if not always mandatory, is at least a requirement of the proper administration of justice and of legal stability. The Court itself has specified in Rule 46, paragraph 1, of its Rules, that \"a preliminary objection must be filed by a Party at the latest before the expiry of the time-limit fixed for the delivery of the first pleading\".", "Doubtless, proceedings before the Court are not the same as those which took place before the Commission and usually the parties are not even the same; but they concern the same case and it results clearly from the general economy of the Convention that objections to jurisdiction and admissibility must, in principle, be raised first before the Commission to the extent that their character and the circumstances permit (compare the Stögmüller judgment of 10th November 1969, Series A, pp. 41-42, paragraph 8, and the Matznetter judgment of the same date, Series A, p. 32, paragraph 6).", "55. Furthermore, there is nothing to prevent States from waiving the benefit of the rule of exhaustion of domestic remedies, the essential aim of which is to protect their national legal order. There exists on this subject a long established international practice from which the Convention has definitely not departed as it refers, in Article 26 (art. 26), to \"the generally recognised rules of international law\". If there is such a waiver in the course of proceedings before the Commission (see, for example, Yearbook of the Convention, Vol. 7, pp. 258-260), it can scarcely be imagined that the Government concerned is entitled to withdraw the waiver at will after the case has been referred to the Court.", "56. In examining the proceedings which took place before the Commission, the Court finds that the Government had, in its first observations on the admissibility of the applications, raised against one of the complaints of Franz Ooms grounds of inadmissibility based on non-exhaustion of domestic remedies. As the Commission considered that complaint to be manifestly ill-founded, it did not find it necessary to rule on this objection. The partial decision which it gave on this point in the Ooms case is dated 11th February 1967.", "At the oral hearings which followed that partial decision and the decisions of the same date in the two related cases, a member of the Commission put a question, on 6th April 1967, to the Agent of the Government about the possibility of challenging before the Conseil d ’ État magistrates ’ decisions in vagrancy matters (Sections 13 and 16 of the 1891 Act) and the Minister of Justice ’ s decisions refusing to release a detained vagrant (Sections 15 and 18 of the same Act). The Agent of the Government replied that that superior administrative court considered it had no jurisdiction to hear an appeal against a magistrate ’ s order (Vleminckx judgment of 21st December 1951, cf. paragraph 37 above); he underlined, however, that there was \"at least one case\" - Du Bois - \"pending before the Conseil d ’ État in which the problem of the right to appeal against a magistrate ’ s decision had again been raised\"; he further expressed his personal opinion that \"a decision of the Minister refusing\" to release a detained vagrant could doubtless be set aside if need be by the Conseil d ’ État \"on a pure point of law\". He did not, however, use this as an argument to request the Commission either to reject the applications for non-exhaustion of domestic remedies or to adjourn its decision on their admissibility.", "The Commission thus felt itself able to conclude that there were no domestic remedies and consequently to find in its decision of 7th April 1967, declaring the applications admissible, \"that the applicants (had) observed the conditions laid down in Article 26 (art. 26) of the Convention\".", "57. Two months later, however, on 7th June 1967, the Conseil d ’ État delivered a judgment in which it reversed its former case-law; it declared admissible and allowed Mr. Du Bois ’ appeal for annulment of the magistrate ’ s order (see paragraph 37 above). The Government informed the Commission of this judgment in its memorial of 31st July 1967 and formally requested that the three applications be rejected as inadmissible for non-exhaustion of domestic remedies. Counsel for the applicants expressed the view that the respondent Government \"could not at this stage dispute the admissibility of the applications as this had been finally determined by the Commission ’ s decision of 7th April 1967\" (paragraph 59 of the report). On 8th February 1968, the Agent of the Belgian Government repeated the request at the hearing before the Commission (paragraphs 124 and 125 of the report): he invited the Commission to give \"a second decision on admissibility to the effect that the wording of the Belgian Conseil d ’ État ’ s judgment clearly establishes that (the) applicants had available to them a remedy which they did not make use of, although they could have done so\".", "Finally, the Commission refused this request in its report adopted on 19th July 1969 (paragraph 177). The Commission recalled that \"in accordance with the principles of international law referred to by Article 26 (art. 26) of the Convention an applicant is not required to exhaust a domestic remedy if, in view of the consistent case-law of the national courts, this remedy has no reasonable chance of success\"; it pointed out that this was the case prior to the Du Bois judgment of 7th June 1967 as regards recourse against magistrates ’ decisions in vagrancy matters and concluded that it had been right in declaring the three applications admissible and that the above-mentioned judgment did \"not constitute a new factor justifying the reopening of the decision on the admissibility of the applications\".", "In these circumstances, the Court cannot consider that the Government is precluded from raising before it the objection of non-exhaustion of domestic remedies as regards the orders of the magistrates at Charleroi, Namur and Brussels.", "58. The same is not true of the Government ’ s alternative submission that the applicant Versyp was out of time.", "Versyp applied to the Commission on 16th August 1966 that is more than six months after the decision of the Brussels police court of 4th November 1965, ordering his detention for vagrancy (see paragraphs 29 and 31 above). The Government argues from this that, if the Court considered that the decision was not at the time subject to any form of appeal, Versyp ’ s application to the Commission should be held to be inadmissible for failure to observe the time-limit laid down by Article 26 (art. 26) in fine of the Convention.", "The Court observes that this submission was never made before the Commission nor even before the Court during the written procedure: the Agent of the Government presented it for the first time in his address of 16th November 1970, that is more than three years after the Commission ’ s decision on admissibility and more than one year after the case had been brought before the Court.", "In these circumstances, the Court finds that the Government is precluded from submitting that Versyp ’ s application was out of time.", "59. The same finding holds good for the submission of non-exhaustion of remedies made by the Government before the Court as regards the decisions of the Minister of Justice rejecting the three applicants ’ petitions for release.", "The applicants argued that their being kept in detention by the Minister had violated Article 5 (1) (art. 5-1) of the Convention. The Government contends that it would have been open to them to contest the said decisions before the Conseil d ’ État alleging a violation of Article 5 (art. 5), which is directly applicable in Belgian law, and that they failed to take this course. But the Government never relied, before the Commission, on Article 26 (art. 26) of the Convention on this point (cf. paragraphs 56 and 57 above); for the reasons already mentioned, it cannot do so for the first time before the Court.", "C. As to the substance of the contention of the government regarding the exhaustion of domestic remedies", "60. The Court recalls that under international law, to which Article 26 (art. 26) makes express reference, the rule of exhaustion of domestic remedies demands the use only of such remedies as are available to the persons concerned and are sufficient, that is to say capable of providing redress for their complaints (Stögmüller judgment of 10th November 1969, Series A, p. 42, paragraph 11).", "It is also recognised that it is for the Government which raises the contention to indicate the remedies which, in its view, were available to the persons concerned and which ought to have been used by them until they had been exhausted.", "The information provided by the Belgian Government in this connection partly concerns the orders for detention, partly relates to the subsequent detention of the applicants. As the Court has found that the Government is precluded from making submissions based on the latter information (see paragraph 59 above), only the former part is relevant in connection with Article 26 (art. 26) of the Convention. The Government ’ s line of argument on this point underwent a clear change in the course of the proceedings.", "61. It was never contested that the decisions taken by the magistrates in regard to Jacques De Wilde, Franz Ooms and Edgard Versyp were of an administrative nature and so were not subject to appeal or to proceedings in cassation (see paragraph 37 above).", "The Agent of the Government acknowledged too, at the first hearings before the Commission and apparently basing himself on the Vleminckx judgment of 21st December 1951, that the Conseil d ’ État would not either have allowed an appeal against the said orders for detention.", "After the Du Bois judgment of 7th June 1967, the Government ’ s Agent acknowledged that the former case-law was \"a little out of touch with the facts in the sense that there was in fact no further administrative decision after the magistrate ’ s decision\" (paragraph 120 of the Commission ’ s report). Before the Court he expressed the same view, noting that the alleged ministerial decision referred to in the Vleminckx judgment was \"simply an administrative measure of execution\" of the magistrate ’ s order or in other words \"a purely physical operation\". This point of view appears to be correct: the examination of the files of the proceedings before the magistrates shows that what actually happened was that the competent officers of the public prosecutor ’ s department were instructed by the magistrates at Charleroi, Namur and Brussels to execute their orders and to this end they \"required\" the directors of the institutions at Wortel and Merksplas \"to receive\" De Wilde, Ooms and Versyp \"into (the) institution\" without there being any further \"decision\" in the matter (see paragraphs 17, 24 and 29 above). The Minister may doubtless intervene under the 1891 Act to stop the execution of the orders for detention. In practice, however, the Minister does not as a rule use this power and he did not do so in the present cases.", "Yet the Agent of the Government argued before the Commission and then before the Court that it followed from the same Du Bois judgment that the magistrates ’ orders for detention for vagrancy were in fact open to challenge before the Conseil d ’ État. He added that the Du Bois case was already pending before that superior administrative court at the time when the detention of the applicants was ordered, that there existed therefore at that time a possibility of a reversal of the rule stated in the Vleminckx case and that, for this reason, the applicants were not entitled to be excused from attempting to use such a remedy.", "62. The Court is unable to accept this point of view. The Court finds - without it even being necessary to examine here whether recourse to the Conseil d ’ État would have been of such a nature as to satisfy the complaints - that according to the settled legal opinion which existed in Belgium up to 7th June 1967 recourse to the Conseil d ’ État against the orders of a magistrate was thought to be inadmissible.", "This was the submission of the Government itself before the Conseil d ’ État in the Du Bois case. One cannot reproach the applicants that their conduct in 1965 and 1966 conformed with the view which the Government ’ s Agent continued to express at the beginning of 1967 at the hearings on admissibility before the Commission and which was prevalent in Belgium at the time.", "Furthermore, once the Du Bois judgment of 7th June 1967 was known, the applicants were not in a position to benefit from the possible remedy it seemed to open up because, well before that judgment was pronounced, the time-limit of sixty days prescribed by Article 4 of the Regent ’ s Decree of 23rd August 1948 on the procedure before the administrative division of the Conseil d ’ État had expired.", "The Court is therefore of the opinion that, as regards the complaints concerning the detention orders, the Government ’ s submission of inadmissibility on the ground of failure to observe the rule on the exhaustion of domestic remedies is not well-founded.", "II. AS TO THE MERITS", "63. In regard to the merits of the present cases the Government and the Commission in substance reiterated at the oral hearings the submissions contained in their respective memorials.", "The Government requested the Court:", "\"to find that the decisions and measures which are the subject of the applications brought against Belgium by Jacques De Wilde on 17th June 1966, by Franz Ooms on 20th May 1966 and by Edgard Versyp on 16th August 1966 are not in conflict with Belgium ’ s obligations under the European Convention of Human Rights.\"", "For its part, the Commission asked the Court to \"decide:", "(1) whether or not the jurisdiction exercised by the magistrate in deciding to place the applicants at the Government ’ s disposal on the ground of vagrancy is such as to fulfil the requirements of the Convention, particularly of Article 5, paragraph (4) (art. 5-4);", "(2) whether or not the Convention, particularly Article 5, paragraph (4) (art. 5-4), was violated by the fact that the applicants did not have at their disposal a remedy before a court which, at reasonable intervals, after the initial decision on detention, could have investigated whether their detention was still lawful and order their release if such was no longer the case;", "(3) whether or not the Convention, particularly Article 7 and Article 6, paragraph (1) and paragraph (3) (b) and (c) (art. 7, art. 6-1, art. 6-3-b, art. 6-3-c), was violated by the fact that the reformative measures taken vis-à-vis vagrants under Belgian law are in practice, as alleged, of a penal nature;", "(4) whether or not the Convention, particularly Article 4 (art. 4), was violated by the fact that the applicants were subjected to forced labour during a period of detention which allegedly did not meet the requirements of Article 5 (art. 5);", "(5) whether or not the Convention, particularly Article 8 (art. 8), was violated by the fact that the applicants ’ correspondence was censored during their detention.\"", "It appears from the cases before the Court that questions on the merits arise also in connection with Article 5, paragraphs (1) and (3), Article 3 and Article 13 (art. 5-1, art. 5-3, art. 3, art. 13).", "A. As to the \"general and preliminary observation\" of the government", "64. In its memorials and oral pleadings, the Government recalled that the Court ’ s function is to rule on three specific cases where the legislation in issue was applied and not on an abstract problem relating to the compatibility of the legislation with the Convention; on this point the Government cited the De Becker judgment of 27th March 1962 (Series A, p. 26 in fine). Starting from that premise, the Government stressed that the applicants had reported voluntarily to the police and that their admission to Wortel and Merksplas had been the result \"of an express or implicit request\" on their part, express for Versyp and Ooms, implicit for De Wilde. According to the Government, such a \"voluntary reporting\" can scarcely amount to being \"deprived of liberty\" within the meaning of Article 5 (art. 5). From this it concluded that the Court ought to rule out forthwith any idea of a failure to comply with the requirements of the Convention, as regards both \"the detention itself\" and \"the conditions of detention\".", "65. The Court is not persuaded by this line of argument. Temporary distress or misery may drive a person to give himself up to the police to be detained. This does not necessarily mean that the person so asking is in a state of vagrancy and even less that he is a professional beggar or that his state of vagrancy results from one of the circumstances - idleness, drunkenness or immorality - which, under Section 13 of the Belgian Act of 1891, may entail a more severe measure of detention.", "Insofar as the wishes of the applicants were taken into account, they cannot in any event remove or disguise the mandatory, as opposed to contractual, character of the decisions complained of; this mandatory character comes out unambiguously in the legal texts (Sections 8, 13, 15, 16 and 18 of the 1891 Act) and in the documents before the Court.", "Finally and above all, the right to liberty is too important in a \"democratic society\" within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 (art. 5) even although the person concerned might have agreed to it. When the matter is one which concerns ordre public within the Council of Europe, a scrupulous supervision by the organs of the Convention of all measures capable of violating the rights and freedoms which it guarantees is necessary in every case. Furthermore, Section 12 of the 1891 Act acknowledges the need for such supervision at national level: it obliges the magistrates to \"ascertain the identity, age, physical and mental state and manner of life of persons brought before the police court for vagrancy\". Nor does the fact that the applicants \"reported voluntarily\" in any way relieve the Court of its duty to see whether there has been a violation of the Convention.", "B. As to the alleged violation of paragraph (1) of article 5 (art. 5-1)", "66. It appears from the record that the applicants alleged, inter alia, a violation of the first paragraph of Article 5 (art. 5-1) of the Convention; the Government contested this submission and the Commission itself rejected it in its report.", "Insofar as it applies to the present cases, Article 5 (1) (art. 5-1) provides as follows:", "\"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(e) the lawful detention ... of vagrants;", "....\"", "67. The applicants were provisionally deprived of their freedom by the police superintendent to whom they presented themselves and they were brought by him within twenty-four hours, as provided by Section 3 of the Act of 1st May 1849, before the magistrate who placed them at the disposal of the Government (see paragraphs 16, 17, 23, 24, 28 and 29 above).", "The lawfulness of the action of the police superintendents has not been challenged; as the persons concerned reported voluntarily and indicated that they were in a state of vagrancy it was only normal that they should be brought before the magistrate for a decision. This action, moreover, was of a purely preliminary nature.", "It was by virtue of the magistrates ’ orders that the detention took place. It is therefore by reference to these orders that the lawfulness of the detention of the three applicants must be assessed.", "68. The Convention does not contain a definition of the term \"vagrant\". The definition of Article 347 of the Belgian Criminal Code reads: \"vagrants are persons who have no fixed abode, no means of subsistence and no regular trade or profession\". Where these three conditions are fulfilled, they may lead the competent authorities to order that the persons concerned be placed at the disposal of the Government as vagrants. The definition quoted does not appear to be in any way irreconcilable with the usual meaning of the term \"vagrant\", and the Court considers that a person who is a vagrant under the terms of Article 347 in principle falls within the exception provided for in Article 5 (1) (e) (art. 5-1-e) of the Convention.", "In the present cases the want of a fixed abode and of means of subsistence resulted not merely from the action of the persons concerned in reporting voluntarily to the police but from their own declarations made at the time: all three stated that they were without any employment (see paragraphs 16, 23 and 28 above). As to the habitual character of this lack of employment the magistrates at Charleroi, Namur and Brussels were in a position to deduce this from the information available to them concerning the respective applicants. This would, moreover, also be indicated by the fact that, although they purported to be workers, the three applicants were apparently not in a position to claim the minimum number of working days required to be effected within a given period which, in accordance with the Royal Decree of 20th December 1963 (Articles 118 et seqq.), would have qualified them for unemployment benefits.", "69. Having thus the character of a \"vagrant\", the applicants could, under Article 5 (1) (e) (art. 5-1-e) of the Convention, be made the subject of a detention provided that it was ordered by the competent authorities and in accordance with the procedure prescribed by Belgian law.", "In this connection the Court observes that the applicants did not receive the same treatment: De Wilde was placed at the disposal of the Government on 19th April 1966 for two years but was released on 16th November 1966; Ooms was placed at the disposal of the Government on 21st December 1965 for an indefinite period and was released after one year, that is on the expiry of the statutory term; Versyp was placed at the disposal of the Government on 4th November 1965 for two years and was released on 10th August 1967, that is after one year, nine months and six days (see paragraphs 17, 20, 24, 26, 29 and 31 above).", "As the Court has already noted, the placing of a person at the disposal of the Government for a fixed period differs from that for an indefinite period not solely by the fact that it is pronounced for a minimum period of two years (Section 13 of the 1891 Act) while the other may not last longer than one year (Sections 16 and 18): the first is also more severe in that it is entered on the criminal record (see paragraph 36 above), and in regard to electoral disabilities (see paragraph 158 of the Commission ’ s report).", "In the present cases, the orders concerning De Wilde and Versyp do not disclose which of the four conditions mentioned in Section 13 may have led the magistrates to apply this section rather than Section 16, but they refer to the administrative file of the persons concerned. The file on Jacques De Wilde contained an information note dated 19th April 1966 - the day he appeared before the magistrate at Charleroi - which listed various convictions and orders placing him at the disposal of the Government (see paragraph 16 above). Furthermore, the Brussels police court had before it, when Versyp appeared there, a document from the Social Rehabilitation Office in which his state of vagrancy was attributed to idleness and to weakness for drink (see paragraph 28 above).", "70. The Court has, therefore, not found either irregularity or arbitrariness in the placing of the three applicants at the disposal of the Government and it has no reason to find the resulting detention incompatible with Article 5 (1) (e) (art. 5-1-e) of the Convention.", "C. As to the alleged violation of paragraph (3) of article 5 (art. 5-3)", "71. Before the Commission, the applicants also alleged that there had been a violation of paragraph (3) of Article 5 (art. 5-3) which provides that:", "\"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) (art. 5-1-c) ... shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial ...\".", "Paragraph (1) (c) of Article 5 (art. 5-1-c), to which the text quoted refers, is solely concerned with \"the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so\"; as simple vagrancy does not amount to an offence in Belgian law (see paragraph 34 above), the applicants were arrested and detained not under sub-paragraph (c) of the first paragraph of Article 5 (art. 5-1-c) - nor, it may be added, under sub-paragraph (a) (art. 5-1-a) (\"after conviction by a competent court\") - but in fact under sub-paragraph (e) (art. 5-1-e). From this the Court must conclude - as did the Commission - that paragraph (3) (art. 5-3) was not applicable to them.", "D. As to the alleged violation of paragraph (4) of article 5 (art. 5-4)", "72. The Commission accepted to a certain extent the arguments of the applicants and expressed the opinion that the system in issue fails to comply with Article 5 (4) (art. 5-4) of the Convention.", "According to paragraph (4) of Article 5 (art. 5-4), which is applicable inter alia to vagrants detained under sub-paragraph (e) of paragraph (1) (art. 5-1-e), \"everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful\".", "73. Although the Court has not found in the present cases any incompatibility with paragraph (1) of Article 5 (art. 5-1) (see paragraphs 67 to 70 above), this finding does not dispense it from now proceeding to examine whether there has been any violation of paragraph (4) (art. 5-4). The latter is, in effect, a separate provision, and its observance does not result eo ipso from the observance of the former: \"everyone who is deprived of his liberty\", lawfully or not, is entitled to a supervision of lawfulness by a court; a violation can therefore result either from a detention incompatible with paragraph (1) (art. 5-1) or from the absence of any proceedings satisfying paragraph (4) (art. 5-4), or even from both at the same time.", "1. As to the decisions ordering detention", "74. The Court began by investigating whether the conditions in which De Wilde, Ooms and Versyp appeared before the magistrates satisfied their right to take proceedings before a court to question the lawfulness of their detention.", "75. The applicants were detained in execution of the magistrates ’ orders: their arrest by the police was merely a provisional act and no other authority intervened in the three cases (see paragraph 67 above).", "A first question consequently arises. Does Article 5 (4) (art. 5-4) require that two authorities should deal with the cases falling under it, that is, one which orders the detention and a second, having the attributes of a court, which examines the lawfulness of this measure on the application of the person concerned? Or, as against this, is it sufficient that the detention should be ordered by an authority which had the elements inherent in the concept of a \"court\" within the meaning of Article 5 (4) (art. 5-4)?", "76. At first sight, the wording of Article 5 (4) (art. 5-4) might make one think that it guarantees the right of the detainee always to have supervised by a court the lawfulness of a previous decision which has deprived him of his liberty. The two official texts do not however use the same terms, since the English text speaks of \"proceedings\" and not of \"appeal\", \"recourse\" or \"remedy\" (compare Articles 13 and 26 (art. 13, art. 26)). Besides, it is clear that the purpose of Article 5 (4) (art. 5-4) is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected; the word \"court\" (\"tribunal\") is there found in the singular and not in the plural. Where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that Article 5 (4) (art. 5-4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case the supervision required by Article 5 (4) (art. 5-4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after \"conviction by a competent court\" (Article 5 (1) (a) of the Convention) (art. 5-1-a). It may therefore be concluded that Article 5 (4) (art. 5-4) is observed if the arrest or detention of a vagrant, provided for in paragraph (1) (e) (art. 5-1-e), is ordered by a \"court\" within the meaning of paragraph (4) (art. 5-4).", "It results, however, from the purpose and object of Article 5 (art. 5), as well as from the very terms of paragraph (4) (art. 5-4) (\"proceedings\",\" recours \"), that in order to constitute such a \"court\" an authority must provide the fundamental guarantees of procedure applied in matters of deprivation of liberty. If the procedure of the competent authority does not provide them, the State could not be dispensed from making available to the person concerned a second authority which does provide all the guarantees of judicial procedure.", "In sum, the Court considers that the intervention of one organ satisfies Article 5 (4) (art. 5-4), but on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question.", "77. The Court has therefore enquired whether in the present cases the magistrate possessed the character of a \"court\" within the meaning of Article 5 (4) (art. 5-4), and especially whether the applicants enjoyed, when appearing before him, the guarantees mentioned above.", "There is no doubt that from an organisational point of view the magistrate is a \"court\"; the Commission has, in fact, accepted this. The magistrate is independent both of the executive and of the parties to the case and he enjoys the benefit of the guarantees afforded to the judges by Articles 99 and 100 of the Constitution of Belgium.", "The task the magistrate has to discharge in the matters under consideration consists in finding whether in law the statutory conditions required for the \"placing at the disposal of the Government\" are fulfilled in respect of the person brought before him. By this very finding, the police court necessarily decides \"the lawfulness\" of the detention which the prosecuting authority requests it to sanction.", "The Commission has, however, emphasised that in vagrancy matters the magistrate exercises \"an administrative function\" and does not therefore carry out the \"judicial supervision\" required by Article 5 (4) (art. 5-4). This opinion is grounded on the case-law of the Court of Cassation and of the Conseil d ’ État (see paragraph 37 above). The Commission had concluded from this that the provision of a judicial proceeding was essential.", "78. It is true that the Convention uses the word \"court\" (French \"tribunal\") in several of its Articles. It does so to mark out one of the constitutive elements of the guarantee afforded to the individual by the provision in question (see, in addition to Article 5 (4), Articles 2 (1), 5 (1) (a) and (b), and 6 (1) (tribunal) (art. 5-4, art. 2-1, art. 5-1-a, art. 5-1-b, art. 6-1). In all these different cases it denotes bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case (see Neumeister judgment of 27th June 1968, Series A, p. 44, paragraph 24), but also the guarantees of judicial procedure. The forms of the procedure required by the Convention need not, however, necessarily be identical in each of the cases where the intervention of a court is required. In order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding takes place. Thus, in the Neumeister case, the Court considered that the competent courts remained \"courts\" in spite of the lack of \"equality of arms\" between the prosecution and an individual who requested provisional release (ibidem); nevertheless, the same might not be true in a different context and, for example, in another situation which is also governed by Article 5 (4) (art. 5-4).", "79. It is therefore the duty of the Court to determine whether the proceedings before the police courts of Charleroi, Namur and Brussels satisfied the requirements of Article 5 (4) (art. 5-4) which follow from the interpretation adopted above. The deprivation of liberty complained of by De Wilde, Ooms and Versyp resembles that imposed by a criminal court. Therefore, the procedure applicable should not have provided guarantees markedly inferior to those existing in criminal matters in the member States of the Council of Europe.", "According to Belgian law, every individual found in a state of vagrancy is arrested and then brought - within twenty-four hours as a rule - before the police court (Section 8 of the 1891 Act and Section 3 of the Act of 1st May 1849). Regarding the interrogation of this individual, the 1891 Act limits itself to specifying in Section 12 that the magistrate ascertains the identity, age, physical and mental state and manner of life of the person brought before him. Regarding the right of defence, the only relevant provision is found in Section 3 of the Act of 1st May 1849, which provides that the person concerned is granted a three-day adjournment if he so requests. According to information provided by the Government, the Code of Criminal Procedure does not apply to the detention of vagrants.", "The procedure in question is affected by the administrative nature of the decision to be given. It does not ensure guarantees comparable to those which exist as regards detention in criminal cases, notwithstanding the fact that the detention of vagrants is very similar in many respects. It is hard to understand why persons arrested for simple vagrancy have to be content with such a summary procedure: individuals liable to sentences shorter than the terms provided for by Section 13, and even Section 16, of the 1891 Act - including those prosecuted for an offence under Articles 342 to 344 of the Criminal Code (aggravated vagrancy) - have the benefit of the extensive guarantees provided under the Code of Criminal Procedure. This procedure undoubtedly presents certain judicial features, such as the hearing taking place and the decision being given in public, but they are not sufficient to give the magistrate the character of a \"court\" within the meaning of Article 5 (4) (art. 5-4) when due account is taken of the seriousness of what is at stake, namely a long deprivation of liberty attended by various shameful consequences. Therefore it does not by itself satisfy the requirements of Article 5 (4) (art. 5-4) and the Commission was quite correct in considering that a remedy should have been open to the applicants. The Court, however, has already held that De Wilde, Ooms and Versyp had no access either to a superior court or, at least in practice, to the Conseil d ’ État (see paragraphs 37 and 62 above).", "80. The Court therefore reaches the conclusion that on the point now under consideration there has been a violation of Article 5 (4) (art. 5-4) in that the three applicants did not enjoy the guarantees contained in that paragraph.", "2. As to the rejection of the requests for release addressed by the applicants to the administrative authorities", "81. In the applicants ’ view there was a violation of Article 5 (4) (art. 5-4) not only because of the conditions in which their detention was ordered by the magistrate, but also because of the refusal of their requests for release.", "82. The Court finds that the applicants could without doubt have appealed to the Conseil d ’ État and that this appeal would have been effective if the Minister of Justice had violated the 1891 Act in refusing their requests for release. None of them, however, claims to have been in one of those situations where the Act requires that detention should end. De Wilde and Versyp were in fact released 0before the expiry of the period of two years fixed by the magistrate (Section 13 of the 1891 Act; paragraphs 17, 20, 29, 31 in fine and 40 above); Ooms was released on the expiry of the statutory period of one year and his release savings had not before that time reached the prescribed amount (Sections 16, 17 and 18, first paragraph, of the 1891 Act; paragraphs 24, 26 in fine and 40 above).", "The applicants could also have contended before the Conseil d ’ État", "- as they did before the Commission, though not very precisely (see paragraph 48 of the report) - that their detention had in any event violated Article 5 (1) (art. 5-1) of the Convention, particularly because, due to supervening circumstances, they had lost their character of vagrants. In fact Article 5 (art. 5) of the Convention is directly applicable in the Belgian legal system, such that its violation could have been complained of before the Conseil d ’ État and it cannot be affirmed a priori that it would not have decided speedily.", "83. On the other hand, the requests looked to the Minister of Justice to use the discretionary power conferred upon him by the 1891 Act (Sections 15 and 18) to decide, in the light of the circumstances relied on by the interested party or of other pertinent information, whether a detained vagrant should be released before the statutory period or the term fixed by the magistrate ’ s decision. To that extent, whatever action was taken thereafter falls completely outside the application of the provision of Article 5 (4) (art. 5-4) of the Convention. This latter provision, in fact, requires supervision only of the lawfulness of the placing in detention or of its continuation.", "84. The Court does not therefore find any violation of Article 5 (4) (art. 5-4) on the point at issue.", "E. As to the alleged violation of articles 6 and 7 (art. 6, art. 7)", "85. The Commission and the Government both submit that Articles 6 and 7 (art. 6, art. 7), relied upon by the applicants, are inapplicable.", "86. The Court has come to the conclusion that, during the hearing before the magistrates, the applicants were not dealt with in accordance with the requirements of Article 5 (4) (art. 5-4) (see paragraphs 74 to 80 above). This conclusion makes it superfluous to examine whether Article 6 (art. 6) was applicable in this case, and if so, whether it was observed.", "87. As to Article 7 (art. 7), it is clear that it is not relevant. Simple vagrancy is not an \"offence\" under Belgian law and the magistrate did not find the applicants \"guilty\" nor impose a \"penalty\" on them (see, mutatis mutandis, the Lawless judgment of 1st July 1961, Series A, p. 54, paragraph 19).", "F. As to the alleged violation of article 4 (art. 4)", "88. According to Article 4 (art. 4) of the Convention,", "\"(1) ...", "(2) No one shall be required to perform forced or compulsory labour.", "(3) For the purpose of this Article the term ‘ forced or compulsory labour ’ shall not include:", "(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 (art. 5) (...);", "...\"", "In the Commission ’ s view the work which the applicants were compelled to perform was not justified under Article 4 (art. 4) as, in its opinion, there had been a breach of paragraph (4) of Article 5 (art. 5-4).", "89. The Court too has, in these cases, found a violation of the rights guaranteed by Article 5 (4) (art. 5-4) (see paragraphs 74 to 80 above), but it does not think that it must deduce therefrom a violation of Article 4 (art. 4). It in fact considers that paragraph (3) (a) of Article 4 (art. 4-3-a) authorises work ordinarily required of individuals deprived of their liberty under Article 5 (1) (e) (art. 5-1-e). The Court has found moreover, on the basis of information before it, that no violation of Article 5 (1) (e) (art. 5-1-e) has been established in respect of De Wilde, Ooms and Versyp (see paragraphs 67 to 70 above).", "90. Furthermore, the duty to work imposed on the three applicants has not exceeded the \"ordinary\" limits, within the meaning of Article 4 (3) (a) (art. 4-3-a) of the Convention, because it aimed at their rehabilitation and was based on a general standard, Section 6 of the 1891 Act, which finds its equivalent in several member States of the Council of Europe (see paragraph 38 above and Appendices IV and V to the Commission ’ s report).", "The Belgian authorities did not therefore fail to comply with the requirements of Article 4 (art. 4).", "G. As to the alleged violation of article 8 (art. 8)", "91. During their detention, the applicants ’ correspondence was supervised to a certain extent. In the Commission ’ s view this led to a violation of Article 8 (art. 8), on the one hand because the detention of the applicants was unlawful in that Article 5 (4) (art. 5-4) had not been complied with and on the other hand because, even if it was lawful, ordinary detention for vagrancy cannot entail the restrictions on the freedom of correspondence which are permissible in criminal matters.", "92. On the first argument, the Court recalls mutatis mutandis the reasons given in paragraph 89 above on compulsory labour.", "93. On the second argument, the Court recalls that Article 8 (art. 8) of the Convention provides that:", "\"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.", "(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "The Court finds that the supervision in question, which constitutes unquestionably an \"interference by a public authority with the exercise of (the) right\" enshrined in paragraph (1) of Article 8 (art. 8-1), was \"in accordance with the law\" - within the meaning of paragraph (2) (art. 8-2) - as it is provided for in Articles 20 to 23 of the Royal Decree of 21st May 1965 taken in conjunction with Article 95. It then observes, in the light of the information given to it, that the competent Belgian authorities did not transgress in the present cases the limits of the power of appreciation which Article 8 (2) (art. 8-2) of the Convention leaves to the Contracting States: even in cases of persons detained for vagrancy, those authorities had sufficient reason to believe that it was \"necessary\" to impose restrictions for the purpose of the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others. These restrictions did not in any event apply in a long series of instances enumerated in Article 24 of the Royal Decree of 21st May 1965 nor in connection with the applicants ’ correspondence with the Commission (see paragraph 39 above). Finally, there is nothing to indicate that there was any discrimination or abuse of power to the prejudice of the applicants (Articles 14 and 18 of the Convention) (art. 14, art. 18).", "H. As to the alleged violation of article 3 (art. 3)", "94. De Wilde and Versyp complained of disciplinary punishments inflicted on them for refusing to work but the Commission did not consider that these punishments violated Article 3 (art. 3).", "Having regard to the facts before it, the Court also does not find, even ex officio, any suggestion of a violation of this text.", "I. As to the alleged violation of article 13 (art. 13)", "95. The applicants invoked Article 13 (art. 13) of the Convention, alleging that they did not have \"an effective remedy before a national authority\" in order to obtain the protection of the rights guaranteed by Articles 5, 3, 4, 6, 7 and 8 (art. 5, art. 3, art. 4, art. 6, art. 7, art. 8).", "The Court has already ruled that the applicants were not dealt with in a manner compatible with the requirements of Article 5 (4) (art. 5-4) (see paragraphs 74 to 80 above); to this extent, it does not think it has to enquire whether there has been a violation of Article 13 (art. 13).", "As to the applicants ’ other complaints, the Court limits itself to finding that Articles 3 to 8 (art. 3, art. 4, art. 5, art. 6, art. 7, art. 8) of the Convention are directly applicable in Belgian law. If, therefore, the applicants considered that the administrative decisions put in issue had violated the rights guaranteed by these articles, they could have challenged them before the Conseil d ’ État." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "9. The applicant is a Belgian national, born in 1940. He has no fixed occupation.", "On 29 July 1970, the Bruges criminal court (tribunal correctionnel ) sentenced him to two years ’ imprisonment for theft, and attempted theft, committed with the aid of skeleton keys. The court also ordered that he be \"placed at the Government ’ s disposal\" for ten years, pursuant to section 23 of the \"Social Protection\" Act of 1 July 1964 (see paragraph 19 below): it noted that Mr. Van Droogenbroeck was a recidivist (Article 56 of the Criminal Code) who had been sentenced by the Brussels criminal court on 9 April 1968 to two years ’ imprisonment for aggravated theft and who manifested a persistent tendency to crime.", "The applicant and the ministère public (public prosecuter ’ s department) appealed to the Ghent Court of Appeal, which confirmed the first instance decision on 20 October 1970. It found that the placing at the Government ’ s disposal was justified by the danger to which society and Mr. Van Droogenbroeck himself would be exposed were he to be released on completion of his sentence (door het gevaar dat, na afloop van de straf die tegen hem uitgesproken wordt, de invrijheidstelling van de veroordeelde voor de maatschappij en voor hem zelf zou doen lopen). An appeal by the applicant on a point of law was dismissed by the Court of Cassation on 19 January 1971.", "10. On the completion (on 18 June 1972 ) of his principal sentence, which he served at St. Giles prison, Brussels, and then at Malines, Mr. Van Droogenbroeck did not remain in detention. It was true, according to the medical officer specialised in psychology ( médecin-anthropologue ) at Malines prison, that he was incapable of self-criticism and had no sense of responsibility (noch auto-kritiek, noch verantwoordelijkszin). Nevertheless, the Minister of Justice, acting on the advice of the prison governor and following a \"policy of securing as far as possible the rehabilitation of released prisoners\", agreed to attempt to reintegrate him into society by placing him, as from 1 August 1972, in semi-custodial care; this involved his working as an apprentice in a central-heating installation firm in Brussels and attending intensive vocational training courses in a specialised institution on Fridays and Saturdays.", "11. The applicant disappeared, however, on 8 August 1972. Three days later, on the instructions of the procureur général (public prosecuter) attached to the Ghent Court of Appeal, he was placed on the wanted list and, on 3 October 1972, he was arrested, pursuant to a warrant issued by an investigating judge in connection with an attempt to commit aggravated theft, and detained at Forest prison, Brussels. On 17 November, he was found not guilty by the Brussels criminal court, but on 27 November the Minister of Justice decided to send him to Merksplas prison, in the block reserved for recidivists placed at the Government ’ s disposal (te doen overbrengen naar de afdeling voor TBR - geinterneerde recidivisten te Merksplas); this was because the Ministry ’ s individual Cases Department had expressed the opinion, on 27 November, that the applicant had abused the opportunity offered to him, that he was totally untrustworthy and that a further period of detention was indicated (dat (hij) werkelijk misbruik heeft gemaakt van de hem geboden kans, dat hij helemaal niet is te betrouwen en dat een nieuwe interneringsperiode gewittigd is).", "On the strength of a favourable opinion from the Recidivists Board (see paragraph 22 below), before which Mr. Van Droogenbroeck had appeared on 13 June 1973, the Minister of Justice decided on 22 June to release him conditionally on 25 July, since the firm mentioned above was prepared to re-engage him as a trainee heating technician.", "12. The applicant disappeared again at the beginning of September 1973. He was arrested on 6 November and brought before the Antwerp criminal court on a charge of aggravated theft, where he was sentenced on 16 January 1974 to three months ’ imprisonment. On 4 February, on the expiration of this sentence, he was released as the Minister had agreed to make a further attempt at his reintegration into society, but at the end of March the agency responsible for monitoring his rehabilitation lost trace of him. He was arrested on 21 May 1974 and, until 16 January 1975, served a sentence of eight months ’ imprisonment for aggravated theft, imposed by the Brussels criminal court on 9 August 1974; thereafter he returned to Merksplas prison pursuant to a detention decision (te interneren) taken by the Minister of Justice on 11 January. He left prison on 11 July 1975: two days previously and on the recommendation of the Recidivists Board, the Minister had agreed to his conditional release (te ontslaan), in the form of one month ’ s renewable leave, with a view to rehabilitation in France.", "13. Mr. Van Droogenbroeck accordingly went to France, accompanied by a member of the Prisoners ’ Aid committee, but the rehabilitation plan proved impracticable and he therefore returned to Belgium. After different setbacks in hostels, he was obliged to live alone in Brussels, without work and completely without resources. On 10 September 1975, the Individual Cases Department, citing the risk of recidivism, proposed that \"steps be taken to detain\" the applicant at Merksplas; the Minister of Justice gave his consent on the following day. Thereupon, Mr. Van Droogenbroeck disappeared for the third time; the authorities placed him on the wanted list, on account of his conduct. After hiding for some months in the Netherlands and finding himself in dire financial straits, he gave himself up on 21 January 1976 to the police attached to the parquet du procureur du Roi (public prosecuter ’ s office) in Brussels. He was detained at once in Forest prison before being sent back to Merksplas. On 2 February, as he was unwilling to do the work offered to him, he was placed in the cell block rather than in the recidivists block.", "On 3 March 1976, the applicant appeared at his request before the Recidivists Board, which decided to re-examine his case in September. At its meeting on 8 September, the Board found that he had saved nothing during his detention and that he had no prospects of finding work outside prison. It therefore declined to recommend his release unless and until he had saved 12,000 BF through his prison work.", "On 23 September, the applicant was transferred from Merksplas to Louvain prison.", "14. On 12 May 1976, Mr. Van Droogenbroeck, relying on section 26 of the Act of 1 July 1964 (see paragraph 23 below), had filed with the procureur général attached to the Ghent Court of Appeal an application for release from the effects of the decision placing him at the Government ’ s disposal. The Court of Appeal refused the application on 13 December: after rejecting the arguments which he had based on Articles 4 par. 1, 4 par. 2, 5 par. 1 and 5 par. 4 of the Convention (art. 4-1, art. 4-2, art. 5-1, art. 5-4), the Court found that each time the applicant had been released, he had yielded to impulse and committed further offences; it concluded from this that he remained asocial (zodat hij asociaal blijft). On 15 February 1977, his appeal on a point of law was held by the Court of Cassation to be inadmissible on the ground that he was no longer entitled to contest before that Court - as he had attempted to do by pleading the Convention - the validity of the decision complained of, that decision having been final since 19 January 1971.", "15. On 13 March 1977, the applicant lodged with the Louvain procureur du Roi a complaint of arbitrary detention and, in the alternative, of abuse of authority ( abus de pouvoir ). He pointed out that since 28 February the balance on his account had been more than 12,000 BF; in addition, he alleged that the Recidivists Board, not being mentioned in the Act of 1 July 1964, was \"unlawful\" and he accused the Minister of transforming his sentence into one of \"forced labour\". On 19 August 1977, the complaint was set aside as requiring no further action.", "16. On 4 May 1977, Mr. Van Droogenbroeck appeared again before the above-mentioned Board. Noting that he had by then saved 12,868 BF and had been detained for long enough (lang genoeg), the Board recommended, \"without much enthusiasm\" (zonder veel enthousiasme), that he be released (te ontslaan). Accordingly, on 1 June 1977, the Minister of Justice granted him one month ’ s renewable leave, to be preceded by a two month period of semi-custodial care during which he was to be accommodated at night in St. Giles prison (Brussels) but was to work outside the prison during the daytime. However, he disappeared on the day after his first day out and was at once placed on the wanted list for return to the recidivists block at Merksplas.", "17. On 22 September 1977, Mr. Van Droogenbroeck was caught in the act of stealing in Bruges and arrested. On 9 December, he was sentenced to three month ’ s imprisonment by the Bruges criminal court and, on completing that sentence on 21 December, was sent back to Merksplas. The Ministry of Justice had found, on 19 December, that the applicant ’ s return to detention did not require a fresh Ministrial decision since he had evaded detention on 8 June 1977 (aangezien betrokkene zich op 8. 6. 77 heeft onttrokken aan zijn internering, is geen ministeriële beslissing nodig om hem opnieuw te interneren).", "The case was re-examined by the Recidivists Board on 3 May 1978, but the matter was adjourned until September. On 13 September, the Board pointed out that, on account of his systematic refusal to work, Mr. Van Droogenbroeck had saved only 2,437 BF and it therefore proposed that he not be granted renewable leave until he had saved 12,000 BF. On 3 October, the Minister gave instructions to that effect; he also stipulated that the applicant ’ s release should be subject to a series of condition similar to those previously laid down by the Minister, namely submitting to the \"guidance\" of the Brussels Social Rehabilitation Office, working regularly, not changing employer or address without that Office ’ s consent, refraining from excessive consumption of alcohol and not associating with former criminals. It proved impossible to implement this decision, since Mr. Van Droogenbroeck failed to satisfy any of the conditions attached thereto. On 14 March 1979, he appeared once more before the Recidivists Board, which confirmed the advice it had tendered on 13 September 1978.", "18. On 16 September 1979, the applicant lodged with the procureur général attached to the Ghent Court of Appeal a second application based on section 26 of the Act of 1 July 1964 (see paragraph 23 below). This application was granted on 18 March 1980: after considering the submissions to the contrary on the part of the ministère public and although the Court rejected, as in 1976, the arguments based on the Convention, it held that there were by then reasons for releasing Mr. Van Droogenbroeck from the effects of the decision placing him at the Government ’ s disposal. He was set free on the same day, but shortly afterwards was again deprived of his liberty, the Brussels criminal court and the Ghent Court of Appeal having sentenced him on 10 September 1980 and 3 June 1981 to one month ’ s and to one year ’ s imprisonment for aggravated theft, though without applying to him the Social Protection Act.", "II. THE LEGISLATION IN ISSUE", "A. The placing of recidivists and habitual offenders at the Government ’ s disposal", "19. The placing of recidivists and habitual offenders at the Government ’ s disposal was substituted for the placing under special police supervision that had been provided for in the Criminal Code of 8 June 1867; it was introduced by section 24 to 28 of the \"Social Protection\" Act of 9 April 1930 and is today the subject of sections 22 to 26 (Chapter VII) of the Social Protection in respect of Mental Defectives and Habitual Offenders Act of 1 July 1964 (\"the 1964 Act\").", "According to Belgian case-law, being placed at the Government ’ s disposal is to be classified as a penalty and not as a security measure; this has various consequences in law (Court of Cassation, 4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975, ibid. 1975, I, pp. 998-999; 11 December 1933, ibid. 1934, I, p. 96). Under sections 22 and 23 of the 1964 Act, the placing at the Government ’ s disposal is added on to a principal penalty involving deprivation of liberty imposed at the same time, becomes operative on the expiration of that penalty and applies for a period fixed by the Act, namely twenty years, ten years, or from five to ten years, according to the nature of the case.", "A person who has committed one indictable offence (crime) after another must be placed at the Government ’ s disposal (section 22), whereas in other cases - such as the applicant ’ s - it is a matter for the court ’ s discretion (section 23): the latter rule applies where a non-indictable offence ( délit ) has followed an indictable or a non-indictable offence (Articles 56 and 57 of the Criminal Code), where an indictable offence has followed a non-indictable offence and to the case of \"anyone who, having committed in the previous fifteen years at least three offences each involving a penalty of imprisonment for a non-indictable offence ( emprisonnement correctionnel ) of at least six months, is shown to manifest a persistent tendency to crime\". In the latter cases, \"particulars of the proceedings in respect of the offences which cause the individual concerned to be classified as a recidivist have to be included in the current prosecution file\" and the court concerned must give \"specific and precise\" reasons for ordering the penalty in question (section 24 and Court of Cassation, 3 January 1962, Pasicrisie 1962, I, pp. 525-526).", "20. If a recidivist is sentenced to a further principal penalty of imprisonment, the effects of any prior order placing him at the Government ’ s disposal are suspended until that sentence has been served. Such was the result, in the present case, of the judgments of 16 January 1974, 9 August 1974 and 9 December 1977 (see paragraphs 12 and 17 above). The new sentence of imprisonment may itself be accompanied by a further order placing the individual concerned at the Government ’ s disposal, the latter penalty to be served after the expiry of the first order, but as regards Mr. Van Droogenbroeck this course was not followed by the Antwerp, Brussels and Bruges criminal courts or the Ghent Court of Appeal in 1974, 1977, 1980 and 1981 (see paragraphs 12, 17 and 18 above).", "21. According to the Court of Cassation, the penalty of being placed at the Government ’ s disposal - which can be the subject of a full appeal or of an appeal to the Court of Cassation on a point of law - and the principal penalty form an \"inseparable whole\" and the former penalty, like the latter, constitutes a deprivation of liberty (4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975, ibid. 1975, I, pp. 998-999; 3 January 1962, ibid. 1962, I, pp. 525-526; 22 July 1955, ibid. 1955, I, pp. 1270-1271, 19 September 1939, ibid. 1939, I, p. 384; 11 December 1933, ibid. 1934, I, p. 96). Under section 25 of the 1964 Act, \"recidivists and habitual offenders who are at the Government ’ s disposal shall, if necessary, be detained in an establishment specified by Royal Decree\" - in the instant case the establishment being Merksplas, which had been designated for males not suffering from any mental illness (Royal Decree of 8 February 1952).", "As is indicated by the phrase \"if necessary\", the Act confers on the Government - here, the Minister of Justice - a wide measure of discretion in deciding how the penalty shall be implemented, the choice lying between detention, semi-custodial care, and remaining at liberty under supervision or on probation. The Minister may conditionally release the person concerned either at the end of the principal sentence - failing which he will be detained - or during the course of detention; he may also revoke conditional release at a later date.", "The Minister of Justice takes various decisions in accordance with a procedure which is laid down, in part, by Ministrial Decrees. Conditional release usually occurs:", "- whilst the principal penalty is being served, on a report from the \"medical officer specialised in psychology\" and the governor of the establishment where the convicted person is held (see paragraph 10 above);", "- during detention, on a recommendation by the Recidivists Board (see paragraph 11, 12 and 16 above and paragraph 22 below).", "A decision to revoke conditional release (see paragraph 11, 12, 13 and 17 above) is generally taken by the Minister in the light of a report from the officer responsible for the \"guidance\" of the person concerned, or of an recommendation by the procureur général attached to the Court of Appeal within whose district the placing at the Government ’ s disposal was ordered. These reports and recommendations will cover the manner in which the person in question is observing the prescribed conditions, his means of subsistence, his work, his conduct and the risk of recidivism on his part. If, however, he is in the process of serving a further sentence of imprisonment, revocation is normally based on reports from the \"medical officer specialised in psychology\" and the governor of the establishment; these reports will contain information on the nature of the offences for which the sentence was imposed, the offender ’ s criminal record, his personality, his moral character, his family and occupational situation and his future prospects.", "22. The Board for Recidivists who have been placed at the Government ’ s Disposal and are in Detention (\"the Recidivists Board\") was established by a Ministerial Decree of 12 March 1946 which was modified and supplemented on 20 May 1949 and 11 March 1968. The Board is composed of a judge or retired judge, who acts as chairman, the medical director or retired medical director of the Prison Psychological Service (Service d ’ anthropologie ) and a senior official of the Prison Social Service. A representative of the Ministry of Justice attends meeting of the Board and the Prisoners ’ Aid Committees or the Social Rehabilitation Offices may be invited to send a representative - who is entitled to speak and vote (Decree of 20 May 1949) - to those meetings at which the Board is to discuss the position of detainees who have been or are to be placed under their supervision.", "The Board is convened by its chairman at least once every two months. It is required to supply the Minister of Justice with an opinion - which is not binding - \"on the advisability of releasing recidivists and habitual offenders who are in detention ... and on the conditions\" which should be attached to their release.", "Offenders may apply to appear before the Board either at the meeting before the expiry of the first six months of their detention, if it began as soon as they has finished serving their principal sentence, or at the first meeting held after their return to detention, in cases where the Minister has revoked a decision granting conditional release (see paragraph 13 above). They will be heard again at the meeting before the expiry of the first six months of their detention, if it six months, fixed by the Recidivists Board (see paragraph 11, 12, 13, 16 and 17 above).", "Although the texts are silent on the point, a detainee will be heard without the assistance of a lawyer and without being able to inspect the prison file which contains, inter alia, the results of the social enquiry. The Board ’ s Secretary will communicate to him at once the opinion adopted by the Board at the end of its discussions. If the opinion is favourable, the matter will be referred to the Minister for decision. The Minister may also give directions for release at any time, without consulting the Board in advance.", "The governors of the establishments involved inform the persons concerned of Ministerial decisions that they be released. Such decisions will be subject to conditions which will be recorded in a booklet and will always include an obligation to submit to supervision arranged by the Social Rehabilitation Offices or the Prison Social Service.", "23. Under section 26 of the 1964 Act, individuals placed at the Government ’ s disposal pursuant to sections 22 and 23 may apply to the procureur général attached to the Court of Appeal within whose district the decision was rendered to be released \"from the effects of the decision\". If, as in the present case, the offender has been placed at the Government ’ s disposal for not more than ten years, such an application \"can be made three years after completion of the [principal] sentence\" (see paragraph 14 above) and, thereafter, \"every three years\" (see paragraph 18 above); these periods are increased to five years \"in the other cases\". The procureur général \"shall make such enquiries as he sees fit, add the results to the case-file and lay it, with his submissions, before a criminal chamber of the Court of Appeal; the Chamber shall give a reasoned judgment after hearing the person concerned, who shall have the assistance of a lawyer\".", "24. The practice followed in implementing the Acts of 1930 and 1964 has developed considerably over the years. Initially, offenders were not released until after a period of detention which varied according to the categories in which they ware placed. Today, on the other hand, where it is the first time that the measure has been ordered and the individual is not very dangerous, the authorities ’ general rule is to release him on trial once the principal sentence has been served, subject to detaining him if he commits another offence or fails to observe one of the prescribed conditions and is out of work and without means of subsistence. Moreover, detention for a long period is now exceptional: according to the Government, the offender will in practice be conditionally released - unless there is a serious danger to society - as soon as there is a real possibility of rehabilitation.", "25. According to Articles 62 and 63 of the General Prison Rules (Royal Decree of 21 May 1965), read in conjunction with Article 95, persons sentenced to a penalty for a non-indictable offence ( peine correctionnelle ) and then detained pursuant to section 25 of the 1964 Act, as was Mr. Van Droogenbroeck, may be required to do prison work.", "B. Existence of remedies in respect of allegedly unlawful deprivation of liberty", "26. The Government maintained that several remedies were available to the applicant:", "(i) instituting or causing to be instituted a prosecution for arbitrary detention;", "(ii) referring to the Ghent Court of Appeal any dispute between himself and the ministère public regarding the execution of the judgment of 20 October 1970;", "(iii) applying to that Court of Appeal for release from the effects of the measure imposed on him;", "(iv) applying to the President of the court of first instance in his capacity of juge des référés (judge hearing urgent applications);", "(v) bringing an action based directly on Article 5 par. 4 (art. 5-4) of the Convention.", "On the third point, the Court refers to paragraphs 14, 18 and 23 above, and, on the fifth, to paragraph 55 below.", "27. As regards the first point, anyone who maintains that he has been unlawfully deprived of his liberty, either by a private individual or by a public official, is entitled under Belgian law either to file a complaint, with or without the joinder of a claim for damages (constitution de partie civile ), or to bring the matter before a criminal court by means of a direct summons (Articles 147 and 434 to 436 of the Criminal Code; Articles 63, 182 and 609 of the Code of Criminal Procedure; see paragraph 15 above).", "28. As regards the second point, the Ghent Court of Appeal held, in 1897 and 1914 that disputes between the ministère public and a convicted person regarding the execution of a sentence could be referred to the court which passed it, but these are isolated decisions which have not been confirmed by other judgments.", "29. As regards the fourth remedy mentioned above, the Court confines itself for the moment to noting that under Articles 584 and 1039 of the 1967 Judicial Code it falls to the President of the court of first instance to give a ruling, in the capacity of juge des référés - that is to say, on a \"provisional\" basis, if the matter is urgent, and without prejudice to the \"merits\" -, if so requested by anyone claiming to be the victim of, for example, an administrative act constituting a\" voie de fait\" (manifest illegality). This remedy is available \"in all matters, except those which are excluded by law from the competence of the courts\". The case-law cited by the Government in this connection is analysed at paragraph 54 below." ]

[ "PROCEEDINGS BEFORE THE COMMISSION", "30. On 2 January 1974, Mr. Van Droogenbroeck had lodged a first application (no. 6989/75) which the Commission declared inadmissible on 5 March 1976 on account of failure to exhaust domestic remedies. In his second application, dated 16 April 1977 (no. 7906/77), he maintained that he was held in servitude and forced to work, contrary to paragraphs 1 and 2 of Article 4 of the Convention (art. 4-1, art. 4-2). He further alleged that his deprivation of liberty, which in his view had been ordered by the Minister of Justice and not by a court, contravened paragraph 1 of Article 5 (art. 5-1) and that he had not been able to seek a judicial review of the lawfulness of his various periods of detention, as was required by paragraph 4 of the same Article (art. 5-4). Finally, he complained of an interference with his freedom of expression, guaranteed by Article 10 (art. 10), contending that he was on two occasions subjected to disciplinary sanctions for having protested against the Recidivists Board ’ s recommendations.", "31. On 5 July 1979, the Commission rejected the last complaint as being manifestly ill-founded (Article 27 par. 2) (art. 27-2) and declared the remainder of the application admissible.", "In its report of 9 July 1980 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion that there had been a violation of paragraph 4 of Article 5 (art. 5-4) (unanimously), but not of paragraph 1 (art. 5-1) (ten votes to two) or of Article 4 (art. 4) (unanimously).", "The report contains one dissenting opinion.", "SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT", "32. In their memorial of April 1981 and in their supplementary memorial of February 1982, the Government submitted:", "\"that it may please the Court to hold that in the applicant ’ s case there has been no violation of any provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms.\"", "AS TO THE LAW", "I. THE ALLEGED VIOLATION OF ARTICLE 5 PAR. 1 (art. 5-1)", "33. In so far as it is applicable in the present case, Article 5 par. 1 (art. 5-1) of the Convention reads:", "\"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "(a) the lawful detention of a person after conviction by a competent court;", "...\"", "Sub-paragraphs (b) to (f) are clearly not relevant; besides, none of them was relied on by the Government.", "34. As regards paragraph 1 (a) (art. 5-1-a), there is no dispute as to the \"competence\" of the \"court\" which ordered the measure complained of, namely the Ghent Court of Appeal by its judgment of 20 October 1970 (see paragraph 9 above).", "The same is true of the question whether any deprivation of liberty occurred. In this connection, it should be recalled that according to Belgian case-law the placing of recidivists and habitual offenders at the Government ’ s disposal is to be classified as a penalty involving deprivation of liberty; this is so irrespective of the form which implementation of the order may take in a given case or at a gi1ven time, be it detention, semi-custodial care, or remaining at liberty under supervision or on probation (see paragraphs 19 and 21 above - Court of Cassation, 4 April 1978, Pasicrisie 1978, I, p. 861). However, the Court will take into account solely the first of such forms, this being the only one of which Mr. Van Droogenbroeck complained. In view of the particulars supplied by the Commission ’ s Delegate at the hearings of 20 October 1981, the Court will confine its examination to the periods of detention which were the subject of Mr. Van Droogenbroeck ’ s application no. 7906/77 (see paragraph 30 above), namely those running from 21 January 1976 to 1 June 1977 and from 21 December 1977 to 18 March 1980 (see paragraphs 13-18 above).", "35. The Court has to determine whether those periods of detention occurred \"after conviction\" by the Ghent Court of Appeal.", "Having regard to the French text, the word \"conviction\", for the purposes of Article 5 par. 1 (a) (art. 5-1-a), has to be understood as signifying both a \"finding of guilt\" after \"it has been established in accordance with the law that there has been an offence\" (see the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 37, par. 100), and the imposition of a penalty or other measure involving deprivation of liberty. These conditions are satisfied in the instant case.", "The word \"after\" does not simply mean that the \"detention\" must follow the \"conviction\" in point of time: in addition, the \"detention\" must result from, \"follow and depend upon\" or occur \"by virtue of\" the \"conviction\" (see the X v. the United Kingdom judgment of 5 November 1981. Series A no. 46, p. 17, par. 39; the Engel and others judgment of 8 June 1976, Series A no. 22, p. 27, par. 68).", "36. According to the applicant, the deprivations of liberty complained of stemmed not from a sentence imposed by a \"competent court\" but from decisions taken by the Minister of Justice.", "The respondent State, on the other hand, maintained that detention occurred \"by operation of law\" following the judicial decision placing a recidivist at the Government ’ s disposal and represented \"the principal method of implementing\" such a decision: it was only release that required \"a Ministerial decision\". The \"task entrusted to the Minister ... by the Act of 1 July 1964\" was said to be confined \"to determining the modalities for the execution of a sentence involving deprivation of liberty\", for example \"by suspending\", on such conditions as he determined, \"the detention entailed by such a penalty ... or by revoking a decision to grant conditional release taken by him\". Accordingly, so it was argued, \"by not deciding to release, the Minister does not decide to detain\".", "37. This is a controversial point in Belgian law. The Government based themselves to a large extent on a passage in the drafting history of the predecessor of the 1964 Act, the Act of 9 April 1930 (\"placing at the Government ’ s disposal is detention in an establishment designated by Royal Decree\", Pasinomie 1930, p. 88, column 2), but there are other passages to a different effect (\"placing at the Government ’ s disposal is independent of the detention which it may entail\": Chambre des représentants, 1927-1928 session, document no. 11). The Commission ’ s Delegate pointed out that the argument was inconsistent with the letter of section 25 of the 1964 Act (see paragraph 21 above: \"if necessary\") and, above all, with the recent administrative practice of the Ministry of Justice, since approximately two-thirds of the recidivists and habitual offenders who are placed at the Government ’ s disposal remain at liberty (see paragraph 24 above, paragraph 16 of the Commission ’ s report and the verbatim record of the hearings on the morning of 20 October 1981).", "Even when an offender is not set free after serving his initial sentence - something which did not occur in the instant case and is nowadays exception -, this is apparently the result of Ministerial instructions to the effect that he should be detained. At any rate, that such is the position emerges from paragraph 6 of a circular of 20 December 1930, which was supplied by the Government (\"Convicted persons who have been placed at the Government ’ s disposal after expiration of their sentence must be the subject of a notification to the Minister of Justice so that the question of their detention may be considered\"), and from the summary of the facts appearing in one of the Commission ’ s decisions (1 October 1975, application no. 6697t/74, R. V. v. Belgium, which was subsequently joined to Mr. Van Droogenbroeck ’ s first application, no. 6989/75). Besides, it is understandable that express instructions of this kind are needed whenever the transfer of an individual who has to leave another prison for Merksplas is to be effected.", "In any event, the Ministerial decisions of 11 January and 11 September 1975 revoking the conditional release granted to Mr. Van Droogenbroeck did order that he be \"detained\" (see paragraphs 12-13 above).", "38. Be that as it may, one must look beyond the appearances and the language used and concentrate on the realities of the situation (see notably, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35, p. 23, par. 44).", "This is a matter in which the Government enjoy a wide measure of discretion. Case-law and practice certainly confirm the meaning suggested by the text of section 25 of the 1964 Act (\"if necessary\") and the actual phrase \"placing at disposal\". In a judgment of 4 April 1978, the Belgian Court of Cassation observed that \"execution of the penalty\" in question \"is to a large extent a matter for the discretion\" of the Minister of Justice (Pasicrisie 1978, I, p. 861). One finds that far less fetters are imposed on Ministerial decisions by a court ’ s decision to apply the Social Protection Act than in the analogous area of the system of placing vagrants \"at the Government ’ s disposal\" (Act of 27 November 1891; see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 24-25, par. 37, and pp. 33-34, par. 61). In short, to adopt the language used by the Commission ’ s Delegate, \"the court decision does not order the detention\" of recidivists and habitual offenders: it \"authorises\" it.", "39. In these circumstances, the Court has to consider whether there was a sufficient connection, for the purposes of Article 5 (art. 5), between the last-mentioned decision and the deprivation of liberty at issue.", "This question must receive an affirmative reply since the Minister ’ s discretion is exercised within a framework set both by the Act and by the sentence pronounced by the \"competent court\". In this respect, the Court notes that, according to Belgian case-law, a judgment which sentences the person concerned to imprisonment and, by way of a supplementary or accessory penalty, places him at the Government ’ s disposal pursuant to section 22 or section 23 of the 1964 Act constitutes \"an inseparable whole\" (see paragraph 21 above; Court of Cassation, 17 June 1975, Pasicrisie 1975, I, p. 999). There are two components to the judgment: the first is a penalty involving deprivation of liberty which the offender must undergo for a period specified in the court decision, and the second is the placing of the offender at the Government ’ s disposal, the execution of which may take different forms ranging from remaining at liberty under supervision to detention.", "The choice between these forms of execution is a matter for the discretion of the Minister of Justice. Nevertheless he does not enjoy an unlimited power in making his decision: within the bounds laid down by the Act, he must assess the degree of danger presented by the individual concerned and the short- or medium-term prospects of reintegrating him into society.", "40. In fact, sight must not be lost of what the title and general structure of the 1964 Act, the drafting history and Belgian case-law show to be the objectives of this statute, that is to say not only \"to protect society against the danger presented by recidivists and habitual offenders\" but also \"to provide [the Government] with the possibility of endeavouring to reform [them]\" (Court of Cassation, 11 December 1933, Pasicrisie 1934, I, p. 99). Attempting to achieve these objectives requires that account be taken of circumstances that, by their nature, differ from case to case and are susceptible of modification. At the time of its decision, the court can, in the nature of things, do no more than estimate how the individual will develop in the future. The Minister of Justice, for his part, is able, through and with the assistance of his officials, to monitor that development more closely and at frequent intervals but this very fact means that with the passage of time the link between his decisions not to release or to re-detain and the initial judgment gradually becomes less strong. The link might eventually be broken if a position were reached in which those decisions were based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (art. 5) (see, notably, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 19, par. 43).", "Such a situation did not obtain in the present case. The Belgian authorities showed patience and trust towards Mr. Van Droogenbroeck: notwithstanding his conduct, they gave him several opportunities to mend his ways (see paragraphs 10, 11, 12 and 16 above). The manner in which they exercised their discretion respected the requirements of the Convention, which allows a measure of indeterminacy in sentencing and does not oblige the Contracting States to entrust to the courts the general supervision of the execution of sentences.", "41. Before the Commission (see paragraphs 27 in fine and 57 of the report), the applicant also contended that his detention was neither \"lawful\" nor effected \"in accordance with a procedure prescribed by law\", within the meaning of Article 5 par. 1 (art. 5-1), arguing that the Minister of Justice had appropriated to himself a power which section 25 of the 1964 Act conferred on the Government as a whole.", "On this point the Court, like the Commission, confines itself to observing that in Belgium - as in other Contracting States - it is traditional for the execution of sentences and other measures pronounced by criminal courts to fall within the province of the Minister of Justice. The Court sees no reason to doubt that that Minister was, by virtue of the general principles of Belgian public law concerning the attribution and the allocation of powers, an appropriate authority to act in Mr. van Droogenbroeck ’ s case.", "42. There has accordingly been no violation of Article 5 par. 1 (art. 5-1).", "II. THE ALLEGED VIOLATION OF ARTICLE 5 PAR. 4 (art. 5-4)", "43. The applicant also complained that when he was detained he was unable to take any proceedings satisfying the requirements of paragraph 4 of Article 5 (art. 5-4), which reads:", "\"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\"", "The Court has to examine this complaint although there was no breach of paragraph 1 (art. 5-1); on this point, it refers to its case-law, and in particular to its De Wilde, Ooms and Versyp judgment of 18 June 1971 (Series A no. 12, pp. 39-40, par. 73).", "A. The Government ’ s principal plea", "44. The Government argued in the first place that the proceedings conducted in 1970 and 1971 before the Bruges criminal court, the Ghent Court of Appeal and the Court of Cassation (see paragraph 9 above) met the requirements of Article 5 par. 4 (art. 5-4). They relied, inter alia, on the following passage in the above-mentioned judgment of 18 June 1971 (ibid., p. 40, par. 76):", "\"At first sight, the wording of Article 5 par. 4 (art. 5-4) might make one think that it guarantees the right of the detainee always to have supervised by a court the lawfulness of a previous decision which has deprived him of his liberty. ... Where [that] decision ... is one taken by an administrative body, there is no doubt that Article 5 par. 4 (art. 5-4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case the supervision required by Article 5 par. 4 (art. 5-4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after \"conviction by a competent court\" (Article 5 par. 1 (a) of the Convention) (art. 5-1-a).\" (see also the above-mentioned Engel and others judgment, Series A no. 22, p. 32, par. 77).", "45. However, as the Court has recently pointed out, this passage \"speaks only of ‘ the decision depriving a person of his liberty ’; it does not purport to deal with an ensuing period of detention in which new issues affecting the lawfulness of the detention might subsequently arise\" (see the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 22, par. 51). Besides, the De Wilde, Ooms and Versyp judgment had taken into account, under Article 5 par. 4 (art. 5-4), not only the initial decisions to detain the three applicants for vagrancy (Series A no. 12, pp. 40-43, par. 74-80) but also the procedure for the examination of their requests for release to the extent that they raised questions concerning the lawfulness of the continuation of their detention (ibid., pp. 43-44, par. 81-84).", "The \"detention\" of vagrants falls within sub-paragraph (e) of Article 5 par. 1 (art. 5-1-e) and the same applies to the \"detention\" of persons of unsound mind. However, \"the reasons initially warranting confinement of this kind may cease to exist\", a fact from which the Court drew a consequence of some importance:", "\"... it would be contrary to the object and purpose of Article 5 (art. 5) ... to interpret paragraph 4 ... as making this category of confinement immune from subsequent review of lawfulness merely provided that the initial decision issued from a court. The very nature of the deprivation of liberty under consideration would appear to require a review of lawfulness to be available at reasonable intervals.\" (see the Winterwerp judgment of 24 October 1979 and the above-mentioned judgment in the case of X v. the United Kingdom, Series A no. 33, p. 23, par. 55, and no. 46, pp. 22-23, par. 52)", "46. The argument of the respondent State ran as follows. The placing of recidivists and habitual offenders at the Government ’ s disposal presented none of the features that called for the application of these precedents. It amounted to a deprivation of liberty ordered by a court of law for a prescribed period. It would not be valid unless objective conditions, which were exhaustively listed in sections 22 and 23 of the 1964 Act and were, in principle, not susceptible of modification with the course of time, were met on the day when the penalty was imposed; its validity could not be brought into question by any subsequent event. The measure thus authorised by the legislature, utilised by the courts and implemented by the Minister of Justice in pursuance of his role of \"individualising this penalty\" was certainly based on the need to protect society against the activities of recidivists and habitual offenders, but neither Belgian law nor the Convention stipulated that detention could continue only if a danger to society would persist in the event of the individual ’ s release. The Commission ’ s opinion to the contrary confuses lawfulness with appropriateness, two radically different concepts, and would mean that every convicted criminal ought to be entitled to contest at some point of time the appropriateness of his detention, a position that did not obtain in any country.", "47. The Court recalls that the scope of the obligation undertaken by the Contracting States under paragraph 4 of Article 5 (art. 5-4) \"will not necessarily be the same in alle circumstances and as regards every category of deprivation of liberty\" (see the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 22, par. 52). It has not overlooked the fact that in the present case the detention at issue was covered only by sub-paragraph (a) of paragraph 1 (art. 5-1-a) and not by sub-paragraph (e) (art. 5-1-e), as in the Winterwerp and the De Wilde, Ooms and Versyp cases, or by both of those sub-paragraphs taken together, as in the case of X v. the United Kingdom (ibid., pp. 17-18, par. 39).", "Nevertheless, in this context the nature and purpose of a given type of \"detention\" are of more importance than is the place which it occupies in the structure of the Convention. The system of placing recidivists and habitual offenders at the Government ’ s disposal was established with specific objectives in mind. The position taken by the Court of Cassation is that the measure in question, although assimilated to a penalty, is designed not only to protect society but also to provide the executive with an opportunity of endeavouring to reform the individuals concerned (see paragraph 40 above). Except in the case of the commission of one indictable offence after another (section 22 of the Act), the court ordering the penalty must give reasons for its decision (section 24) and must, in particular, indicate \"in specific and precise terms\" why it considers that the accused, who in the eyes of the law is classified as a recidivist, manifests \"a persistent tendency to crime\", within the meaning of section 23 of the Act (Court of Cassation, 3 January 1962, Pasicrisie 1962, I, p. 526; see paragraph 9 above). In practice, the court ’ s decision provides the Minister of Justice \"with initial authority for detention for a period ... whose actual duration\" - \"from nothing to ten years\" - is striking for it relatively indeterminate character and will vary, in principle, according to the treatment required by the offender and the demands of the protection of society (paragraph 64 of the Commission ’ s report and final decision of 5 July 1979 on the admissibility of the application). The detention which may be entailed by a placing at the Government ’ s disposal occurs only \"if necessary\" (section 25 of the Act), words which the Court of Cassation has taken as synonymous with the phrase \"if the protection of society so requires\" ( 4 April 1978, Pasicrisie 1978, I, p. 861).", "As the Commission pointed out in paragraph 66 of its report, this system is fundamentally different from that - on which the Court does not have to express an opinion on this occasion - of the conditional release of prisoners sentenced by a court to a period of imprisonment imposed by the court as being appropriate to the case.", "The discretion enjoyed by the Minister of Justice under the 1964 Act implies that he should, throughout the period of application of the measure, direct his mind to the need to deprive or continue to deprive the person concerned of his liberty or to the absence or disappearance of such a need. \"Persistent tendency to crime\" and \"danger to society\" are essentially relative concepts and they involve monitoring the development of the offender ’ s personality and behaviour in order to adapt his situation to favourable or unfavourable changes in his circumstances. To a certain extent this was recognised both by the Belgian legislature when it made it possible for the Court of Appeal to grant release from the effects of the initial judgment (section 26 of the Act; see paragraph 23 above) and by the Government when they set up the Recidivists Board and associated \"medical officers specialised in psychology\" with the decisions taken by the Minister (see paragraphs 21 and 22 above).", "It must therefore be asked whether the very logic of the Belgian system does not require subsequent judicial review, at reasonable intervals, of the justification for the deprivation of liberty. If one were to consider such justification to have been established once and for all at the moment of conviction, this would amount, in a way, to a presumption that the detention would produce no useful result.", "48. Admittedly, the Belgian Court of Cassation, in a judgment of 4 April 1978, rejected this argument in favour of the theory of \"incorporated supervision\" (Pasicrisie 1978, I, p. 862; and see paragraph 44 above). However, for the purposes of Article 5 par. 4 (art. 5-4), the \"lawfulness\" of an \"arrest or detention\" has to be determined in the light not only of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 par. 1 (art. 5-1) (see, mutatis mutandis, the above-mentioned X v. the United Kingdom, judgment, Series A no. 46, p. 25, par. 57, to be read in conjunction with the above-mentioned Winterwerp judgment, Series A no. 33, p. 17, par. 39, and pp. 19-20, par. 45).", "Quite apart from conformity with domestic law, \"no detention that is arbitrary can ever be regarded as ‘ lawful ’\" for the purposes of paragraph 1 (art. 5-1) (see, amongst others, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 19, par. 43). This is the limit which the Minister of Justice must not exceed in the exercise of the wide discretion he enjoys in executing, or implementing, the initial court decision. This requirement is rendered all the more compelling by the seriousness of what is at stake, namely the possibility that the individual may be deprived of his liberty for up to ten years (section 23 of the Act) or even longer (section 22). This type of detention would no longer be in conformity with the Convention if it ceased to be based on reasons that are plausible and consistent with the objectives of the Social Protection Act; for the purposes of Article 5 (art. 5), it would become \"unlawful\". It follows that the individual concerned must be entitled to apply to a \"court\" having jurisdiction to determine whether or not there has been a violation of that kind; this possibility must be open to him during the course of his detention - once a certain period has elapsed since the detention began and thereafter at reasonable intervals (see, mutatis mutandis, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, pp. 22-23, par. 52) - and also at the moment of any return to detention after being at liberty.", "49. It is true that Article 5 par. 4 (art. 5-4) does not guarantee a right to judicial control of such scope as to empower the court, on all aspects of the case, including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which, under the Convention, are essential for the \"lawful\" detention of a person pursuant to Chapter VII of the 1964 Act; this is all the more so because, with the exception of the status of recidivist or habitual offender itself, the conditions initially justifying that detention may change to such an extent that they cease to exist (see, mutatis mutandis, the above-mentioned X v. the United Kingdom judgment, Series A nr. 46, p. 25, par. 57-58).", "In the instant case, the Convention required an appropriate procedure allowing a court to determine \"speedily\", on application by Mr. Van Droogenbroeck, whether the Minister of Justice was entitled to hold that detention was still consistent with the object and purpose of the 1964 Act (ibid.). For the purposes of Article 5 par. 4 (art. 5-4), this was not simply a question of expediency but one that bore on the very \"lawfulness\" of the deprivation of liberty at issue.", "B. The Government ’ s alternative plea", "50. The Government pleaded in the alternative that several remedies satisfying the requirements of Article 5 par. 4 (art. 5-4) would have been available to the applicant, namely:", "(i) instituting or causing to be instituted a prosecution for arbitrary detention;", "(ii) referring to the Ghent Court of Appeal any dispute between himself and the ministère public regarding the execution of the judgment of 20 October 1970;", "(iii) applying to that Court of Appeal for release from the effects of the measure imposed on him;", "(iv) applying to the President of the court of first instance in his capacity of juge des référés (judge hearing urgent applications);", "(v) bringing an action based directly on Article 5 par. 4 (art. 5-4).", "At the hearings of 20 October 1981 and in their supplementary memorial of February 1982 (paragraphs 44-45), the Government withdrew their claim that Mr. Van Droogenbroeck could, in addition, have lodged with the Conseil d ’ État a plea that the decision to detain him was a nullity.", "Neither does the Recidivists Board (see paragraphs 22 above) fall to be considered in connection with Article 5 par. 4 (art. 5-4). The Board is not a \"court\" within the meaning of the Convention, does not afford to detainees who appear before it the guarantees of judicial procedure determine the \"lawfulness\" of the \"detention\" of the individuals concerned or, a fortiori, to \"order\" the release of such of them whose deprivation of liberty it may consider \"unlawful\" (see, notably, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 23, par. 53, and p. 26, par. 61, and the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 76, par. 200).", "51. The object of the first remedy mentioned by the Government (see paragraphs 26 and 50 above) is a finding not only that the detention is unlawful but also that an offence has been committed, ex hypothesi in the case of detention of a recidivist or habitual offender, by a civil servant, a public official or the governor of a prison establishment (Article 147 of the Criminal Code and Article 609 of the Code of Criminal Procedure), in other words a finding of personal guilt. In addition, the \"court\" (if any) hearing the case - assuming that the proceedings were terminated \"speedily\" - could at most convict the offender; it could not itself \"order\" the victim ’ s release. Finally, the action might remain without effect if the accused sheltered behind the defence of \"orders from the competent authority\" (Article 70 of the Criminal Code), that is to say the Minister of Justice.", "52. As regards the second alleged remedy, the Ghent Court of Appeal did in fact hold, in 1897 and 1914, that disputes between the ministère public and a detainee concerning the execution of a penal sentence could be referred to the court which passed it (see paragraph 28 above; paragraphs 35, 39 and 71 in fine of the Commission ’ s report; paragraph 53 of the Government ’ s memorial). However, as the Government admitted in reply to a question from the Court, those old judgments have remained isolated decisions and have not been confirmed by later jurisprudence. In any event, they did not concern the system of social protection. They cannot therefore be relied on as establishing the existence of a remedy as required by Article 5 par. 4 (art. 5-4).", "53. The third remedy invoked, the application for release from the effects of the measure in question, provided for by section 26 of the 1964 Act (see paragraph 23 above), undoubtedly involves proceedings before a \"court\" and is accompanied by the guarantees of judicial procedure; however, when the person concerned is at liberty, what he will be seeking by means of such an application will be the complete cancellation of the sentence placing him at the Government ’ s disposal. It is therefore the measure in its entirety which will be reviewed and not just the question of detention, and the issue will be not so much the \"lawfulness\" of the detention as \"the expediency of early termination of the penalty\" imposed by a judgment which is no longer open te appeal (paragraph 33 of the Government ’ s supplementary memorial, and Court of Cassation, 15 February 1977 - paragraph 14 above). As the Commission (paragraph 74 in fine of the report) and the applicant (written observations of February 1982) pointed out, the Court of Appeal would not be in a position to \"make a distinction between the deprivation of liberty and such measures of guidance, assistance or supervision\" as might still be necessary, \"even if the current behaviour of the individual concerned were no longer in any way such as to justify in law continuation of the detention\". Moreover, the intervals of three, or even five, years that must elapse between two applications to the court appear too long to be regarded as \"reasonable\" for the purposes of Article 5 par. 4 (art. 5-4) (see paragraph 48 above). The Court notes incidentally that the examination of Mr. Van Droogenbroeck ’ s applications took seven months on the first occasion (12 May - 13 December 1976, see paragraph 14 above) and six months on the second (16 September 1979 - 18 March 1980, see paragraph 18 above), a fact that sits ill with the notion of \"speedily\".", "54. According to the Government, the juge des référés (see paragraph 29 above) represents \"the last bastion, if one were needed, of individual freedoms\" in the Belgian legal system. An application may be made to him when the matter is urgent and on the basis of the general jurisdiction conferred on him by Article 584 of the Judicial Code to give \"a provisional ruling ... in all matters except those which are excluded by law from the competence of the courts\".", "The juge des référés clearly has the characteristics of a \"court\" for the purposes of Article 5 par. 4 (art. 5-4). It would also appear to be within the very nature of his function to give a ruling \"speedily\" and, although he gives only a \"provisional\" decision, it is one that is \"immediately enforceable, notwithstanding any possible appeal\" (paragraph 56 of the Government ’ s memorial).", "The extent of his jurisdiction is expressed in wide terms and the drafting history of, and the official statement of reasons accompanying, the Judicial Code indicate that it includes all cases, civil, administrative and penal, within the competence of the courts, save those for which a special procedure is laid down under substantive or procedural criminal law. According to the information before the Court, the exception mentioned at the end of Article 584 relates to matters which are the prerogative of the executive, but would not prevent his finding that given acts on the part of such authorities were unlawful.", "The Court also recognises the particular importance to be attached to the case-law cited by the Government. It notes, in particular, that on 22 February, 20 May and 14 August 1980, the Brussels juge des référés \"enjoined\" the defendant, the Belgian State, to \"release forthwith\" persons whose detention he considered to be \"unlawful\" (Journal des Tribunaux, 1980, pp. 578-580). However, the orders in question post-date both the return to detention ( 21 December 1977 ) and, with the exception of the earliest of them, the release of Mr. Van Droogenbroeck ( 18 March 1980 ). Furthermore, whilst these orders concerned measures that deprived persons of their liberty, they did not relate to the 1964 Act: the first and third were in respect of the placing of non-Belgian subjects at the Government ’ s disposal under the legislation on the control of aliens; the second, against which the Belgian State has lodged an appeal, was in respect of the revocation of conditional release.", "The same does not apply to a more recent order [*] : on 16 November 1981, the Brussels juge des référés held that he had jurisdiction to hear an application inviting him to direct the release of an individual detained, pursuant to section 14 of the 1964 Act, in the psychiatric wing of a prison; he decided, however, that the circumstances of the case were such that a provisional order should not be made.", "On the other had, on 10 July 1981 the President of the Nivelles court of first instance held that he did not have jurisdiction to order the restitution of a wireless transmitter and aerial which had been seized on 3 June 1981 following a complaint by the Telegraph and Telephone Office [*]. This decision was confirmed by the Brussels Court of Appeal on 18 January 1982; it referred to both Belgian and French case-law, pre-dating the Judicial Code, and held that \"a civil court, and hence the juge des référés, has no jurisdiction over steps taken in the course of criminal investigations\" [*].", "In the light of the foregoing considerations, recourse to the juge des référés does not, in the opinion of the Court, satisfy the requirements of Article 5 par. 4 (art. 5-4) of the Convention in the present case for the following reasons.", "In the first place, this is a matter which at present turns on issues of Belgian domestic law that are unsettled (see, mutatis mutandis, the above-mentioned Deweer judgment, Series A no. 35, p. 28 in fine), with case-law of very recent date which is still being developed and is the subject of debate. The Government have challenged that case-law before the national courts; they did not rely on it before the Commission, either in connection with Article 26 (art. 26) of the Convention or in connection with the merits. The existence of a remedy must be sufficiently certain, failing which it will lack the accessibility and effectiveness which are required by Article 5 par. 4 (art. 5-4) (see, mutatis mutandis, the above-mentioned De Wilde, Ooms and Versyp judgment, Series A no. 12, p. 34, par. 62). At least at the time of the events in question, the possibility of applying to the juge des référés on a matter covered by the 1964 Act did not satisfy this condition.", "In the second place, since the decision by the juge des référés can contain only a \"provisional\" ruling, it is given without prejudice to the merits of the case (see Article 1039 of the Judicial Code and, mutatis mutandis, the above-mentioned Deweer judgment, Series A no. 35, p. 28, (a), in fine) and therefore does not have the authority of res judicata. Furthermore, the state of the case-law is not yet such as to establish with adequate clarity whether the review undertaken by the juge des référés meets, from the point of view of its scope, the requirements of Article 5 par. 4 (art. 5-4) regarding a decision on \"lawfulness\" (see paragraph 49 above). It is thus necessary to know which court is empowered to dispose finally of the matter \"on the merits\". The Court raised this question at the hearings and the Government replied that it would be the court of first instance. However, they did not produce any evidence in support of this statement or as to how, at the present time, the requirement of a \"speedy\" decision would be satisfied.", "55. Some of the preceding observations also apply to the fifth and last remedy mentioned by the Government.", "In a judgment of 28 February 1979, the Mons Court of Appeal held that, in the absence of any special provision and by virtue of Article 568 of the Judicial Code, it was for the court of first instance to hear applications challenging the validity of a deprivation of liberty that are based directly on Article 5 par. 4 (art. 5-4) of the Convention (Journal des Tribunaux, 1979, pp. 358-361). The case in question concerned the detention of an individual who, \"at the time when the facts occurred\", was \"in a serious state of mental derangement rendering him incapable of regulating his conduct\", this being a matter governed by Chapters II to V (section 7 to 20) of the 1964 Act. The Court of Cassation quashed that judgment on 14 February 1980, but for reasons unconnected with the admissibility of the application, which indeed it appears to have accepted implicitly (Revue de droit pénal et de criminologie, 1980, pp. 765-790, with submissions to the same effect by the ministère public).", "Again, in a judgment of 22 August 1974 (Military Court, Journal des Tribunaux, 1974, pp. 611-612) and a decision of 10 June 1976 (Chamber of field court-martial, ibid., 1976, pp. 646-647), it has been recognised, on the basis of Article 5 par. 4 (art. 5-4), that there is nothing to prevent a serviceman placed in detention on remand by the \"Commission judiciaire\" from applying for release to the court-martial or the Military Court, as the case may be. Those precedents stated that the powers of those courts were not derived from \"current domestic legislation\" but were a \"creation of case-law\", the origin whereof lay \"in an international treaty and in the principle that priority must be accorded to rules of international treaty law\"; accordingly, the scope of those powers did not go beyond the requirements of Article 5 par. 4 (art. 5-4) (review of lawfulness, but not of expediency).", "The Court has already had the occasion to draw attention to the importance and the consequences of incorporating the Convention into domestic law (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 91, par. 239) and of the direct applicability of the Convention (see the above-mentioned De Wilde, Ooms and Versyp judgment, Series A no. 12, p. 46, par. 95, and the Van Oosterwijck judgment of 6 November 1980, Series A no. 40, p. 16, par. 33). However, the respondent State \"is not aware of any decision on an application based directly on Article 5 par. 4 (art. 5-4) of the Convention, lodged by a recidivist placed at the Government ’ s disposal\" (paragraph 39 of the supplementary memorial). Of those applications it mentions, the oldest (1974/1976) concern the detention of servicemen on remand. The judgment delivered by the Mons Court of Appeal on 28 February 1979 did, in fact, relate to a form of deprivation of liberty covered by Chapters II to V - and not, as in the present case, Chapter VII - of the Social Protection Act. However, this was an isolated decision which has not been expressly confirmed by the Court of Cassation on the point at issue and which anyway post-dates Mr. Van Droogenbroeck ’ s return to detention. Here again, Belgian case-law appears to be in a process of evolution and the extent to which it will in the future affirm the existence of a judicial power of review is uncertain.", "56. The Court by no means excludes the possibility that, once the significant developments described above have come to their conclusion, a result that meets the requirements of Article 5 par. 4 (art. 5-4) might be achieved by combining an application to the juge des référés with an action \"on the merits\" based on Article 5 par. 4 (art. 5-4), or by exercising these two remedies concurrently or successively (see, mutatis mutandis, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 26, par. 60). Nevertheless, it is obliged to find that such a result was not attained in the instant case; there has accordingly been a violation of Article 5 par. 4 (art. 5-4).", "III. THE ALLEGED VIOLATION OF ARTICLE 4 (art. 4)", "57. Mr. Van Droogenbroeck also relied on Article 4 (art. 4), which reads:", "\"1. No one shall be held in slavery or servitude.", "2. No one shall be required to perform forced or compulsory labour.", "3. For the purpose of this Article (art. 4) the term \"forced or compulsory labour\" shall not include:", "(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 (art. 5) of [the] Convention or during conditional release from such detention;", "...\"", "58. The applicant ’ s first allegation was that by being placed at the Government ’ s disposal he was held in \"servitude\", contrary to paragraph 1, in that he was subjected \"to the whims of the administration\".", "The situation complained of did not violate Article 5 par. 1 (art. 5-1) (see paragraph 42 above). Accordingly, it could have been regarded as servitude only if it involved a \"particularly serious\" form of \"denial of freedom\" (see paragraphs 79-80 of the Commission ’ s report), which was not so in the present case.", "59. Mr. Van Droogenbroeck further complained that, contrary to paragraph 2 of Article 4 (art. 4-2), he was \"forced\" to work in order to save 12,000 BF. According to the Government, he was simply \"invited\" to work.", "The Court considers that it may leave this question of fact open. In practice, once release is conditional on the possession of savings from pay for work done in prison (see paragraphs 13, 16 and 17 above), one is not far away from an obligation in the strict sense of the term.", "However, it does not follow that the complaint is well-founded, for failure to observe Article 5 par. 4 (art. 5-4) (see paragraph 56 above) does not automatically mean that there has been failure to observe Article 4 (art. 4): the latter Article authorises, in paragraph 3 (a) (art. 4-3-a), work required to be done in the ordinary course of detention which has been imposed, as was here the case, in a manner that does not infringe paragraph 1 of Article 5 (art. 5-1). Moreover, the work which Mr. Van Droogenbroeck was asked to do did not go beyond what is \"ordinary\" in this context since it was calculated to assist him in reintegrating himself into society and had as its legal basis provisions which find an equivalent in certain other member States of the Council of Europe (see paragraph 25 above and, mutatis mutandis, the above-mentioned De Wilde, Oms and Versyp judgment, Series A no. 12, pp. 44-45, par. 89-90).", "60. Accordingly, the Belgian authorities did not fail to observe the requirements of Article 4 (art. 4).", "IV. THE APPLICATION OF ARTICLE 50 (art. 50)", "61. At the hearings, one of the applicant ’ s lawyers requested the Court, should it find a violation of the Convention, to afford his client just satisfaction under Article 50 (art. 50). He declared that he would leave the item of \"pecuniary and non-pecuniary damage\" to the Court ’ s discretion; as regards \"fees and expenses\", he listed these in a note which the Secretary to the Commission transmitted to the Registrar on 14 November 1981.", "The Government did not indicate their position on this matter.", "62. Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision and must be reserved; in the circumstances of the case, the Court considers that the question should be referred back to the Chamber in accordance with Rule 50 par. 4 of the Rules of Court." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant was not affiliated to the old-age pension system under the General Social Security Act. However, from 1 January 1994 he was affiliated to the unemployment insurance scheme in respect of periods worked in prison.", "9. On 8 February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office ( Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”).", "10. By a decision of 8 March 1999, the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. A list of the applicant’s insurance periods, running from October 1953 to February 1999, was appended to the decision. According to the list, the applicant had accumulated only 117 insurance months. The list shows lengthy periods during which no contributions were made, in particular from May 1963 to May 1964, from July 1965 to September 1968, from June 1969 to January 1974, from April 1974 to March 1984, from June 1984 to May 1986 and from February 1987 to April 1994. Between May 1994 and February 1999 a number of months, during which the applicant received unemployment benefits or emergency relief payments under the Unemployment Insurance Act, were counted as substitute periods.", "11. Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court ( Arbeits- und Sozialgericht ). He submitted that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights.", "12. On 4 April 2001 the Labour and Social Court dismissed the applicant’s claim. It confirmed that the applicant had not completed the required minimum number of insurance months. Referring to section 4(2) of the General Social Security Act, the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme. According to the Supreme Court’s established case-law (judgment no. 10 ObS 66/90 of 27 February 1990 and judgment no. 10 ObS 52/99s of 16 March 1999), their work, corresponding to a legal obligation, differed from work performed by employees on the basis of an employment contract. The difference in treatment under social security law did not disclose any appearance of discrimination.", "13. The applicant, now assisted by counsel, appealed. He argued in particular that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified. Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view, there was no reason not to affiliate them to the old-age pension system.", "14. On 24 October 2001 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal. It held that the Labour and Social Court had correctly applied the law. According to the Supreme Court’s established case-law, prisoners performing obligatory work were not to be treated as employees within the meaning of section 4(2) of the General Social Security Act and were therefore not affiliated to the compulsory social insurance scheme. The fact that, since the 1993 amendment to the Unemployment Insurance Act, prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old-age pension system. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners. In that connection, the Court of Appeal noted that it did not share the applicant’s doubts regarding the possible unconstitutionality of working prisoners’ non-affiliation to the old-age pension scheme.", "15. On 12 February 2002 the Supreme Court ( Oberster Gerichtshof ) dismissed an appeal on points of law by the applicant. Its judgment was served on the applicant on 6 May 2002.", "16. On 29 January 2004 the applicant completed his last prison term. Subsequently, he received unemployment benefits until 29 October 2004 and, upon their expiry, emergency relief payments ( Notstandshilfe ). According to his counsel’s submissions at the hearing, the applicant currently receives some 720 euros (EUR) per month (composed of EUR 15.77 per day plus EUR 167 per month in emergency relief payments and EUR 87 as an allowance towards his rent expenses)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The General Social Security Act", "17. The basis of the Austrian social security system is laid down in two laws: the General Social Security Act ( Allgemeines Sozialversicherungsgesetz ) and the Unemployment Insurance Act ( Arbeitslosenversicherungsgesetz ). Austrian social security law is based on the contributory principle.", "1. General rules", "18. The General Social Security Act encompasses health and accident insurance and old-age pension.", "19. Section 4 of the General Social Security Act regulates compulsory affiliation to the social security system. Pursuant to section 4(1)(1), employees are affiliated to the health and accident insurance scheme and to the old-age pension scheme. Section 4(2) defines an employee as any person working in consideration of remuneration in a relationship of personal and economic dependency. A further condition for compulsory affiliation is that the salary exceeds the marginal earnings threshold ( Geringfügigkeits-grenze ). At current levels, this amount is set at EUR 366.33 per month (section 5(2)).", "20. For an employee affiliated to the social security system, compulsory contributions have to be paid in part by the employer and in part by the employee.", "21. Section 17(1) provides that persons who are no longer covered by compulsory affiliation to the social security system may continue to pay voluntary contributions ( freiwillige Weiterversicherung ) if they have accumulated at least twelve insurance months out of the previous twenty ‑ four months within the system or at least three insurance months during each of the previous five years. Contributions can be reduced within certain limits if the economic circumstances of the person concerned justify such a reduction.", "22. Entitlement to an old-age pension arises when a person who has reached pensionable age has accumulated a sufficient number of insurance months, namely a minimum of 180 months or, in the case of an early retirement pension, 240 months. When calculating the number of insurance months, certain periods during which no gainful activity has been pursued, and thus no contributions were made, are nevertheless taken into account as substitute periods ( Ersatzzeiten ), for instance periods of child-rearing, military service or unemployment.", "23. The amount of an old-age pension depends mainly on the number of insurance months and the level of contributions paid. If the pension thus calculated does not reach a certain minimum level, which at current rates is EUR 783.99 per month for a single person and EUR 1,175.45 for a couple, a supplementary payment ( Ausgleichszulage ) is added in order to reach the minimum level.", "2. Position of prisoners", "24. During a prison term exceeding one month, entitlements to health, accident and pension insurance are suspended (section 78 of the General Social Security Act). The livelihood of prisoners is to be provided by the prison authorities. Likewise, their health care and care in case of an accident have to be provided for by the State in accordance with the Execution of Sentences Act (see paragraphs 41 and 44 below).", "25. As a matter of principle, working prisoners are not affiliated to the general social insurance system. According to the Supreme Court’s case-law, prisoners performing work are not treated as employees within the meaning of section 4(2) of the General Social Security Act.", "26. In a judgment of 27 February 1990 (no. 10 ObS 66/90), the Supreme Court examined an appeal by a former prisoner against a decision refusing him an invalidity pension on the ground that he had not accumulated the requisite number of insurance months. The Supreme Court ruled as follows:", "“According to the unanimous legal opinion of the competent Federal Ministry ( Collection of Publications in Social Insurance Matters, SVSlg 19.570), the Administrative Court (2 February 1972, 782/71 and 62/72, VwSlgNF 8162 = SVSlg 21.171) and the Vienna Court of Appeal (SVSlg 8.868, 21.172, 26.918, 30.930 and 32.418), this work, which is performed on the basis of a statutory rather than a voluntarily accepted duty to work, does not fall within the scope of the compulsory insurance scheme. Legal commentators also favour the interpretation that social insurance law, like labour law, requires that employment contracts be established voluntarily. Services rendered compulsorily under public law are not based on any service contract. Accordingly, work performed in the context of execution of a sentence cannot be subsumed within section 4(2) of the General Social Security Act (see Krejci-Marhold in Tomandl, SV-System 3. ErgLfg 46; MGA ASVG 49, ErgLfg 125; Krejci in Rummel, ABGB § 1151 Rz 16). In its judgment of 26 November 1971 (B 128/71, VfSlg 6582 = SVSlg 21.170), the Constitutional Court held that the decision of the legislature that work performed in the context of execution of a prison sentence did not fall within the social insurance scheme – because the requisite voluntary acceptance of a specific duty to work required in order to make out a contract of employment necessitating the payment of social insurance contributions was absent – did not infringe the principle of equal treatment.", "...", "The medical care due to prisoners in accordance with sections 66 et seq. of the Execution of Sentences Act and the benefits due to them, in accordance with sections 76 et seq. of that Act, after work-related accidents or illnesses within the meaning of section 76(2-4) of that Act, provide to this category of persons a statutory health and accident insurance scheme adapted to the prison context.", "The fact that prisoners also, in the context of their duty to work – other than, for example, in the context of an employer-employee relationship – are not covered by compulsory insurance under the statutory pension scheme is justifiable on grounds of the above-mentioned substantive differences in relationship and accordingly – as held by the Constitutional Court in its judgment – does not infringe the principle of equal treatment.", "Periods spent in pre-trial detention or serving a prison sentence or in preventive detention will, in accordance with the General Social Security Act, only be regarded as compulsory contributory periods if the custodial measures have been imposed either on political grounds – other than national socialist activity – or on religious grounds or on grounds of descent (section 500 and section 502(1)) or if an Austrian court (in accordance with the Compensation (Criminal Proceedings) Act) has given a binding decision in respect of the periods of detention recognising a claim for damages for the detention or conviction (section 506a). Such periods of time, regarded as valid compulsory contributory periods, are to be regarded in the first-mentioned case as not requiring the payment of contributions (section 502(1), third sentence); in the second-mentioned case, the Federal State shall pay the corresponding contributions to the relevant insurance institution (section 506a, second sentence). The purpose in both cases is to compensate for the disadvantages incurred under social insurance law that have arisen on socially acceptable grounds rather than deprivation of liberty on grounds of guilty conduct. An extension of these exceptional provisions to time served in detention on grounds of culpable conduct would be contrary to the principle of equal treatment. Recognition of such periods of time as substitute periods would also be contrary to the principle of equal treatment, for similar reasons. ... Prisoners to whom the above-mentioned exceptions under section 502(1) and section 506a do not apply shall not thereby accumulate, in the context of their duty to work, either contributory periods under the compulsory insurance scheme or substitute periods. They are not, however, prevented by the execution of the sentence from continuing to make contributions to the old-age pension insurance scheme under section 17 and accumulating contributory periods through the payment of voluntary contributions, whereby continued insurance, at the request of the contributor, as far as this appears justified on the basis of his or her economic situation, shall be permitted, in accordance with section 76a(4), at a lower contribution level than the one provided for in subsections (1-3) of that provision. In accordance with section 75(3) of the Execution of Sentences Act, prisoners are to be informed of the possibilities and advantages of, inter alia, optional continued insurance, and they are also permitted to use funds for the payment of contributions to the social insurance scheme which are not otherwise available to them during execution of their sentence. By virtue of the very flexible continued insurance (see section 17(7-8)) – particularly in respect of the beginning, end and determination of the contributory months – a prisoner can also accumulate further contributory months in order to make up the qualifying period and/or obtain a higher pensions increment. In this connection, the fact should not be overlooked that if one were to proceed on the basis that a prisoner is covered under the invalidity and old-age pension insurance scheme in respect of work done during the execution of the sentence, contributions would accordingly have to be made for the relevant periods. Other than under section 506a, according to which the Federal State has to pay the contributions corresponding to these contributory periods (as part of the criminal compensation scheme) to the relevant insurance institution, a State contribution would not be reasonable here. ... It would not be reasonable in such cases to expect the community of insured persons to accept that periods for which no contributions have been made should give rise to pension entitlements; prisoners would have to make such contributions, so the position would not be essentially different from optional insurance. Accordingly, if the legislature has decided that work done in the context of a prisoner’s duty to work cannot fundamentally give rise to compulsory contributory periods or substitute periods and, in the light of that, has made provision only for the above-mentioned exceptions, that decision is based on objective considerations.", "Accordingly, the Supreme Court has no doubts regarding the constitutionality of the statutory provisions applicable to the present case.”", "27. In a judgment of 16 March 1999 (no. 10 ObS 52/99s) the Supreme Court confirmed its previous judgment.", "28. For the purpose of calculating entitlement to an old-age pension, periods spent in prison are only taken into consideration in specific circumstances defined in the General Social Security Act. For instance, periods spent in prison for which compensation has been granted under the Compensation (Criminal Proceedings) Act ( Strafrechtliches Entschädigungsgesetz ) are counted as substitute periods.", "B. The Unemployment Insurance Act and relevant practice", "29. Employees are also affiliated to the unemployment insurance scheme. Compulsory contributions have to be paid in part by the employer and in part by the employee.", "30. Since the 1993 amendment to the Unemployment Insurance Act, prisoners who perform work in accordance with section 44(1) of the Execution of Sentences Act are affiliated to the unemployment insurance scheme pursuant to section 66a of the Unemployment Insurance Act. The employee’s part of the contributions is to be paid from the prisoner’s remuneration, if the remuneration exceeds the marginal earnings threshold, while the employer’s part is to be paid by the State, through the Ministry of Justice. The amendment came into force on 1 January 1994.", "31. As regards the amendment to the law, which formed part of a broader reform of the system of execution of sentences, the Parliamentary Judicial Committee ( Justizausschuß ) considered the affiliation of working prisoners to the unemployment insurance scheme to constitute a first step towards their full integration into the social security system. The Judicial Committee underlined that affiliating working prisoners to the unemployment insurance scheme was an important step towards increasing their chances of reintegration into society and limiting the prospect of recidivism (see p. 1253 of the annex to the minutes of the National Council ( Beilagen zu den Stenographischen Protokollen des Nationalrates, XVIII.GP).", "32. Entitlements under the Unemployment Insurance Act include access to training courses, job-search facilities, and payment of unemployment benefits (which, to a certain extent, are related to previous salary) for a certain period. Upon the expiry of unemployment benefits, the insured person is entitled to payment of emergency relief, which is designed to provide a minimum amount of subsistence. Emergency relief will continue to be paid after a person has reached pensionable age if no entitlement to a pension is granted.", "33. At the hearing, the Government provided the following information on the percentage of working prisoners and prisoners receiving unemployment benefits following their release.", "(a) In 2009, 12,460 persons were detained, of whom 8,903 (approximately 71%) were working and thus covered by unemployment insurance. Only 2,490 of these working prisoners actually paid contributions as they earned more than the required minimum level, and the others did not have to pay contributions.", "(b) Between 1 January and 30 June 2010, 9,477 persons were detained, of whom 6,791 (approximately 71%) were working and thus covered by unemployment insurance. Only 1,879 of these working prisoners actually paid contributions as they earned more than the required minimum level per month, and the others did not have to pay contributions.", "(c) Between 1 January 2009 and 30 June 2010, 2,086 persons qualified to receive unemployment benefits on account of the fact that they were included in the unemployment insurance scheme during their prison term; 1,898 of them applied for unemployment benefits upon their release, receiving an average benefit of EUR 21.09 per day (the general average being EUR 26.90 per day).", "C. Social assistance", "34. Social security is complemented by means-tested social assistance. The latter is designed to provide persons who do not have the necessary means (personal means or entitlements from old-age pension insurance or unemployment insurance) with a minimum income in order to meet their basic needs.", "35. On 1 September 2010 a new system, namely the means-tested minimum income scheme ( bedarfsorientierte Mindestsicherung ), came into force, replacing social assistance. It guarantees a minimum income to all persons who are willing and able to work or who are over 65 years old and do not have other means of subsistence. The amount is aligned with the minimum pension.", "D. The Execution of Sentences Act and relevant practice", "36. Pursuant to section 44(1) of the Execution of Sentences Act ( Strafvollzugsgesetz ), any prisoners who are fit to work are obliged to perform work assigned to them.", "37. Section 45(1) of the Act obliges the prison authorities to provide each prisoner with useful work. Section 45(2) specifies the different kinds of work which may be assigned to prisoners. They include, inter alia, tasks to be carried out within the prison, work for public authorities, work for charities, and work for private employers.", "38. Under section 46(3), the prison authorities may conclude contracts with private enterprises as regards prisoners’ work.", "39. Pursuant to section 51, the Federal State ( der Bund ) receives the proceeds of prisoners’ work.", "40. Prisoners who perform their work satisfactorily have a right to remuneration. The amounts of remuneration – per hour and type of work – are fixed in section 52(1). At current rates, they are as follows:", "(a) for light unskilled work EUR 5.00", "(b) for heavy unskilled work EUR 5.63", "(c) for manual work EUR 6.26", "(d) for skilled work EUR 6.88", "(e) for work performed by a skilled worker EUR 7.50", "41. The prison authorities have to provide for the livelihood of prisoners (section 31).", "42. Pursuant to section 32 of the Act, all prisoners have to contribute to the costs of the execution of their sentence unless they fall within the scope of certain exceptions. If the prisoner works, the contribution amounts to 75% of his or her remuneration. It is deducted automatically from the remuneration.", "43. Moreover, the employee’s part of the contribution to the unemployment insurance scheme is deducted from the prisoner’s remuneration. The remainder of the prisoner’s remuneration is used as follows: half of it is given to the prisoner as “pocket money” and the other half is kept as savings which the prisoner receives upon release (section 54).", "44. Health and accident care for prisoners is to be provided by the prison authorities pursuant to sections 66 et seq. and 76 et seq. of the Execution of Sentences Act. In essence, the entitlement to health and accident care corresponds to the entitlement under the General Social Security Act.", "45. If prisoners refuse the work assigned to them, this constitutes an offence under section 107(1)(7) of the Execution of Sentences Act. The penalties set out in section 109 range from a reprimand, or a reduction or withdrawal of certain rights (for instance, the right to use “pocket money”, to watch television, to send and receive correspondence or telephone calls), to a fine or house arrest (solitary confinement).", "46. According to the information provided by the Government, more than 70% of prisoners in Austria are currently working. Owing to the requirements of prison routine, the average working day is approximately six hours. However, time spent by a prisoner undergoing therapeutic or social treatment is regarded and remunerated as working time up to a maximum of five hours per week.", "III. RELEVANT INTERNATIONAL MATERIALS", "A. United Nations instruments", "1. The Forced Labour Convention (No. 29) of the International Labour Organization", "47. The Forced Labour Convention (No. 29) (“ILO Convention No. 29”) was adopted on 28 June 1930 by the General Conference of the International Labour Organization (ILO) and came into force on 1 May 1932. The relevant parts of Article 2 provide as follows:", "“1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.", "2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include:", "...", "(c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;", "...”", "The International Labour Conference (the annual meeting of member States of the ILO) at its ninety-sixth session in 2007, carried out a general survey concerning ILO Convention No. 29 based on a report of the Committee of Experts on the Application of Conventions and Recommendations (“the Committee”).", "The report dealt, inter alia, with the question of prison work for private enterprises. Noting that prison work for private employers was prohibited by Article 2 § 2 (c) of ILO Convention No. 29, the Committee found that there might be conditions in which, notwithstanding their captive circumstances, prisoners could be considered to have offered themselves voluntarily and without the menace of any penalty for work with a private employer. In this connection, apart from the formal written consent of the prisoner, conditions approximating a free labour relationship (in terms of wage levels, social security and occupational safety and health) were regarded to be the most reliable indicator of the voluntariness of labour. If such conditions were met, prison work for private enterprises was considered not to come under the definition of forced labour provided in Article 2 § 1 and, consequently, was considered to fall outside the scope of ILO Convention No. 29 (paragraphs 59-60 and 114-16 of the Committee’s report).", "2. The International Covenant on Civil and Political Rights", "48. The International Covenant on Civil and Political Rights was adopted on 16 December 1966 by United Nations General Assembly Resolution 2200A (XXI) and came into force on 23 March 1976. The relevant parts of Article 8 read as follows:", "“3. (a) No one shall be required to perform forced or compulsory labour;", "(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;", "(c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include:", "(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;", "...”", "B. Council of Europe materials", "1. The European Prison Rules", "49. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by the Rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates.", "(a) The 1987 European Prison Rules", "50. The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted by the Committee of Ministers of the Council of Europe on 12 February 1987.", "51. In Part I, the 1987 Rules contained a number of basic principles, including the following:", "“1. The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human dignity and are in conformity with these rules.", "...", "3. The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release.", "...”", "52. In Part IV, under the heading “Treatment objectives and regimes”, they contained the following rules:", "“64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.", "65. Every effort shall be made to ensure that the regimes of the institutions are designed and managed so as:", "(a) to ensure that the conditions of life are compatible with human dignity and acceptable standards in the community;", "(b) to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self-respect or sense of personal responsibility of prisoners;", "...”", "53. Also in Part IV, under the heading “Work”, they contained the following rules:", "“71.1. Prison work should be seen as a positive element in treatment, training and institutional management.", "71.2. Prisoners under sentence may be required to work, subject to their physical and mental fitness as determined by the medical officer.", "71.3. Sufficient work of a useful nature, or if appropriate other purposeful activities, shall be provided to keep prisoners actively employed for a normal working day.", "71.4. So far as possible the work provided shall be such as will maintain or increase the prisoner’s ability to earn a normal living after release.", "...", "72.1 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community so as to prepare prisoners for the conditions of normal occupational life. ...", "...", "74.1. Safety and health precautions for prisoners shall be similar to those that apply to workers outside.", "74.2. Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to workers outside.", "...", "76.1. There shall be a system of equitable remuneration of the work of prisoners.”", "(b) The 2006 European Prison Rules", "54. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”.", "55. Part I of the 2006 Rules contains the following basic principles, inter alia :", "“2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.", "3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.", "...", "5. Life in prison shall approximate as closely as possible the positive aspects of life in the community.", "6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.”", "The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems ) notes that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights, so that restrictions should be as few as possible. The commentary observes that Rule 5 underlines the positive aspects of normalisation, recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”.", "56. In Part II (“Conditions of imprisonment”), Rule 26 of the 2006 Rules deals with the various aspects of prison work. The relevant parts thereof read as follows:", "“26.1 Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment.", "26.2 Prison authorities shall strive to provide sufficient work of a useful nature.", "26.3 As far as possible, the work provided shall be such as will maintain or increase prisoners’ ability to earn a living after release.", "...", "26.7 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community in order to prepare prisoners for the conditions of normal occupational life.", "...", "26.9 Work for prisoners shall be provided by the prison authorities, either on their own or in cooperation with private contractors, inside or outside prison.", "26.10 In all instances there shall be equitable remuneration of the work of prisoners.", "...", "26.13 Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside.", "26.14 Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside.", "...", "26.17 As far as possible, prisoners who work shall be included in national social security systems.”", "The commentary on Rule 26 underlines the principle of normalisation of prison work in that provisions for health, safety, working hours and “even involvement in national social security systems” should reflect those for workers on the outside. In contrast, the 1987 Rules, although they contain the notion of normalisation of prison work, are silent on the question of prisoners’ inclusion in national social security systems.", "57. Part VIII of the 2006 Rules, entitled “Sentenced prisoners”, contains further rules regarding the objective of the regime for sentenced prisoners:", "“102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.", "102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.”", "58. It also deals with work as one aspect of the regime for sentenced prisoners. The relevant parts of Rule 105 provide as follows:", "“105.2 Sentenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner.", "105.3 If sentenced prisoners are required to work, the conditions of such work shall conform to the standards and controls which apply in the outside community.”", "2. The European Social Charter", "59. The European Social Charter, a Council of Europe treaty which was adopted in 1961 and revised in 1996, is also of some relevance in the present context. Article 1, dealing with the right to work, provides:", "“ With a view to ensuring the effective exercise of the right to work, the Parties under ­ take:", "1. to accept as one of their primary aims and respon ­ sibili ­ ties the achieve ­ ment and maintenance of as high and stable a level of employ ­ ment as possible, with a view to the attainment of full employment;", "2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon;", "...”", "The European Committee of Social Rights, the body responsible for monitoring States Parties’ compliance with the European Social Charter, has interpreted Article 1 § 2 to mean that prison work must be strictly regulated, in terms of pay, working hours and social security, particularly if prisoners are working for private firms. Prisoners may only be employed by private enterprises with their consent and in conditions as similar as possible to those normally associated with a private employment relationship (see Digest of the Case Law of the European Committee of Social Rights, 1 September 2008, p. 23).", "C. Comparative European law", "60. From the information available to the Court, including a survey on comparative law taking into account the national laws of forty out of the forty-seven member States of the Council of Europe, it would appear that", "(a) in twenty-five member States, prisoners are, at least in some circumstances, required to work, namely Azerbaijan, the Czech Republic, Estonia, Finland, Georgia, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Montenegro, Russia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom;", "(b) twenty-two member States give prisoners access to the old-age pension system, namely Albania, Andorra, Azerbaijan, Croatia, Cyprus, the Czech Republic, Finland, France, Ireland, Italy, Latvia, Lithuania, Norway, Portugal, Russia, Slovakia, Slovenia, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom. In some of these States, prisoners are not automatically covered by the insurance scheme (by way of compulsory contributions or tax deduction) but only have the possibility of paying voluntary contributions;", "(c) in twelve member States, prisoners are not covered by an old-age pension scheme, namely Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Georgia, Greece, Hungary, Malta, Montenegro, the Netherlands, Romania and Serbia;", "(d) in a third group of member States, affiliation to the social security system (including old-age pension) depends on the type of work performed, mainly on whether it is work for outside employers/remunerated work or not. This is the case in Germany, Luxembourg, Poland, Spain and Sweden. In Denmark, entitlement to an old-age pension is not related to work and payment of contributions. All persons of pensionable age are entitled to receive a basic pension; and", "(e) thirty-seven member States, that is, an absolute majority, provide prisoners, or at least certain categories of prisoners, with some access to social security protection, either by affiliating them to the general social security system or parts of it, or by providing them with a specific type of insurance or other protection.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "61. The applicant complained that the exemption of those engaged in prison work from affiliation to the old-age pension system was discriminatory. He relied in substance on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.", "62. Article 14 provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "63. Article 1 of Protocol No. 1 provides:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. The parties’ submissions", "1. The applicant", "64. The applicant referred to the principle that deprivation of liberty was a punishment in itself and that measures concerning a prisoner should not aggravate the suffering inherent in imprisonment. He argued that the exclusion of working prisoners from affiliation to the old-age pension system was contrary to that principle as it produced long-term effects going beyond the serving of the prison term.", "65. Furthermore, he asserted that working prisoners were in the same situation as other employees as regards the need to provide for their old age through social insurance. The domestic courts’ interpretation of section 4(2) of the General Social Security Act, namely that a distinction had to be drawn between voluntary work on the basis of a regular employment contract and prisoners’ work performed in fulfilment of their statutory obligation to work, was not a convincing reason for their exclusion from affiliation to the old-age pension system.", "66. The two situations were not fundamentally different in the applicant’s submission. In reality, the vast majority of people at liberty were also obliged to work, if not by law, by the necessity of earning a livelihood. Work, whether performed in or outside the prison context, always served a variety of purposes going beyond the financial aspect of remuneration. The types of work performed by prisoners were not fundamentally different from the types of work performed by other persons. In sum, the exclusion of working prisoners from affiliation to the old-age pension system was not based on any factual difference and therefore required justification.", "67. In the applicant’s view, no such justification existed. Firstly, the exclusion of working prisoners from affiliation to the old-age pension system did not serve any legitimate aim. In so far as the Government had referred to the strained financial situation of the social security system, mere budgetary considerations could not suffice to exclude a vulnerable group from social protection.", "68. Secondly, the applicant maintained that the Government had not shown objective and reasonable grounds for the difference in treatment. In particular, he contested the Government’s argument that working prisoners could not pay meaningful contributions and that counting periods of prison work as insurance periods would therefore grant prisoners an unjustified privilege as compared to regular employees who had to pay full social security contributions. Since, pursuant to section 51 of the Execution of Sentences Act, the State received the proceeds from the work of prisoners, it could reasonably be expected to pay social security contributions. The Government’s further argument as to whether or not periods of detention could justifiably be regarded as substitute periods was therefore of no relevance.", "69. In respect of the possibility for prisoners to make voluntary contributions to the pension scheme under section 17 of the General Social Security Act, the applicant argued that many prisoners did not fulfil the requirement of having accumulated a sufficient number of insurance months in previous periods. Moreover, the costs of voluntary insurance normally exceeded the limited financial resources of prisoners, as 75% of their modest remuneration for work was used as a contribution to the costs of serving their sentence, pursuant to section 32 of the Execution of Sentences Act.", "2. The Government", "70. The Government argued first and foremost that the non-affiliation of working prisoners to the old-age pension system was not discriminatory within the meaning of Article 14 of the Convention, as working prisoners were not in an analogous situation to regular employees.", "71. They gave a detailed description of the organisation of prison work in Austria, underlining that prison work served the primary purpose of reintegration and resocialisation. They noted that the relevant Council of Europe standards, as well as the latest report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in respect of Austria, acknowledged the importance of work for providing prisoners with an opportunity to preserve or improve their professional qualifications, giving them a purposeful activity and a structured daily routine to make their prison term more bearable and preparing them to take up regular employment after release.", "72. Prisoners were obliged to work pursuant to section 44(1) of the Execution of Sentences Act and prison authorities were under an obligation to provide them with suitable work in accordance with section 45(1) of that Act. On account of prison conditions, prisoners worked an average of six hours per day. Although this was not required by any provision of the Convention, prisoners received remuneration. The amounts were fixed by law and varied between EUR 5.00 and EUR 7.50 per hour according to the type of work performed. Periods spent by prisoners undergoing therapeutic or social treatment were regarded as working hours up to a maximum of five hours per week. This was clearly a beneficial form of treatment, underlining that resocialisation was the aim of prison work. The fact that part of the remuneration was used as a maintenance contribution was not at variance with the Convention.", "73. In sum, regarding its nature and aim, prison work differed considerably from regular employment. The former, corresponding to a statutory obligation, was geared to resocialisation and reintegration, while the latter was based on an employment contract and served the purpose of securing a person’s subsistence and professional advancement. Consequently, treating periods of prison work differently for the purpose of old-age pension insurance was not only justified but was required by the different factual situation. Counting periods for which no contributions were made as insurance periods would give working prisoners an unjustified advantage over regular employees.", "74. The legislature’s decision not to count periods during which a prisoner worked as qualifying or substitute periods was likewise based on objective reasons in the Government’s submission. Under the relevant provisions of the General Social Security Act, periods spent in prison were, inter alia, treated as qualifying periods if the person concerned had been granted compensation in respect of the detention under the Compensation (Criminal Proceedings) Act. In that case, the State had to pay the social security contributions in order to compensate the person concerned for disadvantages suffered under social security law as a result of the detention. To treat persons who were lawfully imprisoned in the same way would lead to equal treatment of unequal facts. To treat periods spent in detention as substitute periods, without payment of contributions, would also create imbalances in the social security system. Generally, the legislature considered that substitute periods were periods during which persons were prevented from making contributions on socially accepted grounds, such as school education, childbirth, unemployment, illness, military or alternative military service.", "75. Moreover, it was open to prisoners to make voluntary contributions to the old-age pension system under section 17 of the General Social Security Act. That Act also provided for the possibility of reducing the amount to be paid to a lower level than that of normal contributions. However, the Government stated that, for data protection reasons, they were unable to provide statistical data on the number and proportion of prisoners making use of this possibility.", "76. In the alternative, the Government argued that even assuming that working prisoners were in an analogous situation to regular employees, the difference in treatment was justified. In practice, even if prisoners were not excluded from affiliation to the old-age pension system, they would not be able to make meaningful contributions, as very often their remuneration, after deduction of the maintenance contribution, would not reach the threshold of EUR 366.33 of so-called “marginal earnings”, below which employees were in any case not covered by compulsory insurance under the General Social Security Act. Given the strained financial situation of the social security institutions, only persons who were able to make meaningful contributions could be included in the old-age pension system.", "77. Moreover, Contracting States enjoyed a wide margin of appreciation in the organisation of their social security systems. Even the 2006 European Prison Rules only recommended that “[a]s far as possible, prisoners who work shall be included in national social security systems”.", "78. The Government explained that since the 1993 amendment to the Unemployment Insurance Act, working prisoners had been affiliated to the unemployment insurance scheme. This amendment, which was part of a broader reform of the system of execution of sentences, had been preceded by years of intensive discussion. The decision to integrate prisoners into the unemployment insurance scheme but not the old-age pension scheme was motivated by the consideration that unemployment insurance, which encompassed not only financial benefits but access to training courses and job-finding services, was the most effective instrument for furthering prisoners’ reintegration after release. It had been seen as a first step towards including them in the social security system at large. However, as insurance under the General Social Security Act encompassed health and accident insurance plus affiliation to the old-age pension system, and prisoners’ health care and accident insurance were provided for by the prison authorities under the Execution of Sentences Act, their affiliation to the old-age pension scheme would have necessitated more complex amendments. Moreover, according to studies carried out at the time, it was considered to be the most cost-intensive factor.", "79. In addition, the Government pointed out that cases such as the present one with very lengthy prison terms were extremely rare. The majority of prisoners were in a position to accumulate a sufficient number of insurance months on account of the periods worked outside prison. In the present case, the applicant had received unemployment benefits and, since their expiry, had continued to receive emergency relief payments.", "80. Finally, the Austrian legislature’s decision thus far not to affiliate prisoners to the old-age pension scheme provided for in the General Social Security Act did not mean that they did not enjoy any social cover. Firstly, as stated above, they were covered by the unemployment insurance scheme. Consequently, they received unemployment benefits and, upon their expiry, emergency relief payments. As a last resort, the system of social assistance provided a means-tested minimum income for persons who could not cover their basic needs by any other means. In sum, the Austrian legal system provided for a differentiated and well-balanced solution taking into account the interests of society at large on the one hand and the interests of prisoners on the other hand.", "B. The Court’s assessment", "1. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "81. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the provisions in question. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and its Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 39-40, ECHR 2005 ‑ X; Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009; and, most recently, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010).", "82. According to the Court’s established case-law, the principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to welfare benefits. In particular, this Article does not create a right to acquire property. It places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Stec and Others (dec.), cited above, § 54; Andrejeva, cited above, § 77; and Carson and Others, cited above, § 64).", "83. Moreover, in cases such as the present one, concerning a complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question (see Gaygusuz v. Austria, 16 September 1996, § 40, Reports of Judgments and Decisions 1996 ‑ IV, and Willis v. United Kingdom, no. 36042/97, § 34, ECHR 2002 ‑ IV). Although Article 1 of Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see Stec and Others (dec.), cited above, § 55, and Andrejeva, cited above, § 79).", "84. In the present case, the applicant, having reached pensionable age, claimed an old-age pension which is due as of right on condition that a minimum number of insurance months have been accumulated. The Court considers that the social security legislation at issue creates a proprietary interest falling within the scope of Article 1 of Protocol No. 1. Applying the test whether the applicant would have had an enforceable right to receive a pension had it not been for the condition of entitlement he alleges to be discriminatory, the Court notes that it is undisputed that the applicant had worked for some twenty-eight years in prison without being affiliated to the old-age pension system. His request for an old-age pension was refused on the ground that he lacked the required minimum number of insurance months. It follows that, had he been affiliated to the old-age pension system for work performed in prison, he would have accumulated the necessary number of insurance months and would consequently have been entitled to a pension.", "85. The Government did not contest the applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Nevertheless, they argued that the applicant’s income as a prisoner was insufficient for him to pay contributions to the old-age pension system: following deduction of the maintenance contribution, his remuneration did not exceed the marginal earnings threshold below which any employee was exempted from compulsory insurance under the General Social Security Act. The Court considers that this argument, which is itself intrinsically linked to the applicant’s position as a prisoner, cannot invalidate the conclusion reached above.", "86. In conclusion, the Court finds that the applicant’s claims fall within the scope of Article 1 of Protocol No. 1 and the right to peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 applicable.", "2. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "(a) General principles", "87. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Carson and Others, cited above, § 61). Discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (ibid.; see also Andrejeva, cited above, § 81, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI).", "88. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background. Thus, for example, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, in the absence of an objective and reasonable justification, give rise to a breach of Article 14 (see Andrejeva, cited above, § 82; Stec and Others, cited above, § 51; and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV).", "89. Similarly, a wide margin of appreciation is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Andrejeva, cited above, § 83; Stec and Others, cited above, § 52; Carson and Others, cited above, § 61; and, in the specific context of prisoners’ rights, see also Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V).", "(b) Application of these principles to the present case", "90. The applicant complains of discrimination on account of his position as a prisoner. Although being a prisoner is not one of the grounds explicitly mentioned in Article 14, the list set out in this Article is not exhaustive and includes “any other status” (or “ toute autre situation ” in the French text) by which persons or groups of persons are distinguishable from each other. It has not been disputed in the present case that being a prisoner is an aspect of personal status for the purposes of Article 14.", "(i) Whether the applicant as a working prisoner was in a relevantly similar situation to regular employees", "91. The Court will first examine whether, in respect of affiliation to the old-age pension system under the General Social Security Act, the applicant as a working prisoner was in a relevantly similar situation to regular employees.", "92. The Government laid much emphasis on the differences in aim and nature between prison work and regular employment. They underlined that prison work served the primary aim of rehabilitation and pointed to its obligatory nature, arguing that these features set the applicant’s situation apart from that of ordinary employees. For his part, the applicant asserted that the obligatory nature of prison work was not decisive in the present context and that the type of work performed by prisoners did not differ in any way from the work performed by ordinary employees.", "93. The Court observes that prison work differs from the work performed by ordinary employees in many aspects. It serves the primary aim of rehabilitation and resocialisation. Working hours, remuneration and the use of part of that remuneration as a maintenance contribution reflect the particular prison context. Moreover, in the Austrian system, prisoners’ obligation to work is matched by the prison authorities’ obligation to provide them with appropriate work. Indeed, that situation is far removed from a regular employer-employee relationship. It could be argued that, consequently, the applicant as a working prisoner was not in a relevantly similar situation to ordinary employees.", "94. However, in the Court’s view, neither the fact that prison work is aimed at reintegration and resocialisation nor the obligatory nature of prison work is decisive in the present case. Furthermore, the Court considers that it is not decisive whether work is performed for the prison authorities, as in the applicant’s case, or for a private employer, although in the latter case there appears to be a stronger resemblance to a regular employment relationship.", "95. What is at issue in the present case is not so much the nature and aim of prison work itself but the need to provide for old age. The Court finds that in respect of this the applicant as a working prisoner was in a relevantly similar situation to ordinary employees. It therefore has to examine whether the difference in treatment in respect of affiliation to the old-age pension system under the General Social Security Act was justified. In respect of affiliation to the health and accident insurance scheme under the General Social Security Act, however, the Court would agree that the applicant as a working prisoner was in a different situation from ordinary employees since prisoners’ health and accident care is provided by the State pursuant to the Execution of Sentences Act. Equally, the Court would accept that, as regards the payment of his pension, a prisoner who has already reached pensionable age is in a different situation from a pensioner who is not imprisoned, as a prisoner’s livelihood is provided for by the prison authorities.", "(ii) Whether the difference in treatment pursued a legitimate aim", "96. Regarding the aim of the difference in treatment, the Government argued that working prisoners often did not have the financial means to pay social security contributions. Counting periods for which no, or at least, no meaningful contributions had been made as insurance periods giving rise to pension entitlements would create an imbalance between working prisoners and persons outside the prison context and would undermine the economic efficiency of the social security institutions, which were already facing a strained financial situation.", "97. In addition, a further aim, namely that of preserving the overall consistency within the social security system, appeared to be implied in the Government’s submissions. They argued that periods worked in prison could not be counted as qualifying or substitute periods as, according to the principles of Austrian social security law, such periods could only serve to compensate for periods during which no contributions were made by reason of a limited number of socially accepted activities or situations (for example, school education, childbirth, unemployment, illness, military or alternative military service).", "98. The Court accepts that the aims relied on by the Government, namely preserving the economic efficiency and overall consistency of the old-age pension system by excluding from benefits persons who have not made meaningful contributions, are legitimate ones.", "(iii) Whether the difference in treatment was proportionate", "99. The Court reiterates its well-established case-law that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. It is inconceivable that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 69-70, ECHR 2005 ‑ IX, and Dickson, cited above, § 67). Accordingly, a person retains his or her Convention rights on imprisonment, so that any restriction on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment or from an adequate link between the restriction and the circumstances of the prisoner in question (ibid., § 68).", "100. It is against this background that the Court will examine whether there was a reasonable relationship of proportionality between the non-affiliation of working prisoners to the old-age pension system and the legitimate aims set out above. The core of the applicant’s argument was that the Government had failed to provide a justification for the difference in treatment. He asserted that the main reason for prisoners’ inability to pay social security contributions under the General Social Security Act was the State’s own policy choice to withhold the major part of a prisoner’s remuneration as a maintenance contribution.", "101. The Court observes that the issue of working prisoners’ affiliation to the old-age pension system is closely linked to issues of penal policy, such as the perception of the general aims of imprisonment, the system of prison work, its remuneration and the priorities in using the proceeds from it, but also to issues of social policy reflected in the social security system as a whole. In short, it raises complex issues and choices of social strategy, which is an area in which States enjoy a wide margin of appreciation, whereas the Court will only intervene when it considers the legislature’s policy choice to be “manifestly without reasonable foundation” (see the case-law cited at paragraph 89 above).", "102. Given the complexity of the issue, the Court finds that it cannot look at the question of prisoners’ affiliation to the old-age pension system in isolation but has to see it as one feature in the overall system of prison work and prisoners’ social cover.", "103. As has been observed above, in the Austrian system prisoners are under an obligation to work, while the prison authorities are obliged to provide prisoners with appropriate work. The Court notes as a positive feature of that system that more than 70% of the prison population are currently working. Working hours are adapted to the prison context, including certain favourable measures such as counting time spent in therapeutic or social treatment as working time up to five hours per week. Moreover, prisoners receive remuneration for their work, of which 75% is, however, deducted as a maintenance contribution. The Court notes in the first place that collecting such a contribution is not in itself at variance with the Convention (see Puzinas v. Lithuania (dec.), no. 63767/00, 13 December 2005, concerning a complaint under Article 1 of Protocol No. 1 about the deduction of a 25% contribution from a prisoner’s salary). While the percentage in the present case appears rather high, it can nevertheless not be regarded as unreasonable taking into account the general costs of maintaining prisons and the fact that a prisoner’s entire livelihood, including health and accident insurance, is provided for by the State.", "104. Turning to prisoners’ social cover, the Court reiterates that when defining the breadth of the margin of appreciation, a relevant factor may be the existence or non-existence of common ground between the laws of the Contracting States (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998 ‑ II).", "105. The Court observes that although there is no European consensus on the matter, there is an evolving trend: in contrast to the 1987 European Prison Rules, the 2006 European Prison Rules not only contain the principle of normalisation of prison work but also explicitly recommend in Rule 26.17 that “[a]s far as possible prisoners who work shall be included in national social security systems” (see paragraph 56 above). However, the Court notes that the wording used in Rule 26.17 is cautious (“[a]s far as possible”) and refers to inclusion in national social security systems in general terms. Moreover, while an absolute majority of Council of Europe member States provide prisoners with some kind of social security, only a small majority affiliate prisoners to their old-age pension system, some of them, like Austria, only by giving them the possibility of making voluntary contributions. A minority do not include prisoners in the old-age pension system at all (see paragraph 60 above).", "106. It is thus only gradually that societies are moving towards the affiliation of prisoners to their social security systems in general and to their old-age pension systems in particular. Austrian law reflects this trend in that all prisoners are to be provided with health and accident care. In addition, working prisoners have been affiliated to the unemployment insurance scheme since 1 January 1994, following the 1993 amendment to the Unemployment Insurance Act which formed part of a broader reform of the system of execution of sentences. As the Government explained, the reason for that decision was that the legislature considered unemployment insurance to be the most efficient instrument for assisting prisoners’ reintegration upon release as, in addition to payment of unemployment benefits, it granted access to a whole range of training and job-search facilities. At the time of the 1993 reform, affiliation to the old-age pension system had been envisaged, but it has so far not been put in place as a result of the strained financial situation of the social security institutions.", "107. Turning to the applicant’s situation, the Court observes that he worked for lengthy periods in prison (see paragraph 10 above). It follows from the domestic authorities’ decisions in the present case that his periods without insurance cover occurred between the 1960s and the 1990s. The Court attaches weight to the fact that at the material time there was no common ground regarding the affiliation of working prisoners to domestic social security systems. This lack of common ground was reflected in the 1987 European Prison Rules, which did not contain any provision in this regard.", "108. The Government argued that very lengthy prison terms were rare and that, consequently, the majority of prisoners had the possibility of accumulating a sufficient number of insurance months for work performed outside prison and were therefore not deprived of an old-age pension. The Court does not consider it necessary to examine this argument in detail. It would rather attach weight to the fact that the applicant, although not entitled to an old-age pension, was not left without social cover. Following his release from prison, he received unemployment benefits and subsequently emergency relief payments, to which he was entitled on account of having been covered by the Unemployment Insurance Act as a working prisoner. According to his own submissions, the applicant currently still receives emergency relief payments complemented by social assistance in the form of a housing allowance. His monthly income currently amounts to approximately EUR 720 and thus almost reaches the level of a minimum pension, which is currently fixed at approximately EUR 780 for a single person.", "109. On the basis of the facts of the present case and all the information before it, the Court finds that the system of prison work and the social cover associated with it taken as whole is not “manifestly without reasonable foundation”. In a context of changing standards, a Contracting State cannot be reproached for having given priority to the insurance scheme, namely unemployment insurance, which it considered to be the most relevant for the reintegration of prisoners upon their release.", "110. While the respondent State is required to keep the issue raised by the present case under review, the Court finds that by not having affiliated working prisoners to the old-age pension system to date, it has not exceeded the margin of appreciation afforded to it in that matter.", "111. It follows that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION", "112. The applicant alleged that since he was not affiliated to the old-age pension system for work performed as a prisoner, such work could not be regarded as falling under the terms of Article 4 § 3 (a) and therefore violated Article 4 § 2 of the Convention.", "The relevant parts of Article 4 read as follows:", "“1. No one shall be held in slavery or servitude.", "2. No one shall be required to perform forced or compulsory labour.", "3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include:", "(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention;", "...”", "A. The parties’ submissions", "113. The applicant asserted that the prison work performed by him clearly amounted to “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention. He referred to ILO Convention No. 29, according to which “forced or compulsory labour” meant all “work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. In that connection, he pointed out that prisoners in Austria were obliged to work pursuant to section 44 of the Execution of Sentences Act and that it was a punishable offence under sections 107(1) and 109 of that Act if a prisoner refused to work.", "114. While conceding that the obligation to work as a prisoner could be justified by Article 4 § 3 (a), he submitted that, by today’s standards, prison work without affiliation to the old-age pension system could not be regarded as “work required to be done in the ordinary course of detention” within the meaning of that provision. Consequently, the fact that he had to work as a prisoner without being affiliated to the old-age pension system violated Article 4 of the Convention.", "115. For their part, the Government argued that prison work fell outside the scope of Article 4 as it was covered by the exception to the prohibition of forced or compulsory labour contained in Article 4 § 3 (a). Consequently, the non-affiliation of working prisoners to the old-age pension system did not raise an issue under Article 4 of the Convention.", "B. The Court’s assessment", "1. General principles", "116. The Court reiterates that Article 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 § 1 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Siliadin v. France, no. 73316/01, § 112, ECHR 2005 ‑ VII, and Rantsev v. Cyprus and Russia, no. 25965/04, § 283, ECHR 2010).", "117. Article 4 § 2 of the Convention prohibits “forced or compulsory labour”. In interpreting Article 4, the Court has in previous cases taken into account the relevant ILO Conventions, which are binding on almost all of the Council of Europe member States, including Austria, and especially the 1930 Forced Labour Convention (No. 29) (see Van der Mussele v. Belgium, 23 November 1983, § 32, Series A no. 70, and Siliadin, cited above, § 115).", "118. The Court noted in those cases that there was in fact a striking similarity, which was not accidental, between paragraph 3 of Article 4 of the Convention and paragraph 2 of Article 2 of ILO Convention No. 29. Paragraph 1 of the last-mentioned Article provides that “for the purposes” of the latter Convention, the term “forced or compulsory labour” means “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (see Siliadin, cited above, § 116). The Court regarded this definition as a starting-point for the interpretation of Article 4 of the Convention but noted that sight should not be lost of the Convention’s special features or of the fact that it was a living instrument to be read “in the light of the notions currently prevailing in democratic States” (see Van der Mussele, cited above, § 32).", "119. Article 4 § 3 (a) of the Convention indicates that the term “forced or compulsory” labour does not include “any work required to be done in the ordinary course of detention”.", "120. The Court has noted the specific structure of Article 4. Paragraph 3 is not intended to “limit” the exercise of the right guaranteed by paragraph 2, but to “delimit” the very content of that right, for it forms a whole with paragraph 2 and indicates what the term “forced or compulsory labour” is not to include (“ n’est pas consideré comme ‘travail forcé ou obligatoire’ ”). This being so, paragraph 3 serves as an aid to the interpretation of paragraph 2. The four subparagraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of general interest, social solidarity and what is normal in the ordinary course of affairs (see Van der Mussele, cited above, § 38; see also Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291 ‑ B, and Zarb Adami v. Malta, no. 17209/02, § 44, ECHR 2006 ‑ VIII).", "121. The Court’s case-law concerning prison work is scarce. In one of its early judgments the Court had to consider the work a recidivist prisoner was required to perform, his release being conditional on accumulating a certain amount of savings. While accepting that the work at issue was obligatory, the Court found no violation of Article 4 of the Convention on the ground that the requirements of Article 4 § 3 (a) were met. In the Court’s view, the work required “did not go beyond what is ‘ordinary’ in this context since it was calculated to assist him in reintegrating himself into society and had as its legal basis provisions which find an equivalent in certain other member States of the Council of Europe” (see Van Droogenbroeck v. Belgium, 24 June 1982, § 59, Series A no. 50, with reference to De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 89 ‑ 90, Series A no. 12).", "122. In respect of prisoners’ remuneration and social cover, the Court refers to the decision by the European Commission of Human Rights in Twenty-One Detained Persons v. Germany (nos. 3134/67, 3172/67 and 3188-3206/67, Commission decision of 6 April 1968, Collection 27, pp. 97-116), in which the applicants, relying on Article 4, complained that they were refused adequate remuneration for the work which they had to perform during their detention and that no contributions under the social security system were made for them by the prison authorities in respect of the work done. The Commission declared their complaint inadmissible as being manifestly ill ‑ founded. It noted that Article 4 did not contain any provision concerning the remuneration of prisoners for their work. Moreover, it referred to its consistent case-law, which had rejected as being inadmissible any applications by prisoners claiming higher payment for their work or claiming the right to be covered by social security systems.", "123. The Court had to examine a similar complaint from a somewhat different angle in Puzinas (cited above). The applicant complained under Articles 4 and 14 of the Convention and Article 1 of Protocol No. 1 that the domestic social security legislation was inadequate in that it did not permit prisoners to claim a pension or any other social benefits for prison work. The Court examined the complaint in the first place under Article 1 of Protocol No. 1, noting that it was undisputed that the applicant was not entitled to any pension or social benefits under the relevant domestic legislation. Finding that the applicant therefore had no possessions within the meaning of Article 1 of Protocol No. 1 regarding his future entitlement to or the amount of a pension, the Court rejected the complaint under this provision, as well as under the other provisions relied on, as being incompatible ratione materiae with the provisions of the Convention.", "2. Application to the present case", "124. The Court has to examine whether the applicant in the present case had to perform “forced or compulsory labour” contrary to Article 4 of the Convention. The Court notes that the applicant was under an obligation to work in accordance with section 44(1) of the Execution of Sentences Act. Refusal to perform the work assigned to him constituted an offence under section 107 of that Act, punishable under section 109 by penalties ranging from a reprimand to solitary confinement.", "125. Taking the definition of “forced or compulsory labour” contained in Article 2 § 1 of ILO Convention No. 29 as a starting-point for the interpretation of Article 4 § 2 of the Convention (see Van der Mussele, cited above, §§ 32-34), the Court has no doubt that the applicant was performing work for which he had not offered himself voluntarily under the menace of a penalty.", "126. While this does not appear to be in dispute between the parties, they differ in their view as to whether his work was covered by the terms of Article 4 § 3 (a) of the Convention, which exempts “work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention” from the term “forced or compulsory labour”. The Government answered the question in the affirmative, concluding that the work performed by the applicant as a prisoner did not fall within the scope of Article 4. The applicant for his part asserted that prison work without affiliation to the old-age pension system was not covered by the provision in question. Therefore, it constituted “forced or compulsory labour” in violation of Article 4 § 2.", "127. The Court has not yet had an opportunity to examine the question whether Article 4 requires Contracting States to include working prisoners in the social security system. It notes that the above-mentioned decision of the Commission in Twenty-One Detained Persons (cited above), which answered the question in the negative, dates from 1968. The Court will therefore have to assess whether the position adopted in that decision is still valid in respect of the work performed by the applicant as a prisoner without being affiliated to the old-age pension system.", "128. The wording of the Convention does not give any indication as regards the issue of working prisoners’ affiliation to the national social security system. However, in establishing what is to be considered “work required to be done in the ordinary course of detention”, the Court will have regard to the standards prevailing in member States (see Van Droogenbroeck, cited above, § 59).", "129. The applicant relies in essence on the Court’s doctrine that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, for instance, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002 ‑ VI; and Van der Mussele, cited above, § 32). He appears to be arguing that European standards have changed to such an extent that prison work without affiliation to the old-age pension system can no longer be regarded as “work required to be done in the ordinary course of detention”.", "130. The Court notes that the applicant worked for lengthy periods in prison, starting in the 1960s. At that time the Commission, in its decision in Twenty-One Detained Persons (cited above), held that Article 4 of the Convention did not require working prisoners to be affiliated to the social security system. The 1987 European Prison Rules remained silent on the issue of working prisoners’ affiliation to the social security system. The Court acknowledges that, subsequently, significant developments have taken place in the field of penal policy. These developments are reflected in the 2006 European Prison Rules, which contain the principle of normalisation of prison work as one of the basic principles. More specifically in the present context, Rule 26.17 of the 2006 Rules provides that “[a]s far as possible, prisoners who work shall be included in national social security systems”.", "131. However, having regard to the current practice of the member States, the Court does not find a basis for the interpretation of Article 4 advocated by the applicant. According to the information available to the Court, while an absolute majority of Contracting States affiliate prisoners in some way to the national social security system or provide them with some specific insurance scheme, only a small majority affiliate working prisoners to the old-age pension system. Austrian law reflects the development of European law in that all prisoners are provided with health and accident care and working prisoners are affiliated to the unemployment insurance scheme but not to the old-age pension system.", "132. In sum, it appears that there is not sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system. While Rule 26.17 of the 2006 European Prison Rules reflects an evolving trend, it cannot be translated into an obligation under Article 4 of the Convention. Consequently, the obligatory work performed by the applicant as a prisoner without being affiliated to the old-age pension system has to be regarded as “work required to be done in the ordinary course of detention” within the meaning of Article 4 § 3 (a).", "133. The Court concludes that the work performed by the applicant was covered by the terms of Article 4 § 3 (a) of the Convention, and did not therefore constitute “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention.", "134. Consequently, there has been no violation of Article 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4", "135. The Court notes that the applicant relied mainly on Article 4 alone, but also referred to Article 14, however without submitting any separate arguments under Article 14 taken in conjunction with Article 4.", "136. The Court finds that its examination under Article 4 alone covers all aspects of the issue raised by the applicant’s complaint. The Court therefore considers that there is no need to examine the applicant’s complaint under Article 14 of the Convention taken in conjunction with Article 4." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant was not affiliated to the old-age pension system under the General Social Security Act. However, from 1 January 1994 he was affiliated to the unemployment insurance scheme in respect of periods worked in prison.", "9. On 8 February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office ( Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”).", "10. By a decision of 8 March 1999, the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. A list of the applicant’s insurance periods, running from October 1953 to February 1999, was appended to the decision. According to the list, the applicant had accumulated only 117 insurance months. The list shows lengthy periods during which no contributions were made, in particular from May 1963 to May 1964, from July 1965 to September 1968, from June 1969 to January 1974, from April 1974 to March 1984, from June 1984 to May 1986 and from February 1987 to April 1994. Between May 1994 and February 1999 a number of months, during which the applicant received unemployment benefits or emergency relief payments under the Unemployment Insurance Act, were counted as substitute periods.", "11. Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court ( Arbeits- und Sozialgericht ). He submitted that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights.", "12. On 4 April 2001 the Labour and Social Court dismissed the applicant’s claim. It confirmed that the applicant had not completed the required minimum number of insurance months. Referring to section 4(2) of the General Social Security Act, the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme. According to the Supreme Court’s established case-law (judgment no. 10 ObS 66/90 of 27 February 1990 and judgment no. 10 ObS 52/99s of 16 March 1999), their work, corresponding to a legal obligation, differed from work performed by employees on the basis of an employment contract. The difference in treatment under social security law did not disclose any appearance of discrimination.", "13. The applicant, now assisted by counsel, appealed. He argued in particular that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified. Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view, there was no reason not to affiliate them to the old-age pension system.", "14. On 24 October 2001 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal. It held that the Labour and Social Court had correctly applied the law. According to the Supreme Court’s established case-law, prisoners performing obligatory work were not to be treated as employees within the meaning of section 4(2) of the General Social Security Act and were therefore not affiliated to the compulsory social insurance scheme. The fact that, since the 1993 amendment to the Unemployment Insurance Act, prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old-age pension system. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners. In that connection, the Court of Appeal noted that it did not share the applicant’s doubts regarding the possible unconstitutionality of working prisoners’ non-affiliation to the old-age pension scheme.", "15. On 12 February 2002 the Supreme Court ( Oberster Gerichtshof ) dismissed an appeal on points of law by the applicant. Its judgment was served on the applicant on 6 May 2002.", "16. On 29 January 2004 the applicant completed his last prison term. Subsequently, he received unemployment benefits until 29 October 2004 and, upon their expiry, emergency relief payments ( Notstandshilfe ). According to his counsel’s submissions at the hearing, the applicant currently receives some 720 euros (EUR) per month (composed of EUR 15.77 per day plus EUR 167 per month in emergency relief payments and EUR 87 as an allowance towards his rent expenses)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The General Social Security Act", "17. The basis of the Austrian social security system is laid down in two laws: the General Social Security Act ( Allgemeines Sozialversicherungsgesetz ) and the Unemployment Insurance Act ( Arbeitslosenversicherungsgesetz ). Austrian social security law is based on the contributory principle.", "1. General rules", "18. The General Social Security Act encompasses health and accident insurance and old-age pension.", "19. Section 4 of the General Social Security Act regulates compulsory affiliation to the social security system. Pursuant to section 4(1)(1), employees are affiliated to the health and accident insurance scheme and to the old-age pension scheme. Section 4(2) defines an employee as any person working in consideration of remuneration in a relationship of personal and economic dependency. A further condition for compulsory affiliation is that the salary exceeds the marginal earnings threshold ( Geringfügigkeits-grenze ). At current levels, this amount is set at EUR 366.33 per month (section 5(2)).", "20. For an employee affiliated to the social security system, compulsory contributions have to be paid in part by the employer and in part by the employee.", "21. Section 17(1) provides that persons who are no longer covered by compulsory affiliation to the social security system may continue to pay voluntary contributions ( freiwillige Weiterversicherung ) if they have accumulated at least twelve insurance months out of the previous twenty ‑ four months within the system or at least three insurance months during each of the previous five years. Contributions can be reduced within certain limits if the economic circumstances of the person concerned justify such a reduction.", "22. Entitlement to an old-age pension arises when a person who has reached pensionable age has accumulated a sufficient number of insurance months, namely a minimum of 180 months or, in the case of an early retirement pension, 240 months. When calculating the number of insurance months, certain periods during which no gainful activity has been pursued, and thus no contributions were made, are nevertheless taken into account as substitute periods ( Ersatzzeiten ), for instance periods of child-rearing, military service or unemployment.", "23. The amount of an old-age pension depends mainly on the number of insurance months and the level of contributions paid. If the pension thus calculated does not reach a certain minimum level, which at current rates is EUR 783.99 per month for a single person and EUR 1,175.45 for a couple, a supplementary payment ( Ausgleichszulage ) is added in order to reach the minimum level.", "2. Position of prisoners", "24. During a prison term exceeding one month, entitlements to health, accident and pension insurance are suspended (section 78 of the General Social Security Act). The livelihood of prisoners is to be provided by the prison authorities. Likewise, their health care and care in case of an accident have to be provided for by the State in accordance with the Execution of Sentences Act (see paragraphs 41 and 44 below).", "25. As a matter of principle, working prisoners are not affiliated to the general social insurance system. According to the Supreme Court’s case-law, prisoners performing work are not treated as employees within the meaning of section 4(2) of the General Social Security Act.", "26. In a judgment of 27 February 1990 (no. 10 ObS 66/90), the Supreme Court examined an appeal by a former prisoner against a decision refusing him an invalidity pension on the ground that he had not accumulated the requisite number of insurance months. The Supreme Court ruled as follows:", "“According to the unanimous legal opinion of the competent Federal Ministry ( Collection of Publications in Social Insurance Matters, SVSlg 19.570), the Administrative Court (2 February 1972, 782/71 and 62/72, VwSlgNF 8162 = SVSlg 21.171) and the Vienna Court of Appeal (SVSlg 8.868, 21.172, 26.918, 30.930 and 32.418), this work, which is performed on the basis of a statutory rather than a voluntarily accepted duty to work, does not fall within the scope of the compulsory insurance scheme. Legal commentators also favour the interpretation that social insurance law, like labour law, requires that employment contracts be established voluntarily. Services rendered compulsorily under public law are not based on any service contract. Accordingly, work performed in the context of execution of a sentence cannot be subsumed within section 4(2) of the General Social Security Act (see Krejci-Marhold in Tomandl, SV-System 3. ErgLfg 46; MGA ASVG 49, ErgLfg 125; Krejci in Rummel, ABGB § 1151 Rz 16). In its judgment of 26 November 1971 (B 128/71, VfSlg 6582 = SVSlg 21.170), the Constitutional Court held that the decision of the legislature that work performed in the context of execution of a prison sentence did not fall within the social insurance scheme – because the requisite voluntary acceptance of a specific duty to work required in order to make out a contract of employment necessitating the payment of social insurance contributions was absent – did not infringe the principle of equal treatment.", "...", "The medical care due to prisoners in accordance with sections 66 et seq. of the Execution of Sentences Act and the benefits due to them, in accordance with sections 76 et seq. of that Act, after work-related accidents or illnesses within the meaning of section 76(2-4) of that Act, provide to this category of persons a statutory health and accident insurance scheme adapted to the prison context.", "The fact that prisoners also, in the context of their duty to work – other than, for example, in the context of an employer-employee relationship – are not covered by compulsory insurance under the statutory pension scheme is justifiable on grounds of the above-mentioned substantive differences in relationship and accordingly – as held by the Constitutional Court in its judgment – does not infringe the principle of equal treatment.", "Periods spent in pre-trial detention or serving a prison sentence or in preventive detention will, in accordance with the General Social Security Act, only be regarded as compulsory contributory periods if the custodial measures have been imposed either on political grounds – other than national socialist activity – or on religious grounds or on grounds of descent (section 500 and section 502(1)) or if an Austrian court (in accordance with the Compensation (Criminal Proceedings) Act) has given a binding decision in respect of the periods of detention recognising a claim for damages for the detention or conviction (section 506a). Such periods of time, regarded as valid compulsory contributory periods, are to be regarded in the first-mentioned case as not requiring the payment of contributions (section 502(1), third sentence); in the second-mentioned case, the Federal State shall pay the corresponding contributions to the relevant insurance institution (section 506a, second sentence). The purpose in both cases is to compensate for the disadvantages incurred under social insurance law that have arisen on socially acceptable grounds rather than deprivation of liberty on grounds of guilty conduct. An extension of these exceptional provisions to time served in detention on grounds of culpable conduct would be contrary to the principle of equal treatment. Recognition of such periods of time as substitute periods would also be contrary to the principle of equal treatment, for similar reasons. ... Prisoners to whom the above-mentioned exceptions under section 502(1) and section 506a do not apply shall not thereby accumulate, in the context of their duty to work, either contributory periods under the compulsory insurance scheme or substitute periods. They are not, however, prevented by the execution of the sentence from continuing to make contributions to the old-age pension insurance scheme under section 17 and accumulating contributory periods through the payment of voluntary contributions, whereby continued insurance, at the request of the contributor, as far as this appears justified on the basis of his or her economic situation, shall be permitted, in accordance with section 76a(4), at a lower contribution level than the one provided for in subsections (1-3) of that provision. In accordance with section 75(3) of the Execution of Sentences Act, prisoners are to be informed of the possibilities and advantages of, inter alia, optional continued insurance, and they are also permitted to use funds for the payment of contributions to the social insurance scheme which are not otherwise available to them during execution of their sentence. By virtue of the very flexible continued insurance (see section 17(7-8)) – particularly in respect of the beginning, end and determination of the contributory months – a prisoner can also accumulate further contributory months in order to make up the qualifying period and/or obtain a higher pensions increment. In this connection, the fact should not be overlooked that if one were to proceed on the basis that a prisoner is covered under the invalidity and old-age pension insurance scheme in respect of work done during the execution of the sentence, contributions would accordingly have to be made for the relevant periods. Other than under section 506a, according to which the Federal State has to pay the contributions corresponding to these contributory periods (as part of the criminal compensation scheme) to the relevant insurance institution, a State contribution would not be reasonable here. ... It would not be reasonable in such cases to expect the community of insured persons to accept that periods for which no contributions have been made should give rise to pension entitlements; prisoners would have to make such contributions, so the position would not be essentially different from optional insurance. Accordingly, if the legislature has decided that work done in the context of a prisoner’s duty to work cannot fundamentally give rise to compulsory contributory periods or substitute periods and, in the light of that, has made provision only for the above-mentioned exceptions, that decision is based on objective considerations.", "Accordingly, the Supreme Court has no doubts regarding the constitutionality of the statutory provisions applicable to the present case.”", "27. In a judgment of 16 March 1999 (no. 10 ObS 52/99s) the Supreme Court confirmed its previous judgment.", "28. For the purpose of calculating entitlement to an old-age pension, periods spent in prison are only taken into consideration in specific circumstances defined in the General Social Security Act. For instance, periods spent in prison for which compensation has been granted under the Compensation (Criminal Proceedings) Act ( Strafrechtliches Entschädigungsgesetz ) are counted as substitute periods.", "B. The Unemployment Insurance Act and relevant practice", "29. Employees are also affiliated to the unemployment insurance scheme. Compulsory contributions have to be paid in part by the employer and in part by the employee.", "30. Since the 1993 amendment to the Unemployment Insurance Act, prisoners who perform work in accordance with section 44(1) of the Execution of Sentences Act are affiliated to the unemployment insurance scheme pursuant to section 66a of the Unemployment Insurance Act. The employee’s part of the contributions is to be paid from the prisoner’s remuneration, if the remuneration exceeds the marginal earnings threshold, while the employer’s part is to be paid by the State, through the Ministry of Justice. The amendment came into force on 1 January 1994.", "31. As regards the amendment to the law, which formed part of a broader reform of the system of execution of sentences, the Parliamentary Judicial Committee ( Justizausschuß ) considered the affiliation of working prisoners to the unemployment insurance scheme to constitute a first step towards their full integration into the social security system. The Judicial Committee underlined that affiliating working prisoners to the unemployment insurance scheme was an important step towards increasing their chances of reintegration into society and limiting the prospect of recidivism (see p. 1253 of the annex to the minutes of the National Council ( Beilagen zu den Stenographischen Protokollen des Nationalrates, XVIII.GP).", "32. Entitlements under the Unemployment Insurance Act include access to training courses, job-search facilities, and payment of unemployment benefits (which, to a certain extent, are related to previous salary) for a certain period. Upon the expiry of unemployment benefits, the insured person is entitled to payment of emergency relief, which is designed to provide a minimum amount of subsistence. Emergency relief will continue to be paid after a person has reached pensionable age if no entitlement to a pension is granted.", "33. At the hearing, the Government provided the following information on the percentage of working prisoners and prisoners receiving unemployment benefits following their release.", "(a) In 2009, 12,460 persons were detained, of whom 8,903 (approximately 71%) were working and thus covered by unemployment insurance. Only 2,490 of these working prisoners actually paid contributions as they earned more than the required minimum level, and the others did not have to pay contributions.", "(b) Between 1 January and 30 June 2010, 9,477 persons were detained, of whom 6,791 (approximately 71%) were working and thus covered by unemployment insurance. Only 1,879 of these working prisoners actually paid contributions as they earned more than the required minimum level per month, and the others did not have to pay contributions.", "(c) Between 1 January 2009 and 30 June 2010, 2,086 persons qualified to receive unemployment benefits on account of the fact that they were included in the unemployment insurance scheme during their prison term; 1,898 of them applied for unemployment benefits upon their release, receiving an average benefit of EUR 21.09 per day (the general average being EUR 26.90 per day).", "C. Social assistance", "34. Social security is complemented by means-tested social assistance. The latter is designed to provide persons who do not have the necessary means (personal means or entitlements from old-age pension insurance or unemployment insurance) with a minimum income in order to meet their basic needs.", "35. On 1 September 2010 a new system, namely the means-tested minimum income scheme ( bedarfsorientierte Mindestsicherung ), came into force, replacing social assistance. It guarantees a minimum income to all persons who are willing and able to work or who are over 65 years old and do not have other means of subsistence. The amount is aligned with the minimum pension.", "D. The Execution of Sentences Act and relevant practice", "36. Pursuant to section 44(1) of the Execution of Sentences Act ( Strafvollzugsgesetz ), any prisoners who are fit to work are obliged to perform work assigned to them.", "37. Section 45(1) of the Act obliges the prison authorities to provide each prisoner with useful work. Section 45(2) specifies the different kinds of work which may be assigned to prisoners. They include, inter alia, tasks to be carried out within the prison, work for public authorities, work for charities, and work for private employers.", "38. Under section 46(3), the prison authorities may conclude contracts with private enterprises as regards prisoners’ work.", "39. Pursuant to section 51, the Federal State ( der Bund ) receives the proceeds of prisoners’ work.", "40. Prisoners who perform their work satisfactorily have a right to remuneration. The amounts of remuneration – per hour and type of work – are fixed in section 52(1). At current rates, they are as follows:", "(a) for light unskilled work EUR 5.00", "(b) for heavy unskilled work EUR 5.63", "(c) for manual work EUR 6.26", "(d) for skilled work EUR 6.88", "(e) for work performed by a skilled worker EUR 7.50", "41. The prison authorities have to provide for the livelihood of prisoners (section 31).", "42. Pursuant to section 32 of the Act, all prisoners have to contribute to the costs of the execution of their sentence unless they fall within the scope of certain exceptions. If the prisoner works, the contribution amounts to 75% of his or her remuneration. It is deducted automatically from the remuneration.", "43. Moreover, the employee’s part of the contribution to the unemployment insurance scheme is deducted from the prisoner’s remuneration. The remainder of the prisoner’s remuneration is used as follows: half of it is given to the prisoner as “pocket money” and the other half is kept as savings which the prisoner receives upon release (section 54).", "44. Health and accident care for prisoners is to be provided by the prison authorities pursuant to sections 66 et seq. and 76 et seq. of the Execution of Sentences Act. In essence, the entitlement to health and accident care corresponds to the entitlement under the General Social Security Act.", "45. If prisoners refuse the work assigned to them, this constitutes an offence under section 107(1)(7) of the Execution of Sentences Act. The penalties set out in section 109 range from a reprimand, or a reduction or withdrawal of certain rights (for instance, the right to use “pocket money”, to watch television, to send and receive correspondence or telephone calls), to a fine or house arrest (solitary confinement).", "46. According to the information provided by the Government, more than 70% of prisoners in Austria are currently working. Owing to the requirements of prison routine, the average working day is approximately six hours. However, time spent by a prisoner undergoing therapeutic or social treatment is regarded and remunerated as working time up to a maximum of five hours per week.", "III. RELEVANT INTERNATIONAL MATERIALS", "A. United Nations instruments", "1. The Forced Labour Convention (No. 29) of the International Labour Organization", "47. The Forced Labour Convention (No. 29) (“ILO Convention No. 29”) was adopted on 28 June 1930 by the General Conference of the International Labour Organization (ILO) and came into force on 1 May 1932. The relevant parts of Article 2 provide as follows:", "“1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.", "2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include:", "...", "(c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;", "...”", "The International Labour Conference (the annual meeting of member States of the ILO) at its ninety-sixth session in 2007, carried out a general survey concerning ILO Convention No. 29 based on a report of the Committee of Experts on the Application of Conventions and Recommendations (“the Committee”).", "The report dealt, inter alia, with the question of prison work for private enterprises. Noting that prison work for private employers was prohibited by Article 2 § 2 (c) of ILO Convention No. 29, the Committee found that there might be conditions in which, notwithstanding their captive circumstances, prisoners could be considered to have offered themselves voluntarily and without the menace of any penalty for work with a private employer. In this connection, apart from the formal written consent of the prisoner, conditions approximating a free labour relationship (in terms of wage levels, social security and occupational safety and health) were regarded to be the most reliable indicator of the voluntariness of labour. If such conditions were met, prison work for private enterprises was considered not to come under the definition of forced labour provided in Article 2 § 1 and, consequently, was considered to fall outside the scope of ILO Convention No. 29 (paragraphs 59-60 and 114-16 of the Committee’s report).", "2. The International Covenant on Civil and Political Rights", "48. The International Covenant on Civil and Political Rights was adopted on 16 December 1966 by United Nations General Assembly Resolution 2200A (XXI) and came into force on 23 March 1976. The relevant parts of Article 8 read as follows:", "“3. (a) No one shall be required to perform forced or compulsory labour;", "(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;", "(c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include:", "(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;", "...”", "B. Council of Europe materials", "1. The European Prison Rules", "49. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by the Rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates.", "(a) The 1987 European Prison Rules", "50. The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted by the Committee of Ministers of the Council of Europe on 12 February 1987.", "51. In Part I, the 1987 Rules contained a number of basic principles, including the following:", "“1. The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human dignity and are in conformity with these rules.", "...", "3. The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release.", "...”", "52. In Part IV, under the heading “Treatment objectives and regimes”, they contained the following rules:", "“64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.", "65. Every effort shall be made to ensure that the regimes of the institutions are designed and managed so as:", "(a) to ensure that the conditions of life are compatible with human dignity and acceptable standards in the community;", "(b) to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self-respect or sense of personal responsibility of prisoners;", "...”", "53. Also in Part IV, under the heading “Work”, they contained the following rules:", "“71.1. Prison work should be seen as a positive element in treatment, training and institutional management.", "71.2. Prisoners under sentence may be required to work, subject to their physical and mental fitness as determined by the medical officer.", "71.3. Sufficient work of a useful nature, or if appropriate other purposeful activities, shall be provided to keep prisoners actively employed for a normal working day.", "71.4. So far as possible the work provided shall be such as will maintain or increase the prisoner’s ability to earn a normal living after release.", "...", "72.1 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community so as to prepare prisoners for the conditions of normal occupational life. ...", "...", "74.1. Safety and health precautions for prisoners shall be similar to those that apply to workers outside.", "74.2. Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to workers outside.", "...", "76.1. There shall be a system of equitable remuneration of the work of prisoners.”", "(b) The 2006 European Prison Rules", "54. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”.", "55. Part I of the 2006 Rules contains the following basic principles, inter alia :", "“2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.", "3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.", "...", "5. Life in prison shall approximate as closely as possible the positive aspects of life in the community.", "6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.”", "The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems ) notes that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights, so that restrictions should be as few as possible. The commentary observes that Rule 5 underlines the positive aspects of normalisation, recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”.", "56. In Part II (“Conditions of imprisonment”), Rule 26 of the 2006 Rules deals with the various aspects of prison work. The relevant parts thereof read as follows:", "“26.1 Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment.", "26.2 Prison authorities shall strive to provide sufficient work of a useful nature.", "26.3 As far as possible, the work provided shall be such as will maintain or increase prisoners’ ability to earn a living after release.", "...", "26.7 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community in order to prepare prisoners for the conditions of normal occupational life.", "...", "26.9 Work for prisoners shall be provided by the prison authorities, either on their own or in cooperation with private contractors, inside or outside prison.", "26.10 In all instances there shall be equitable remuneration of the work of prisoners.", "...", "26.13 Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside.", "26.14 Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside.", "...", "26.17 As far as possible, prisoners who work shall be included in national social security systems.”", "The commentary on Rule 26 underlines the principle of normalisation of prison work in that provisions for health, safety, working hours and “even involvement in national social security systems” should reflect those for workers on the outside. In contrast, the 1987 Rules, although they contain the notion of normalisation of prison work, are silent on the question of prisoners’ inclusion in national social security systems.", "57. Part VIII of the 2006 Rules, entitled “Sentenced prisoners”, contains further rules regarding the objective of the regime for sentenced prisoners:", "“102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.", "102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.”", "58. It also deals with work as one aspect of the regime for sentenced prisoners. The relevant parts of Rule 105 provide as follows:", "“105.2 Sentenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner.", "105.3 If sentenced prisoners are required to work, the conditions of such work shall conform to the standards and controls which apply in the outside community.”", "2. The European Social Charter", "59. The European Social Charter, a Council of Europe treaty which was adopted in 1961 and revised in 1996, is also of some relevance in the present context. Article 1, dealing with the right to work, provides:", "“ With a view to ensuring the effective exercise of the right to work, the Parties under ­ take:", "1. to accept as one of their primary aims and respon ­ sibili ­ ties the achieve ­ ment and maintenance of as high and stable a level of employ ­ ment as possible, with a view to the attainment of full employment;", "2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon;", "...”", "The European Committee of Social Rights, the body responsible for monitoring States Parties’ compliance with the European Social Charter, has interpreted Article 1 § 2 to mean that prison work must be strictly regulated, in terms of pay, working hours and social security, particularly if prisoners are working for private firms. Prisoners may only be employed by private enterprises with their consent and in conditions as similar as possible to those normally associated with a private employment relationship (see Digest of the Case Law of the European Committee of Social Rights, 1 September 2008, p. 23).", "C. Comparative European law", "60. From the information available to the Court, including a survey on comparative law taking into account the national laws of forty out of the forty-seven member States of the Council of Europe, it would appear that", "(a) in twenty-five member States, prisoners are, at least in some circumstances, required to work, namely Azerbaijan, the Czech Republic, Estonia, Finland, Georgia, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Montenegro, Russia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom;", "(b) twenty-two member States give prisoners access to the old-age pension system, namely Albania, Andorra, Azerbaijan, Croatia, Cyprus, the Czech Republic, Finland, France, Ireland, Italy, Latvia, Lithuania, Norway, Portugal, Russia, Slovakia, Slovenia, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom. In some of these States, prisoners are not automatically covered by the insurance scheme (by way of compulsory contributions or tax deduction) but only have the possibility of paying voluntary contributions;", "(c) in twelve member States, prisoners are not covered by an old-age pension scheme, namely Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Georgia, Greece, Hungary, Malta, Montenegro, the Netherlands, Romania and Serbia;", "(d) in a third group of member States, affiliation to the social security system (including old-age pension) depends on the type of work performed, mainly on whether it is work for outside employers/remunerated work or not. This is the case in Germany, Luxembourg, Poland, Spain and Sweden. In Denmark, entitlement to an old-age pension is not related to work and payment of contributions. All persons of pensionable age are entitled to receive a basic pension; and", "(e) thirty-seven member States, that is, an absolute majority, provide prisoners, or at least certain categories of prisoners, with some access to social security protection, either by affiliating them to the general social security system or parts of it, or by providing them with a specific type of insurance or other protection.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "61. The applicant complained that the exemption of those engaged in prison work from affiliation to the old-age pension system was discriminatory. He relied in substance on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.", "62. Article 14 provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "63. Article 1 of Protocol No. 1 provides:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. The parties’ submissions", "1. The applicant", "64. The applicant referred to the principle that deprivation of liberty was a punishment in itself and that measures concerning a prisoner should not aggravate the suffering inherent in imprisonment. He argued that the exclusion of working prisoners from affiliation to the old-age pension system was contrary to that principle as it produced long-term effects going beyond the serving of the prison term.", "65. Furthermore, he asserted that working prisoners were in the same situation as other employees as regards the need to provide for their old age through social insurance. The domestic courts’ interpretation of section 4(2) of the General Social Security Act, namely that a distinction had to be drawn between voluntary work on the basis of a regular employment contract and prisoners’ work performed in fulfilment of their statutory obligation to work, was not a convincing reason for their exclusion from affiliation to the old-age pension system.", "66. The two situations were not fundamentally different in the applicant’s submission. In reality, the vast majority of people at liberty were also obliged to work, if not by law, by the necessity of earning a livelihood. Work, whether performed in or outside the prison context, always served a variety of purposes going beyond the financial aspect of remuneration. The types of work performed by prisoners were not fundamentally different from the types of work performed by other persons. In sum, the exclusion of working prisoners from affiliation to the old-age pension system was not based on any factual difference and therefore required justification.", "67. In the applicant’s view, no such justification existed. Firstly, the exclusion of working prisoners from affiliation to the old-age pension system did not serve any legitimate aim. In so far as the Government had referred to the strained financial situation of the social security system, mere budgetary considerations could not suffice to exclude a vulnerable group from social protection.", "68. Secondly, the applicant maintained that the Government had not shown objective and reasonable grounds for the difference in treatment. In particular, he contested the Government’s argument that working prisoners could not pay meaningful contributions and that counting periods of prison work as insurance periods would therefore grant prisoners an unjustified privilege as compared to regular employees who had to pay full social security contributions. Since, pursuant to section 51 of the Execution of Sentences Act, the State received the proceeds from the work of prisoners, it could reasonably be expected to pay social security contributions. The Government’s further argument as to whether or not periods of detention could justifiably be regarded as substitute periods was therefore of no relevance.", "69. In respect of the possibility for prisoners to make voluntary contributions to the pension scheme under section 17 of the General Social Security Act, the applicant argued that many prisoners did not fulfil the requirement of having accumulated a sufficient number of insurance months in previous periods. Moreover, the costs of voluntary insurance normally exceeded the limited financial resources of prisoners, as 75% of their modest remuneration for work was used as a contribution to the costs of serving their sentence, pursuant to section 32 of the Execution of Sentences Act.", "2. The Government", "70. The Government argued first and foremost that the non-affiliation of working prisoners to the old-age pension system was not discriminatory within the meaning of Article 14 of the Convention, as working prisoners were not in an analogous situation to regular employees.", "71. They gave a detailed description of the organisation of prison work in Austria, underlining that prison work served the primary purpose of reintegration and resocialisation. They noted that the relevant Council of Europe standards, as well as the latest report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in respect of Austria, acknowledged the importance of work for providing prisoners with an opportunity to preserve or improve their professional qualifications, giving them a purposeful activity and a structured daily routine to make their prison term more bearable and preparing them to take up regular employment after release.", "72. Prisoners were obliged to work pursuant to section 44(1) of the Execution of Sentences Act and prison authorities were under an obligation to provide them with suitable work in accordance with section 45(1) of that Act. On account of prison conditions, prisoners worked an average of six hours per day. Although this was not required by any provision of the Convention, prisoners received remuneration. The amounts were fixed by law and varied between EUR 5.00 and EUR 7.50 per hour according to the type of work performed. Periods spent by prisoners undergoing therapeutic or social treatment were regarded as working hours up to a maximum of five hours per week. This was clearly a beneficial form of treatment, underlining that resocialisation was the aim of prison work. The fact that part of the remuneration was used as a maintenance contribution was not at variance with the Convention.", "73. In sum, regarding its nature and aim, prison work differed considerably from regular employment. The former, corresponding to a statutory obligation, was geared to resocialisation and reintegration, while the latter was based on an employment contract and served the purpose of securing a person’s subsistence and professional advancement. Consequently, treating periods of prison work differently for the purpose of old-age pension insurance was not only justified but was required by the different factual situation. Counting periods for which no contributions were made as insurance periods would give working prisoners an unjustified advantage over regular employees.", "74. The legislature’s decision not to count periods during which a prisoner worked as qualifying or substitute periods was likewise based on objective reasons in the Government’s submission. Under the relevant provisions of the General Social Security Act, periods spent in prison were, inter alia, treated as qualifying periods if the person concerned had been granted compensation in respect of the detention under the Compensation (Criminal Proceedings) Act. In that case, the State had to pay the social security contributions in order to compensate the person concerned for disadvantages suffered under social security law as a result of the detention. To treat persons who were lawfully imprisoned in the same way would lead to equal treatment of unequal facts. To treat periods spent in detention as substitute periods, without payment of contributions, would also create imbalances in the social security system. Generally, the legislature considered that substitute periods were periods during which persons were prevented from making contributions on socially accepted grounds, such as school education, childbirth, unemployment, illness, military or alternative military service.", "75. Moreover, it was open to prisoners to make voluntary contributions to the old-age pension system under section 17 of the General Social Security Act. That Act also provided for the possibility of reducing the amount to be paid to a lower level than that of normal contributions. However, the Government stated that, for data protection reasons, they were unable to provide statistical data on the number and proportion of prisoners making use of this possibility.", "76. In the alternative, the Government argued that even assuming that working prisoners were in an analogous situation to regular employees, the difference in treatment was justified. In practice, even if prisoners were not excluded from affiliation to the old-age pension system, they would not be able to make meaningful contributions, as very often their remuneration, after deduction of the maintenance contribution, would not reach the threshold of EUR 366.33 of so-called “marginal earnings”, below which employees were in any case not covered by compulsory insurance under the General Social Security Act. Given the strained financial situation of the social security institutions, only persons who were able to make meaningful contributions could be included in the old-age pension system.", "77. Moreover, Contracting States enjoyed a wide margin of appreciation in the organisation of their social security systems. Even the 2006 European Prison Rules only recommended that “[a]s far as possible, prisoners who work shall be included in national social security systems”.", "78. The Government explained that since the 1993 amendment to the Unemployment Insurance Act, working prisoners had been affiliated to the unemployment insurance scheme. This amendment, which was part of a broader reform of the system of execution of sentences, had been preceded by years of intensive discussion. The decision to integrate prisoners into the unemployment insurance scheme but not the old-age pension scheme was motivated by the consideration that unemployment insurance, which encompassed not only financial benefits but access to training courses and job-finding services, was the most effective instrument for furthering prisoners’ reintegration after release. It had been seen as a first step towards including them in the social security system at large. However, as insurance under the General Social Security Act encompassed health and accident insurance plus affiliation to the old-age pension system, and prisoners’ health care and accident insurance were provided for by the prison authorities under the Execution of Sentences Act, their affiliation to the old-age pension scheme would have necessitated more complex amendments. Moreover, according to studies carried out at the time, it was considered to be the most cost-intensive factor.", "79. In addition, the Government pointed out that cases such as the present one with very lengthy prison terms were extremely rare. The majority of prisoners were in a position to accumulate a sufficient number of insurance months on account of the periods worked outside prison. In the present case, the applicant had received unemployment benefits and, since their expiry, had continued to receive emergency relief payments.", "80. Finally, the Austrian legislature’s decision thus far not to affiliate prisoners to the old-age pension scheme provided for in the General Social Security Act did not mean that they did not enjoy any social cover. Firstly, as stated above, they were covered by the unemployment insurance scheme. Consequently, they received unemployment benefits and, upon their expiry, emergency relief payments. As a last resort, the system of social assistance provided a means-tested minimum income for persons who could not cover their basic needs by any other means. In sum, the Austrian legal system provided for a differentiated and well-balanced solution taking into account the interests of society at large on the one hand and the interests of prisoners on the other hand.", "B. The Court’s assessment", "1. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "81. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the provisions in question. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and its Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 39-40, ECHR 2005 ‑ X; Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009; and, most recently, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010).", "82. According to the Court’s established case-law, the principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to welfare benefits. In particular, this Article does not create a right to acquire property. It places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Stec and Others (dec.), cited above, § 54; Andrejeva, cited above, § 77; and Carson and Others, cited above, § 64).", "83. Moreover, in cases such as the present one, concerning a complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question (see Gaygusuz v. Austria, 16 September 1996, § 40, Reports of Judgments and Decisions 1996 ‑ IV, and Willis v. United Kingdom, no. 36042/97, § 34, ECHR 2002 ‑ IV). Although Article 1 of Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see Stec and Others (dec.), cited above, § 55, and Andrejeva, cited above, § 79).", "84. In the present case, the applicant, having reached pensionable age, claimed an old-age pension which is due as of right on condition that a minimum number of insurance months have been accumulated. The Court considers that the social security legislation at issue creates a proprietary interest falling within the scope of Article 1 of Protocol No. 1. Applying the test whether the applicant would have had an enforceable right to receive a pension had it not been for the condition of entitlement he alleges to be discriminatory, the Court notes that it is undisputed that the applicant had worked for some twenty-eight years in prison without being affiliated to the old-age pension system. His request for an old-age pension was refused on the ground that he lacked the required minimum number of insurance months. It follows that, had he been affiliated to the old-age pension system for work performed in prison, he would have accumulated the necessary number of insurance months and would consequently have been entitled to a pension.", "85. The Government did not contest the applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Nevertheless, they argued that the applicant’s income as a prisoner was insufficient for him to pay contributions to the old-age pension system: following deduction of the maintenance contribution, his remuneration did not exceed the marginal earnings threshold below which any employee was exempted from compulsory insurance under the General Social Security Act. The Court considers that this argument, which is itself intrinsically linked to the applicant’s position as a prisoner, cannot invalidate the conclusion reached above.", "86. In conclusion, the Court finds that the applicant’s claims fall within the scope of Article 1 of Protocol No. 1 and the right to peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 applicable.", "2. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "(a) General principles", "87. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Carson and Others, cited above, § 61). Discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (ibid.; see also Andrejeva, cited above, § 81, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI).", "88. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background. Thus, for example, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, in the absence of an objective and reasonable justification, give rise to a breach of Article 14 (see Andrejeva, cited above, § 82; Stec and Others, cited above, § 51; and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV).", "89. Similarly, a wide margin of appreciation is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Andrejeva, cited above, § 83; Stec and Others, cited above, § 52; Carson and Others, cited above, § 61; and, in the specific context of prisoners’ rights, see also Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V).", "(b) Application of these principles to the present case", "90. The applicant complains of discrimination on account of his position as a prisoner. Although being a prisoner is not one of the grounds explicitly mentioned in Article 14, the list set out in this Article is not exhaustive and includes “any other status” (or “ toute autre situation ” in the French text) by which persons or groups of persons are distinguishable from each other. It has not been disputed in the present case that being a prisoner is an aspect of personal status for the purposes of Article 14.", "(i) Whether the applicant as a working prisoner was in a relevantly similar situation to regular employees", "91. The Court will first examine whether, in respect of affiliation to the old-age pension system under the General Social Security Act, the applicant as a working prisoner was in a relevantly similar situation to regular employees.", "92. The Government laid much emphasis on the differences in aim and nature between prison work and regular employment. They underlined that prison work served the primary aim of rehabilitation and pointed to its obligatory nature, arguing that these features set the applicant’s situation apart from that of ordinary employees. For his part, the applicant asserted that the obligatory nature of prison work was not decisive in the present context and that the type of work performed by prisoners did not differ in any way from the work performed by ordinary employees.", "93. The Court observes that prison work differs from the work performed by ordinary employees in many aspects. It serves the primary aim of rehabilitation and resocialisation. Working hours, remuneration and the use of part of that remuneration as a maintenance contribution reflect the particular prison context. Moreover, in the Austrian system, prisoners’ obligation to work is matched by the prison authorities’ obligation to provide them with appropriate work. Indeed, that situation is far removed from a regular employer-employee relationship. It could be argued that, consequently, the applicant as a working prisoner was not in a relevantly similar situation to ordinary employees.", "94. However, in the Court’s view, neither the fact that prison work is aimed at reintegration and resocialisation nor the obligatory nature of prison work is decisive in the present case. Furthermore, the Court considers that it is not decisive whether work is performed for the prison authorities, as in the applicant’s case, or for a private employer, although in the latter case there appears to be a stronger resemblance to a regular employment relationship.", "95. What is at issue in the present case is not so much the nature and aim of prison work itself but the need to provide for old age. The Court finds that in respect of this the applicant as a working prisoner was in a relevantly similar situation to ordinary employees. It therefore has to examine whether the difference in treatment in respect of affiliation to the old-age pension system under the General Social Security Act was justified. In respect of affiliation to the health and accident insurance scheme under the General Social Security Act, however, the Court would agree that the applicant as a working prisoner was in a different situation from ordinary employees since prisoners’ health and accident care is provided by the State pursuant to the Execution of Sentences Act. Equally, the Court would accept that, as regards the payment of his pension, a prisoner who has already reached pensionable age is in a different situation from a pensioner who is not imprisoned, as a prisoner’s livelihood is provided for by the prison authorities.", "(ii) Whether the difference in treatment pursued a legitimate aim", "96. Regarding the aim of the difference in treatment, the Government argued that working prisoners often did not have the financial means to pay social security contributions. Counting periods for which no, or at least, no meaningful contributions had been made as insurance periods giving rise to pension entitlements would create an imbalance between working prisoners and persons outside the prison context and would undermine the economic efficiency of the social security institutions, which were already facing a strained financial situation.", "97. In addition, a further aim, namely that of preserving the overall consistency within the social security system, appeared to be implied in the Government’s submissions. They argued that periods worked in prison could not be counted as qualifying or substitute periods as, according to the principles of Austrian social security law, such periods could only serve to compensate for periods during which no contributions were made by reason of a limited number of socially accepted activities or situations (for example, school education, childbirth, unemployment, illness, military or alternative military service).", "98. The Court accepts that the aims relied on by the Government, namely preserving the economic efficiency and overall consistency of the old-age pension system by excluding from benefits persons who have not made meaningful contributions, are legitimate ones.", "(iii) Whether the difference in treatment was proportionate", "99. The Court reiterates its well-established case-law that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. It is inconceivable that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 69-70, ECHR 2005 ‑ IX, and Dickson, cited above, § 67). Accordingly, a person retains his or her Convention rights on imprisonment, so that any restriction on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment or from an adequate link between the restriction and the circumstances of the prisoner in question (ibid., § 68).", "100. It is against this background that the Court will examine whether there was a reasonable relationship of proportionality between the non-affiliation of working prisoners to the old-age pension system and the legitimate aims set out above. The core of the applicant’s argument was that the Government had failed to provide a justification for the difference in treatment. He asserted that the main reason for prisoners’ inability to pay social security contributions under the General Social Security Act was the State’s own policy choice to withhold the major part of a prisoner’s remuneration as a maintenance contribution.", "101. The Court observes that the issue of working prisoners’ affiliation to the old-age pension system is closely linked to issues of penal policy, such as the perception of the general aims of imprisonment, the system of prison work, its remuneration and the priorities in using the proceeds from it, but also to issues of social policy reflected in the social security system as a whole. In short, it raises complex issues and choices of social strategy, which is an area in which States enjoy a wide margin of appreciation, whereas the Court will only intervene when it considers the legislature’s policy choice to be “manifestly without reasonable foundation” (see the case-law cited at paragraph 89 above).", "102. Given the complexity of the issue, the Court finds that it cannot look at the question of prisoners’ affiliation to the old-age pension system in isolation but has to see it as one feature in the overall system of prison work and prisoners’ social cover.", "103. As has been observed above, in the Austrian system prisoners are under an obligation to work, while the prison authorities are obliged to provide prisoners with appropriate work. The Court notes as a positive feature of that system that more than 70% of the prison population are currently working. Working hours are adapted to the prison context, including certain favourable measures such as counting time spent in therapeutic or social treatment as working time up to five hours per week. Moreover, prisoners receive remuneration for their work, of which 75% is, however, deducted as a maintenance contribution. The Court notes in the first place that collecting such a contribution is not in itself at variance with the Convention (see Puzinas v. Lithuania (dec.), no. 63767/00, 13 December 2005, concerning a complaint under Article 1 of Protocol No. 1 about the deduction of a 25% contribution from a prisoner’s salary). While the percentage in the present case appears rather high, it can nevertheless not be regarded as unreasonable taking into account the general costs of maintaining prisons and the fact that a prisoner’s entire livelihood, including health and accident insurance, is provided for by the State.", "104. Turning to prisoners’ social cover, the Court reiterates that when defining the breadth of the margin of appreciation, a relevant factor may be the existence or non-existence of common ground between the laws of the Contracting States (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998 ‑ II).", "105. The Court observes that although there is no European consensus on the matter, there is an evolving trend: in contrast to the 1987 European Prison Rules, the 2006 European Prison Rules not only contain the principle of normalisation of prison work but also explicitly recommend in Rule 26.17 that “[a]s far as possible prisoners who work shall be included in national social security systems” (see paragraph 56 above). However, the Court notes that the wording used in Rule 26.17 is cautious (“[a]s far as possible”) and refers to inclusion in national social security systems in general terms. Moreover, while an absolute majority of Council of Europe member States provide prisoners with some kind of social security, only a small majority affiliate prisoners to their old-age pension system, some of them, like Austria, only by giving them the possibility of making voluntary contributions. A minority do not include prisoners in the old-age pension system at all (see paragraph 60 above).", "106. It is thus only gradually that societies are moving towards the affiliation of prisoners to their social security systems in general and to their old-age pension systems in particular. Austrian law reflects this trend in that all prisoners are to be provided with health and accident care. In addition, working prisoners have been affiliated to the unemployment insurance scheme since 1 January 1994, following the 1993 amendment to the Unemployment Insurance Act which formed part of a broader reform of the system of execution of sentences. As the Government explained, the reason for that decision was that the legislature considered unemployment insurance to be the most efficient instrument for assisting prisoners’ reintegration upon release as, in addition to payment of unemployment benefits, it granted access to a whole range of training and job-search facilities. At the time of the 1993 reform, affiliation to the old-age pension system had been envisaged, but it has so far not been put in place as a result of the strained financial situation of the social security institutions.", "107. Turning to the applicant’s situation, the Court observes that he worked for lengthy periods in prison (see paragraph 10 above). It follows from the domestic authorities’ decisions in the present case that his periods without insurance cover occurred between the 1960s and the 1990s. The Court attaches weight to the fact that at the material time there was no common ground regarding the affiliation of working prisoners to domestic social security systems. This lack of common ground was reflected in the 1987 European Prison Rules, which did not contain any provision in this regard.", "108. The Government argued that very lengthy prison terms were rare and that, consequently, the majority of prisoners had the possibility of accumulating a sufficient number of insurance months for work performed outside prison and were therefore not deprived of an old-age pension. The Court does not consider it necessary to examine this argument in detail. It would rather attach weight to the fact that the applicant, although not entitled to an old-age pension, was not left without social cover. Following his release from prison, he received unemployment benefits and subsequently emergency relief payments, to which he was entitled on account of having been covered by the Unemployment Insurance Act as a working prisoner. According to his own submissions, the applicant currently still receives emergency relief payments complemented by social assistance in the form of a housing allowance. His monthly income currently amounts to approximately EUR 720 and thus almost reaches the level of a minimum pension, which is currently fixed at approximately EUR 780 for a single person.", "109. On the basis of the facts of the present case and all the information before it, the Court finds that the system of prison work and the social cover associated with it taken as whole is not “manifestly without reasonable foundation”. In a context of changing standards, a Contracting State cannot be reproached for having given priority to the insurance scheme, namely unemployment insurance, which it considered to be the most relevant for the reintegration of prisoners upon their release.", "110. While the respondent State is required to keep the issue raised by the present case under review, the Court finds that by not having affiliated working prisoners to the old-age pension system to date, it has not exceeded the margin of appreciation afforded to it in that matter.", "111. It follows that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION", "112. The applicant alleged that since he was not affiliated to the old-age pension system for work performed as a prisoner, such work could not be regarded as falling under the terms of Article 4 § 3 (a) and therefore violated Article 4 § 2 of the Convention.", "The relevant parts of Article 4 read as follows:", "“1. No one shall be held in slavery or servitude.", "2. No one shall be required to perform forced or compulsory labour.", "3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include:", "(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention;", "...”", "A. The parties’ submissions", "113. The applicant asserted that the prison work performed by him clearly amounted to “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention. He referred to ILO Convention No. 29, according to which “forced or compulsory labour” meant all “work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. In that connection, he pointed out that prisoners in Austria were obliged to work pursuant to section 44 of the Execution of Sentences Act and that it was a punishable offence under sections 107(1) and 109 of that Act if a prisoner refused to work.", "114. While conceding that the obligation to work as a prisoner could be justified by Article 4 § 3 (a), he submitted that, by today’s standards, prison work without affiliation to the old-age pension system could not be regarded as “work required to be done in the ordinary course of detention” within the meaning of that provision. Consequently, the fact that he had to work as a prisoner without being affiliated to the old-age pension system violated Article 4 of the Convention.", "115. For their part, the Government argued that prison work fell outside the scope of Article 4 as it was covered by the exception to the prohibition of forced or compulsory labour contained in Article 4 § 3 (a). Consequently, the non-affiliation of working prisoners to the old-age pension system did not raise an issue under Article 4 of the Convention.", "B. The Court’s assessment", "1. General principles", "116. The Court reiterates that Article 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 § 1 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Siliadin v. France, no. 73316/01, § 112, ECHR 2005 ‑ VII, and Rantsev v. Cyprus and Russia, no. 25965/04, § 283, ECHR 2010).", "117. Article 4 § 2 of the Convention prohibits “forced or compulsory labour”. In interpreting Article 4, the Court has in previous cases taken into account the relevant ILO Conventions, which are binding on almost all of the Council of Europe member States, including Austria, and especially the 1930 Forced Labour Convention (No. 29) (see Van der Mussele v. Belgium, 23 November 1983, § 32, Series A no. 70, and Siliadin, cited above, § 115).", "118. The Court noted in those cases that there was in fact a striking similarity, which was not accidental, between paragraph 3 of Article 4 of the Convention and paragraph 2 of Article 2 of ILO Convention No. 29. Paragraph 1 of the last-mentioned Article provides that “for the purposes” of the latter Convention, the term “forced or compulsory labour” means “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (see Siliadin, cited above, § 116). The Court regarded this definition as a starting-point for the interpretation of Article 4 of the Convention but noted that sight should not be lost of the Convention’s special features or of the fact that it was a living instrument to be read “in the light of the notions currently prevailing in democratic States” (see Van der Mussele, cited above, § 32).", "119. Article 4 § 3 (a) of the Convention indicates that the term “forced or compulsory” labour does not include “any work required to be done in the ordinary course of detention”.", "120. The Court has noted the specific structure of Article 4. Paragraph 3 is not intended to “limit” the exercise of the right guaranteed by paragraph 2, but to “delimit” the very content of that right, for it forms a whole with paragraph 2 and indicates what the term “forced or compulsory labour” is not to include (“ n’est pas consideré comme ‘travail forcé ou obligatoire’ ”). This being so, paragraph 3 serves as an aid to the interpretation of paragraph 2. The four subparagraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of general interest, social solidarity and what is normal in the ordinary course of affairs (see Van der Mussele, cited above, § 38; see also Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291 ‑ B, and Zarb Adami v. Malta, no. 17209/02, § 44, ECHR 2006 ‑ VIII).", "121. The Court’s case-law concerning prison work is scarce. In one of its early judgments the Court had to consider the work a recidivist prisoner was required to perform, his release being conditional on accumulating a certain amount of savings. While accepting that the work at issue was obligatory, the Court found no violation of Article 4 of the Convention on the ground that the requirements of Article 4 § 3 (a) were met. In the Court’s view, the work required “did not go beyond what is ‘ordinary’ in this context since it was calculated to assist him in reintegrating himself into society and had as its legal basis provisions which find an equivalent in certain other member States of the Council of Europe” (see Van Droogenbroeck v. Belgium, 24 June 1982, § 59, Series A no. 50, with reference to De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 89 ‑ 90, Series A no. 12).", "122. In respect of prisoners’ remuneration and social cover, the Court refers to the decision by the European Commission of Human Rights in Twenty-One Detained Persons v. Germany (nos. 3134/67, 3172/67 and 3188-3206/67, Commission decision of 6 April 1968, Collection 27, pp. 97-116), in which the applicants, relying on Article 4, complained that they were refused adequate remuneration for the work which they had to perform during their detention and that no contributions under the social security system were made for them by the prison authorities in respect of the work done. The Commission declared their complaint inadmissible as being manifestly ill ‑ founded. It noted that Article 4 did not contain any provision concerning the remuneration of prisoners for their work. Moreover, it referred to its consistent case-law, which had rejected as being inadmissible any applications by prisoners claiming higher payment for their work or claiming the right to be covered by social security systems.", "123. The Court had to examine a similar complaint from a somewhat different angle in Puzinas (cited above). The applicant complained under Articles 4 and 14 of the Convention and Article 1 of Protocol No. 1 that the domestic social security legislation was inadequate in that it did not permit prisoners to claim a pension or any other social benefits for prison work. The Court examined the complaint in the first place under Article 1 of Protocol No. 1, noting that it was undisputed that the applicant was not entitled to any pension or social benefits under the relevant domestic legislation. Finding that the applicant therefore had no possessions within the meaning of Article 1 of Protocol No. 1 regarding his future entitlement to or the amount of a pension, the Court rejected the complaint under this provision, as well as under the other provisions relied on, as being incompatible ratione materiae with the provisions of the Convention.", "2. Application to the present case", "124. The Court has to examine whether the applicant in the present case had to perform “forced or compulsory labour” contrary to Article 4 of the Convention. The Court notes that the applicant was under an obligation to work in accordance with section 44(1) of the Execution of Sentences Act. Refusal to perform the work assigned to him constituted an offence under section 107 of that Act, punishable under section 109 by penalties ranging from a reprimand to solitary confinement.", "125. Taking the definition of “forced or compulsory labour” contained in Article 2 § 1 of ILO Convention No. 29 as a starting-point for the interpretation of Article 4 § 2 of the Convention (see Van der Mussele, cited above, §§ 32-34), the Court has no doubt that the applicant was performing work for which he had not offered himself voluntarily under the menace of a penalty.", "126. While this does not appear to be in dispute between the parties, they differ in their view as to whether his work was covered by the terms of Article 4 § 3 (a) of the Convention, which exempts “work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention” from the term “forced or compulsory labour”. The Government answered the question in the affirmative, concluding that the work performed by the applicant as a prisoner did not fall within the scope of Article 4. The applicant for his part asserted that prison work without affiliation to the old-age pension system was not covered by the provision in question. Therefore, it constituted “forced or compulsory labour” in violation of Article 4 § 2.", "127. The Court has not yet had an opportunity to examine the question whether Article 4 requires Contracting States to include working prisoners in the social security system. It notes that the above-mentioned decision of the Commission in Twenty-One Detained Persons (cited above), which answered the question in the negative, dates from 1968. The Court will therefore have to assess whether the position adopted in that decision is still valid in respect of the work performed by the applicant as a prisoner without being affiliated to the old-age pension system.", "128. The wording of the Convention does not give any indication as regards the issue of working prisoners’ affiliation to the national social security system. However, in establishing what is to be considered “work required to be done in the ordinary course of detention”, the Court will have regard to the standards prevailing in member States (see Van Droogenbroeck, cited above, § 59).", "129. The applicant relies in essence on the Court’s doctrine that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, for instance, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002 ‑ VI; and Van der Mussele, cited above, § 32). He appears to be arguing that European standards have changed to such an extent that prison work without affiliation to the old-age pension system can no longer be regarded as “work required to be done in the ordinary course of detention”.", "130. The Court notes that the applicant worked for lengthy periods in prison, starting in the 1960s. At that time the Commission, in its decision in Twenty-One Detained Persons (cited above), held that Article 4 of the Convention did not require working prisoners to be affiliated to the social security system. The 1987 European Prison Rules remained silent on the issue of working prisoners’ affiliation to the social security system. The Court acknowledges that, subsequently, significant developments have taken place in the field of penal policy. These developments are reflected in the 2006 European Prison Rules, which contain the principle of normalisation of prison work as one of the basic principles. More specifically in the present context, Rule 26.17 of the 2006 Rules provides that “[a]s far as possible, prisoners who work shall be included in national social security systems”.", "131. However, having regard to the current practice of the member States, the Court does not find a basis for the interpretation of Article 4 advocated by the applicant. According to the information available to the Court, while an absolute majority of Contracting States affiliate prisoners in some way to the national social security system or provide them with some specific insurance scheme, only a small majority affiliate working prisoners to the old-age pension system. Austrian law reflects the development of European law in that all prisoners are provided with health and accident care and working prisoners are affiliated to the unemployment insurance scheme but not to the old-age pension system.", "132. In sum, it appears that there is not sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system. While Rule 26.17 of the 2006 European Prison Rules reflects an evolving trend, it cannot be translated into an obligation under Article 4 of the Convention. Consequently, the obligatory work performed by the applicant as a prisoner without being affiliated to the old-age pension system has to be regarded as “work required to be done in the ordinary course of detention” within the meaning of Article 4 § 3 (a).", "133. The Court concludes that the work performed by the applicant was covered by the terms of Article 4 § 3 (a) of the Convention, and did not therefore constitute “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention.", "134. Consequently, there has been no violation of Article 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4", "135. The Court notes that the applicant relied mainly on Article 4 alone, but also referred to Article 14, however without submitting any separate arguments under Article 14 taken in conjunction with Article 4.", "136. The Court finds that its examination under Article 4 alone covers all aspects of the issue raised by the applicant’s complaint. The Court therefore considers that there is no need to examine the applicant’s complaint under Article 14 of the Convention taken in conjunction with Article 4." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. At about 3 p.m. on 30 December 2003 the applicant and his father went to the District Prosecutor ’ s Office in Tsarevo to obtain a copy of a document. The clerk refused to give it to them. A quarrel ensued. A prosecutor came in and ordered the applicant to leave the premises. A brawl ensued. The police, who had been called in, drew up a procès-verbal saying that, by insulting the prosecutor and trying to hit him, the applicant had committed an offence under the 1963 Decree on Combating Minor Hooliganism ( “the 1963 Decree” – see paragraphs 10 ‑ 11 below). The applicant refused to sign the procès-verbal, saying that he would present his objections before a court.", "7. About half an hour later the police made an order for the applicant ’ s detention under section 70(1)(8) of the Ministry of Internal Affairs Act 1997, then in force. The order said that the applicant was being detained for committing an offence under the 1963 Decree.", "8. At 10 a.m. on 31 December 2003 the applicant was brought before the Tsarevo District Court. He was assisted by two counsel. The court heard the applicant, two witnesses, and the applicant ’ s counsel. In a decision of the same day it found the applicant guilty of an offence under Article 1 § 2 of the Decree for insulting and trying to hit the prosecutor, and sentenced him to fifteen days ’ detention in the premises of the Ministry of Internal Affairs. The court went on to order, by reference to Article 8 § 2 of the Decree (see paragraph 12 below), that during his detention the applicant was to carry out socially useful work adapted to his health, age and professional skills; he was to take part in public works on the territory of the Tsarevo Municipality. The decision was final and immediately enforceable.", "9. The applicant was released at 11 a.m. on 14 January 2004. It is unclear what work exactly was carried out by him during his detention." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Minor Hooliganism", "10. Decree No. 904 of 28 December 1963 on Combating Minor Hooliganism was passed by the then existing Presidium of the National Assembly under a simplified legislative procedure, as possible under Article 35 § 5 and Article 36 of the then in force 1947 Constitution. It was published in the State Gazette on 31 December 1963, as required under section 37 (1) of the Normative Acts Act 1973, as worded at that time. The Supreme Administrative Court has on a number of occasions said that the Decree has the same force as an Act of Parliament ( опр. № 9959 от 7 ноември 2003 г. по адм. д. № 9327/2003 г., ВАС, I о.; опр. № 10286 от 10 декември 2004 г. по адм. д. № 9761/2004 г., ВАС, петчленен с ‑ в; опр. № 14673 от 3 декември 2009 г. по адм. д. № 15200/2009 г., ВАС, I о.; опр. № 12764 от 1 ноември 2010 г. по адм. д. № 13284/2010 г., ВАС, I о. ).", "11. Article 1 § 2 of the Decree defines minor hooliganism as an indecent act consisting of uttering swearwords, insults or other offensive words in a public place and in front of many people, in an offensive attitude towards other citizens or public officials, or in a quarrel, fight or suchlike that breach the peace but due to their lower degree of dangerousness do not amount to the criminal offence of hooliganism. Such acts, if perpetrated by persons older than sixteen, carry a penalty of up to fifteen days ’ detention in the premises of the Ministry of Internal Affairs or a fine (Article 1 § 1).", "12. Under Article 8 § 2 of the Decree, the penalty of detention in the premises of the Ministry of Internal Affairs must be accompanied by work determined in accordance with the detainee ’ s health, age and abilities. That work is not remunerated.", "13. Cases under the Decree fall under the jurisdiction of the district courts ( Articles 3 and 4). Until May 2011 Article 7 provided that the court ’ s decision was not subject to appeal. On 4 May 2011 ( реш. № 3 от 4 май 2011 г. по к. д. № 19 от 2010 г., обн., ДВ, бр. 38 от 17 май 2011 г.) the Constitutional Court declared that rule unconstitutional. As a result, in November 2011 Article 7 was amended and now provides, in paragraph 2, that the district court ’ s decision to impose an administrative penalty may be appealed on points of law before the regional court within twenty-four hours. The case must be listed for hearing before the regional court not more than three days after the district court ’ s decision ( paragraph 1, as amended), and the regional court must rule, by means of a final decision, on the day it receives the appeal ( paragraph 3, as amended). In the explanatory notes to the amendment bill the Government referred to, inter alia, the need to bring the Decree into line with the Convention and this Court ’ s case ‑ law.", "B. Remuneration of the work carried out by persons in custody convicted of criminal offences", "14. Under section 25 of the Execution of Punishments Act 1969, persons serving a custodial sentence following their conviction of a criminal offence were entitled to receive at least thirty per cent of the remuneration due for their work.", "15. Section 78(1) of the Execution of Punishments and Pre ‑ Trial Detention Act 2009, which superseded the 1969 Act in June 2009, provides that persons serving a custodial sentence following their conviction of a criminal offence are entitled to receive at least thirty per cent of the remuneration due for all work carried out by them except voluntary unpaid work and regular shifts to maintain order and hygiene.", "III. RELEVANT COUNCIL OF EUROPE MATERIALS", "16. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided by those rules in legislation and policies.", "17. The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted on 12 February 1987.", "18. Rule 76.1 provides that “[t]here shall be a system of equitable remuneration of the work of prisoners”.", "19. The commentary in the Explanatory memorandum to the Rules says:", "“ This rule recognises the importance and value of an adequate and equitable payment system in the context of treatment regimes. No provision to encourage the development of wages systems towards levels that apply for similar work in the community has been made in the rule itself as that would have been premature at this stage. However, a great deal of progress has been made in that respect in a number of countries and that is to be encouraged. ... ”", "20. On 11 January 2006 the Committee of Ministers adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe ”.", "21. Rule 26.10 provides that “[i]n all instances there shall be equitable remuneration of the work of prisoners ”.", "22. The commentary on the 2006 Rules ( drawn up by the European Committee on Crime Problems) says that the level of remuneration of prisoners should be guided by the principle of mirroring conditions for workers on the outside, and that ideally all prisoners should be paid wages that are related to those in society as a whole.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 4 § 2 OF THE CONVENTION", "23. The applicant complained that he had been required to perform compulsory labour without this falling within one of the exceptions laid down in Article 4 § 3 of the Convention. He therefore considered that he had been a victim of a breach of Article 4 § 2 of the Convention.", "24. Article 4 §§ 2 and 3 of the Convention provide, in so far as relevant :", "“2. No one shall be required to perform forced or compulsory labour.", "3. For the purpose of this article the term ‘ forced or compulsory labour ’ shall not include:", "(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention ... ”", "25. The Government submitted that the applicant had been required to work after having been convicted and sentenced by an independent and impartial court, in proceedings in which he had had the assistance of counsel. The work fell within the exception envisaged by Article 2 § 2 (c) of the International Labour Organisation ’ s Convention concerning Forced or Compulsory Labour (No. 29), and could not therefore be regarded as forced or compulsory labour. Moreover, it had not been inconsistent with the applicant ’ s health, age or skills, too onerous, or lasting an inordinate amount of time. The work had also been for the benefit of society.", "26. The applicant submitted that the work that he had been required to carry out had been compulsory labour because it had been ordered by a court as part of his penalty, because he had been in detention and would have incurred sanctions if he had refused to work, and because the work had not been remunerated. That labour did not fall within the exception laid down in Article 4 § 3 (a) because the applicant ’ s detention had been in breach of Article 5 § § 1, 2, 4 and 5 of the Convention. The detention had been based on a Decree, not an Act of Parliament, in breach of the Article 5 § 1 requirement that it be “in accordance with the law”. The applicant had not been duly informed of the reasons for his detention, in breach of Article 5 § 2. He had not been able to appeal against the judicial decision ordering his detention, in breach of Article 5 § 4, and had not been able to seek compensation for his detention, in breach of Article 5 § 5.", "27. The Court recently set out the general principles governing the interpretation of Article 4 §§ 2 and 3 of the Convention in paragraphs 116 ‑ 23 of its judgment in Stummer v. Austria ( [GC], no. 37452/02, ECHR 2011 ‑ ..., with further references ). They are equally applicable to the present case.", "28. In the present case, the obligation for the applicant to work while in detention stemmed from the express terms of Article 8 § 2 of the 1963 Decree and the judicial decision against the applicant (see paragraphs 8 and 12 above). The work was to be carried out while the applicant was in custody and under the full control of the authorities. It can therefore be regarded as work for which the applicant had not offered himself voluntarily and which was exacted from him under the threat of imposition of a penalty, and therefore forced or compulsory labour within the meaning of Article 4 § 2 of the Convention.", "29. Although the above point does not appear to be in dispute between the parties, they differ in their views as to whether that work was covered by the terms of Article 4 § 3 (a), which excludes “work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of the Convention” from the definition of “forced or compulsory labour”.", "30. Concerning the applicant ’ s assertion that his work did not fall within that exception because his detention had been in breach of Article 5 §§ 1, 2, 4 and 5 of the Convention, the Court observes that in his initial application the applicant raised complaints under all of those provisions; they were all rejected as manifestly ill ‑ founded in the partial decision in the present case (see Zhelyazkov v. Bulgaria (dec.), no. 11332/04, 12 May 2009). The Court sees not reason to depart from its findings in that decision.", "31. In particular, the fact that the applicant ’ s detention was ordered by the Tsarevo District Court by reference to a Decree rather than an Act of Parliament does not make it unlawful within the meaning of Article 5 § 1 of the Convention. Under Bulgarian law, decrees adopted by the Presidium of the National Assembly under Article 35 § 5 and Article 36 of the 1947 Constitution are valid sources of law which have the same force as Acts of Parliament. This has been confirmed many times by the Supreme Administrative Court (see paragraph 10 above) and is implicit in the fact that the Constitutional Court accepted to hear a legal challenge to the 1963 Decree much as it would accept to hear a challenge to an Act of Parliament ( see paragraph 13 above ). The term “law” in Article 5 § 1 of the Convention must be understood in its substantive sense, not its formal one. The Court has accepted that detention may be based on a sufficiently established custom (see Drozd and Janousek v. France and Spain, 26 June 1992, § 107, Series A no. 240 ) or on case ‑ law (see Steel and Others v. the United Kingdom, 23 September 1998, § 55, Reports of Judgments and Decisions 1998 ‑ VII ). It has adopted the same stance to the term “law” as used in Articles 8 and 10 of the Convention (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176 ‑ A, and The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 47, Series A no. 30 ). It follows that the applicant ’ s detention was provided by Bulgarian law and was imposed in accordance with a procedure prescribed by law ( see, mutatis mutandis, Galstyan v. Armenia, no. 26986/03, § § 46 ‑ 49, 15 November 2007 ). There is no indication that it was otherwise incompatible with Article 5 § 1.", "32. Nor was the applicant ’ s detention in breach of Article 5 § 2. He was informed of the reasons for his detention and must surely have become aware of them following the examination of his case by the Tsarevo District Court (see paragraphs 6 ‑ 8 above).", "33. As for Article 5 § 4, the Court notes that failure to observe that provision does not automatically mean that there has been failure to observe Article 4 (see De Wilde, Ooms and Versyp v. Belgium, 18 November 1970, § 89, Series A no. 12, and Van Droogenbroeck v. Belgium, 24 June 1982, § 59, Series A no. 50 ). In any event, there is no appearance of a breach of Article 5 § 4, since judicial control of the detention during which the applicant was required to work was incorporated in the Tsarevo District Court ’ s decision (see De Wilde, Ooms and Versyp, cited above, § 76).", "34. The same goes for Article 5 § 5. First, there is no basis in the Court ’ s case ‑ law to hold that a breach of that provision automatically causes work required of a detainee to fall outside the scope of Article 4 § 3 (a). Secondly, there is no appearance of a breach of Article 5 § 5 because it applies only if the Court or a domestic authority has found a breach of one of the preceding paragraphs of Article 5, which is not the case.", "35. It follows that, contrary to the applicant ’ s assertion, the work that he was required to perform was done in the course of detention imposed according to the provisions of Article 5. It remains to be established whether it was otherwise compatible with the requirements of Article 4.", "36. It has not been argued by the applicant, and there is no evidence, that the work that he was required to carry out was too onerous or went beyond what is ordinary. The fact that that work was not remunerated did not in itself cause it to fall outside that definition. In its decision in Twenty ‑ one Detained Persons v. Germany ( nos. 3134/67, 3172/67, 3188 ‑ 3206/67, Commission decision of 6 April 1968, Collection 27, pp. 97 ‑ 116), the former Commission declared a complaint in that respect inadmissible, noting, inter alia, that Article 4 does not contain any provision concerning the remuneration of prisoners for their work, and observing that it had consistently rejected applications by prisoners claiming higher remuneration for their work. The Court is mindful that there have been subsequent developments in attitudes to that issue, reflected in particular in the 1987 and 2006 European Prison Rules, which call for the equitable remuneration of the work of prisoners – with the 2006 Rules adding “in all instances” – (see paragraphs 18 and 21 above). Those Rules, and the modification in their wording, reflect an evolving trend. However, the Court does not consider that as matters stood at the time when the applicant was ordered to carry out the work at issue in the present case – approximately two years before the adoption of the 2006 Rules – it could be maintained that there existed an unconditional obligation under Article 4 of the Convention to remunerate the work of all detainees in all circumstances (see, mutatis mutandis, Stummer, cited above, § 132 ). The Court additionally notes that the applicant ’ s detention was effected under special rules designed to deal in a speedy way with minor public order offences, and that the period during which the applicant was detained and required to work without remuneration could not by law exceed, and did not in fact exceed, fifteen days (see paragraphs 9 and 12 above). This can hardly be compared to the situation of inmates who have worked many years in prison (see Stummer, cited above, § 130 in limine ).", "37. The Court concludes that the obligatory work performed by the applicant during his fifteen days ’ detention was covered by the terms of Article 4 § 3 (a) of the Convention, and did not constitute forced or compulsory labour within the meaning of Article 4 § 2.", "38. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 7", "39. The applicant complained that he had been unable to appeal his conviction. He relied on Article 2 of Protocol No. 7, which provides as follows:", "“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.", "2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”", "40. The Government submitted that the offence of which the applicant had been convicted was of a minor character, because it was an administrative and not a criminal one. The Decree which defined the offence had been designed to attain speed and efficiency in tackling antisocial behaviour.", "41. The applicant submitted that although the offence of which he had been convicted was administrative under Bulgarian law, it was criminal within the meaning of Article 2 of Protocol No. 7 in view of its being identical – save for the degree of dangerousness – with the criminal offence of hooliganism, and of the penalty of imprisonment that it carried. Under Bulgarian law as it stood at the time he could not appeal his conviction, whereas his case did not fall under any of the exceptions under paragraph 2 of the Article. In particular, the offence was not of a minor character because it was almost identical to the criminal offence of hooliganism and carried a penalty of imprisonment.", "42. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "43. In Kambourov v. Bulgaria (no. 2) ( no. 31001/02, § § 22 ‑ 27, 23 April 2009 ) and Stanchev v. Bulgaria ( no. 8682/02, § § 44 ‑ 49, 1 October 2009 ), the Court held that Article 2 of Protocol No. 7 applied to convictions under the 1963 Decree and that offences under the Decree were not of a minor character within the meaning of paragraph 2 of that Article. The Court went on to find that under Bulgarian law, as it stood at the material time, there was no possibility to challenge a conviction under the Decree, and concluded that there had been a breach of Article 2 of Protocol No. 7.", "44. The Court sees no reason to hold otherwise in the present case, and finds that there has been a breach of that provision.", "45. It should be noted in this connection that in May 2011 the Constitutional Court declared Article 7 of the 1963 Decree unconstitutional, and that in November 2011 that provision was amended with a view to rendering it compliant with the Convention and the Court ’ s case ‑ law (see paragraph 13 above).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "46. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "47. The applicant claimed 20,000 euros (EUR) in respect of the non ‑ pecuniary damage flowing from the alleged breach of Article 4 § 2 of the Convention, and EUR 10,000 in respect of the non-pecuniary damage flowing from the alleged breach of Article 2 of Protocol No. 7. He submitted that the penalty of fifteen days ’ detention, which he had been unable to challenge, had caused him considerable frustration and had instilled in him a sense of powerlessness and injustice. The intensity of those feelings called for an award of considerable compensation.", "48. The Government submitted that a finding of a violation would amount to sufficient just satisfaction, in particular because after the Court ’ s judgments in Kambourov (no. 2) and Stanchev (both cited above) the Bulgarian courts had started allowing appeals against convictions under the 1963 Decree. In their view, the applicant ’ s claims were exorbitant.", "49. The Court observes that in the present case an award of just satisfaction can be based only on the breach of Article 2 of Protocol No. 7. That said, it considers that the applicant must have sustained some non ‑ pecuniary damage which cannot be made good solely by the finding of a violation (see Zaicevs v. Latvia, no. 65022/01, § 61, 31 July 2007 ). The fact that following the Court ’ s judgments in Kambourov (no. 2) and Stanchev (both cited above) it became possible to appeal against decisions under the 1963 Decree did not alter the situation of the applicant. Ruling in equity, as required under Article 41 of the Convention, the Court awards him EUR 1 ,000 under this head. To this amount is to be added any tax that may be chargeable.", "B. Costs and expenses", "50. The applicant sought reimbursement of EUR 3,430 incurred in fees for forty ‑ nine hours of work by his lawyers on the proceedings before the Court, at EUR 70 per hour. He submitted a fee agreement, a time ‑ sheet and a declaration that he agreed that any costs and expenses awarded by the Court be paid directly to his lawyers. He also sought reimbursement of EUR 40 spent by his lawyers on postage and EUR 30 spent by them on office supplies.", "51. The Government contested the number of hours spent by the applicant ’ s lawyers on the case. They suggested that in assessing the quantum of the award the Court should have regard to the usual fees paid to counsel for their appearance before the national courts. Lastly, they pointed out that the claim for other expenses was not supported by documents.", "52. The Court observes that when considering a claim in respect of costs and expenses for the proceedings before it, it is not bound by domestic scales or standards ( see, as a recent authority, Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, § 125, 25 November 2010). According to its case ‑ law, costs and expenses claimed under Article 41 of the Convention must have been actually and necessarily incurred and reasonable as to quantum.", "53. Having regard to the materials in its possession, the above considerations, and the facts that the bulk of the application was declared inadmissible and that the issues relating to the complaint under Article 2 of Protocol No. 7 have already been resolved in two almost identical cases, the Court finds it reasonable to award the applicant EUR 8 00, plus any tax that may be chargeable to him, in respect of his legal costs. This sum is to be paid directly to the applicant ’ s legal representatives.", "54. Concerning the claim for other expenses, the Court observes that the applicant has not submitted any supporting documents. In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of its Rules, the Court makes no award in respect of those expenses.", "C. Default interest", "55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The two applications relate to the effects of long-term expropriation permits and prohibitions on construction on the Estate of the late Mr. Sporrong and on Mrs. Lönnroth, in their capacity as property owners.", "A. The sporrong estate", "10. The Sporrong Estate, which has legal personality, is composed of Mrs. M. Sporrong, Mr. C.-O. Sporrong and Mrs. B. Atmer, the joint heirs of the late Mr. E. Sporrong; they reside in or near Stockholm. They own a property, situated in the Lower Norrmalm district in central Stockholm and known as \"Riddaren No. 8\", on which stands a building dating from the 1860 ’ s. In the 1975 tax year the rateable value of the property was 600,000 Swedish crowns.", "1. The expropriation permit", "11. On 31 July 1956, acting pursuant to Article 44 of the Building Act 1947 (byggnadslagen - \"the 1947 Act\"), the Government granted the Stockholm City Council a zonal expropriation permit (expropriationstillstånd) covering 164 properties, including that owned by the Sporrong Estate. The City intended to build, over one of the main shopping streets in the centre of the capital, a viaduct leading to a major relief road. One of the viaduct ’ s supports was to stand on the \"Riddaren\" site, the remainder of which was to be turned into a car park.", "Under the Expropriation Act 1917 (expropriationslagen - \"the 1917 Act\"), the Government set at five years the time-limit within which the expropriation might be effected; before the end of that period the City Council had to summon the owners to appear before the Real Estate Court (fastighetdomstolen) for the fixing of compensation, failing which the permit would lapse.", "12. In July 1961, at the request of the City, the Government extended this time-limit to 31 July 1964. Their decision affected 138 properties, including \"Riddaren No. 8\". At that time, the properties in question were not the subject of any city plan (stadsplan).", "13. On 2 April 1964, the Government granted the City Council a further extension of the expropriation permit; this extension was applicable to 120 of the 164 properties originally concerned, including \"Riddaren No. 8\", and was valid until 31 July 1969. The City had prepared for Lower Norrmalm a general development plan, known as \"City 62\", which gave priority to street-widening for the benefit of private traffic and pedestrians.", "Subsequently, \"City 67\", a revised general development plan for Lower Norrmalm and Östermalm (another district in the city centre), stressed the need to improve public transport by means of a better network of roads. Some of the sites involved were to be used for street-widening, but any final decision had to await a decision as to the utilisation of the orders. It was estimated that the revised plan, which was of the same type as \"City 62\", should be implemented before 1985.", "14. In July 1969, the City Council requested a third extension of the expropriation permit as regards certain properties, including \"Riddaren No. 8\", pointing out that the reasons for expropriation given in the \"City 62\" and \"City 67\" plans were still valid. On 14 May 1971, the Government set 31 July 1979, that is to say ten years from the date of the request, as the time-limit for the institution of the judicial proceedings for the fixing of compensation.", "In May 1975, the City Council put forward revised plans according to which the use of \"Riddaren No. 8\" was not to be modified and the existing building was not to be altered.", "On 3 May 1979, the Government cancelled the expropriation permit at the Council ’ s request (see paragraph 29 below).", "15. The Sporrong Estate has never attempted to sell its property.", "2. The prohibition on construction", "16. On 11 June 1954, the Stockholm County Administrative Board (länsstyrelsen) had imposed a prohibition on construction (byggnadsförbud) on \"Riddaren No. 8\", on the ground that the proposed viaduct and relief road would affect the use of the property. The prohibition was subsequently extended by the Board to 1 July 1979.", "17. In 1970, the Sporrong Estate obtained an exemption from the prohibition in order to widen the front door of the building. It never applied for any other exemptions.", "18. The expropriation permit and the prohibition on construction affecting; \"Riddaren No. 8\" were in force for total periods of twenty-three and twenty-five years respectively.", "B. Mrs. Lönnroth", "19. Mrs. I. M. Lönnroth lives in Stockholm, where she owns three-quarters of a property situated at \"Barnhuset No. 6\", in the Lower Norrmalm district; it is occupied by the two buildings erected in 1887-1888, one of which faces the street and the other the rear. In the 1975 tax year the rateable value of the applicant ’ s share of the property was 862,500 Swedish crowns.", "1. The expropriation permit", "20. On 24 September 1971, the Government authorised the Stockholm City Council to expropriate 115 properties, including \"Barnhuset No. 6\", and set 31 December 1979, that is to say ten years from the date of the Council request, as the time-limit for the institution of the judicial proceedings for the fixing of compensation. They justified their decision by reference to the \"City 67\" plan which envisaged that a multi-storey car park would be erected on the site of the applicant ’ s property.", "21. However, work in this district was postponed and new plans were prepared for consideration. Believing her property to be in urgent need of repair, Mrs. Lönnroth requested the Government to withdraw the expropriation permit. The City Council replied that the existing plans did not allow any derogation to be made, and on 20 February 1975 the Government refused the request on the ground that the permit could not be revoked without the express consent of the City Council.", "On 3 May 1979, the Government cancelled the permit at the Council ’ s request (see paragraph 29 below).", "22. Mrs. Lönnroth ’ s financial situation obliged her to try to sell her property. She made seven attempts to do so between 1970 and 1975, but the prospective buyers withdrew after they had consulted the city authorities. In addition, she sometimes had difficulty in finding tenants.", "2. The prohibition on construction", "23. On 29 February 1968, the Stockholm County Administrative Board decided to impose a prohibition on construction on \"Barnhuset No. 6\", on the ground that the site was to be turned into a car park. The prohibition was subsequently extended by the Board to 1 July 1980.", "24. In 1970, Mrs. Lönnroth was granted an exemption in order to make alterations to the third floor of her premises; she never sought any other exemptions.", "She failed to obtain a loan when, in the early 1970 ’ s, one of the property ’ s major mortgagees demanded that the façade be renovated.", "25. To sum up, Mrs. Lönnroth ’ s property was subject to an expropriation permit and a prohibition on construction for eight and twelve years respectively.", "C. The town-planning policy of the city of Stockholm", "26. For several decades, spectacular changes have been taking place in the centre of Stockholm, comparable to those which have occurred in many cities which were reconstructed after being destroyed or severely damaged during the second world war.", "27. Lower Norrmalm is a district where most of the capital ’ s important administrative and commercial activities used to be concentrated. Around 1945, the view was taken that the district should be restructured so that those activities could be carried on satisfactorily. For instance, a proper network of roads was needed.", "Furthermore, most of the buildings were decrepit and in a poor state of repair. A large-scale redevelopment scheme was necessary in order to provide suitable premises for offices and shops as well as to create a healthy and hygienic working environment. Zonal expropriation, introduced by an Act of 1953 which amended, inter alia, Article 44 of the 1947 Act, became the key instrument for implementing the City Council ’ s plans. In less than ten years more than one hundred buildings were demolished. Some of the vacant sites thereby created were used to make new roads and others were integrated into larger and more functional complexes.", "28. During the 1970 ’ s, town-planning policy in Stockholm evolved considerably. Far from being in favour of opening access roads to the centre, the city authorities were now trying to reduce the number of cars in the capital. This new policy was reflected in the \"City 77\" plan, which was adopted on 19 June 1978. It makes provision for urban renovation based above all on gradual rebuilding that takes account of the present urban fabric and it envisages the preservation and restoration of most of the existing buildings.", "29. On 3 May 1979, the Government, granting a request submitted by the City Council in October 1978, cancelled, as regards about seventy properties including those of the applicants, the expropriation permits issued in 1956 and 1971. This was because it was by then considered unlikely that the City would need to acquire these properties in order to implement its new town-planning scheme.", "30. Notwithstanding the difficulties occasioned by the existence of zonal expropriation permits, it has proved possible to sell sixty-six properties in Stockholm affected by such permits." ]

[ "II. THE RELEVANT DOMESTIC LAW", "A. Town-planning law", "31. The 1947 Act is the main legal instrument of town-planning policy in Sweden. For this purpose, it provides for the drawing up of master plans and city plans.", "32. A master plan (generalplan) will be drawn up by the municipality concerned in so far as this may be required in order to establish a framework for more detailed plans. Its adoption is a matter for the municipal council (kommunfullmäktige), which may refer the plan to the County Administrative Board - before 1 January 1973, to the Government - for approval (Article 10).", "33. City plans are prepared for those urban areas in which this is deemed necessary (Article 24). A city plan is more detailed than a master plan: it will indicate the purposes for which the various areas may be utilised - housing, roads, squares, parks, etc. - and may also include more specific provisions on their use (Article 25). After adoption by the municipal council, it must be approved by the County Administrative Board. In the course of this procedure, property owners have various opportunities to submit their views to several agencies and they may, in the last resort, challenge the decision adopting the plan.", "34. In some cases master plans and city plans will be submitted to the Government for a decision.", "35. In conjunction with - or independently of - these plans, the Swedish authorities may resort to expropriations and to prohibitions on construction, measures between which there is not necessarily any legal connection.", "1. Expropriations", "36. As regards expropriation, the law applicable in the present case was mainly that contained in the 1917 Act, which was replaced with effect from 1 January 1973 by the Expropriation Act 1972 (\"the 1972 Act\"). Some additional matters were dealt with in the 1947 Act.", "37. It is for the Government to decide whether expropriation should be authorised. Their decision takes the form of an expropriation permit and is based on the various conditions laid down in the Act. Issue of the permit does not automatically lead to an expropriation; it simply entitles a given public authority (or, in exceptional cases, a private individual or a company) to effect the expropriation if necessary. It leaves intact the owner ’ s right to sell, let or mortgage his property, and is subject to a time-limit within which the expropriating authority must initiate judicial proceedings for the fixing of compensation, failing which the permit will lapse. The 1917 Act was silent as to the length of this time-limit and as to the extension of the validity of permits.", "The official statement of reasons accompanying the Bill in which the 1972 Act originated drew attention to the disadvantages which expropriation permits occasion for property owners - uncertainly, restriction of the possibility of disposing of their property, difficulty in deciding whether to incur expenditure -, disadvantages which become more serious with the passage of time.", "For this reason Article 6 par. 1 of Chapter 3 of the 1972 Act provides (translation from the Swedish):", "\"Expropriation permits shall set a time-limit for service of a summons to appear for the purposes of judicial proceedings. The time-limit may be extended if there are special reasons. Requests for extension shall be submitted before the time-limit expires. If the owner establishes that the fact that the question of expropriation remains pending has occasioned significantly more serious prejudice, the time-limit may, at his request, be reduced. No decision to reduce the time-limit can be taken until one year has elapsed since the issue of the expropriation permit.\"", "The expropriation is not completed until compensation has been fixed and paid. The Real Estate Court has jurisdiction in the matter; its decisions may be challenged in the Court of Appeal and, in the final instance, the Supreme Court.", "38. Before 1 July 1953, expropriation related only to individual properties; each request for an expropriation permit described in detail the use to which the expropriating authority intended to put the premises concerned.", "The present applications involve another kind of expropriation, known as zonal expropriation. The relevant provision was introduced in 1953, by means of an amendment to Article 44 of the 1947 Act, and was repealed in 1971 with effect from 1 January 1972. It was as follows (translation from the Swedish):", "\"If it is deemed necessary, for the purposes of public transport or town planning, to carry out a complete redevelopment of a densely-populated district and if such redevelopment can be effected only by means of rebuilding the entire district, the King may - where the redevelopment measures involve the adoption or modification of a city plan for the district concerned - grant the municipality the right to buy up the land needed for the redevelopment and also any land which is situated in the same district or in the immediate vicinity and whose value is likely to increase considerably as a result of the implementation of the plan ...\"", "Between 1 January and 31 December 1972, provisions corresponding to this Article 44 were incorporated in the 1917 Act; they now appear in the 1972 Act (Chapter 2, Article 1).", "Zonal expropriations were thus designed as an instrument for major town-planning schemes. The permits which they entail may be issued as soon as a new city plan is under consideration, that is to say even before detailed arrangements for its implementation have been worked out.", "39. Under Article 11 of the transitional provisions of the 1972 Act, requests for expropriation permits submitted before this new Act came into force continue to be subject to the old Act.", "40. Like the 1917 Act, the 1972 Act does not provide for any possibility of compensation for prejudice resulting from the length of the validity of, or failure to utilise, an expropriation permit. It does, however, contain one exception (Chapter, 5, Article 16): compensation is payable for prejudice occasioned by the issue of an expropriation permit if the authority or person to whom it was granted has instituted, but subsequently abandoned, proceedings for the fixing of compensation.", "2. Prohibitions on construction 1", "41. The 1947 Act prohibits any new construction that is not in conformity with the city plan (Article 34). It permits, even before, and until, such a plan has been adopted by the municipal authorities and approved by the regional authorities, the prohibition as an interim measure of any construction work (Article 35 combined with Articles 14 and 15 of the 1947 Act). Article 15 of the Act provides as follows (translation from the Swedish):", "\"If a question is raised concerning a request for the adoption of a master plan for a certain zone or for the amendment of a master plan that has already been approved, the County Administrative Board may, at the request of the municipality, prohibit all new construction (nybyggnad) in that zone. The prohibition shall remain in force until a decision in the matter has been taken by the municipal council, but not for more than one year. Where necessary, the County Administrative Board may, at the request of the municipality, extend the validity of the prohibition on contruction by a maximum of two years at a time.", "Exemptions form the prohibition on construction referred to in the preceding paragraph may be granted by the County Administrative Board or, in accordance with rules laid down by the Government, by the building Board (byggnadsnämnd).\"", "The same principle applies where the authorities contemplate adopting a new city plan or amending an existing one (Article 35 of the 1947 Act). The principle concerns only new constructions, but Article 158 of the 1947 Act states that the provisions on new constructions shall extend \"to such alterations to existing premises as may be classified as new construction under rules laid down by the Government\". A rule to this effect appears in Article 75 of the 1959 Building Ordinance (byggnadsstadgan), which reads as follows (translation from the Swedish):", "\"The expression ‘ new construction ’ shall mean:", "(a) the erection of entirely new premises;", "(b) the horizontal or vertical extension of existing premises;", "(c) any rebuilding of the exterior or interior of premises or any alteration thereto which, on account of its scale, may be equated to rebuilding;", "(d) the complete or partial conversion of premises for a use substantially different from their previous one;", "(e) such alteration to premises as results in their no longer being in conformity with the adopted master plan, city plan or building plan (byggnadsplan) or the regulations on building activities in zones situated outside the areas covered by city plans or building plans: and", "(f) any other alteration to premises which, in their present state, are not in conformity with the above-mentioned plans or regulations, except in the case of residential premises comprising not more than two dwellings or of outbuildings belonging to such premises.", "However, for the purposes of the present Article, the expression \"new construction\" shall not include the installation of central heating, water closets or other sanitary amenities in premises which, even if such installation has not been authorised, are expected to remain in their present state for a considerable length of time.\"", "42. In his report of 1967, the Parliamentary Ombudsman (Justitieombudsmannen) referred to the consequences of long-term prohibitions on construction and envisaged certain solutions (translation from the Swedish):", "\"As for as can be ascertained from the facts, the property owners in the Borås and Östersund cases cannot have expected to reap any advantages from the town-planning scheme. This means that the scheme could not provide them with any compensation for the prejudicial effects that were clearly occasioned by the long-term prohibitions. If in such cases one does not institute some means of protecting property owners against the prejudicial effect of long-term prohibitions, then - in order to render the implementation of town-planning schemes less expensive for municipalities - one or more property owners will themselves have to bear the prejudicial effects of a prohibition which has been imposed mainly in the interests of the community to settle questions of town planning within a reasonable time. Such a system is irreconcilable with the position that should obtain in a State governed by the rule of law.", "What arrangements should be made to protect a property owner against the prejudicial effects of temporary prohibitions on construction that remain in force for a lengthy period can hardly be stated without a thorough study of the problem. However, one possibility would be to set a maximum time-limit for the validity of temporary prohibitions. Nevertheless, such a solution could hardly be regarded as compatible with current requirements, for difficulties over determining what form future development should take mean that long delays cannot always be avoided. A preferable method would be to introduce a right for the property owner to seek compensation from the municipality for any loss he may establish or to require that it purchase the land once the prohibition has been in force for more than a certain period.", "There should, however, be a condition that the prohibition has been in force for quite a long time and has occasioned significant prejudicial effects that cannot be compensated by the advantages which the owners could be expected to gain through the town-planning scheme.", "In view of the foregoing, my opinion is that there should be a study of the question of introducing protection for private landowners against the prejudicial effects of unreasonably long temporary prohibitions on construction.\" (Justitieombudsmannens ämbetsberättelse 1967, pp. 478-479).", "B. Remedies against the public authorities", "1. Appeals against municipal councils ’ decisions", "43. At the time when the applicants referred the matter to the Commission, the Municipal Act 1953 and, in the case of the capital, the City of Stockholm Act 1957 provided for and regulated a right of appeal (kommunalbesvär) against decisions by municipalities. These Acts enabled any local resident - with certain exceptions - to challenge a municipal council ’ s decisions before the County Administrative Board.", "Such an appeal could be based on the following grounds only: failure to observe the statutory procedures, infringement of the law, ultra vires conduct, violation of the appellant ’ s own rights or application of powers for an improper purpose. The appeal had to reach the County Administrative Board within three weeks of the date on which approval of the minutes of the decision had been announced on the municipal notice-board; the place where the minutes might be consulted was also indicated on the notice-board.", "Unless otherwise provided, the County Administrative Board ’ s decision could, within three weeks from its notification to the appellant, be the subject of an appeal to the Supreme Administrative Court (regeringsrätten).", "Almost identical provisions now appear in Chapter 7 of the Municipal Act 1977 (kommunallagen). They were slightly amended in 1980, with effect from 1 January 1981, in that the appeal now has to be made to the Administrative Court of Appeal (kammarrätten) and not to the County Administrative Board.", "44. The above-mentioned rules apply to a municipal council ’ s decision to request the Government to issue or extend an expropriation permit.", "On the other hand, they do not apply to a decision to request the County Administrative Board to issue or extend a prohibition on construction: such a decision is, in fact, not open to any appeal to an administrative court.", "2. Remedies against acts of the administration", "(a) Administrative appeals", "45. In Sweden, administrative functions devolve largely on administrative authorities whose decision-making machinery is independent of the Government: such authorities do not come under any Ministry, and neither the Government nor the various Ministries may give them orders or instructions on how they should apply the law in this or that case.", "46. It is often possible, however, to appeal to the Government against administrative authorities ’ decisions.", "Thus, a decision by the County Administrative Board to issue or extend a prohibition on construction may be challenged by means of an appeal to the Government (Article 150 par. 2 of the 1947 Act).", "(b) Judicial appeals", "47. Generally speaking, the Swedish administration is not subject to supervision by the ordinary courts. Those courts hear appeals against the State only in contractual matters, on questions of extra contractual liability and, under some statutes, in respect of administrative decisions.", "48. Judicial review of the administration ’ s acts is, therefore, primarily a matter for administrative courts. These courts, which had their origin within the administration itself, comprise three levels: the County Administrative Court (länsrätterna); the Administrative Courts of Appeal; and the Supreme Administrative Court, which was set up in 1909 on the pattern of certain foreign institutions, such as the French Conseil d ’ État, but differs therefrom in certain fundamental respects. These courts are composed of independent judges appointed for life and, as a rule, they enjoy wide powers which enable them not only to set aside administrative acts but also to modify or replace them. In practice, it is very common for the lawfulness of such acts to be challenged.", "There is, however, an important exception to this principle, in that no appeal may be made against decisions of the Government.", "3. Appeals against acts of the Government", "49. Certain administrative cases - those with the most important political or financial implications - are reserved for decision by the Government as the first and last instance. Expropriation permits fall within this category (see paragraph 37 above).", "Although the Public Administration Act 1971 (förvaltningslagen) is not formally applicable to proceedings before the Government, they must be conducted in compliance with a number of principles: the right of the person concerned to have access to all the documents in the case; an obligation on the authority to inform him of any document added to the file and to give him an opportunity of stating his opinion thereon; the right of the person concerned to express his views orally if he so wishes.", "Before the Government take a decision on a request for an expropriation permit, the request will be submitted to the County Administrative Board which will prepare the file. The Board must, notably, give the property owner an opportunity to present his views on the request; it will also hear such public authorities as may have an interest in the matter. After collecting the necessary data, the Board will transmit them to the Government which will then be in a position to arrive at their decision.", "50. Cases examined by the Government give rise to decisions which, as a rule, are not open to appeal. However, in special cases it is possible to lodge an extraordinary appeal, of limited scope, known as an application for re-opening of the proceedings (resningsansökan). Prior to 1 January 1975 such applications - which may also relate to a decision taken by the Government in an appellate capacity - were made to the Supreme Court. Since that date they are made to the Supreme Administrative Court (Chapter 11, Article 11, of the Constitution). The grounds for re-opening proceedings are to be found - although the provision is not formally binding on the Supreme Administrative Court - in Chapter 58, Article 1, of the Code of Judicial Procedure (rättegångsbalken), which reads (translation from the Swedish):", "\"Once a judgment in a civil case has acquired the authority of res judicata, the re-opening of the proceedings in the interests of any of the parties may be ordered:", "1. if a member or an official of the court has been guilty of a criminal offence or of misconduct in connection with the litigation or if an offence in connection with the litigation has been committed by a lawyer or legal representative, and if such offence or misconduct can be assumed to have affected the outcome of the case;", "2. if a document submitted in evidence was forged or if a party examined on oath, a witness, an expert or an interpreter made false statements, and if such document or statements can be assumed to have affected the outcome of the case;", "3. if there have come to light facts or evidence which, had they been put before the court previously, would probably have led to a different outcome; or", "4. if the application of the law underlying the judgment is manifestly inconsistent with the law itself.", "Re-opening of the proceedings on the ground referred to in paragraph 3 above may not be ordered unless the party concerned establishes that in all probability he was unable to put the facts or evidence before the first instance or a superior court or that he had some other valid reason for not doing so.\"", "If, in a case like the present one, the Supreme Administrative Court accepts that the proceedings should be re-opened, it may either re-examine the whole case itself or refer it back to the Government.", "The very numerous decisions taken by the Government each year in fact give rise to very few applications for re-opening of the proceedings.", "C. Liability of public authorities", "51. In the past, State and municipal bodies incurred no liability in respect of decisions which they took in the exercise of public authority, and no compensation could therefore be awarded for damage resulting from such decisions, although there were some doubts about the scope of this immunity. Swedish law on this subject was derived from case-law, specific statutes and unwritten principles.", "52. The same law still applies on many points, but on 1 July 1972 the Civil Liability Act (skadeståndslagen) entered into force. This Act consolidates and develops a branch of the law governing compensation for damage in extra-contractual matters. It provides that the State and the municipalities are not civilly liable for damage caused by their acts. It does, however, make one radical change: the acts of the public authorities may now give rise to an entitlement to compensation in the event of fault or negligence (Chapter 3, Article 2).", "However, the legislature imposed an important restriction on this new principle, in that, save where the decisions in question have been set aside or modified, an action for damages \"may not lie\" in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court and the National Social Security Court (Chapter 3, Article 7). According to authoritative commentaries, the court must, of its own motion, declare the action inadmissible in such case.", "PROCEEDINGS BEFORE THE COMMISSION", "53. The applicants referred the matter to the Commission on 15 August 1975. They complained of unjustifiable interference with their right to peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1 (P1-1). They also alleged a violation of Article 6 par. 1 (art. 6-1) of the Convention on the ground that the questions of expropriation and compensation had not been determined within a reasonable time by the Swedish courts, as well as a breach of Article 13 (art. 13) on the ground that they had had no effective remedy before a national authority against the infringements of their rights, which resulted from the expropriation permits and the prohibitions on construction. Lastly, they alleged a violation of Article 14 (art. 14) and relied on Articles 17 and 18 (art. 17, art. 18).", "54. The Commission joined the two applications on 12 October 1977 in accordance with Rule 29 of its Rules of Procedure, and declared them admissible on 5 March 1979.", "55. In its report of 8 October 1980 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion that there had been a violation of Article 13 (art. 13) of the Convention (ten votes to two, with four abstentions). On the other hand, it concluded that there had been no breach of Article 1 of Protocol No. 1 (P1-1) (ten votes to three), of Article 6 par. 1 (art. 6-1) (eleven votes to five) or of Articles 14, 17 and 18 (art. 14, art. 17, art. 18) (unanimously) of the Convention.", "The report contains three separate opinions.", "AS TO THE LAW", "I. THE ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)", "56. The applicants complained of the length of the period during which the expropriation permits, accompanied by prohibitions on construction, affecting their properties had been in force. It amounted, in their view, to an unlawful infringement of their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1 (P1-1), which reads as follows:", "\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\"", "57. In its Marckx judgment of 13 June 1979, the Court described as follows the object of this Article (P1-1):", "\"By recognising that everyone has the right to the peaceful enjoyment of his possessions, Article 1 (P1-1) is in substance guaranteeing the right of property. This is the clear impression left by the words ‘ possessions ’ and ‘ use of property ’ (in French: ‘ biens ’, ‘ propriété ’, ‘ usage des biens ’ ); the ‘ travaux préparatoires ’, for their part, confirm this unequivocally: the drafters continually spoke of\" ‘ right of property ’ or ‘ right to property ’ to describe the subject-matter of the successive drafts which were the forerunners of the present Article 1 (P1-1).\" (Series A no. 31, p. 27, par. 63)", "It has to be determined whether the applicants can complain of an interference with this right and, if so, whether the interference was justified.", "1. The existence of an interference with the applicants ’ right of property", "58. The applicants did not dispute that the expropriation permits and prohibitions on construction in question were lawful in themselves. On the other hand, they complained of the length of the time-limits granted to the City of Stockholm for the institution of the judicial proceedings for the fixing of compensation for expropriation (five years, extended for three, then for five and finally for ten years, in the case of the Sporrong Estate; ten years in the case of Mrs. Lönnroth; see paragraphs 11-14 and 20 above). They also complained of the fact that the expropriation permits and the prohibitions on construction had been maintained in force for a lengthy period (twenty-three and eight years for the permits; twenty-five and twelve years for the prohibitions; see paragraphs 18 and 25 above). They pointed to the adverse effects on their right of property allegedly occasioned by these measures when they were combined in such a way. They contended that they had lost the possibility of selling their properties at normal market prices. They added that they would have run too great a risk had they incurred expenditure on their properties and that if all the same they had had work carried out after obtaining a building permit, they would have been obliged to undertake not to claim - in the event of expropriation - any indemnity for the resultant capital appreciation. They also alleged that they would have encountered difficulties in obtaining mortgages had they sought them. Finally, they recalled that any \"new construction\" on their own land was prohibited.", "Though not claiming that they had been formally and definitively deprived of their possessions, the Sporrong Estate and Mrs. Lönnroth alleged that the permits and prohibitions at issue subjected the enjoyment and power to dispose of their properties to limitations that were excessive and did not give rise to any compensation. Their right of property had accordingly, so they contended, been deprived of its substance whilst the measures in question were in force.", "59. The Government accepted that market forces might render it more difficult to sell or let a property that was subject to an expropriation permit and that the longer the permit remained in force the more serious this problem would become. They also recognised that prohibitions on construction restricted the normal exercise of the right of property. However, they asserted that such permits and prohibitions were an intrinsic feature of town planning and did not impair the right of owners to \"the peaceful enjoyment of (their) possessions\", within the meaning of Article 1 of Protocol No. 1 (P1-1).", "60. The Court is unable to accept this argument.", "Although the expropriation permits left intact in law the owners ’ right to use and dispose of their possessions, they nevertheless in practice significantly reduced the possibility of its exercise. They also affected the very substance of ownership in that they recognised before the event that any expropriation would be lawful and authorised the City of Stockholm to expropriate whenever it found it expedient to do so. The applicants ’ right of property thus became precarious and defeasible.", "The prohibitions on construction, for their part, undoubtedly restricted the applicants ’ right to use their possessions.", "The Court also considers that the permits and prohibitions should in principle be examined together, except to the extent that analysis of the case may require a distinction to be drawn between them. This is because, even though there was not necessarily a legal connection between the measures (see paragraph 35 above) and even though they had different periods of validity, they were complementary and had the single objective of facilitating the development of the city in accordance with the successive plans prepared for this purpose.", "There was therefore an interference with the applicants ’ right of property and, as the Commission rightly pointed out, the consequences of that interference were undoubtedly rendered more serious by the combined use, over a long period of time, of expropriation permits and prohibitions on construction.", "2. The justification for the interference with the applicants ’ right of property", "61. It remains to be ascertained whether or not the interference found by the Court violated Article 1 (P1-1).", "That Article (P1-1) comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph.", "The Court must determine, before considering whether the first rule was complied with, whether the last two are applicable.", "(a) The applicability of the second sentence of the first paragraph", "62. It should be recalled first of all that the Swedish authorities did not proceed to an expropriation of the applicants ’ properties. The applicants were therefore not formally \"deprived of their possessions\" at any time: they were entitled to use, sell, devise, donate or mortgage their properties.", "63. In the absence of a formal expropriation, that is to say a transfer of ownership, the Court considers that it must look behind the appearances and investigate the realities of the situation complained of (see, mutatis mutandis, the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, p. 20, par. 38). Since the Convention is intended to guarantee rights that are \"practical and effective\" (see the Airey judgment of 9 October 1979, Series A no. 32, p. 12, par. 24), it has to be ascertained whether that situation amounted to a de facto expropriation, as was argued by the applicants.", "In the Court ’ s opinion, all the effects complained of (see paragraph 58 above) stemmed from the reduction of the possibility of disposing of the properties concerned. Those effects were occasioned by limitations imposed on the right of property, which right had become precarious, and from the consequences of those limitations on the value of the premises. However, although the right in question lost some of its substance, it did not disappear. The effects of the measures involved are not such that they can be assimilated to a deprivation of possessions. The Court observes in this connection that the applicants could continue to utilise their possessions and that, although it became more difficult to sell properties in Stockholm affected by expropriation permits and prohibitions on construction, the possibility of selling subsisted; according to information supplied by the Government, several dozen sales were carried out (see paragraph 30 above).", "There was therefore no room for the application of the second sentence of the first paragraph in the present case.", "(b) The applicability of the second paragraph", "64. The prohibitions on construction clearly amounted to a control of \"the use of [the applicants ’ ] property\", within the meaning of the second paragraph.", "65. On the other hand, the expropriation permits were not intended to limit or control such use. Since they were an initial step in a procedure leading to deprivation of possessions, they did not fall within the ambit of the second paragraph. They must be examined under the first sentence of the first paragraph.", "(c) Compliance with the first sentence of the first paragraph as regards the expropriation permits", "66. The applicants ’ complaints concerned in the first place the length of the time-limits granted to the City of Stockholm, which they regarded as contrary to both Swedish law and the Convention.", "67. The 1917 Act did not contain any provisions either on the length of the time-limit during which the expropriating authority had to institute judicial proceedings for the fixing of compensation for expropriation, or on the extension of the validity of permits.", "According to the Sporrong Estate and Mrs. Lönnroth, it had been the established practice since the entry into force of the Act for the normal time-limit for service of a summons to appear before the Real Estate Court to be one year. Since the time-limits in the present case were as long as five and ten years respectively, it was alleged that there was no legal basis for the original permits; the same was said to apply to the three extensions of the permit affecting the property of the Sporrong Estate.", "The respondent State replied that the issue and the extension of the permits were in conformity with Swedish law: it argued that since the Government were entitled to fix the period of validity of the original permit, they were also empowered, in the absence of any provision to the contrary, to extend it.", "68. The Court does not consider that it has to resolve this difference of opinion over the interpretation of Swedish law. Even if the permits complained of were not contrary to that law, their conformity therewith would not establish that they were compatible with the right guaranteed by Article 1 (P1-1).", "69. The fact that the permits fell within the ambit neither of the second sentence of the first paragraph nor of the second paragraph does not mean that the interference with the said right violated the rule contained in the first sentence of the first paragraph.", "For the purposes of the latter provision, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights (see, mutatis mutandis, the judgment of 23 July 1968 in the \"Belgian Linguistic\" case, Series A no. 6, p. 32, par. 5). The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1 (P1-1).", "The Agent of the Government recognised the need for such a balance. At the hearing on the morning of 23 February 1982, he pointed out that, under the Expropriation Act, an expropriation permit must not be issued if the public purpose in question can be achieved in a different way; when this is being assessed, full weight must be given both to the interests of the individual and to the public interest.", "The Court has not overlooked this concern on the part of the legislature. Moreover, it finds it natural that, in an area as complex and difficult as that of the development of large cities, the Contracting States should enjoy a wide margin of appreciation in order to implement their town-planning policy. Nevertheless, the Court cannot fail to exercise its power of review and must determine whether the requisite balance was maintained in a manner consonant with the applicants ’ right to \"the peaceful enjoyment of [their] possessions\", within the meaning of the first sentence of Article 1 (P1-1).", "70. A feature of the law in force at the relevant time was its inflexibility. With the exception of the total withdrawal of the expropriation permits, which required the agreement of the municipality, the law provided no means by which the situation of the property owners involved could be modified at a later date. The Court notes in this connection that the permits granted to the City of Stockholm were granted for five years in the case of the Sporrong Estate - with an extension for three, then for five and finally for ten years - and for ten years in the case of Mrs. Lönnroth. In the events that happened, they remained in force for twenty-three years and eight years respectively. During the whole of this period, the applicants were left in complete uncertainty as to the fate of their properties and were not entitled to have any difficulties which they might have encountered taken into account by the Swedish Government. The Commission ’ s report furnishes an example of such difficulties. Mrs. Lönnroth had requested the Government to withdraw the expropriation permit. The City Council replied that the existing plans did not authorise any derogation; the Government, for their part, refused the request on the ground that they could not revoke the permit without the Council ’ s express consent (see paragraph 21 above).", "The Courts has not overlooked the interest of the City of Stockholm in having the option of expropriating properties in order to implement its plans. However, it does not see why the Swedish legislation should have excluded the possibility of re-assessing, at reasonable intervals during the lengthy periods for which each of the permits was granted and maintained in force, the interests of the City and the interests of the owners. In the instant case, the absence of such a possibility was all the less satisfactory in that the town-planning schemes underlying the expropriation permits and, at the same time, the intended use prescribed for the applicants ’ properties were modified on several occasions.", "71. As is shown by the official statement of reasons accompanying the Bill in which the 1972 Act originated, the Swedish Government conceded that \"in certain respects, the existing system is a source of disadvantages for the property owner\":", "\"Naturally, the mere issue of an expropriation permit often places him in a state of uncertainty. In practice, his opportunities for disposing of his property by selling it, assigning the use thereof or having premises erected thereon are considerably restricted. He may also have difficulty in deciding whether to incur expenditure on upkeep or modernisation. The disadvantages resulting from an expropriation permit are, of course, increased if the judicial proceedings are not set in motion for a long time.\" (Kungl. Maj:ts proposition nr. 109, 1972, p. 227)", "The 1972 Act takes partial account of these problems. Admittedly, it does not provide for compensation to be granted to property owners who may have been prejudiced by reason of the length of the validity of the permit; however, it does enable them to obtain a reduction of the time-limit for service of the summons to appear before the Real Estate Court if they establish that the fact that the question of expropriation remains pending has caused significantly more serious prejudice (see paragraph 37 above). Since the Act was not applicable in the present case (see paragraph 39 above), it could not have been of assistance to the applicants in overcoming any difficulties which they might have encountered.", "72. The Court also finds that the existence throughout this period of prohibitions on construction accentuated even further the prejudicial effects of the length of the validity of the permits. Full enjoyment of the applicants ’ right of property was impeded for a total period of twenty-five years in the case of the Sporrong Estate and of twelve years in the case of Mrs. Lönnroth. In this connection, the Court notes that in 1967 the Parliamentary Ombudsman considered that the adverse effects on property owners that could result from extended prohibitions were irreconcilable with the position that should obtain in a State governed by the rule of law (see paragraph 42 above).", "73. Being combined in this way, the two series of measures created a situation which upset the fair balance which should be struck between the protection of the right of property and the requirements of the general interest: the Sporrong Estate and Mrs. Lönnroth bore an individual and excessive burden which could have been rendered legitimate only if they had had the possibility of seeking a reduction of the time-limits or of claiming compensation. Yet at the relevant time Swedish law excluded these possibilities and it still excludes the second of them.", "In the Court ’ s view, it is not appropriate at this stage to determine whether the applicants were in fact prejudiced (see, mutatis mutandis, the above-mentioned Marckx judgment, Series A no. 31, p. 13, par. 27): it was in their legal situation itself that the requisite balance was no longer to be found.", "74. The permits in question, whose consequences were aggravated by the prohibitions on construction, therefore violated Article 1 (P1-1), as regards both applicants.", "(d) Compliance with Article 1 (P1-1) as regards the prohibitions on construction", "75. In view of the foregoing, the Court does not consider it necessary to determine whether the prohibitions on construction, taken alone, also infringed Article 1 (P1-1).", "II. THE ALLEGED VIOLATION OF ARTICLES 17 AND 18, OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 17+P1-1, art. 18+P1-1).", "76. The applicants also relied on Articles 17 and 18 (art. 17, art. 18) of the Convention. They claimed that the exercise of their right to the peaceful enjoyment of their possessions was subjected to \"restrictions that were more far-reaching than those contemplated\" by Article 1 of Protocol No. 1 (P1-1) and had a \"purpose\" that is not mentioned in that Article.", "The Commission concluded unanimously that there had been no violation.", "Having found that there was a breach of Article 1 of Protocol No 1. (P1-1), the Court does not consider it necessary also to examine the case under Articles 17 and 18 (art. 17, art. 18) of the Convention.", "III. THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)", "77. The applicants invoked Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 (art. 14+P1-1), and maintained that they had been victims of discrimination as compared with two categories of owners, namely those whose properties were not expropriated of owners, namely those whose properties were expropriated in an manner consistent with Swedish law and the Convention.", "The Court does not accept this argument, which is not supported by any evidence in the material before it.", "IV. THE ALLEGED VIOLATION OF ARTICLE 6 PAR. 1 (art. 6-1) OF THE CONVENTION", "78. According to the applicants, their complaints concerning the expropriation permits affecting their properties were not, and could not have been, heard by the Swedish courts; in this respect they alleged a violation of Article 6 par. 1 (art. 6-1) of the Convention which reads as follows:", "\"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...\"", "A. The applicability of Article 6 par. 1 (art. 6-1)", "79. The applicants ’ right of property is without doubt a \"civil right\" and there was in fact no dispute on this point. It remains to be ascertained whether that right was the subject of a \"contestation\" (dispute) between the applicants and the Swedish authorities.", "80. The Commission, whilst recognising that expropriation proceedings concerned a civil right, took the view that the expropriation permits issued under the 1917 Act did not amount to a determination of civil rights and obligations of the owners. It concluded that the administrative proceedings whereby the permits affecting the applicants ’ properties were issued and subsequently extended did not fall within the ambit of Article 6 par. 1 (art. 6-1).", "The Court is unable to share this view. In its Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, it pointed out that Article 6 par. 1 (art. 6-1) \"is not applicable solely to proceedings which are already in progress: it may also be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 par. 1 (art. 6-1)\" (Series A no. 43, p. 20, par. 44, with a reference to the Golder judgment of 21 February 1975, Series A no. 18). It is of little consequence that the contestation (dispute) concerned an administrative measure taken by the competent body in the exercise of public authority (see, mutatis mutandis, the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, par. 94, and the König judgment of 28 June 1978, Series A no. 27, p. 32, par. 94).", "In the present case, the applicants emphasised that they had not had the possibility of applying to a tribunal having jurisdiction to examine the situation created by the issue or extension of the expropriation permits.", "81. As regards the actual lawfulness of such issue or extension, the Sporrong Estate and Mrs. Lönnroth cited the practice whereby the time-limit for service of a summons to appear before the Real Estate Court was normally one year (see paragraph 67 above); they maintained that the long time-limits granted in their cases were not in accordance with Swedish law. The Government, for their part, disputed this interpretation. The Court recalls that it does not consider that it has to resolve this difference of opinion (see paragraph 68 above). However, the existence and the serious nature of that difference demonstrate that an issue did arise under Article 6 par. 1 (art. 6-1). Given that the applicants regarded as unlawful the adoption or extension of measures which affected their right of property and had been in force for periods of the kind encountered in their cases, they were entitled to have this question of domestic law determined by a tribunal.", "82. The applicants also complained of the fact that they were unable to take legal proceedings to seek redress for the loss occasioned both by the expropriation permits and by the prohibitions on construction. The Court, having just found that there was a contestation (dispute), does not deem it necessary to examine this argument.", "83. To sum up, the expropriation permits affecting the applicants ’ properties related to a \"civil\" right and, as regards their period of validity, gave rise to a \"contestation\" (dispute), within the meaning of Article 6 par. 1 (art. 6-1).", "B. Compliance with Article 6 par. 1 (art. 6-1)", "84. The Court has to establish Swedish law conferred on the applicants the \"right to a court\", one aspect of which is the right to access, that is the right to institute proceedings before a court having competence in civil matters (see the above-mentioned Golder judgment, Series A no. 18, p. 18, par. 36). It therefore has to be ascertained whether the Sporrong Estate and Mrs Lönnroth could have instituted legal proceedings to challenge the lawfulness of the decisions of the City Council and of the Government concerning the issue or extension of the long-term expropriation permits.", "1. Review of the lawfulness of the City Council ’ s decisions", "85. The Government stated it would have been open to the applicants to challenge the lawfulness of the decisions of the City of Stockholm to request the Government to issue or extend the said permits.", "It is true that, in so far as those decisions had come to the applicants ’ knowledge - despite the absence, according to them, of any individual notification -, they could have referred the matter to the County Administrative Board and then, if necessary, to the Supreme Administrative Court (see paragraph 43 above). However, the requests were only preparatory steps which, in themselves, did not at that stage interfere with a civil right. Furthermore, their lawfulness did not necessarily depend on the same criteria as the lawfulness of the final decisions taken by the Government in this respect.", "2. Review of the lawfulness of the Government ’ s decisions", "86. The Government ’ s decisions on the issue and extension of the permits are not open to appeal before the administrative courts.", "Admittedly, owners can challenge the lawfulness of such decisions by requesting the Supreme Administrative Court to re-open the proceedings. However, they must in practice rely on grounds identical or similar to those set out in Chapter 58, Article 1, of the Code of Judicial Procedure (see paragraph 50 above). Furthermore, this is an extraordinary remedy - as the Government admitted - and is exercised but rarely. When considering the admissibility of such an application, the Supreme Administrative Court does not examine the merits of the case; at that stage, it therefore does not undertake a full review of measures affecting a civil right (see, mutatis mutandis, the above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A no. 43, pp. 23, 24 and 26, par. 51, 54 and 60). It is only where the Supreme Administrative Court has declared the application admissible that such a review can be effected, either by that court itself or, if it has referred the case back to a court or authority previously dealing with the matter, by the latter court or authority. In short, the said remedy did not meet the requirements of Article 6 par. 1 (art. 6-1).", "87. To sum up, the case (in French: cause) of the Sporrong Estate and Mrs. Lönnroth could not be heard by a tribunal competent to determine all the aspects of the matter. As regards both applicants, there has therefore been a violation of Article 6 par. 1 (art. 6-1).", "V. THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION", "88. The applicants maintained that they were deprived of any effective remedy before a national \"authority\" in respect of the violations of which they complained; they relied on Article 13 (art. 13) which provides:", "\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "In its report, the Commission expressed the opinion that there had been a breach of this Article (art. 13). The Government contested this opinion, especially in their memorial of 31 July 1981, which was exclusively devoted to this issue.", "Having regard to its decision on Article 6 par. 1 (art. 6-1), the Court considers that it is not necessary to examine the case under Article 13 (art. 13); this is because its requirements are less strict than, and are here absorbed by, those of Article 6 par. 1 (art. 6-1) (see the above-mentioned Airey judgment, Series A no. 32, p. 18, par. 35, and, mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pl. 46, par. 95, and the above-mentioned Golder judgment Series A no. 18, pp. 15-16, par. 33).", "VI. THE APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION", "89. At the hearings of 23 February 1982, the applicants ’ counsel stated that should the Court find a violation, his clients would seek under Article 50 (art. 50) just satisfaction for pecuniary loss and for legal and related expenses. He considered that their claims would to a large extent depend on the tenor of the judgment to be given and therefore suggested that examination of this issue be adjourned.", "The Government confined themselves to indicating that they reserved their position on the application of Article 50 (art. 50).", "Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision. The Court is therefore obliged to reserve it and fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicants." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. Mrs Liliane Hentrich, who is a French national, lives in Strasbourg.", "7. On 11 May 1979 she and her husband, Mr Wolfgang Peukert, bought 6,766 square metres of land in Strasbourg for a total sum of 150,000 French francs (FRF). Further building was not permitted on the land, which was entered in the land register in several different parcels: 2,126 sq. m of land, 406 sq. m of ground, house and appurtenant buildings, 130 sq. m of ground and cowshed, 2,353 sq. m of garden, ground and shed, and 1,751 sq. m of garden.", "8. The sale was concluded on the condition precedent that the SAFER (Regional Development and Rural Settlement Corporation) of Alsace did not exercise its right of pre-emption over the property within two months. The main tax office at Molsheim registered the sale on payment of duties, firstly on 28 May 1979 and then on 13 August 1979, when the sale took effect on expiry of the statutory time allowed for the SAFER to exercise its right, which it had not done.", "A. The pre-emption", "9. On 5 February 1980 Mrs Hentrich and her husband were notified by a bailiff of the following decision:", "\"As [the Commissioner of Revenue] considers the sale price declared in the contract of sale ... to be too low, he is exercising, for the benefit of the Treasury and with all the effects it entails, the right of pre-emption provided for in Article 668 of the General Tax Code over all the real property and appurtenant rights [acquired by them] ... [the Commissioner of Revenue] offers to pay [the buyers] or any other rightful claimant", "(a) the price specified in the contract of sale,", "(b) the ten per cent premium provided for in law, and", "(c) the costs and fair expenses of the contract on production of all the appropriate vouchers.\"", "B. The challenging of the pre-emption in the courts", "1. The proceedings in the Strasbourg tribunal de grande instance", "10. On 31 March 1980 the applicant and her husband instituted proceedings in the Strasbourg tribunal de grande instance against the Commissioner of Revenue for the département of Bas- Rhin. They sought to have the pre-emption set aside on the grounds that the time-limit for exercising the right had not been complied with, the notification had been null and void (this ground was not pursued at the hearing) and there had been a misuse of powers and a breach of the Convention and of Protocol No. 1. In the alternative, they applied for an assessment by a court expert of the market value of the property in issue and an examination of the sellers.", "11. The tribunal de grande instance gave judgment against them on 16 December 1980. It ruled that the time allowed for exercising the right of pre-emption had begun to run on 13 August 1979 and it held that the State could not be blamed for not having exercised its right of pre-emption so long as the sale had not taken effect and was subject to the condition precedent.", "12. It rejected the complaints based on the Convention in the following terms:", "\"As to the breach of the Convention ... allegedly constituted by the right of pre-emption in Art. 668 of the GTC [General Tax Code]", "...", "If the Court were to conclude on that account that Article 668 GTC conflicted with the provisions of the Human Rights Convention, [the plaintiffs] could legitimately maintain that the French courts must in future refuse to apply Article 668 GTC.", "...", "[The plaintiffs] began by arguing that Article 668 GTC was blatantly inconsistent with Article 1 para. 1 of the Protocol to the Convention (P1-1), which provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions and that no one shall be deprived of his possessions except in the public interest.", "But the Article referred to has a second paragraph, which provides: ‘ The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary ... to secure the payment of taxes ... ’", "It so happens that the French State, faced with tax evasion on an increasingly large scale, has felt obliged to enact the provisions of Article 668 GTC.", "By means of that Article the State hopes to ensure proper payment of the duties levied on contracts of sale.", "The impugned enactment is therefore not inconsistent with the provisions relied on.", "[The plaintiffs] went on to argue that Article 668 fell foul of Article 6 para. 2 (art. 6-2) of the Convention ..., which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law;", "that the exercise of the right of pre-emption by the Revenue was a penalty for a ‘ presumed offence of tax evasion ’; and", "that they were therefore regarded, by the very fact of the right of pre-emption having been exercised, as tax evaders with all that that implies in the way of disgrace and without their having any possibility of exculpating themselves.", "Article 668, however, states that the Revenue may exercise a right of pre-emption over property sold at a price it considers too low.", "It is therefore not necessary to prove tax evasion before this provision can be applied.", "It is sufficient for the price to appear to the Revenue to be too low without its having to determine the reason why it is too low, which may in fact have nothing to do with tax evasion (e.g. ignorance of the real value or kindness).", "Admittedly, the provision was enacted solely to counter tax evasion, but those to whom it is applied are nevertheless not necessarily tax evaders and cannot be regarded as such; no penalty is imposed on them and the State even pays them 10% more than the price they paid.", "This 10% premium has been provided for precisely because it may inadvertently happen that the right of pre-emption is applied in cases where there has been no attempt to evade tax by the persons concerned.", "[The plaintiffs] are therefore wrong to regard themselves as disgraced and as having been punished for committing tax evasion.", "[The plaintiffs] also alleged a breach of Article 6 para. 1 (art. 6-1) of the Convention ..., which lays down that a punishment can be imposed only after a hearing of the person whose rights are disputed or who is charged with a criminal offence.", "But Article 668 GTC in no way disputes the rights of anyone who has acquired a property and the purchaser is not charged with any offence.", "The provision merely confers a privilege on the State for the purpose of ensuring that taxes are paid.", "It is therefore not necessary, as [the plaintiffs] maintained, to allow them to prove that they paid the proper price and did not conceal any payment.", "Lastly, [the plaintiffs] asserted that they were the victims of a discriminatory measure prohibited by Article 14 (art. 14) of the Convention ...; and", "that the measure was discriminatory in relation to other buyers of neighbouring properties at almost identical prices, against whom the Revenue had not exercised its right of pre-emption.", "But the Revenue has complete freedom to exercise its right of pre-emption as it wishes.", "There is no evidence before the Court to support the contention that the State was influenced by considerations of race, nationality, language, political opinion or any of the other criteria referred to in Article 14 (art. 14) of the Convention.", "...\"", "2. The proceedings in the Colmar Court of Appeal", "13. The applicant and her husband appealed to the Colmar Court of Appeal on 23 January 1981. On 4 December 1981 the judge responsible for preparing the case for trial directed them to make their submissions by 5 February 1982.", "After securing an extension of time until 7 May, the applicants filed pleadings on 29 April 1982 in which they reiterated the arguments they had adduced at first instance. They supplemented their complaint of discriminatory treatment by pointing out that there was another piece of land that could, they said, have been pre-empted and by criticising the Revenue for having chosen the special procedure of pre-emption instead of the ordinary procedure of making a supplementary tax assessment. Lastly, they argued that the decision to exercise the right of pre-emption did not contain the reasons required by section 3 of Law no. 79-587 of 11 July 1979 (see paragraph 22 below).", "14. The Revenue filed its pleadings on 3 February 1983, as the judge responsible for preparing the case for trial had requested on 5 November 1982. The time-limit of 5 May 1983 that was given to the applicant and her husband for their reply was put back to 3 June and then 7 October. They filed their submissions on 19 September 1983. The pre-trial proceedings were concluded on 6 January 1984.", "15. The Colmar Court of Appeal held a hearing on 21 January 1985 and gave judgment on 19 February 1985. It upheld the lower court ’ s determination of the date on which the time allowed for exercising the right of pre-emption had begun to run and dismissed the appeal for the following reasons:", "\"The ground of appeal alleging that the notification of 5 February 1980 was unlawful because it did not, as required by section 3 of Law no. 79-587 of 11 July 1979, give any reasons must be rejected, account having been taken of the fact that it does not appear sufficiently substantial to constitute a preliminary point of administrative law, seeing that the notification appears to set out the legal basis and the reason of fact which prompted the Revenue to exercise the right of pre-emption.", "For the rest, the Court, without the slightest hesitation, adopts the excellent reasons for which the court below rejected the grounds relating, firstly, to the misuse of powers of which the Revenue was allegedly guilty by acting speculatively and, secondly, to the contravening by Article 668 of the General Tax Code of several fundamental principles laid down in the Convention ...\"", "3. The proceedings in the Court of Cassation", "16. The applicant and her husband appealed on points of law on 13 June 1985 and filed supplementary pleadings on 13 November.", "They argued two grounds of appeal, the first based on failure to comply with the time-limit for exercising the right of pre-emption and the second on breaches of Article 1 of Protocol No. 1 (P1-1) and Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.", "In support of the second ground - the only relevant one here - they maintained, firstly:", "\"...", "It appears from reading these provisions [Article 1 of Protocol No. 1 and Article 6 para. 1 of the Convention (P1-1, art. 6-1)] together that no one can be deprived of his property, even by a tax law, without being able to defend himself in court proceedings. The fact remains, however, that the right of pre-emption conferred by Article 668 of the GTC (which has become Article L.18 of the Tax Proceedings Code) is exercised at the discretion of the State, which does not have to prove the allegation that the price was too low, and that this provision does not allow a dispossessed purchaser to show that he acted in good faith or that the price in question was a normal one. In the instant case the Court [of Appeal], which noted that the State ’ s right was a discretionary one and that it was impossible for the expropriated party to be heard in his own defence and still concluded that Article 668 of the GTC conformed with the provisions of Article 1 of the First Protocol and Article 6 para. 1 (P1-1, art. 6-1) of the ... Convention ..., did not draw from its own findings the legal conclusions which followed from them and thus breached the aforementioned provisions ...\"", "They went on:", "\"Article 6 para. 2 (art. 6-2) of the ... Convention ... provides: ‘ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ’ It is established that the purpose of Article 668 of the GTC is to prevent tax evasion and it provides for a penalty in respect of those guilty of it. In the instant case the Court [of Appeal], which refused to recognise that this was the purpose and nature of the State ’ s pre-emption so as not to apply to the State the provisions of Article 6 para. 2 (art. 6-2) of the Convention, misunderstood the meaning and scope of Article 668 of the GTC (which has become Article L.18 of the Tax Proceedings Code) and accordingly breached that provision.", "Lastly, the Court [of Appeal], which noted that the Revenue could exercise its right of pre-emption without having to prove the expropriated party ’ s guilt and without that party being able to prove his innocence, but still considered that such a measure did not contravene Article 6 para. 2 (art. 6-2) of the Convention, breached that provision in refusing to apply it.\"", "17. The Revenue ’ s defence was registered on 7 March 1986. The reporting judge, who was appointed on 18 April 1986, filed his report on 18 November 1986. The advocate-general was chosen on 2 January 1987. Initially heard on 31 March 1987, the case was transferred on 19 May 1987 to a full court of the Court of Cassation ’ s Commercial Division.", "18. On 16 June 1987 the Court of Cassation (Commercial Division) delivered four leading judgments, including one dismissing the applicant and her husband ’ s case.", "As to the ground of appeal relating to the breach of provisions of the Convention, it said:", "\"... in the first place, where the Revenue exercises the powers vested in it by Article 668 of the General Tax Code, the dispossessed purchaser may ask a court to rule on a challenge by him seeking to establish that the conditions for applying the aforementioned provision were not satisfied.", "In the second place, exercising the State ’ s right of pre-emption as provided by the aforementioned Article 668 does not imply that the dispossessed purchaser has committed a criminal offence, from which it follows that the exercise of this right was not within the contemplation of Article 6 para. 2 (art. 6-2) of the Convention ...", "The ground of appeal is therefore unfounded in every limb.\"", "19. Since 1981, it has been possible to build on the land, subject to conditions. The land has not been resold but has been left at the disposal of a neighbouring market gardener. Its current value is in the region of FRF 330 per square metre." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Revenue ’ s right of pre-emption", "20. At the time of the pre-emption in question, Article 668 of the General Tax Code provided:", "\"Without prejudice to the provisions of Article 1649 quinquies A and for a period of six months from the date on which the formality of registration for tax purposes or the combined formality [simultaneous registration for tax purposes and entry in the land charges register] is completed, the Revenue may exercise for the benefit of the Treasury a right of pre-emption over real property, real-property rights, businesses or goodwill, rights to leases or to the benefit of a promise of a lease of all or part of a property where it considers the sale price to be too low, by offering to pay the rightful claimants the price in question and a premium of ten per cent.", "The six-month period shall be reduced to three months where the formality is completed at the office for the area in which the property is situated.", "The decision to exercise the right of pre-emption shall be served by a bailiff.\"", "21. On 1 January 1982 Article 668 became Article L.18 of the Tax Proceedings Code and now provides:", "\"For a period of six months from the date of registration for tax purposes or the date on which the combined formality [simultaneous registration for tax purposes and entry in the land charges register] is completed, the State, represented by the Revenue, may exercise a right of pre-emption over real property, real-property rights, businesses or goodwill, rights to leases or to the benefit of a promise of a lease of all or part of a property where the Revenue considers the sale price to be too low, by offering to pay the purchaser or his successors in title the price in question and a premium of ten per cent.", "The six-month period shall be reduced to three months where the formality is completed at the office for the area in which the property is situated.", "The decision to exercise the right of pre-emption shall be served on the purchaser, vendor or their successors in title by a bailiff.", "The exercise of this right shall not prejudice the Revenue ’ s right to bring, where appropriate, adversarial supplementary assessment proceedings as provided for in Article L.55.\"", "22. The administrative decision to exercise the right of pre-emption provided for in this Article must - so it is stated in the Prime Minister ’ s circular of 10 January 1980 - contain reasons in accordance with Law no. 79-587 of 11 July 1979, which came into force on 11 January 1980 and whose relevant sections provide:", "Section 1", "\"Natural or legal persons shall have the right to be informed without delay of the reasons for unfavourable individual administrative decisions concerning them.", "To this end, reasons must be given for decisions which:", "(a) restrain the exercise of civil liberties or generally amount to a policing measure;", "(b) impose a penalty;", "(c) make the grant of an authorisation subject to restrictive conditions or impose obligations;", "(d) withdraw or rescind decisions creating rights;", "(e) assert prescription, an estoppel or a forfeiture;", "(f) refuse a benefit to which persons who satisfy the statutory conditions for receiving it are entitled.\"", "Section 3", "\"The reasons required by this Law must be in writing and include a statement of the considerations of law and fact on which the decision is based.\"", "B. The extent of review by the courts", "23. Jurisdiction to hear appeals against pre-emption decisions under Article 668 of the General Tax Code is vested in the ordinary courts.", "Firstly, in a judgment of 22 December 1950 ( Dalloz 1951, jurisprudence, p. 547) the Conseil d ’ Etat held that it had no jurisdiction, stating that \"by reason of the serious interference with the right of ownership which the power granted to the Revenue ... to exercise a right of pre-emption over sold real property entails ..., it is for the ordinary courts ... to deal with cases concerning the right of pre-emption\". Secondly, the ordinary courts have agreed to rule on challenges to pre-emption decisions. They initially reviewed only the formal correctness of pre-emption decisions (Lyons Court of Appeal, judgment of 14 April 1947, Gazette du Palais 1947, 2, 48). Subsequently they extended their review so as to satisfy themselves that pre- emptions had not had a speculative purpose and that they did not disclose any misuse of powers (Court of Cassation, Commercial Division, Lucan judgments of 5 February 1957, Juris-Classeur périodique 1957, I, 9875 and 9876).", "Having regard to the discretionary nature of the right of pre-emption, the Court of Cassation held, however, that the courts could not review the Revenue ’ s assessment that a declared price was too low.", "In its four leading judgments delivered on 16 June 1987 (see paragraph 18 above) the Court of Cassation considerably widened the scope of judicial review. Explicitly abandoning its earlier view of the discretionary nature of the right of pre-emption, it held that the reasons given for decisions to exercise the right must be in writing and contain a statement of the considerations of law and fact on which the decisions were based. It concluded from this that reasoning which stated only \"the Revenue considers the sale price to be too low\" was inadequate as it was too summary and too general, the Revenue being required to specify the facts on which it based its assessment that the stipulated sale price was too low, in order to enable a dispossessed purchaser to challenge the assessment and establish that the agreed price corresponded to the real market value of the property.", "In two of these cases the Court of Cassation quashed the impugned judgments for having contravened the provisions thus construed; in the other two, including the case of the applicant and her husband, it dismissed the appeals. The applicant and her husband were the only dispossessed purchasers who did not win their case in the Court of Cassation.", "C. Pre-emption in practice", "24. In 1980 the Revenue exercised its right of pre-emption only once in the département of Bas- Rhin - against the applicant and her husband - and twenty-five times in the rest of France.", "Between 1980 and 1986 it carried out eighty-eight operations of this kind.", "Since the judgments of 1987 (see paragraph 18 above) it has refrained from resorting to pre-emption.", "PROCEEDINGS BEFORE THE COMMISSION", "25. Mrs Hentrich applied to the Commission on 14 December 1987. In her submission, the exercise of the right of pre-emption had been an unjustified interference with her right of property, in breach of Article 1 of Protocol No. 1 (P1-1). It had raised a presumption that she was guilty of tax evasion, contrary to Article 6 para. 2 (art. 6-2) of the Convention. She had been denied the benefit of the right of access to a court that would give her a fair trial within a reasonable time, in disregard of Articles 6 and 13 (art. 6, art. 13) of the Convention. Lastly, she submitted that there had been discriminatory treatment, contrary to Article 14 (art. 14) of the Convention, in the enjoyment of the rights secured in the aforementioned provisions.", "26. The Commission declared the application (no. 13616/88) admissible on 5 December 1991. In its report of 4 May 1993 (Article 31) (art. 31), it expressed the opinion that", "(a) there had been a violation of Article 1 of Protocol No. 1 (P1-1) (twelve votes to one);", "(b) there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention as regards the fairness and length of the proceedings (twelve votes to one);", "(c) there had been no violation of Articles 6 para. 2 and 14 (art. 6-2, art. 14) of the Convention (twelve votes to one); and", "(d) it was unnecessary to examine separately the complaint based on Article 13 (art. 13) of the Convention (unanimously).", "The full text of the Commission ’ s opinion and of the four partly dissenting opinions contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT", "27. In their memorial the Government asked the Court to", "\"dismiss the application lodged by Mrs Hentrich by holding that the complaints based on breaches of Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1 (art. 6-1, P1-1) are inadmissible for failure to exhaust domestic remedies or, in the alternative, that they are unfounded; that Article 6 para. 2 (art. 6-2) of the Convention is not applicable in this case or, in the alternative, that the complaint based on it is ill-founded; that the complaint based on the failure to try the case within a reasonable time is unfounded; and, lastly, that the complaints based on breaches of Articles 13 and 14 (art. 13, art. 14) of the Convention are unfounded\".", "AS TO THE LAW", "I. INTRODUCTION", "28. Essentially, Mrs Hentrich claimed to be the victim of a violation of Article 1 of Protocol No. 1 (P1-1) on account of the Revenue ’ s exercise of the right of pre-emption conferred on it by Article 668 of the General Tax Code. She also maintained that the national proceedings had not afforded her an adequate opportunity to present her case to the French courts, contrary to Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.", "II. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "29. As they had done before the Commission, the Government submitted that domestic remedies had not been exhausted.", "The first limb of the second ground of appeal in the Court of Cassation, they said, mentioned Article 1 of Protocol No. 1 (P1-1) but did not refer to public interest or to the proportionality of the interference. Its thrust was to impugn Article 668 of the General Tax Code in that it did not allow a dispossessed purchaser to show his good faith, not to argue that the right of pre-emption infringed the right of individuals to the peaceful enjoyment of their possessions.", "Furthermore, Mrs Hentrich had not put the Court of Cassation in a position to remedy the shortcomings of the national proceedings, since she had not alleged before it that Law no. 79-587 of 11 July 1979 had been contravened.", "30. The Court points out, firstly, that Article 26 (art. 26) of the Convention must be applied \"with some degree of flexibility and without excessive formalism\" (see the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 19, para. 27).", "It notes, like the Commission, that at all stages of the national proceedings the applicant expressly relied on the relevant provisions of the Convention and indicated to the domestic courts in substance the complaints now made at Strasbourg.", "31. As regards the applicant ’ s submissions based on the incompatibility of Article 668 of the General Tax Code with Article 1 of Protocol No. 1 (P1-1), the Court notes that these were not new complaints as Mrs Hentrich confined herself before the Convention institutions to developing the argument already considered by the French courts, namely that Article 668 did not comply with, inter alia, the provisions of Article 1 of Protocol No. 1 P1-1).", "32. As regards the complaints relating to the proceedings, the applicant admittedly did not rely on Law no. 79-587 in the Court of Cassation as she had done in the Court of Appeal. It cannot be overlooked, however, that the Colmar Court of Appeal (see paragraph 15 above), like others at the time, had adopted the restrictive approach that had been taken up to then by the Court of Cassation. The applicant ’ s omission could therefore only justify this limb of the objection if the Government had persuaded the Court that at the time of the appeal on points of law an allegation that the Law in question had been contravened would have afforded a prospect of success such that there was an effective remedy. The Government, however, did not cite a single contemporaneous decision of the Court of Cassation to that effect.", "Lastly, the Government did not provide a convincing explanation of the Court of Cassation ’ s position. On the one hand, the Court of Cassation did not doubt that the exercise of the right of pre-emption was compatible with Article 6 (art. 6) of the Convention and Article 1 of Protocol No. 1 (P1-1) as long as a dispossessed purchaser could have a court review whether the conditions of its exercise had been satisfied (see paragraph 18 above); and on the other hand, it could not be unaware that in the instant case, as a result of the application of its own earlier principles, the dispossessed purchasers had been deprived of this possibility. Yet it did not quash the Court of Appeal ’ s judgment for infringing the Convention provisions.", "33. Accordingly, Mrs Hentrich gave the French courts the opportunity which is in principle intended to be afforded to Contracting States by Article 26 (art. 26), namely the opportunity of preventing or putting right the violations alleged against them (see, among other authorities, the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 27, para. 72).", "The objections must therefore be dismissed.", "III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)", "34. In the applicant ’ s submission, the pre-emption of her property by the Revenue amounted to a de facto expropriation and infringed Article 1 of Protocol No. 1 (P1-1), which provides:", "\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\"", "35. Because the right of pre-emption was exercised, Mrs Hentrich was deprived of her property within the meaning of the second sentence of the first sub-paragraph of Article 1 (P1-1); the Government did not contest that.", "36. The Court therefore has to satisfy itself that the requirements of the provision in question were complied with.", "A. Purpose of the interference", "37. In the applicant ’ s view, the prevention of tax evasion would only be an aim in the public interest if the owner was presumed guilty of tax evasion and if his property was subsequently used for a purpose that was in the public interest. A purchaser of real property could only be deprived by the Revenue of any profit made at the time of purchase in the event of fraud. That a price was too low might be explained by innocuous factors, such as goodwill, ignorance or urgency.", "38. The Government maintained that the pre-emption procedure was the only means available to the Revenue for regulating, and raising moral standards in, the property market and preventing tax evasion. The value of the procedure, which the Revenue considered to be particularly effective, lay in its deterrent nature and the fact that it was exceptional, being used only when - as in the instant case - the price was manifestly too low.", "39. Like the Commission, the Court notes that the right of pre-emption is exercised only where the declared price falls short of the Revenue ’ s valuation of the real property purchased. The right of pre-emption is not designed to punish tax evasion, and it applies even where the declared price corresponds to the price actually paid, but its purpose is to prevent non-payment of higher registration fees. The purchaser ’ s good or bad faith is therefore immaterial.", "The Court reiterates that the notion of \"public interest\" is necessarily extensive and that the States have a certain margin of appreciation to frame and organise their fiscal policies and make arrangements - such as the right of pre-emption - to ensure that taxes are paid. It recognises that the prevention of tax evasion is a legitimate objective which is in the public interest. It does not have to decide in the instant case whether the right of pre-emption could legitimately be designed also to regulate the property market.", "B. Lawfulness of the interference", "40. In Mrs Hentrich ’ s submission, the pre-emption procedure was arbitrary as the Revenue had not given reasons for its decision and the taxpayer had not been able to know or criticise the reasons for it subsequently.", "41. The Government maintained that the pre-emption measure had to comply with Law no. 79-587 of 11 July 1979 and was reviewable by the courts. Admittedly, the concept of a price being too low was imprecise, but it was to be assessed with reference to transfers of the same type in similar circumstances and the assessment could be challenged by the dispossessed owner.", "42. Unlike the Commission, the Court considers it necessary to rule on the lawfulness of the interference.", "While the system of the right of pre-emption does not lend itself to criticism as an attribute of the State ’ s sovereignty, the same is not true where the exercise of it is discretionary and at the same time the procedure is not fair.", "In the instant case the pre-emption operated arbitrarily and selectively and was scarcely foreseeable, and it was not attended by the basic procedural safeguards. In particular, Article 668 of the General Tax Code, as interpreted up to that time by the Court of Cassation and as applied to the applicant, did not sufficiently satisfy the requirements of precision and foreseeability implied by the concept of law within the meaning of the Convention.", "A pre-emption decision cannot be legitimate in the absence of adversarial proceedings that comply with the principle of equality of arms, enabling argument to be presented on the issue of the underestimation of the price and, consequently, on the Revenue ’ s position - all elements which were lacking in the present case.", "The Court notes that the French legal system has in fact been modified in this respect, it now being mandatory for the reasons for administrative pre-emption decisions to be subject to the adversarial principle. It must, however, observe that this development did not avail the applicant, although it could have done.", "C. Proportionality of the interference", "43. According to Mrs Hentrich, the fact that it was impossible to defend herself against the effect of the pre-emption - which she described as dishonouring - made the measure a disproportionate one, as did the inadequacy of the compensation paid for the expropriation.", "44. The Government disagreed with the Commission ’ s opinion that the measure was disproportionate to the objective sought to be achieved because of the existence of the adversarial procedure of a supplementary tax assessment. They said that this procedure had neither the same purpose nor the same effects. Pre-emption, which was more markedly exemplary in character, was designed essentially to ensure that the sale price of the real property concerned was not taken as a bench-mark, whereas supplementary tax assessments, which were of more general application, were unsuited to this type of situation. A revised assessment was a tax penalty which had no impact on the general organisation of the property market and whose legal consequences affected only the parties to the sale and more particularly the purchaser.", "In the Government ’ s submission, dispossessed purchasers did not sustain any financial loss since they received, in addition to the price paid to acquire the real property, a supplementary payment of 10% and could claim reimbursement of the costs and fair expenses of the contract and, on production of vouchers, reimbursement of sums committed before the pre-emption. Any purely non-pecuniary damage that might be suffered would certainly not be disproportionate to the aim pursued.", "Whatever the reason for the declared price being too low, the community suffered a substantial loss of transfer duty, and this called for an appropriate response.", "45. In order to assess the proportionality of the interference, the Court looks at the degree of protection from arbitrariness that is afforded by the proceedings in this case.", "46. In this instance the trial and appeal courts interpreted the domestic law as allowing the State to avail itself of its right of pre-emption without having to indicate the reasons of fact and law for its decision.", "47. The Court notes, firstly, that the Revenue may, through the exercise of its right of pre-emption, substitute itself for any purchaser, even one acting in perfectly good faith, for the sole purpose of warning others against any temptation to evade taxes. This right of pre-emption, which does not seem to have any equivalent in the tax systems of the other States parties to the Convention, does not apply systematically - in other words, every time the price has been more or less clearly underestimated - but only rarely and scarcely foreseeably. Furthermore, the State has other suitable methods at its disposal for discouraging tax evasion where it has serious grounds for suspecting that this is taking place; it can, for instance, take legal proceedings to recover unpaid tax and, if necessary, impose tax fines. Systematic use of these procedures, combined with the threat of criminal proceedings, should be an adequate weapon.", "48. The Court considers that the question of proportionality must also be looked at from the point of view of the risk run by any purchaser that he will be subject to pre-emption and therefore penalised by the loss of his property solely in the interests of deterring possible underestimations of price. The exercise of the right of pre-emption entails sufficiently serious consequences for the measure to attain a definite level of severity. Merely reimbursing the price paid - increased by 10% - and the costs and fair expenses of the contract cannot suffice to compensate for the loss of a property acquired without any fraudulent intent.", "49. Having regard to all these factors, the Court considers that, as a selected victim of the exercise of the right of pre-emption, Mrs Hentrich \"bore an individual and excessive burden\" which could have been rendered legitimate only if she had had the possibility - which was refused her - of effectively challenging the measure taken against her; the \"fair balance which should be struck between the protection of the right of property and the requirements of the general interest\" was therefore upset (see, mutatis mutandis, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 28, para. 73, and the AGOSI v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 19, para. 55, and p. 21, para. 62).", "D. Conclusion", "50. Accordingly, there has been a breach of Article 1 of Protocol No. 1 (P1-1).", "IV. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 2 (art. 6-1, art. 6-2) OF THE CONVENTION", "51. Mrs Hentrich claims to be the victim of violations of Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention, which provide:", "\"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...", "2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.\"", "52. Like those appearing before it, the Court considers that Article 6 para. 1 (art. 6-1) applies in the instant case.", "A. Fairness of the proceedings", "53. The applicant complained that the Revenue and the courts had not given her a \"fair\" hearing. She had not been able to challenge effectively the authorities ’ assessment by adducing evidence to show that she had acted in good faith and that the proper price had been paid. In short, the principle of equality of arms had been contravened.", "54. This was also the opinion of the Commission.", "55. The Government conceded that Mrs Hentrich had been unable to defend herself in the Strasbourg tribunal de grande instance and the Colmar Court of Appeal, as those courts had held that Article 668 of the General Tax Code conferred a discretionary power on the Revenue and that accordingly a dispossessed purchaser could not validly challenge a pre-emption. The Government considered, however, that she had not taken advantage of the opportunity afforded her by the appeal on points of law to have any shortcomings of the tribunals of fact remedied, and maintained at all events that the trial had been fair.", "56. The Court notes, firstly, that as their sole defence on this point the Government merely reiterated the objection that has already been dismissed (see paragraphs 32 and 33 above).", "Secondly, it points out that one of the requirements of a \"fair trial\" is \"equality of arms\", which implies that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, para. 33). In the instant case, the proceedings on the merits did not afford the applicant such an opportunity: on the one hand, the tribunals of fact allowed the Revenue to confine the reasons given for its decision to exercise the right of pre-emption to stating \"the sale price declared in the contract of sale [is] too low\" (see paragraphs 9 and 15 above) - reasons that were too summary and general to enable Mrs Hentrich to mount a reasoned challenge to that assessment; and on the other hand, the tribunals of fact declined to allow the applicant to establish that the price agreed between the parties corresponded to the real market value of the property.", "There has therefore been a breach of Article 6 para. 1 (art. 6-1) in this respect.", "B. Length of the proceedings", "57. Mrs Hentrich also complained of the length of the proceedings.", "58. The period to be taken into consideration began on 31 March 1980, when proceedings were instituted in the Strasbourg tribunal de grande instance, and ended on 16 June 1987, with the delivery of the Court of Cassation ’ s judgment. It therefore amounted to seven years and nearly three months.", "59. The reasonableness of the length of proceedings is to be determined with reference to the criteria laid down in the Court ’ s case-law and in the light of the circumstances of the case, which in this instance call for an overall assessment.", "60. In the Government ’ s submission, the case was not a complex one, except in the Court of Cassation; Mrs Hentrich contributed to slowing down the proceedings; and the judicial authorities could not be held responsible for the proceedings having taken an abnormal length of time, in view of the backlog of business in the Colmar Court of Appeal.", "61. Like the Commission, the Court notes that while the proceedings at first instance progressed at an acceptable pace, there were delays especially on appeal (the proceedings took four years), and to a lesser extent in the Court of Cassation (where the proceedings lasted two years). For the most part, the length of the appeal proceedings was due to the backlog of business in the Colmar Court of Appeal, a factor which, as the Court has consistently held in the past, cannot excuse it. On the other hand, the length of the proceedings in the Court of Cassation was attributable primarily to that court ’ s wish to hear together four cases that raised similar issues - an approach which is understandable but which, under Article 6 (art. 6) of the Convention, cannot justify substantial delay.", "That being so, and having regard to what was at stake for the applicant, the Court cannot regard the lapse of time in the instant case as having been \"reasonable\".", "There has therefore been a breach of Article 6 para. 1 (art. 6-1) in this respect.", "C. Presumption of innocence", "62. The applicant maintained lastly that, contrary to the presumption of innocence, the pre-emption in issue was tantamount to an accusation of tax evasion. She referred to the opinion of French legal writers that pre-emption was a penalty designed to punish possible tax evaders without the Revenue having the burden of proving the offence.", "63. The Government ’ s primary submission was that Article 6 para. 2 (art. 6-2) was inapplicable in the instant case. The pre-emption procedure had no criminal characteristics, either in domestic law or from the point of view of the Convention; it was concerned only with a physical fact, namely that the price paid for a property transfer was too low, and it did not necessarily imply a fraud amounting to a criminal offence. In the alternative, they considered that the complaint was ill-founded, as a dispossessed purchaser had the possibility of challenging a pre-emption decision in the ordinary courts.", "64. Like the Commission, the Court considers that the implementation of the pre-emption measure was not tantamount to a declaration of guilt.", "V. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION", "65. In view of its decision in respect of Article 6 para. 1 (art. 6-1), the Court considers it unnecessary to look at the case under Article 13 (art. 13) of the Convention; this is because the requirements of that provision are less strict than, and are here absorbed by, those of Article 6 para. 1 (art. 6-1) (see, among other authorities, the Pudas v. Sweden judgment of 27 October 1987, Series A no. 125-A, p. 17, para. 43).", "VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 AND ARTICLES 6 AND 13 (art. 14+P1-1, art. 14+6, art. 13) OF THE CONVENTION", "66. The findings in paragraphs 50, 56, 61, 64 and 65 above make it unnecessary for the Court to consider also the complaint that the applicant had suffered discrimination contrary to Article 14 (art. 14) of the Convention in the enjoyment of the rights secured to her in Article 1 of Protocol No. 1 and Articles 6 and 13 (P1-1, art. 6, art. 13) of the Convention.", "VII. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION", "67. Article 50 (art. 50) of the Convention provides:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "Under this provision, Mrs Hentrich sought compensation for damage and reimbursement of costs.", "A. Damage", "68. The applicant said that the seized land could now be built on and that its value was in the region of FRF 1 million. She concluded that the exercise of the right of pre-emption had enabled the State to enrich itself at her expense without cause to the extent of at least FRF 800,000 and claimed this amount in compensation for pecuniary damage.", "She also alleged non-pecuniary damage but left it to the Court ’ s discretion to assess its extent.", "69. The Government disputed that the alleged financial damage had actually been sustained and considered that at all events the calculation had to be based on the situation at the time of the pre-emption, unless the purely speculative nature of the purchase was to be recognised.", "70. The Delegate of the Commission left the matter to the Court ’ s discretion.", "71. The Court considers that the applicant may have suffered non-pecuniary damage, but the present judgment affords her sufficient compensation in this respect.", "On the other hand, the question of pecuniary damage is not ready for decision. Given the violation found of Article 1 of Protocol No. 1 (P1-1), the best form of redress would in principle be for the State to return the land. Failing that, the calculation of pecuniary damage must be based on the current market value of the land. Those appearing before the Court did not supply any very precise particulars on this matter. Accordingly, the question must be reserved and the further procedure must be fixed, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 54 paras. 1 and 4 of the Rules of Court).", "B. Costs and expenses", "72. Mrs Hentrich sought reimbursement of the costs of representation in the French courts (FRF 29,075) and before the Convention institutions (FRF 27,000).", "73. The Government expressed no view as to the amount of lawyer ’ s fees but pointed out that only expenses actually incurred could be reimbursed.", "74. The Delegate of the Commission did not find the sums sought exorbitant.", "75. The Court allows the applicant ’ s claim in full." ]

[ "I. PARTICULAR CIRCUMSTANCES OF THE CASE", "6. The applicant company, Gasus Dosier- und Fördertechnik GmbH (hereinafter \"Gasus\"), are a limited liability company under German law with their registered office in Würzburg, Germany.", "A. Background to the case", "7. On 17 June 1980 Gasus ’ s agent in the Netherlands received an order from a Netherlands company, Atlas Junior Beton B.V. (hereinafter \"Atlas\") of Leiderdorp, for a concrete-mixer and ancillary equipment. The order was confirmed in writing by Gasus themselves on 18 June 1980. Gasus appended to their letter their general conditions of sale, which contained the following passages:", "\"We retain ownership of the goods delivered until all amounts due, both present and future, including ancillary claims arising from business with the customer, have been settled in full.\"", "and", "\"In the case of foreign business (Auslandsgeschäfte), only the law of the German Federal Republic shall apply.\"", "Gasus subsequently received an order for additional ancillary equipment and confirmed it in writing on 21 July 1980, again appending their general conditions of sale.", "It was understood, inter alia, that Atlas would provide lifting equipment and some of the manpower needed for assembling the machine, the main part of which weighed five tonnes.", "Between 25 July and 28 August 1980 Gasus sent Atlas invoices totalling 125,401.24 German marks (DEM), to which Atlas did not object. Gasus received only DEM 21,672 in payment before the events complained of.", "B. Seizure of the concrete-mixer and bankruptcy of Atlas", "8. The machine was installed on Atlas ’ s premises by Gasus; the work took from 28 July until 2 August 1980.", "9. On 31 July 1980 the Tax Bailiff (belastingdeurwaarder) seized all the movable assets on Atlas ’ s premises for forced sale in pursuance of three writs of execution (dwangbevelen) issued by the Collector of Direct Taxes (Ontvanger der directe belastingen - the \"Tax Collector\") totalling 67,741.59 Netherlands guilders (NLG). The official record (proces-verbaal) contains a mention of the concrete-mixer. Notice of the seizure was served on Atlas but not on Gasus.", "10. Being unable to meet their financial obligations, Atlas sought a moratorium (surséance van betaling) which was granted by the Hague Regional Court (arrondissementsrechtbank) on 16 October 1980.", "11. The receiver (bewindvoerder), a lawyer appointed by the Regional Court, saw that it was not possible for Atlas to continue their activities independently and managed to interest another company, Van Baarsen Wandplaten B.V. (\"Van Baarsen\"), in taking them over.", "Under pressure from Atlas ’ s clients, who insisted that a satisfactory arrangement for continuing production should be reached by 23 October 1980, Atlas, the receiver and Van Baarsen reached an agreement on that date for a takeover by Van Baarsen. This agreement was only able to come about with the co-operation of Atlas ’ s mortgagees - two banks who had financed Atlas and had stipulated that the ownership of certain of its movable assets should be fiduciarily transferred as a security - and the Tax Collector, who had seized all the movable assets present on Atlas ’ s premises. The agreement was subject to the condition that no third parties could assert a better right to the goods covered by it.", "Van Baarsen would pay a lump sum of NLG 500,000 for taking over Atlas ’ s machines and inventory goods. Half that sum would be paid to the tax authorities and the other half to a bank, NIB, which was the fiduciary owner of certain goods not subject to seizure by the tax authorities.", "Van Baarsen continued Atlas ’ s activities on the latter ’ s premises from 27 October, using what had been Atlas ’ s workforce and machines.", "12. On 21 October 1980 Gasus sent a letter to Atlas ’ s receiver, which reached him on 24 October. In it they stated that of the moneys due to them from Atlas they had received only DEM 21,672 and they requested payment of the remainder. They also gave notice that the concrete-mixer would be taken back on 30 October if sufficient guarantees for payment were not provided by 28 October.", "No payment was made but it does not appear that Gasus took any action.", "13. Atlas were declared bankrupt on 30 October 1980, at the request of their receiver and with the agreement of their management, and the receiver was reappointed as trustee in bankruptcy (curator).", "The bankruptcy proceedings were terminated on 20 June 1990 for lack of any further assets to distribute. None of Atlas ’ s unsecured creditors recovered any part of their claims.", "14. On 4 March 1981 the Commissioner of Direct Taxes (directeur der directe belastingen) received a letter from Gasus in which they, being by then aware of the fact that the machine had been seized, filed an administrative objection (bezwaarschrift) to the seizure. By a letter of 15 May 1981 the Commissioner declared the administrative objection inadmissible because it had not been filed within seven days of the seizure as required by section 16 (1) of the 1845 Tax Collection Act (Invorderingswet 1845, \"the 1845 Act\" - see paragraph 29 below), adding that in any case he saw no reason to rescind the seizure order and that in deciding not to do so, he had not been influenced by the fact that the administrative objection was out of time.", "C. Proceedings before the Utrecht Regional Court", "15. On 22 May 1981 Gasus brought proceedings against Atlas ’ s trustee in bankruptcy and Van Baarsen before the Utrecht Regional Court to obtain an order for the concrete-mixer to be returned. In the proceedings before the Commission Gasus stated that both the trustee and Van Baarsen had acknowledged Gasus ’ s ownership but had refused to give up the machine as it was still being held by the tax authorities. These proceedings appear not to have been pursued to a conclusion.", "16. On 17 September 1981 Gasus sued the Tax Collector, the trustee in bankruptcy and Van Baarsen in the Hague Regional Court, objecting to the seizure and seeking an order to the Tax Collector to release the concrete-mixer from seizure and another order to the trustee and Van Baarsen not to hinder the exercise of Gasus ’ s rights.", "Gasus ’ s position may be summarised as follows. Their objection to the seizure (verzet) was based on the argument that the concrete-mixer had not been operational on 31 July 1980, so that it could not have been part of the \"furnishings of a house or farmstead\" within the meaning of section 16 (3) of the 1845 Act (see paragraph 29 below). In the alternative, the seizure was, on various grounds, wrongful in civil law (onrechtmatig). Finally, the fact that section 16 (3) prevented third parties from challenging a seizure affecting their own goods amounted to a denial of \"access to court\" as guaranteed by Article 6 para. 1 (art. 6-1) of the Convention.", "17. The Tax Collector filed lengthy pleadings in reply. The trustee and Van Baarsen did not themselves make any submissions on the merits but requested that the Tax Collector ’ s statements in defence (conclusie van antwoord) and subsequent rejoinder (conclusie van dupliek) be treated as their own.", "18. The Regional Court delivered its judgment on 21 December 1983. Taking the same view as the Tax Collector, it held that the fact that the concrete-mixer had not been operational at the time of the seizure did not invalidate the seizure itself. Since the proceedings concerned an objection to seizure under section 16 (3) of the 1845 Act, the court could not entertain Gasus ’ s complaint that the seizure was unlawful; the only permissible purpose of such proceedings was to examine whether the requirements of section 16 (3) were met. Furthermore, Article 6 para. 1 (art. 6-1) of the Convention did not apply - and had therefore not been violated - because section 16 related to the imposition and collection of taxes, empowering State authorities to make decisions in the normal discharge of their duties under public law, and thus did not concern \"civil rights and obligations\".", "D. Proceedings before the Hague Court of Appeal", "19. Gasus appealed to the Hague Court of Appeal, summoning Atlas ’ s trustee in bankruptcy on 19 March 1984 and the Tax Collector and Van Baarsen on 20 March.", "Gasus ’ s first ground of appeal (grief) was that the Regional Court had erred in holding that the seizure was valid even though the concrete-mixer had not been operational at the time. The second and third grounds of appeal were founded on the Regional Court ’ s refusal to deal with Gasus ’ s allegations of unlawfulness and to accept their arguments based on Article 6 para. 1 (art. 6-1) of the Convention.", "The Tax Collector replied that Gasus ’ s complaints concerning section 16 (3) of the 1845 Act amounted to an allegation of deprivation of their possessions in violation of Article 1 of Protocol No. 1 (P1-1). He denied, however, that there had in fact been such violation.", "20. Following the exchange of pleadings by the parties to the proceedings, a hearing was held on 16 September 1986.", "At this hearing counsel for Gasus continued to rely on Article 6 para. 1 (art. 6-1) of the Convention. In his view, what was decisive for that provision (art. 6-1) to be applicable was whether the plaintiff sought protection of a right that was to be classed as \"civil\" within the meaning of the provision (art. 6-1). Since Gasus sought to be protected against infringement by the Tax Collector of their ownership of the concrete-mixer, undoubtedly a \"civil\" right within the meaning of the provision (art. 6-1), Article 6 para. 1 (art. 6-1) applied; it had, moreover, been violated since section 16 (3) of the 1845 Act amounted to a limitation of access to court with respect to assets of the kind mentioned in it.", "While agreeing that Gasus had been deprived of one of their possessions and had suffered damage as a result, Gasus ’ s counsel expressly declined to rely on Article 1 of Protocol No. 1 (P1-1). Contrary to what the Tax Collector had suggested both at first instance and on appeal, section 16 (3) had nothing to do with deprivation of property but barred access to court for those who sought to be protected from the seizure and sale of their property. That was clear from its wording. That also followed, incidentally, from Article 14 of the Constitution, which prohibited expropriation without compensation: if section 16 (3) were a provision concerning deprivation of property, it would contravene Article 14 of the Constitution. On the principle that a provision of Netherlands legislation could not be construed so as to be incompatible with the Constitution, section 16 (3) therefore had to be construed as merely barring access to court. The questions raised by section 16 (3) were thus of a \"procedural\", not a \"substantive\" nature, and therefore the more appropriate Convention provision was Article 6 para. 1 (art. 6-1) and not Article 1 of Protocol No. 1 (P1-1).", "Since section 16 (3) obviously violated Article 6 para. 1 (art. 6-1), it should - pursuant to Article 94 of the Constitution - not be applied. This meant that section 456 and the following sections of the Code of Civil Procedure applied without restriction, and this in turn meant that Gasus could rely on their right of ownership of the concrete-mixer, which was therefore not subject to seizure.", "21. The Court of Appeal gave judgment on 3 December 1986.", "Like the Regional Court, it held that the seizure was not vitiated by the fact that the concrete-mixer had not been fully operational at the time; the concrete-mixer ’ s intended use had already been established and all efforts had been directed towards making it operational and ensuring that it would serve Atlas on a lasting basis. The concrete-mixer thus qualified as \"furnishings\" of Atlas ’ s factory building. The first ground of appeal therefore failed.", "The second and third grounds of appeal were also dismissed.", "After establishing that the right claimed by Gasus was a \"civil right\" for the purposes of Article 6 para. 1 (art. 6-1), the Court of Appeal went on to hold:", "\"The question is therefore whether in the present case access to a tribunal and due process were sufficiently secured to Gasus. To answer this, it is necessary to ascertain what provisions, in so far as relevant to the present case, govern ownership and the procedure connected with it.", "In the Articles of ... section I [of the Convention] apart from the aforementioned Article 6 (art. 6), a number of fundamental rights are laid down and - where necessary - defined. The right of ownership is not one of them. This is provided for in Protocol No. 1 (P1) to the Convention ...", "[Article 1 of Protocol No. 1 (P1-1)] does therefore authorise national legislatures to pass laws restricting the enjoyment of possessions or even entirely depriving the individual of that enjoyment for specific purposes relating to the general interest; however, when it comes to the question of whether such a law has been properly applied in a specific case, the owner concerned remains entitled, as provided in Article 6 (art. 6) of the Convention, to access to a tribunal and to due process in order to have the application of the law assessed.", "One such provision of domestic law which is authorised by Article 1 of Protocol No. 1 (P1-1) is section 16 (3) of the 1845 Act. The rule laid down therein implies that seizure levied by the tax authorities in order to collect a tax debt in fact deprives a third party of his ownership of an item of movable property provided that when the seizure was effected the item of property was on the tax debtor ’ s premises and served as ‘ furnishing ’ of them. Whether, when judged by this condition, the seizure of his property was rightly effected is a matter which any affected third party can have reviewed by the ordinary civil courts in proper legal proceedings. In assessing the lawfulness of the seizure, the court may not take into account whether or not the relevant property is owned by the tax debtor, because precisely this point is not relevant - save for certain exceptions which are of no consequence here - in view of the scope of the subsection. This also reveals the meaning of the provision that third parties may ‘ never bring an action to challenge seizures for tax purposes ’. It means not that they may not bring an action before the courts but rather that, having brought an action in the courts, they may not successfully submit, as a basis for their action, that the seizure is unlawful because the goods seized belong to them and not to the tax debtor. Consequently, the provisions of section 456 (1) of the Code of Civil Procedure are of no avail to them in this respect because section 16 (3) of the 1845 Act derogates from them as a lex specialis.", "It follows from the above that there has been no violation of Article 6 (art. 6) of the Convention and that the Regional Court was correct in not dealing with the allegation that the Collector acted unlawfully by seizing the concrete-mixer belonging to Gasus ...\"", "E. Proceedings before the Supreme Court", "22. Gasus entered an appeal on points of law (beroep in cassatie) with the Supreme Court (Hoge Raad) on 3 March 1987. They filed grounds (middelen van cassatie) that were each subdivided into a large number of parts. The Advocate-General (advocaat-generaal) noted that several grounds and many of their component parts were merely variations on a single theme.", "The Court of Appeal had erred in considering the matter under Article 1 of Protocol No. 1 (P1-1). Section 16 (3) of the 1845 Act was a \"procedural\" provision, not a \"substantive\" one, and should therefore have been examined only in the light of Article 6 (art. 6); the fact that lack of access to a tribunal could lead to loss of property indicated only that the interests protected by Article 6 (art. 6) were very real.", "Gasus went on to submit that section 16 (3) violated Article 6 (art. 6) as it only allowed third parties to challenge seizure of their goods on the premises of another by the tax authorities on the ground that those goods were not \"fruit\", or \"furnishings\", or intended for the \"cultivation or use of land\". If the goods concerned fell into one of those categories, there was no other ground on which to base an action. Section 16 (3) had been inspired by the need to prevent tax evasion, but had been rendered obsolete by developments in business practice and commercial law, retention of title now being a generally accepted and quite legal form of security. The Tax Collector had acted unlawfully in seizing the concrete-mixer since Gasus had not actually been conniving at tax evasion.", "In any event, even if Article 1 of Protocol No. 1 (P1-1) applied (which Gasus submitted it did not), it only allowed States to interfere with the tax debtor ’ s peaceful enjoyment of his possessions to secure payment of the taxes he owed. It did not allow them to deprive third parties of their possessions.", "It was not to be assumed that Article 1 of Protocol No. 1 (P1-1) legitimised greater interferences with citizens ’ rights than did Article 14 of the Constitution, which forbade expropriation without compensation. If section 16 (3) of the 1845 Act were seen as a \"substantive\" provision, it clearly amounted to a provision making deprivation of property by the State possible in the public interest.", "Finally, the Tax Collector had not at any time informed Gasus of the seizure as he should have done.", "23. Following the advisory opinion (conclusie) of its Procurator-General (procureur-generaal), the Supreme Court rejected the appeal on 13 January 1989. Its reasoning was as follows:", "\"3.1. The purport of grounds of appeal I-III is to argue that the provisions of section 16 (3) of the 1845 Act of 22 May 1845 ... are incompatible with Article 6 (art. 6) of the Convention and/or Article 1 of Protocol No. 1 (P1-1). In the assessment of this argument, the following is of importance:", "(a) Section 16 of the 1845 Act, in particular the third paragraph thereof, implies that the Tax Collector has a right of recovery against third parties ’ goods listed in that paragraph and `situated on the premises of the tax debtor at the time of the seizure ’.", "(b) The objection which third parties may make before the civil courts to the seizure of their goods is in principle limited to the question whether the conditions for its applicability described in section 16 (3) have been satisfied; in other respects, third parties may file an administrative objection to the Commissioner of Direct Taxes by means of the complaint procedure referred to in subsection 1 of that section ...", "(c) It follows from the provisions of chapter V of the General State Taxes Act (Algemene wet inzake rijksbelastingen) and section 5, opening words and subsection (m), of the Administrative Decisions Appeals Act (Wet administratieve rechtspraak overheidsbeschikkingen) that no appeal lies to an administrative tribunal against the Commissioner ’ s decision on the administrative objection. Consequently, the third party may bring an action against such a decision in the civil courts, possibly in summary proceedings (kort geding), on the basis that there has been an unlawful act. In so doing, the third party may also base his claim of unlawfulness on the allegation that the Commissioner has acted in breach of a general principle of good governance (algemeen beginsel van behoorlijk bestuur).", "(d) The provisions of the 1961 Tax Collection Guidelines (Leidraad invordering - Resolution of 8 December 1961, no. B 1/18516), in particular paragraph 30, are also of importance in this connection. Although the 1961 Guidelines do not contain rules of law, principles of good governance imply that the Commissioner may not deviate to the disadvantage of a third party from the rules laid down in the Guidelines, as the court considers they should be interpreted. If he does depart from them, he is in principle acting unlawfully vis-à-vis the third party.", "(e) As regards the content of paragraph 30 of the Guidelines, the following features of the provisions contained in sub-paragraph 9 should be mentioned briefly. It is in keeping with the Commissioner ’ s policy that the third party ’ s title will in principle be respected in cases of `real ownership ’. But recovery against the goods of a third party is generally justified if `the circumstance that the goods legally belong to another person has mainly been brought about to exclude the possibility of recovery against such goods for debts of the taxpayer or to ensure that the third party has a priority right to recover against such goods ’. One of the examples quoted here is where a supplier of goods reserves the ownership of them. It has been established that Gasus did this as supplier of the goods which are the subject of the litigation.", "(f) It is also provided in paragraph 30, sub-paragraph 8, of the 1961 Guidelines that an administrative objection made by a third party shall be dealt with even if it is not filed in time, i.e. within the said period of seven days from the date of seizure as referred to in section 16 (1) of the 1845 Act. It follows that a third party who files an administrative objection out of time is entitled to have it dealt with. As the third party need not be aware that the seizure has occurred and thus that time has started to run - neither the law nor the Collection Guidelines require service on, or any other form of warning to, a third party - it must be assumed - partly in the light of Article 6 (art. 6) of the European Convention - that the third party may have recourse to the civil courts in this case in the manner described above under (c) and (d).", "3.2. Against this background, the arguments advanced in grounds of appeal I-III cannot be accepted as correct.", "A third party whose goods have been seized has opportunities for redress against the acts of the Tax Collector or the Commissioner as the case may be, before an independent and impartial tribunal established by law such that the requirements of Article 6 para. 1 (art. 6-1) of the Convention are met.", "Nor can it be said that the recovery, on the basis of section 16 (3) of the 1845 Act, of goods belonging to a third party such as Gasus - who as supplier of the goods has reserved title to them - is not compatible with Article 1 of Protocol No. 1 (P1-1). That is because section 16 (3) is to be regarded as a statutory provision which the State regards as necessary in order to secure the payment of taxes in such a manner as to ensure that this payment is not frustrated by reservation of title by a third-party supplier.", "Grounds of appeal I-III fail in view of the above, irrespective of the validity of the arguments set out by the Court of Appeal, which these grounds attack.", "3.3. As, according to the explanation given of it, ground of appeal IV builds on the previous grounds, it must fail likewise. In so far as it is suggested that section 16 (3) should not be applied as it has been `rendered obsolete by developments in business practice and commercial law ’, the ground is unfounded.", "3.4. Ground of appeal V takes issue with the Court of Appeal ’ s opinion that the Tax Collector does not have a duty to give notice, in the sense that he should have given notice to Gasus after the seizure of the goods that they had been seized. The ground fails.", "As already indicated at 3.1. (f) above, neither the 1845 Act nor the Tax Collection Guidelines contain any such obligation to provide a warning. Although such an obligation may in special circumstances be inferred from unwritten law, no such special circumstances have been alleged by Gasus in this connection.", "3.5. Since none of the grounds of appeal justifies overturning the judgment appealed against, the appeal must be dismissed.\"", "The above judgment of the Supreme Court was published in the Rechtspraak van de Week, (Weekly Law Reports - RvdW) 1989, 28; in the Vakstudie Nieuws (Professional Studies News) 1989, p. 363; in the Nederlandse Jurisprudentie (Netherlands Law Reports - NJ) 1990, 211, and in the Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases - BNB) 1989/129. It was welcomed by commentators as providing clarity as to the scope of judicial protection available against use by the tax authorities of section 16 (3) (commentaries on the Supreme Court ’ s judgment in the present case, by E.A. Alkema in NJ 1990, 211, and by H.J. Hofstra in BNB 1989/129; commentary by W.H. Heemskerk of the Supreme Court ’ s judgment of 26 May 1989, NJ 1990, 131)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Relevant provisions of the Netherlands Constitution", "24. The 1983 Constitution does not, in terms, guarantee a right to property. Article 14 reads:", "\"1. Expropriation may only be ordered in the general interest and against compensation determined in advance, in accordance to rules laid down by statute or delegated legislation.", "2. ...", "3. In the cases indicated by statute or delegated legislation there is a right to compensation or partial compensation for damage if property is destroyed or rendered unusable in the general interest by the competent authorities or if the exercise of the right of ownership is curtailed.\"", "Article 104 reads:", "\"The Kingdom ’ s taxes shall be levied pursuant to statute. Other charges levied by the Kingdom shall be governed by statute.\"", "Under Netherlands constitutional law, courts may not examine statutes for compliance with the Constitution. Article 120 reads:", "\"The courts shall not judge the constitutionality (grondwettigheid) of statutes and treaties.\"", "B. Relevant provisions of the Civil Code (Burgerlijk Wetboek), the Commercial Code (Wetboek van Koophandel) and the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering)", "25. At the material time the 1838 Civil Code was still in force. In so far as it concerned property law it was succeeded in 1992 by a new Civil Code; a number of provisions of the Commercial Code and the Code of Civil Procedure were changed or repealed at the same time. The following relates to the law as it stood at the time of the events complained of.", "26. According to section 1177 of the Civil Code, debts could in principle be recovered against all goods belonging to the debtor, whether movable or immovable. Statutory provisions elsewhere allowed of certain limited exceptions not relevant to the present case.", "Section 1178 added the principle of paritas creditorum: all creditors were entitled to recover debts against the property of the debtor in proportion to the size of their claims, unless any one of them could claim a right to preferential payment. Such a right derived, inter alia, from specific legal provisions granting a priority right (privilege). These priority rights were based on the nature of the debt (section 1180) and their order of precedence was laid down by law. Most priority rights were to be found in the Civil Code, but not those of the tax authorities, for which the Civil Code referred to specialist legislation (section 1183 (1)).", "A priority right might concern a particular asset or all goods belonging to the debtor; in general, priority rights of the former type took precedence over priority rights of the latter (section 1184).", "Section 1185 enumerated debts covered by a priority right to certain assets belonging to the debtor. These included, inter alia, rent owed under a tenancy agreement and the price owed to a vendor of movable property.", "Section 1186 read as follows:", "\"1. The landlord may exercise his priority right [by recovery against] fruit still attached to the trees by branches, or to the ground by roots, as well as fruit, whether harvested or not, present on the premises (die zich op den bodem bevinden), and all things present on the premises serving either as furnishings of the rented property or farm or for cultivation of the land, such as cattle, agricultural implements and the like, regardless of whether or not the above-mentioned objects belong to the tenant.", "2. However, if the tenant has goods in his possession under a hire-purchase agreement, the landlord shall not be entitled to exercise his priority right against the vendor if the hire-purchase agreement relates to seeds or implements or if it is proved that the landlord knew of the hire-purchase agreement.", "3. ...\"", "Section 1190 read as follows:", "\"The vendor of movable goods which have not yet been paid for may exercise his priority right against the sale price of those goods if they are still in the debtor ’ s possession, irrespective of whether a time has been specified for the sale.\"", "Section 1191 read as follows:", "\"1. If no time has been specified for the sale, the vendor shall even be entitled to reclaim the goods as long as these are in the possession of the purchaser, and to prevent the resale thereof, provided that they are reclaimed within thirty days of delivery.", "2. Sections 231, 233, 234, 236 and 237 of the Commercial Code shall apply by analogy.\"", "It should be noted that section 1191 did not concern a priority right but granted the vendor the right to rescind the sale by means of a statement made to the purchaser and to recover the ownership of the goods previously sold and delivered. The vendor might then reclaim his goods, even - within certain limits - from third parties. Sections 231 et seq. of the Commercial Code regulated the use of a similar right in case of bankruptcy of the debtor (see paragraph 35 below).", "27. Sections 439 and following of the Code of Civil Procedure laid down rules for recovery against a debtor ’ s movable property. As a rule, such recovery started with seizure, which usually required a court judgment (although the law provided for exceptions, for example in tax cases, see paragraph 28 below). Section 456, which was referred to in section 16 of the 1845 Act, is of relevance:", "\"1. He who claims to be the owner, in whole or in part, of the seized goods, may file an objection to the sale thereof by means of a summons containing the grounds of the objection addressed to the party for whom the seizure has been effected (arrestant) and the person against whom it is directed, and served on the custodian: all on pain of nullity.", "2. ...", "3. ...\"", "C. Seizure by the tax authorities of goods belonging to third parties and present on the premises of the tax debtor (bodembeslag)", "28. At the material time, pursuant to section 12 of the 1845 Act, tax debts took priority over all other debts with the exception of the court costs and other costs involved in forced sale of goods and debts secured by a mortgage. Goods belonging to third parties seized pursuant to section 16 (3) (see paragraph 29 below) were also subject to this priority (judgment of the Supreme Court of 5 October 1979, NJ 1980, 280).", "Section 14 of the 1845 Act entitled the tax authorities to seize a tax debtor ’ s movable and immovable assets and sell them to recover the debt. A prior judgment establishing the debt and ordering the debtor to pay was not required. Seizure pursuant to this provision was based on a writ of execution made out by the Tax Collector. Such a writ was served on the debtor and seizure and forced sale of his goods followed in the event of failure to pay. Section 14 explicitly stipulated that such a writ had the same legal effects as a judgment. Accordingly, section 14 (2) laid down that the Tax Collector ’ s writ of execution would be executed under the provisions of the Code of Civil Procedure governing the execution of judgments (see paragraph 27 above).", "Section 15 gave the tax debtor the right to file an objection in the civil courts against a writ of execution, although the grounds on which such an objection might be based were limited. It also specified that such an objection had no suspensive effect, although it was possible to seek an order for the suspension of execution in summary proceedings (kort geding).", "29. Complementing the right to oppose the writ of execution granted the debtor by section 15, section 16 granted a similar right to third parties claiming ownership of movables seized on the debtor ’ s premises. Section 16 should be read in light of section 14, which stated that the relevant provisions of the Code of Civil Procedure are applicable. Its purpose was to limit the rights of third parties under section 456 (see paragraph 27 above). Section 16 read:", "\"1. Third parties claiming to be fully or partially entitled to movable goods which have been seized in connection with a tax debt can address an administrative objection to the Commissioner of Direct Taxes, provided that the administrative objection be submitted before the sale and no later than seven days from the day of the seizure. The administrative objection shall be submitted to the Tax Collector, who shall acknowledge receipt. The Commissioner shall decide as soon as possible. The sale shall not take place within eight days of the service of this decision to the objector and to the person against whom the seizure is directed, [the service] again indicating a day for the sale.", "2. The interested party shall not forfeit his right to submit his objection to the ordinary courts by filing an administrative objection in accordance with the preceding paragraph.", "3. However, apart from the right to reclaim their property granted them by ... section 230 and following of the Commercial Code, third parties may never bring an action to challenge seizure in connection with taxes, with the exception of land tax, if the fruit, whether harvested or not, or movable goods serving either as furnishings of a house or farmstead or for the cultivation or use of land are located on the premises of the tax debtor concerned at the time of the seizure.\"", "\"Premises\" was interpreted as meaning a plot of land or part of a plot of land which is in actual use by the tax debtor and which he has at his disposal independently of others (see, inter alia, judgment of the Supreme Court of 18 October 1991, NJ 1992, 298; see also paragraph 30, sub-paragraph 4, of the 1961 Guidelines).", "\"Furnishings\" were all objects destined to make possible such use of the premises as was in conformity with the purpose for which the tax debtor actually intended to use them. They were held to include movable machines (see, inter alia, the judgment of the Haarlem Regional Court of 18 February 1964, NJ 1965, 402, and the judgment of the Amsterdam Court of Appeal of 7 December 1979, quoted in the judgment of the Supreme Court of 9 January 1981, NJ 1981, 656; see also paragraph 30, sub-paragraph 4, of the 1961 Guidelines) but not stocks of raw materials, finished products or vehicles (judgment of the Supreme Court of 11 March 1927, NJ 1927, p. 494; 1961 Guidelines, ibid.).", "The right of the tax authorities to seize all movables found on the premises of the tax debtor, including goods belonging to third parties, implied the right of recovery on the latter goods (paragraph 30, sub-paragraph 1, of the 1961 Guidelines and the Supreme Court ’ s judgment in the present case - see paragraph 23 above).", "Recovery was normally by public auction of the goods (section 14 (2) of the 1845 Act read in conjunction with section 463 of the Code of Civil Procedure). It was nonetheless considered permissible, if the tax debtor was bankrupt, for the Tax Collector to agree to allow the trustee to sell them privately (judgment of the Supreme Court of 26 May 1989, NJ 1990, 131).", "30. To promote the uniform application of the law, the Minister of Finance established, by decision of 8 December 1961, the 1961 Guidelines. These were official instructions to the tax authorities, who were subordinate to him, indicating the way in which the law should be interpreted and applied. The 1961 Guidelines were published; individuals were entitled to rely on them in legal proceedings against the tax authorities because they were binding on the latter pursuant to general principles of good governance. The Supreme Court, in its judgment of 28 March 1990 (NJ 1991, 118), later confirmed this by ruling that guidelines such as these were to be applied in relation to interested parties as rules of law.", "Paragraph 30 of the 1961 Guidelines concerned the interpretation and application of section 16. Sub-paragraph 9 gave further instructions relating to the way in which administrative objections under section 16 (1) and (2) (see paragraph 29 above) were to be dealt with. Sub-paragraph 9 read:", "\"The decision of the Commissioner should not only be governed by legal considerations. Once sufficient clarity has been obtained in respect of the legal relations at issue, considerations of fairness (billijkheid) and the requirements of proper policy should be given great importance. It is in accordance with such a policy that the property rights of a third party are spared where a personal tax or social-security contribution debt is to be collected and also where genuine property (reële eigendom) of a third party is involved, provided, however, that the following is taken into account.", "...", "The above does not alter the fact that there can be no grounds for any reticent policy in clear cases of connivance between the tax debtor and the third party to create a sham property situation in an attempt to prevent recovery on goods.", "From the point of view of fairness and good policy recovery on goods of a third party is generally justified in cases of recovery of commercial tax and social-security contribution debts and when the economic relationship between the tax debtor and the goods provides reason to consider these goods as his and the circumstance that legally the goods belong to someone else has been created mainly to exclude recovery at the expense of the tax debtor or to enable the third party to obtain a preferential right of recovery on these goods.", "Examples of this are cases of goods delivered under a hire-purchase agreement or under various forms of leasing or other forms in which the supplier of the goods retains the ownership thereof.", "In addition, one might consider in this connection those cases in which ownership of the goods has been transferred to a third party as a security.", "...\"", "31. In its judgment of 9 January 1981 (NJ 1981, 656), the Supreme Court rejected the proposition that section 16 (3) applied only to goods on the tax debtor ’ s premises the ownership of which had been transferred to a third party in order to prevent the tax authorities from recovering tax debts by the forced sale of those goods. Although it did appear from the drafting history of that provision that it had been prompted at the time (1845) by the desire to counter certain abuses, this did not mean that the occurrence of an abuse had been made a requirement for the provision ’ s applicability, section 16 being derived from the landlord ’ s priority right as defined in section 1186 of the Civil Code (see paragraph 26 above). Section 16 had afterwards several times been the subject of debate between the Government and Parliament and this debate supported the idea that the purport of section 16 was, in the words of the Supreme Court, \"to afford the tax authorities the possibility of recovery against the goods seized, notwithstanding any third-party rights, as if they belonged to the tax debtor\".", "32. It was not possible for suppliers of goods to obtain information from the tax authorities as to whether their clients had any outstanding tax debts and whether there was accordingly any risk of seizure. According to section 67 (1) of the General Act on State Taxes (Algemene wet inzake rijksbelastingen) tax officials were, and are, under an obligation to keep such information secret.", "33. A right similar to that of the Tax Collector under section 16 of the 1845 Act was enjoyed by the customs authorities. They were empowered by section 151 of the General Customs and Excise Act (Algemene wet inzake de douane en de accijnzen) to recover import duties and excise against the goods for which these were due, along with any administrative fines or interest, irrespective of who could claim rights to the goods concerned.", "D. Consequences of bankruptcy of the purchaser", "34. When a natural or legal person was declared bankrupt, all seizures affecting his property lapsed (section 33 (2) of the Bankruptcy Act (Faillissementswet)). This included the seizure of his property by the tax authorities, but not the seizure pursuant to section 16 (3) of the 1845 Act of the goods of third parties.", "35. In cases in which movable goods had been sold and delivered but not paid for in full, section 230 of the Commercial Code allowed the vendor to reclaim the goods if the purchaser went bankrupt, provided that the goods could still be identified (section 231) and that the vendor exercised his right within thirty days of delivery to the purchaser (section 232). The vendor had then to refund any payment he might already have received as well as certain expenses that might in the meantime have been incurred (sections 233 and 235). The purchase agreement was then considered rescinded and ownership of the goods was deemed always to have remained with the vendor (judgment of the Supreme Court of 12 June 1970, NJ 1971, 203).", "The vendor ’ s rights under sections 230 and following of the Commercial Code had to be respected by the tax authorities (section 16 (3) of the 1845 Act - see paragraph 29 above).", "E. Procedural provisions", "36. As followed from section 16 (1) of the 1845 Act, third parties claiming a title to goods seized on the premises of the tax debtor could submit an administrative objection to the Tax Collector, who forwarded it to the Commissioner of Direct Taxes. Although section 16 (1) contained a seven-day time-limit, administrative objections submitted after its expiry nevertheless were dealt with and the Tax Collector was required to suspend the forced sale of the seized goods if that was still possible (paragraph 30, sub-paragraph 8, of the 1961 Guidelines).", "There were no restrictions as to the grounds on which an administrative objection to the tax authorities might be based.", "37. After obtaining a decision from the Commissioner or - if preferred - without first obtaining such a decision, a third party could bring an action before the Regional Court under section 456 of the Code of Civil Procedure (see paragraph 27 above).", "However, section 16 (3) of the 1845 Act limited the grounds for such an action to the question whether the seized goods were in fact \"fruit, whether harvested or not, or movable goods serving either as furnishings of a house or farmstead or for the cultivation or use of land\" (judgment of the Supreme Court of 9 January 1981, NJ 1981, 656, and the judgment of the Supreme Court in the present case - see paragraph 23 above).", "38. The possibilities of redress by the civil courts were clarified by the Supreme Court ’ s judgment in the present case (see paragraph 23 above). That judgment made it clear that in bringing a case before the civil courts a third party did not have to confine himself to the questions outlined in paragraph 37 above but could also base his action on a wrongful act in civil law (section 1401 of the Civil Code) committed by the Tax Collector, thus enabling the courts to review compliance with the 1961 Guidelines by the Tax Collector in authorising the seizure and by the Commissioner of Direct Taxes in rejecting the third party ’ s objections.", "F. Retention of title", "39. Section 455 of the German Civil Code (Bürgerliches Gesetzbuch) reads as follows:", "\"If the vendor of a movable good has retained ownership until the price has been paid, it should be assumed in case of doubt that the transfer of ownership takes place subject to a suspensive clause of full payment of the price and that the vendor is entitled to rescind the contract if the purchaser comes to be in default of payment.\"", "According to section 346 of the German Civil Code, in the event of rescission each party had to return to the other everything already received under the contract.", "At the time of the events complained of, there was no statutory provision in Netherlands law similar to section 455 of the German Civil Code but retention of title was frequently resorted to and upheld by the courts in disputes between private parties.", "G. Developments with regard to the right of the tax authorities to seize goods belonging to third parties and present on the premises of the tax debtor", "40. In 1974 a report was published by a government committee (the \"Houwing Committee\") set up to review the law on priority rights (see paragraph 26 above). With regard to the right granted the tax authorities by section 16 (3) of the 1845 Act the report expressed the opinion that this right should be limited to cases in which other creditors besides the tax authorities had stipulated rights wholly or essentially amounting to security for debts; this would broadly correspond to the policy followed by the tax authorities themselves as laid down in the 1961 Guidelines (see paragraph 30 above). It also suggested extending the right of seizure to all movable goods intended for permanent professional use by the enterprise concerned.", "41. The right of the tax authorities pursuant to section 16 (3) came under increasing criticism. For this reason, the Government, when introducing legislation aimed at modernising the law on the collection of tax debts, did not - for the time being - propose any significant changes to the priority right of the tax authorities or the right of seizure. They stated, when introducing the relevant Bill, that that required further study, for which an Interdepartmental Working Party was to be set up. This position was criticised in Parliament, particularly by those parties which considered the wide powers of seizure enjoyed by the tax authorities unjustified, but the Government maintained their position. Nevertheless, the submission to Parliament of the new Bill led once more to critical debate both within Parliament and outside it.", "42. The Bill referred to in the previous paragraph became the new Tax Collection Act, which entered into force on 1 June 1990 (Invorderingswet 1990 - \"the 1990 Act\").", "For all practical purposes, it retains intact the arrangement of the 1845 Act as regards the priority of tax debts, even extending the time-limit involved. It also contains a provision (section 22) which is in practice almost identical to section 16 of the 1845 Act (see paragraph 29 above), the only real difference being that in the third paragraph an exhaustive list is given of the taxes concerned.", "According to section 70 of the 1990 Act section 22 would cease to operate on 1 January 1993, unless by that date a Bill had been introduced for its replacement or for prolonging its validity for up to one year; in fact, a Bill (no. 22,942) meeting these requirements was submitted to the Lower House of Parliament on 30 November 1992.", "43. The Interdepartmental Working Party (see paragraph 41 above) published its report in 1990. Bill no. 22,942 - which is based on, and closely follows, the report of the above-mentioned Interdepartmental Working Party - proposes to amend the Civil Code and the 1990 Act in such a way as to grant the tax authorities a right of recovery against all goods not belonging to the tax debtor but intended for his permanent use in the exercise of his profession. Third parties would not be able to oppose to the Tax Collector any negotiated right which served essentially as a security. The Tax Collector would, however, be required to enquire of the tax debtor whether any of the seized goods belonged to third parties.", "PROCEEDINGS BEFORE THE COMMISSION", "44. Gasus applied to the Commission on 6 July 1989. They alleged that they had not had access to an independent and impartial tribunal, in violation of Article 6 para. 1 (art. 6-1), and that they had been deprived of their possessions in violation of Article 1 of Protocol No. 1 (P1-1).", "45. On 21 October 1992 the Commission declared the application (no. 15375/89) admissible as regards the complaints under Article 1 of Protocol No. 1 (P1-1) and inadmissible as to the remainder. In its report of 21 October 1993 (Article 31) (art. 31), the Commission expressed the opinion, by six votes to six with the casting vote of its President, that there had been no violation of Article 1 of Protocol No. 1 (P1-1). The full text of the Commission ’ s opinion and of the four separate opinions contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT", "46. The Government concluded their memorial by stating the opinion that Gasus ’ s application based on a violation of Article 1 of Protocol No. 1 (P1-1) should be declared inadmissible since domestic remedies had not been exhausted (Article 26 of the Convention) (art. 26), and that the application was in any event unfounded.", "AS TO THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION", "47. The applicant company essentially complained of a violation of Article 1 of Protocol No. 1 (P1-1). According to the Government, however, the applicant company had not, or not sufficiently, raised this complaint in the national courts. The Government relied on Article 26 (art. 26) of the Convention, which provides:", "\"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...\"", "They pointed to the fact that in the domestic proceedings the applicant company had based their arguments, in so far as they related to the Convention, on Article 6 (art. 6) only. Before the Court of Appeal and the Supreme Court Gasus had actually denied that Article 1 of Protocol No. 1 (P1-1) was applicable.", "In the opinion of the Commission, the entire proceedings at national level had concerned the question whether or not the applicant company had been unlawfully deprived of its possessions. Besides, both the Court of Appeal and the Supreme Court had examined this question under Article 1 of Protocol No. 1 (P1-1).", "48. The Court reiterates that the purpose of the requirement that domestic remedies must be exhausted is to afford the Contracting States the opportunity of preventing or putting right - normally through the courts - the violations alleged against them before those allegations are submitted to the Convention institutions (see, as the most recent authority, the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 18, para. 33). This means that the complaint which it is intended to bring before the Commission must first be raised, at least in substance and in compliance with the relevant requirements of domestic law, before the appropriate national courts (see, inter alia, the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 54, para. 38).", "49. It is true that Article 1 of Protocol No. 1 (P1-1) was referred to for the first time by the Tax Collector; it is also the case that the applicant company consistently denied its applicability and argued it before the Supreme Court only in an alternative submission. Nevertheless, in the event both the Court of Appeal and the Supreme Court were able to deal with the allegation of a violation of that provision (P1-1) and in fact did so.", "Accordingly, the applicant company did provide the Netherlands courts, and more particularly the Netherlands Supreme Court (see paragraph 23 above), with the opportunity of preventing or putting right the alleged violation of Article 1 of Protocol No. 1 (P1-1). The preliminary objection therefore fails.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)", "50. The applicant company complained about the seizure by the tax authorities and subsequent sale with their connivance of the concrete-mixer. They relied on Article 1 of Protocol No. 1 (P1-1), which reads:", "\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\"", "The Government maintained that there had been no violation of that provision (P1-1). In its report the Commission came to the same conclusion.", "A. Whether there was an interference with the applicant company ’ s \"peaceful enjoyment of [their] possessions\"", "51. The applicant company pointed out that they had sold the concrete-mixer to Atlas subject to retention of title until the full price had been paid. Since at the time of the seizure the full price had not been paid, the ownership of the concrete-mixer still remained with Gasus. This, in their contention, meant that the seizure and subsequent selling of that machine by the Netherlands tax authorities had interfered with their right of ownership.", "The Commission also considered that there had been an interference with Gasus ’ s \"peaceful enjoyment of [their] possessions\".", "52. The Government argued that retention of title was more in the nature of a security right in rem than of \"true\" ownership and that the \"enjoyment\" of it was limited to security for payment of the purchase price. \"True\" or \"economic\" ownership was vested in the purchaser, who stood to lose by damage to or loss of the goods purchased and stood to gain by their use or resale. At the time of the events complained of, the concrete-mixer was thus no longer a \"possession\" whose \"peaceful enjoyment\" was guaranteed to Gasus by Article 1 of Protocol No. 1 (P1-1).", "53. The Court recalls that the notion \"possessions\" (in French: biens) in Article 1 of Protocol No. 1 (P1-1) has an autonomous meaning which is certainly not limited to ownership of physical goods: certain other rights and interests constituting assets can also be regarded as \"property rights\", and thus as \"possessions\", for the purposes of this provision (P1-1). In the present context it is therefore immaterial whether Gasus ’ s right to the concrete-mixer is to be considered as a right of ownership or as a security right in rem. In any event, the seizure and sale of the concrete-mixer constituted an \"interference\" with the applicant company ’ s right \"to the peaceful enjoyment\" of a \"possession\" within the meaning of Article 1 of Protocol No. 1 (P1-1).", "B. The applicable rule", "54. The Court will usually confine its attention, as far as possible, to the issues raised by the specific case before it. In the present case, however, it must examine section 16 (3) of the 1845 Act since the interference complained of resulted from the application of that provision.", "55. As the Court has often held, Article 1 (P1-1) guarantees in substance the right of property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.", "However, the three rules are not \"distinct\" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, the AGOSI v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 17, para. 48).", "56. The applicant company based their entire argument on the premise that they had been deprived of their possessions.", "57. In the Commission ’ s opinion, sale under retention of title created a \"special legal situation\" in which the respective rights of the vendor and the purchaser depended on the domestic legal rules applicable to the transaction. Normally, the vendor and the purchaser would both be holders of a limited property right protected by Article 1 of Protocol No. 1 (P1-1), but the exact scope of the right enjoyed by each party might be different according to the legal system involved. In particular, it depended on domestic law to what extent retention of title protected the vendor ’ s property against claims by other creditors. If these other creditors were entitled to have the property seized and sold in settlement of their claims, the result was that the vendor was deprived of his property right. This, in the Commission ’ s view, was what had happened to the applicant company in the present case. The applicable rule was therefore the one contained in the second sentence of the first paragraph.", "58. The Government denied that the applicant company had been deprived of their possessions. Firstly, what the tax authorities had done was to seize the concrete-mixer, not to confiscate it; the seizure had left Gasus ’ s property rights intact. Secondly, although the concrete-mixer had eventually been sold and although the sale had been made possible by the seizure, it had been effected under a private contract entered into by Atlas and Van Baarsen. Thirdly, they argued that the expression \"deprivation\" implied that the natural or legal person concerned was left empty-handed; in fact, Gasus had retained their claim against Atlas for payment of the balance of the purchase price, and the Government were not to be blamed if recovery turned out to be impossible as a result of Atlas ’ s subsequent bankruptcy.", "59. The Court considers that the interference complained of in this case was in fact the result of the tax authorities ’ exercise of their powers under section 16 (3) of the 1845 Act. The purpose of that Act was to regulate the collection of direct taxes within the Netherlands, and section 16 (3) formed part of the provisions concerning the enforcement of unpaid tax debts. Like all other creditors, the tax authorities could recover unpaid tax debts against all the tax debtor ’ s seizable assets; under section 16 (3) they were, moreover, empowered to seize and recover against all movable property found on the tax debtor ’ s premises which qualified as \"furnishings\", irrespective of whether or not these goods belonged to the tax debtor (see paragraphs 29 to 31 above). It was in the exercise of this power that the tax authorities seized the concrete-mixer to which Gasus claimed title, in partial enforcement of Atlas ’ s unpaid tax debts.", "Against this background, the most natural approach, in the Court ’ s opinion, is to examine Gasus ’ s complaints under the head of \"securing the payment of taxes\", which comes under the rule in the second paragraph of Article 1 (P1-1). That paragraph explicitly reserves the right of Contracting States to pass such laws as they may deem necessary to secure the payment of taxes. The importance which the drafters of the Convention attached to this aspect of the second paragraph of Article 1 (P1-1) may be gauged from the fact that at a stage when the proposed text did not contain such explicit reference to taxes, it was already understood to reserve the States ’ power to pass whatever fiscal laws they considered desirable, provided always that measures in this field did not amount to arbitrary confiscation (see Sir David Maxwell-Fyfe, Rapporteur of the Committee on Legal and Administrative Questions, Second Session of the Consultative Assembly, Sixteenth Sitting (25 August 1950), Collected Edition of the Travaux préparatoires, vol. VI, p. 140, commenting on the text of the proposed Article 10A, ibid., p. 68).", "The fact that current tax legislation makes it possible for the tax authorities, on certain conditions, to recover tax debts against a third party ’ s assets does not warrant any different conclusion as to the applicable rule. Neither does it suffice in itself to describe section 16 (3) of the 1845 Act as granting powers of arbitrary confiscation.", "Conferring upon a particular creditor the power to recover against goods which, although in fact in the debtor ’ s possession, are legally owned by third parties is, in several legal systems, an accepted method of strengthening that creditor ’ s position in enforcement proceedings. Under Netherlands law as it stood at the material time, landlords had a comparable power with respect to unpaid rent, as they did also under French and Belgian law; the Government have also cited several provisions in the tax laws of other member States that give similar powers to the tax authorities in special cases. Consequently, the fact that the Netherlands legislature has seen fit to strengthen the tax authorities ’ position in enforcement proceedings against tax debtors does not justify the conclusion that the 1845 Act, or section 16 (3) of it, is not aimed at \"securing the payment of taxes\", or that using the power conferred by that section constitutes a \"confiscation\", whether \"arbitrary\" or not, rather than a method of recovering a tax debt.", "C. Compliance with the conditions laid down in the second paragraph", "60. As follows from the previous paragraph, the present case concerns the right of States to enact such laws as they deem necessary for the purpose of \"securing the payment of taxes\".", "In the present case the Court is not called upon to ascertain whether this right, as the wording of the provision may suggest, is limited to procedural tax laws (that is to say: laws which regulate the formalities of taxation, including the enforcement of tax debts) or whether it also covers substantive tax laws (that is to say: laws which lay down the circumstances under which tax is due and the amounts payable); the 1845 Act, which is at issue in the present case, was plainly a procedural tax law.", "In passing such laws the legislature must be allowed a wide margin of appreciation, especially with regard to the question whether - and if so, to what extent - the tax authorities should be put in a better position to enforce tax debts than ordinary creditors are in to enforce commercial debts. The Court will respect the legislature ’ s assessment in such matters unless it is devoid of reasonable foundation.", "61. Section 16 (3) of the 1845 Act gave the tax authorities the power to recover tax debts against certain goods which, although in fact in the possession of their debtor - since they were on his premises and served as \"furnishings\" - were owned, as a matter of law, by a third party. It thus dispensed the tax authorities from having to consider whether these goods were actually the property of the tax debtor. The purpose of the provision was obviously to facilitate the enforcement of tax debts, which in itself is clearly in the general interest.", "It is true that the 1961 Guidelines curtailed the tax authorities ’ powers under section 16 (3). As restricted by those guidelines, section 16 (3) empowered the tax authorities to recover only certain tax debts - including those such as the ones owed by Atlas - against \"furnishings\" owned by third parties where third-party ownership was intended solely to frustrate recovery against the tax debtor or to afford the third party a preferential right of recovery over the goods concerned (see paragraph 30 above). This, however, did not affect the essential aim of section 16 (3), which remained, as was stressed by the Government, to secure tax revenue in the general interest.", "62. According to the Court ’ s well-established case-law, the second paragraph of Article 1 of Protocol No. 1 (P1-1) must be construed in the light of the principle laid down in the Article ’ s (P1-1) first sentence (see, among many other authorities, the above-mentioned AGOSI judgment, ibid.). Consequently, an interference must achieve a \"fair balance\" between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 (P1-1) as a whole, including the second paragraph: there must therefore be a reasonable relationship of proportionality between the means employed and the aim pursued.", "63. Gasus stressed that they had been deprived of their property in payment of a tax debt owed by a third party, the Netherlands company Atlas.", "They pointed out that they were in no way responsible for causing the tax debt. Moreover, they could not possibly have been aware of it, since in the Netherlands the tax authorities were not allowed to give such information to anyone but the actual debtor.", "Finally, the fact that the fiduciary title - to goods not considered \"furnishings\" - of one of Atlas ’ s bankers, NIB, had been respected, whereas Gasus ’ s retention of title had not, demonstrated that the interference with Gasus ’ s rights had been arbitrary. In their submission, retention of title was closer to \"true\" ownership than fiduciary title was. The latter involved transfer of ownership from a borrower, who remained entitled to use and often even to sell the goods, to a lender who had never had any interest of his own in the goods. Retention of title, on the other hand, was the continuation of the ownership of the former owner until the purchaser had fulfilled his obligations.", "64. In the opinion of the Commission, the measure in issue had been taken in accordance with specific rules of Netherlands law. Consequently, the applicant company could have taken these rules into account, if need be with appropriate legal advice; they could have decided not to sell the concrete-mixer at all, or they could have limited their risk by negotiating \"specific security\" in addition to the retention of their title or by taking out insurance.", "65. The Government preferred to view the case as one concerning the conflicting interests of creditors faced with a common debtor whose assets were insufficient to satisfy them all. Although Netherlands law theoretically recognised the principle of paritas creditorum, it had, like other legal systems, created priority rights favouring certain creditors over others and had ranked the rights of the tax authorities very high.", "According to the report of the Interdepartmental Working Party (see paragraph 43 above), which the Government submitted to the Court, both the high rank of the tax authorities ’ priority right and their extensive rights of seizure were justified by, inter alia, the following differences between the tax authorities and private creditors: the tax authorities did not choose their debtors; they were expected to show greater leniency than other creditors and were enabled by their priority right (which ensured that tax debts would be paid in any case) to be flexible as regards both the timing of assessments and the collection of the amount due; they were obliged to grant credit; and they were not able to make allowance for the risk that the parties they dealt with might prove insolvent. In addition commercial creditors could in many cases obtain a higher preference by entering into agreements like fiduciary transfer of ownership and retention of title, and the right to seize goods nominally belonging to third parties served to correct the imbalance thereby created.", "Contrary to what Gasus had suggested, their position and that of NIB were not comparable. While it was true that NIB ’ s merely fiduciary ownership had been respected whereas the applicant company ’ s retention of title had not, the reason for this was precisely that the goods to which NIB ’ s ownership related were not \"furnishings\" for the purpose of section 16 (3) of the 1845 Act and therefore not subject to seizure. There was therefore no arbitrary distinction in this respect.", "In any event, according to the 1961 Guidelines, \"true\" ownership (i.e. ownership not merely negotiated as a security right in rem) had to be respected by the tax authorities. In the Government ’ s view, Netherlands law was free to define its understanding of the concept of ownership and could therefore restrict certain forms in the general interest. Other Contracting States limited the protection afforded by retention of title even further than did the Netherlands.", "Finally, the Government recalled that Gasus had retained their claim against Atlas for payment of the purchase price. This meant that Gasus had not been left empty-handed. Although Atlas ’ s bankruptcy had deprived the claim of its value, that was not a state of affairs for which the Government could be held responsible.", "66. The Court notes at the outset that the grant to the tax authorities of a power to recover tax debts against goods owned by certain third parties - such as a seller of goods who retains his title - does not in itself prompt the conclusion that a fair balance between the general interest and the protection of the individual ’ s fundamental rights has not been achieved. The power of recovery against goods which are in fact in a debtor ’ s possession although nominally owned by a third party is a not uncommon device to strengthen a creditor ’ s position in enforcement proceedings; it cannot be held incompatible per se with the requirements of Article 1 of Protocol No. 1 (P1-1). Consequently, a legislature may in principle resort to that device to ensure, in the general interest, that taxation yields as much as possible and that tax debts are recovered as expeditiously as possible. Nonetheless, it cannot be overlooked that, quite apart from the dangers of abuse, the character of legislation by which the State creates such powers for itself is not the same as that of legislation granting similar powers to narrowly defined categories of private creditors. Consequently, further examination of the issue of proportionality is necessary in this case.", "67. In this connection, the Court also notes that in assessing the proportionality of the powers under section 16 (3) and their use in the present case it is immaterial that Gasus were a limited company with legal personality under German law and had their registered office in Germany. Gasus had sold and delivered their concrete-mixer to a purchaser based in the Netherlands and installed it on his premises. Gasus could therefore not have expected otherwise than that the effectiveness of their retention of title in the face of seizure depended on Netherlands law. It consequently makes no difference whether a seller who retains title and who finds himself a victim of use by the tax authorities of their power under section 16 (3) has his domicile or registered office in the Netherlands or elsewhere. In either case the essential question must be whether as a consequence of the tax authorities ’ actions against the goods to which title has been retained the vendor has had to bear \"an individual and excessive burden\" (see particularly the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 34, para. 50).", "68. Whatever the nature of retention of title compared with \"true\" or \"ordinary\" property rights - a question on which the Court discerns no common ground among the Contracting States - it is apparent that whoever sells goods subject to retention of title is not interested so much in maintaining the link of ownership with the goods themselves as in receiving the purchase price. A State may therefore legitimately, within its margin of appreciation, differentiate between retention of title and other forms of ownership.", "It matters little whether such differentiation takes the form of substantive limitations of the right of ownership or is expressed in terms of procedural law; as the Court pointed out in its Fayed v. the United Kingdom judgment of 21 September 1994, such a distinction may be no more than a question of legislative technique (Series A no. 294-B, p. 50, para. 67).", "69. It cannot be ignored that in general the cases in which the tax authorities will make use of their high-ranking priority rights and their powers under section 16 (3) of the 1845 Act are precisely those where the tax debtor is unable to satisfy all his creditors. This necessarily implies that in these cases commercial creditors will not be fully paid if they receive any payment at all.", "The Court therefore does not agree with the Government that the fact that the applicant company ’ s claim against Atlas was rendered worthless is not a consequence of the action taken by the tax authorities.", "70. It is nonetheless true, as observed by the Commission, that the applicant company were engaged in a commercial venture which, by its very nature, involved an element of risk (see, mutatis mutandis, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 26, para. 59). The facts of the case show that Gasus were in fact sufficiently aware of their risk to take steps to limit it.", "Having allowed Atlas to pay the purchase price of the concrete-mixer in instalments, and being aware of the danger that Atlas might default on its payments, Gasus reserved their title to the concrete-mixer until the full price had been paid. This, under Netherlands law, provided them with a considerable degree of security, as their claims to the concrete-mixer thus took priority over those of all other creditors except the tax authorities, who were entitled under section 16 (3) of the 1845 Act to seize it and take the proceeds for the State.", "Like the Commission, the Court considers that Gasus could have eliminated their risk altogether by declining to extend credit to Atlas: they could have stipulated payment of the entire purchase price in advance or else refused to sell the concrete-mixer in the first place. It also accepts that the applicant company might have obtained additional security, for example in the form of insurance or a banker ’ s guarantee, which pass the risk on to another party.", "It is therefore unnecessary for the Court to establish whether the applicant company could have ascertained the existence and extent of Atlas ’ s tax debts, this point being in dispute. Nor is it material that the applicant company bore no responsibility for the tax debt.", "In the present context it is not without relevance that the owners of goods subject to seizure under section 16 (3) of the 1845 Act had knowingly allowed them to serve as \"furnishings\" of the tax debtor ’ s premises. They might therefore well be held responsible to some extent for enabling the tax debtor to present a semblance of creditworthiness.", "71. Furthermore, whether or not the tax authorities are under any legal or other obligation to be more flexible in respect of tax debtors in temporary financial difficulties, they do not have the same means at their disposal as commercial creditors for protecting themselves against the consequences of their debtors ’ financial problems. Nor have they any other means of protecting themselves against their debtors ’ attempts to solve such problems by vesting the title to their \"furnishings\" in another party as a device for borrowing against a security.", "72. The Court accepts the Government ’ s argument that the fact that the concrete-mixer to which Gasus had reserved title was seized while goods subject to NIB ’ s fiduciary ownership rights were spared does not suffice to demonstrate that the seizure of the concrete-mixer was arbitrary. Whereas the concrete-mixer supplied by Gasus qualified as \"furnishings\", this was not the case with the goods over which NIB could claim rights. This distinction was based on the law, as elucidated by a long-established body of case-law, and accorded with the stated policy of the Minister of Finance.", "73. Finally, in the Court ’ s opinion, it should be taken into account that, as was made clear by the Supreme Court in its judgment in this case, under Netherlands law third parties whose goods are seized under section 16 (3) of the 1845 Act may have the use that has been made of the powers conferred by that section adequately reviewed by a tribunal under a procedure which meets the requirements of Article 6 para. 1 (art. 6-1) of the Convention.", "74. In view of the above, the Court comes to the conclusion that the requirement of proportionality has been satisfied. Accordingly, there has been no violation of Article 1 of Protocol No. 1 (P1-1)." ]

[ "I. general background", "6. The applicants were at all relevant times building societies within the meaning of the Building Societies Act 1986. Building societies operate under the status of “mutual societies” under English law as opposed to the status enjoyed by companies under company law. A building society’s members are made up of its investors who deposit savings with it and receive a rate of interest or a dividend in return, and its borrowers who are charged interest on their loans. By and large, loans are taken out by borrowers to buy private residential property.", "A. The income-tax liability of investors", "7. Investors with a building society are liable to pay income tax in respect of the interest earned on their deposits. The income tax owed to the Inland Revenue for the purposes of the fiscal year running from 6 April of one year to 5 April of the following year was in practice calculated or measured with reference to a period of equal length preceding the actual fiscal year. The so-called “measurement principle” required that the period measured be always equal in length to the period taxed. The taxpayer was not in fact taxed on the income of the preceding year but assessed to tax on the income received in the current year, the amount of the current year’s income being artificially computed by reference to the income of the previous year. Accordingly, in normal circumstances, individual investors with building societies would be obliged to declare in their tax returns for the fiscal year in question the amount of interest or dividends earned on their deposits in a preceding reference period of equal length to the fiscal year, and the Inland Revenue would have to make individual assessments to tax on the strength of the information supplied by the investor.", "B. The voluntary arrangements for discharging investors’ tax liability", "8. However, in view of the very large number of building society investors, many of whom had only modest savings and were thus only liable to small amounts of income tax, or to no tax at all, it had for many years up to and including the fiscal year 1985/86 been the practice for the Inland Revenue to make voluntary arrangements with building societies for the payment by each society of a single annual composite amount. The effect of this payment by a building society was to discharge its investors’ liability to income tax at the basic rate on the interest which they earned. These arrangements, which were for very many years operated on a non-statutory basis, were at the relevant time given statutory recognition under section 343 (1) of the Income and Corporation Taxes Act 1970 – “the 1970 Act”.", "9. The composite-rate payment under the voluntary arrangements was calculated for each fiscal year by reference to the global amount of interest paid by the society to its investors. However, in order to reflect the fact that some of the investors would not have been liable to tax at all given the modest amounts of their savings (see paragraph 8 above) a reduced rate of tax was applied. For this reason the annual payments made under this scheme were known as “reduced-rate tax” or “composite-rate tax”, or “CRT”.", "10. The amount paid to investors by way of interest on their investments took account of the fact that their liability to income tax was discharged by the building society via the payment of CRT to the Inland Revenue. Investors thus received their interest net of tax.", "C. Setting the rate of CRT and the revenue-neutrality principle", "11. In accordance with the “revenue-neutrality” principle, set out in section 26 of the Finance Act 1984, the CRT payment reflected only the amount which would have been paid by the investors themselves had they been obliged to declare and pay tax on the interest they earned through their deposits.", "12. To achieve this, the Treasury, following negotiations with the Building Societies Associations, set each year, by statutory instrument, the CRT rate. In doing so, it was required to aim at a result whereby the same amount of tax was collected at source from building societies for the fiscal year in question as would have been collected from the individual depositors had they been taxed directly on the interest they received over a preceding reference period (see paragraphs 7 above and 13 below).", "D. The prior-period system and the accounting-year period", "13. Until 1985/86, a “prior-period” system applied in respect of CRT. The amount of CRT to be paid by each building society for each fiscal year (see paragraph 12 above) was calculated by reference to the interest which it paid to its investors not during the actual year being taxed, but during the society’s own twelve months’ accounting period ending within that fiscal year. The tax was in every case paid on or around 1 January of the year of assessment. As noted above (see paragraph 8 above), the legal effect of this payment representing income tax was to discharge investors’ basic-rate liability on the interest earned in the year being taxed.", "14. There was no legal requirement to have a harmonised accounting period. Different time frames were used by different building societies, but in all cases the time frames represented a period equal in length to the fiscal year, having regard to the requirements of the measurement principle (see paragraph 7 above). The following accounting periods were operated by each of the applicant societies:", "– the Leeds: 1 October to 30 September;", "– the National & Provincial: 1 January to 31 December;", "– the Yorkshire: 1 January to 31 December.", "Thus, on or around 1 January 1986, the three applicant societies paid to the Inland Revenue, to discharge their investors’ liability to income tax at the basic rate for the fiscal year 6 April 1985–5 April 1986, sums measured by reference to the interest paid to their investors in their accounting periods ended 30 September 1985 (the Leeds) and 31 December 1985 (the National & Provincial and the Yorkshire). Under the effect of the voluntary arrangements (see paragraph 8 above), these payments completely discharged the income-tax liability of their investors in respect of the interest paid to them by the respective societies for the fiscal year 6 April 1985–5 April 1986.", "On that basis each of the applicant companies paid the following amounts by way of CRT to the Inland Revenue:", "– the Leeds: 144,500,000 pounds sterling (GBP), a sum measured by reference to the interest paid to its investors in its accounting period ended 30 September 1985;", "­ the National & Provincial: GBP 125,926,662, a sum measured by reference to the interest paid to its investors in its accounting period ended 31 December 1985;", "– the Yorkshire: GBP 34,001,214, a sum measured by reference to the interest paid to its investors in its accounting period ended 31 December 1985.", "E. The aim and effect of the new legislation: section 40 of the Finance Act 1985", "15. With a view to putting the taxation of the interest paid by building societies to investors on a similar footing to the scheme which had been introduced for banks by the Finance Act 1984, the Government proposed the introduction of a mandatory regime for the collection of tax on investors’ interest and the payment of the tax quarterly on the last days of February, May, August and November instead of annually in January. In his budget statement on 19 March 1985 announcing the introduction of the new scheme, the Chancellor of the Exchequer declared that it would not produce any additional revenue. The proposal was adopted by Parliament in the form of section 40 of the Finance Act 1985.", "16. Section 40 amended section 343 of the 1970 Act (see paragraph 8 above) by inserting a new sub-section (1A) which had the effect of bringing to an end the long-standing voluntary arrangements as from 6 April 1986. It also empowered the Inland Revenue Commissioners to make regulations introducing a new system of accounting for the fiscal year 1986/87 and for subsequent years. Under the Income Tax (Building Society) Regulations 1986 (“the 1986 Regulations”), which came into force on 6 April 1986, tax was to be calculated on a quarterly basis on the actual interest paid during the actual year of assessment, as opposed to a prior period.", "F. The problem of the “gap period”", "17. However the ending of the voluntary arrangements exposed a gap (“the gap period”) between the end of the applicant societies’ accounting periods in 1985/86 (see paragraph 14 above) and the start of the first quarter under the new regime. In the case of the Leeds the gap period was from 1 October 1985 to 5 April 1986, and in the case of the National & Provincial and the Yorkshire it was from 1 January 1986 to 5 April 1986. In order to ensure that each payment of interest formed the basis of an assessment to tax, transitional regulations were introduced which deemed payments falling into the “gap period” to have been made in a later accounting period, with the result that they formed the basis for an assessment to tax under the new “actual-year” arrangements. In the view of the Government the legislative intention was to ensure that the same amount of tax was collected as would have been collected if the previous arrangements had continued and that the building societies did not receive an undeserved windfall in respect of the gap period.", "18. Against this background, Regulation 11 (read in conjunction with Regulation 3) of the 1986 Regulations purported to require building societies to account for tax relating to payments of interest to their investors in their respective gap periods. Regulation 11 (4) provided for tax to be charged on interest paid in the gap period at 1985/86 rates, i.e. 25.25%, the basic rate of income tax being 30% for that year.", "II. Particular circumstances of the case", "19. Each of the applicant societies took the view that the transitional regulations ran counter to the Government’s declared intention that the new regime introduced by the Finance Act 1985 should not produce any additional revenue (see paragraph 15 above), which view was reaffirmed during the parliamentary debates on section 40 of that Act. They considered that the effect of Regulations 3 and 11 was to impose tax again on interest they had paid in 1985/86, a fiscal year for which liability on their investors’ interest had already been discharged (see paragraph 14 above). For the applicants this had the result that, for twenty-four months’ interest paid to its investors in the two fiscal years 1986/87 and 1987/88, a society like the Leeds, with a 30 September year-end, was required to pay tax on thirty months’ interest. For the National & Provincial and the Yorkshire, each would have to pay tax on twenty-seven months’ interest for the twenty-four month period covered by the fiscal years 1986/87 and 1987/88. In the view of the applicant societies these consequences ran counter to the measurement principle according to which the measurement period forming the basis of assessment to tax can never exceed the length of the fiscal year (see paragraph 7 above).", "Each of the three applicant societies did in fact pay the tax claimed to be due under the transitional provisions of the Regulations as follows:", "– the National & Provincial: GBP 15,873,945;", "– the Leeds: GBP 56,973,690;", "– the Yorkshire: GBP 8,902,620.", "20. The Government point out that the payments were made “without formal protest”. However, the applicants assert that they made clear from the outset that they disputed the lawfulness of the tax and that they associated themselves with the proceedings initiated by the Woolwich Equitable Building Society (“the Woolwich”) to challenge the lawfulness of the transitional provisions in Regulation 11. For its part the Leeds issued a press release when the Regulations were still at the draft stage, drawing attention to, inter alia, their complaint that the Regulations would have the objectionable effect of subjecting building societies to double taxation. The affidavit sworn by the Executive Vice-Chairman of the Woolwich referred to the Leeds’ support for its decision to initiate legal proceedings against the transitional arrangements. Both the National & Provincial and the Yorkshire made requests for the repayment of the amounts they had paid to the Inland Revenue.", "A. The Woolwich 1 proceedings for judicial review", "21. On 18 June 1986 the Woolwich commenced judicial review proceedings seeking a declaration that Regulation 11 was unlawful as being outside the scope of the enabling legislation. It was further alleged that the transitional arrangements transgressed the fundamental principles of constitutional and taxation law and that the machinery adopted by the 1986 Regulations in order to implement the change in the system resulted in a double charge to tax over the gap period.", "B. The legislative response to the launch of the Woolwich 1 proceedings: section 47 of the Finance Act 1986", "22. On 4 July 1986 the Government introduced in Parliament a measure intended to validate retrospectively the impugned Regulations and to give effect to what they claimed to be the original intention of Parliament when adopting them (see paragraphs 15 and 17 above). The responsible Government minister informed Parliament that the Regulations did not affect the amount of tax collected, only the timing of payment and reiterated that they would not bring extra tax to the Inland Revenue. On 25 July 1986 the Finance Act 1986 (“the 1986 Act”) received the Royal Assent. Section 47 of the Act retrospectively amended section 343 (1A) of the 1970 Act (see paragraph 16 above) with the purpose of authorising the Inland Revenue Commissioners to make regulations requiring the taxation in the year 1986/87 and subsequent years of assessments of sums paid to investors in the gap period and not previously brought into account.", "C. The Woolwich 2 proceedings for restitution", "23. On 15 July 1987 the Woolwich issued a writ against the Inland Revenue claiming repayment of the sums paid by way of tax under the transitional provisions of the Regulations, as well as interest from the date of payment.", "D. The decision of the High Court in the Woolwich 1 proceedings", "24. On 31 July 1987 Nolan J granted the application in Woolwich 1 (see paragraph 21 above) and made a declaration that Regulation 11 was void in its entirety and that the remaining Regulations were void in so far as they purported to apply to payments made to investors prior to 6 April 1986. He held that:", "(a) there was nothing in the enabling legislation to indicate that Parliament intended to authorise a departure from the principle that income tax should only be levied on the income of one year;", "(b) the power to make regulations conferred by section 343 (1A) was to be exercised solely with respect to 1986/87 and later years and nothing in the section authorised the Revenue to go back on the arrangements with the building societies and impose further tax on interest paid to their members during the gap period;", "(c) the fact that Regulation 11 (4) provided for tax to be charged at 1985/86 rates (which were higher than the 1986/87 rates) was itself a clear indication that the Regulations went beyond the powers conferred by section 343 (1A);", "(d) the position was not affected by the amendment in section 47 (1) of the 1986 Act which, whatever its intention, still left the power conferred by section 343 (1A) as a power exercisable only with respect to 1986/87 and subsequent years.", "25. The Inland Revenue appealed against the decision. They conceded that Regulation 11 (4) was invalid but contended that this partial invalidity did not invalidate the rest of the Regulation.", "26. Towards the end of 1987, the Inland Revenue repaid to the Woolwich the sum of GBP 57,000,000 with interest from 31 July 1987 (the date of the order of Nolan J) but refused to pay interest from any earlier date. Thus, the remaining issue in the Woolwich 2 proceedings (see paragraph 23 above) came to be whether or not Woolwich had grounds for claiming interest on the payments made by them up to 31 July 1987.", "E. The decision of the High Court in the Woolwich 2 proceedings", "27. On 12 July 1988 Nolan J dismissed the Woolwich 2 action, holding that the Woolwich was not entitled to recover the sums in issue under any general principle of restitution or as having been paid under duress. He took the view that the sums had been paid under an implied agreement that they would be repaid if and when the dispute about the validity of the 1986 Regulations was resolved in favour of the Woolwich. Thus, the Woolwich had no cause of action to recover the money until the date of his order of 31 July 1987. The Woolwich appealed against the decision and order.", "F. The decision of the Court of Appeal in the Woolwich 1 proceedings", "28. On 12 April 1989 the Court of Appeal allowed the appeal of the Inland Revenue in the Woolwich 1 proceedings (see paragraph 25 above). The court held that:", "(a) as a matter of ordinary construction, the words of section 47 of the 1986 Act were clear and enabled the Revenue to take account of, and to charge to tax, interest paid by the societies in the gap period; and", "(b) subject to the invalidity of Regulation 11 (4), which was conceded by the Revenue, Regulation 11 was valid.", "G. The decision of the House of Lords in the Woolwich 1 proceedings", "29. On 25 October 1990 the House of Lords allowed the appeal of the Woolwich in the Woolwich 1 proceedings. The House of Lords, Lord Lowry dissenting, declared the transitional provisions in the 1986 Regulations to be ultra vires on the grounds that Regulation 11 (4), as the Inland Revenue had previously conceded, and Regulation 3, so far as it related to the period after February and before 6 April 1986, were ultra vires the empowering statute. The House of Lords considered that Regulation 11 (4) could not be severed from the rest of Regulation 11 and that the transitional provisions in the 1986 Regulations were therefore void in their entirety.", "30. Lord Oliver, delivering the judgment of the majority, concluded:", "“... I confess that I find the conclusion irresistible that Parliament intended by these words [section 47 of the 1986 Act] to enable the Revenue to take account of and to charge to tax sums which, rightly or wrongly, it regarded as otherwise representing windfalls in the hands of building societies. One has only to look at the circumstances. The Regulations of 1986 had been made and had been objected to. They were made the subject of a direct challenge in legal proceedings, the evidence in support of which clearly adumbrated the arguments advanced before the judge and the Court of Appeal. The notion that Parliament should go to the trouble of enacting an expressly retrospective amendment in order to provide, unnecessarily, for the use of these sums as a measurement of tax liability – a matter never remotely in issue – is simply fanciful ...", "... I am bound to say that I think it unfortunate that the Revenue, through Parliament, should have chosen by secondary rather than primary legislation to take what was, on ordinary principles, the very unusual course of seeking to tax more than one year’s income in a single year of assessment, but section 47 of the Finance Act 1986 is, on any analysis, a very unusual provision and I have, in the end, found myself irresistibly driven to the conclusion that this was what Parliament intended should occur. It may be – I do not know – that the legislature did not appreciate fully that the effect of the arrangements made in 1985 was to discharge all liability for tax on interest paid in the year of assessment 1985/86, including tax on interest paid after the end of a society’s accounting year, and that, accordingly, to tax those sums again in a subsequent year was, in a sense, to tax them twice. But even making that assumption it amounts to no more than saying that the legislature should not have intended to do that which it plainly set out to do. I would, for my part, therefore, reject the Woolwich’s principal argument.”", "This ruling declaring Regulation 11 (4) void on technical grounds meant that no mechanism existed to achieve what the Government claimed to be Parliament’s initial intention that interest payments made during the gap period should be assessed for tax. This led the Government to introduce new legislative provisions. A draft press release was circulated as early as 7 March 1991 for the approval of the Chancellor of the Exchequer. The draft indicated that the Chancellor in his budget-day speech on 19 March 1991 would introduce legislation to validate retrospectively the Regulations which had been struck down in the Woolwich 1 case (see paragraph 33 below).", "H. The Leeds 1 and National & Provincial 1 proceedings for restitution", "31. Following the House of Lords’ decision in the Woolwich 1 proceedings, and after having made several requests for repayment, the Leeds commenced proceedings on 15 March 1991 against the Inland Revenue for the restitution of the sum of GBP 56,973,690 paid pursuant to the 1986 Regulations which had been declared void in the Woolwich 1 proceedings.", "32. On 17 March 1991 the National & Provincial, which had also sought but was refused repayment, commenced proceedings against the Inland Revenue for the restitution of the sum of GBP 15,873,945 paid pursuant to the void Regulations.", "I. The legislative response to the Woolwich 1 decision: the enactment of section 53 of the Finance Act 1991", "33. On 19 March 1991, in his budget statement, the Chancellor of the Exchequer announced the introduction of legislation to remedy “the technical defects in the Regulations”. This legislation became section 53 of the Finance Act 1991 (“the 1991 Act”), which entered into force on 25 July 1991. Section 53 provided, inter alia :", "“Section 343 (1A) of the [1970 Act] ... shall be deemed to have conferred powers to make all the provisions in fact contained in [the 1986 Regulations].”", "34. The provision had retrospective effect, save that by subsection (4) it had no effect “in relation to a building society which commenced proceedings to challenge the validity of the Regulations before 18 July 1986”. The Woolwich was the only building society which satisfied this condition.", "35. In a letter dated 21 March 1991 the Director-General of the Building Societies Associations informed the Financial Secretary to the Treasury that the decision of the Government “[did] not come as any great surprise, although it will still be very disappointing to the societies concerned”. In fact, the concrete effect of the measure was to stifle the Leeds 1 and National & Provincial 1 proceedings (see paragraphs 31and 32 above). Although they had shown support for the Woolwich’s judicial proceedings (see paragraph 20 above) neither had formally commenced legal proceedings before 18 July 1986. At the costs hearing the Government conceded that they had no defence to the action brought by the Leeds and the National & Provincial had it not been for section 53 of the 1991 Act. Costs were awarded against the Government.", "J. The Woolwich 2 proceedings in the Court of Appeal", "36. On 22 May 1991 the Court of Appeal, by a majority, allowed the appeal by the Woolwich in Woolwich 2 and awarded the interest claimed.", "37. The majority of the Court of Appeal accepted the Woolwich’s primary submission that, where money was paid under an illegal demand for taxation by a government body, the payer had an immediate prima facie right to recover the payment.", "K. The Leeds 2, National & Provincial 2 and Yorkshire 1 proceedings to challenge the validity of the Treasury Orders by way of judicial review", "38. On 10 July 1991 the Leeds applied for leave to commence judicial review proceedings for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and for the following years were unlawful (“Leeds 2”). The Leeds claimed that:", "(a) it was clear that in making the estimates for the years following 1986/87, and setting the rates of composite-rate tax on the basis of it, the Treasury had assumed the correctness of the Government’s position that the Regulations collected no “extra” tax;", "(b) this position had been shown by the judgments in Woolwich 1 to be wrong, with the result that the Treasury had underestimated the amount of tax collection under the composite-rate tax system and so set the rate of tax for those years substantially too high;", "(c) this was of no significance so long as the Regulations were held to be invalid, because the “extra” tax was in law repayable to the building societies; however, by retrospectively validating them the Government had automatically invalidated the bases of the statutory instruments setting the rates;", "(d) this, in principle, meant that all composite-rate tax paid in those years had to be repaid, but in its proceedings the Leeds made a binding commitment not to seek to recover more than the sums initially overpaid, namely GBP 57,000,000.", "39. On 6 November 1991 the National & Provincial was granted leave to commence judicial review proceedings similar to those in Leeds 2 for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and subsequent years were unlawful because of the retrospective validation of the Regulations (“National & Provincial 2”). The application was joined with the Leeds 2 proceedings and with a similar application made by the Bradford and Bingley Building Society.", "40. On 3 March 1992 the Yorkshire applied for leave to commence similar judicial review proceedings for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and subsequent years were unlawful (“Yorkshire 1”).", "L. The Leeds 3, National & Provincial 3 and Yorkshire 2 proceedings for restitution", "41. Further proceedings were commenced by the Yorkshire on 11 May 1992 (“Yorkshire 2”), by the Leeds on 1 June 1992 (“Leeds 3”) and by the National & Provincial on 12 June 1992 (“National & Provincial 3”). In those proceedings the applicant societies claimed restitution of the money due to them if the judicial review proceedings (Leeds 2 and National & Provincial 2, and Yorkshire 1) were successful (see paragraphs 38–40 above).", "M. The legislative response to the applicants’ proceedings for judicial review and restitution: section 64 of the Finance (No. 2) Act 1992", "42. On 16 July 1992 section 64 of the Finance (No. 2) Act 1992 (“the 1992 Act”) entered into force. This legislation had been anticipated as from 7 May 1992 when the Financial Secretary in a reply to a parliamentary question noted that his Government intended to introduce legislation to validate retrospectively the impugned Treasury Orders. Section 64 provided, with retrospective effect, that the Treasury Orders “shall be taken to be and always to have been effective”. The Government acknowledged during the parliamentary debates on section 64 that the measure was intended to pre-empt the legal proceedings launched by the applicants to challenge the validity of the Treasury Orders and that it would result in the Woolwich being treated more favourably. However, they pointed out that the challenge to the composite rate for CRT in the fiscal years 1986/87 to 1989/90 threw into doubt the lawfulness of the collection of all sums from building societies, banks and other deposit institutions in the periods in question. While there was no doubt as to the lawfulness of the collection in respect of the vast majority of those sums, the effect of impugning the rates set would have been to render the collection of all sums unlawful. The amount at stake was in the region of GBP 15 billion.", "43. The effect of section 64 was to extinguish the remaining proceedings lodged by the applicants for judicial review of the validity of the Treasury Orders and for restitution (see paragraphs 39–41 above).", "N. The final outcome of the Woolwich 2 proceedings", "44. On 20 July 1992 the House of Lords, by a majority, dismissed the Inland Revenue’s appeal in the Woolwich 2 proceedings.", "The House of Lords did not accept that, on the facts of the Woolwich case, there was any implied agreement for the repayment of the money paid under the invalid Regulations if and when the dispute was resolved in the taxpayer’s favour. Nevertheless, by a majority, the House of Lords held:", "(a) that money paid by a citizen to a public authority in the form of taxes or other levies pursuant to an ultra vires demand by the authority is prima facie recoverable by the citizen as of right;", "(b) that, accordingly, since the building society’s claims fell outside the statutory framework governing repayment of overpaid tax, it was entitled at common law to repayment of the sums and to interest in respect thereof from the date of payment." ]

[ "III. relevant domestic law", "45. Section 343 (1A) of the 1970 Act (introduced by section 40 of the Finance Act 1985, and as amended by section 47 of the Finance Act 1986) provides as follows:", "“The Board may by regulations made by statutory instrument make provision with respect to the year 1986/87 and any subsequent year of assessment requiring building societies, on such sums as may be determined in accordance with the regulations (including sums paid or credited before the beginning of the year but not previously brought into account under subsection (1) above or this subsection), to account for and pay an amount representing income tax ... and any such regulations may contain such incidental and consequential provisions as appear to the Board to be appropriate, including provisions requiring the making of returns.” [The words in bold print were added by the 1986 Act.]", "46. Section 53 of the Finance Act 1991 provides, so far as relevant, as follows:", "“(1) Section 343 (1A) of the Income and Corporation Taxes Act 1970 ... shall be deemed to have conferred power to make all the provisions in fact contained in the Income Tax (Building Societies) Regulations 1986 ...", "(4) In relation to a building society which commenced proceedings to challenge the validity of the Regulations before 18 July 1986, this section shall not have effect to the extent that the Regulations apply (or purport to apply) to payments or credits made before 6 April 1986.”", "47. Section 64 of the Finance (No. 2) Act 1992 provides as follows:", "“(1) For the purposes of this section each of the following is a relevant order –", "(a) the Income Tax (Reduced and Composite Rate) Order 1985 ...", "(b) the Income Tax (Reduced and Composite Rate) Order 1986 ...", "(c) the Income Tax (Reduced and Composite Rate) Order 1987 ...", "(d) the Income Tax (Reduced and Composite Rate) Order 1988 ...", "(2) If apart from this section a relevant order would not be so taken, it shall be taken to be and always to have been effective to determine the rate set out in the order as the reduced rate and the composite rate for the year of assessment for which the order was made.”", "PROCEEDINGS BEFORE THE COMMISSION", "48. In their applications (nos. 21319/93, 21449/93 and 21675/93), lodged with the Commission on 15 January 1993, 21 December 1992 and 11 January 1993, the applicants alleged violations of Article 6 of the Convention and Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention.", "On 30 August 1994 the Commission joined the National & Provincial’s application and the Yorkshire’s application, and on 10 January 1995 joined the Leeds’ application with the other two applications. On 13 January 1995 the Commission declared the applications admissible. In its report of 25 June 1996 (Article 31) the Commission expressed the opinion that there had been no violation of Article 1 of Protocol No. 1 (thirteen votes to three); that there had been no violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention (fourteen votes to two); that there had been a violation of Article 6 § 1 of the Convention (nine votes to seven); and that it was not necessary to examine the complaint under Article 6 § 1 of the Convention taken in conjunction with Article 14 of the Convention (fourteen votes to two). The full text of the Commission’s opinion and of the four separate opinions contained in the report is reproduced as an annex to this judgment [4].", "FINAL SUBMISSIONS TO THE COURT", "49. The applicant societies requested the Court to find that the facts disclosed breaches of Article 1 of Protocol No. 1 and of Article 6 of the Convention, taken alone or in conjunction with Article 14 of the Convention, and to award them just satisfaction.", "The Government for their part requested the Court to decide and declare that the facts gave rise to no breach of the Convention.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "50. The applicants claimed to be victims of a breach of Article 1 of Protocol No. 1, which provides as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. As to the alleged expropriation of the applicant societies’ assets", "51. The applicant societies maintained that it had never been suggested during the passage of section 40 of the Finance Act 1985 (see paragraphs 15 and 16 above) or at the time when the 1986 Regulations had been laid before Parliament (see paragraphs 17 and 18 above) that the gap period would be brought into account on a second occasion for tax purposes. The Government had given repeated assurances, including during the parliamentary discussions on section 47 of the Finance Act 1986, that the new arrangements would not produce any additional revenue (see paragraph 22 above). However, this indeed was the effect of the Regulations since they taxed twice interest which had already been assessed to tax for the fiscal year 6 April 1985 to 5 April 1986. The tax had been paid on or around 1 January 1986 in order to discharge their investor’s liability for that fiscal year (see paragraph 14 above). The House of Lords in the Woolwich 1 litigation had acknowledged when striking down those Regulations that the transitional provisions subjected the interest paid in the gap period to double taxation, and this consideration was a fundamental part of the ratio decidendi of their decision (see paragraphs 29 and 30 above).", "52. According to the applicant societies, it could only be concluded that the Government had misled Parliament as to the aim of the legislative scheme and had in effect procured the enactment of legislation which had the result of expropriating substantial amounts of money lawfully held in their reserves. They subsequently sought to legalise that expropriation by means of retrospective legislation which deprived the societies of their legal rights to recover those amounts.", "53. The Government stressed that the sole intention behind section 40 of the Finance Act 1985 and the adoption of the 1986 Regulations was to ensure that in the transition from the prior to the actual year basis of assessment (see paragraphs 13 and 15 above) the interest paid by building societies to investors would be brought into account for tax purposes. Had the 1986 Regulations, as validated ultimately by section 53 of the 1991 Act (see paragraphs 33 and 34 above), not addressed the tax liability of the interest paid during the gap period in the way they did certain building societies like the applicant societies would have been left with considerable amounts of untaxed interest in their reserves. The interest paid in the gap period was taxed once and once only. The Government minister had correctly informed Parliament that the new arrangements would not produce additional revenue. The untaxed interest in the gap period would have been brought into account had the voluntary arrangements continued in force. The Regulations simply altered the timing of payment of tax on that interest by spreading the liability to pay it over successive fiscal years.", "54. In the view of the Government, the applicant societies could not rely on the judgments given in the Woolwich 1 litigation to support their contention that the 1986 Regulations imposed double taxation. The Regulations had been declared void on purely technical grounds. Parliament had never been misled as to the effect which the 1986 Regulations would have on the gap period. Parliament had in fact legislated after extensive debates on the new arrangements in full knowledge of the concerns expressed by building societies at the relevant time about the effect of the Regulations.", "55. Before the Court the Delegate of the Commission stated that it had been the clear intention of Parliament in enacting section 40 of the Finance Act 1985 and adopting the 1986 Regulations to ensure that building societies did not benefit from a windfall, but should remain liable to tax on interest paid to their investors in the gap period. Furthermore, there was no support in the House of Lords ruling in the Woolwich 1 litigation for the argument that the applicant societies had been subjected to a double imposition other than in a technical sense.", "56. The Court notes that the assertions of the applicant societies in regard to the intention of Parliament in 1985 and 1986 are central to their complaints concerning the retroactive removal of their rights to recover the monies which they paid to the Inland Revenue. It is fundamental to their arguments on those complaints that those monies were in reality unlawfully expropriated from their reserves under the guise of taxation.", "57. Without prejudice to its subsequent consideration of the applicant societies’ allegations that they had been unlawfully deprived of their legal claims to restitution of their monies in breach of Article 1 of Protocol No. 1, the Court is of the opinion that it should clarify at the outset whether or not the applicant societies are correct in their submissions that the legislative measures taken in 1985 and 1986 subjected the interest which they paid to their investors in the gap period to a double imposition contrary to the intention of Parliament.", "58. It is to be noted in this respect that, had the voluntary arrangements (see paragraph 8 above) continued to apply as between the building societies and the Inland Revenue, the interest would inevitably have been brought into account for tax purposes. Accordingly, and by way of example, the Leeds would have had to pay to the Inland Revenue on or around 1 January 1987 tax on the interest earned by its investors between 1 October 1985 and 30 September 1986 in order to discharge the latter’s liability to tax on that interest for the fiscal year 6 April 1986 to 5 April 1987. The interest paid in the gap period in issue would thus have been taxed, and subsequent gap periods would have been brought into account in future fiscal years in accordance with the same logic. The voluntary arrangements made no provision for interest to be omitted for tax-assessment purposes.", "59. Since the interest earned by their investors in the gap period had been paid to them net of tax (see paragraph 10 above), the applicant societies had already deducted amounts representing tax on that interest. Those amounts were lodged in their reserves waiting to be brought into account. It is an inescapable conclusion that, had steps not been taken to bring those amounts into account in the move from the prior-period system (see paragraphs 13 and 14 above) to the actual-year system (see paragraphs 15 and 16 above), the applicant societies would have been left with considerable sums of money representing unpaid tax.", "It cannot be maintained that the effect of the transitional arrangements in the 1986 Regulations was to subject those amounts of money to double taxation other than in a technical sense, since no tax had ever been paid on the interest paid in the gap period before the changeover to the new actual-year scheme of assessment. Admittedly, by deeming the interest to have been paid in a later accounting period (see paragraph 17 above) the effect ofthe transitional regulations was to accelerate the payment of tax owed to the Inland Revenue in a way which may seem to be at variance with the measurement principle (see paragraph 7 above). However, this cannot serve to refute the conclusions that the volume of payments remained the same as between the old and the new system and that there was no increase in the revenue collected from the applicant societies.", "60. Nor is the Court persuaded by the arguments of the applicant societies that the judgment of the House of Lords in the Woolwich 1 case (see paragraphs 29 and 30 above) provides support for their view that the effect of the transitional mechanism in the 1986 Regulations was to subject the interest paid to investors in the gap period to double taxation other than in a theoretical sense, having regard to the way in which the measurement principle was adjusted. As noted above (see paragraph 59), had the measurement principle not been modified the applicant societies would undoubtedly have each received a windfall, substantial in all cases but especially so in the case of the Leeds, which had the longest gap period. Neither is it convinced by their claim that Parliament was misled as to the effect of the transitional arrangements. It would appear that both section 40 of the Finance Act 1985 (see paragraph 15 above) and section 47 of the Finance Act 1986 (see paragraph 22 above) were fully discussed at the various legislative stages against the background of strong lobbying on the part of building societies to have the interest paid to investors in the gap period omitted from assessment. It cannot be said therefore that Parliament did not appreciate the impact of the 1986 Regulations, having regard to the opportunities which the opponents of the proposals had to question Government ministers and to clarify the precise implications of the scheme for building societies.", "61. Having regard to the above conclusions, the Court will therefore consider the claims of the applicant societies that they were deprived of their legal rights to restitution of the monies paid to the Inland Revenue under the invalidated Regulations on the clear understanding that those monies were intended by Parliament to be charged to tax, had not been subjected to a double imposition and were not therefore wrongfully expropriated.", "B. As to the deprivation of the applicant societies’ legal claims", "1. Whether there were possessions within the meaning of Article 1", "62. The applicant societies contended that their legal claims to restitution of the assets which had been “unlawfully expropriated” by virtue of the 1986 Regulations constituted, like those assets, “possessions” within the meaning of Article 1 of Protocol No. 1. As a result of the House of Lords ruling in the Woolwich 2 litigation (see paragraph 44 above) the applicant societies must be considered to have had enforceable common-law rights to recover their assets, which rights accrued as soon as the money had been paid over to the Inland Revenue pursuant to the invalidated Regulations. The Government had no defence to their claim for recovery, a point which they had conceded at the costs hearing in the wake of the stifled restitution proceedings brought by the Leeds and the National & Provincial (see paragraph 35 above). Having regard to the principles established by the Court in its Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994 (Series A no. 301-B) and in its Pressos Compania Naviera S.A. and Others v. Belgium judgment of 20 November 1995 (Series A no. 332), they maintained that that right was sufficiently established and certain to constitute possessions and gave each of them a clear legitimate expectation that they would be treated similarly to the Woolwich on the basis of the law as it stood prior to the enactment of section 53 of the 1991 Act. The judicial review proceedings directed at the validity of the Treasury Orders (see paragraphs 38–40 above) and the second set of restitution proceedings (see paragraph 41 above) brought by all the applicant societies were an alternative route to the assertion of their enforceable rights to restitution of their monies. These rights were once again stifled under the impact of section 64 of the 1992 Act.", "63. The Government disputed this conclusion and especially the reliance by the applicant societies on the case-law cited. None of the applicant societies’ legal claims had ever given rise to a binding enforceable judgment. In fact the two sets of restitution proceedings had never proceeded beyond the issuing of writs (see paragraphs 31, 32 and 41 above) and the judicial review proceedings challenging the validity of the Treasury Orders (see paragraphs 38–40 above) were at an equally embryonic stage with the applicants having, at best, only an arguable chance of success. Furthermore, the first set of restitution proceedings brought by the Leeds and the National & Provincial (see paragraphs 31 and 32 above) and the second set of restitution proceedings brought by all three applicant societies (see paragraph 41 above) were in reality opportunistic legal moves having regard to the dates when the writs were issued and the Government’s clear intentions at those times. In fact the second set of restitution proceedings, which were contingent on securing victory in the judicial review proceedings, were bound to fail since they were launched after the Government had officially announced their intention to validate retrospectively the Treasury Orders (see paragraph 42 above).", "64. For the above reasons the Government requested the Court to find that Article 1 of Protocol No. 1 was not applicable since the applicant societies could not validly claim to have “possessions”.", "65. The Commission considered that the restitution proceedings initiated by the Leeds and the National & Provincial (see paragraphs 31 and 32 above) were “possessions” having regard to the scope of the decision of the House of Lords in the Woolwich 2 litigation. Had the Government not acted as they did and secured the passage of section 53 of the 1991 Act through Parliament (see paragraphs 33 and 34 above), there was nothing to suggest that the authorities would have had any sustainable defence to the restitution claim.", "66. In the view of the Commission, it was less certain, however, whether the judicial review proceedings and the second set of restitution proceedings (see paragraphs 38–40 and paragraph 41 above) amounted to “possessions”. Nevertheless, the Commission was prepared to assume that those claims were possessions, having regard to the background to the proceedings and to the fact that they were in effect alternative routes to the assertion of the restitution claims which had been extinguished by section 53 of the 1991 Act. Before the Court the Delegate of the Commission stated that the Commission had in fact assumed that the legal claims asserted by each of the applicant societies were possessions in order to bring into play the third sentence of Article 1 of Protocol No. 1 which preserves the right of a Contracting State to pass laws which it deems necessary to secure the payment of taxes.", "67. The Court notes that the decision of the House of Lords in the Woolwich 2 litigation lies at the heart of the applicant societies’ contention that the claims which they sought to assert in each of the three sets of legal proceedings amounted to “possessions” within the meaning of Article 1 of Protocol No. 1. In that landmark decision the House of Lords established that a plaintiff had a prima facie common-law right to repayment of sums paid to a public authority in the form of taxes pursuant to a demand which is found to be ultra vires (see paragraph 44 above). The Woolwich recovered the interest owing on sums paid to the Inland Revenue on the strength of the law on restitution as so clarified, having already been repaid towards the end of 1987 the monies which had been collected from it by the Inland Revenue under the Regulations which, by that stage, had been declared invalid by the High Court (see paragraph 26 above).", "However, the Leeds and the National & Provincial had not themselves secured an enforceable final judgment in their favour at the time of instituting the first set of restitution proceedings and it may be questioned whether they could be considered in the circumstances to have had an acquired right to the recovery of their monies at that time (see, mutatis mutandis, the Stran Greek Refineries and Stratis Andreadis judgment cited above, p. 85, §§ 61–62). The strength of their contention on this aspect lies essentially in the fact, firstly, that the Inland Revenue had repaid the Woolwich the principal sum (see paragraph 26 above) when it was discovered that Regulation 11 (4) of the 1986 Regulations was defective, entailing a risk that the transitional arrangements could not be saved despite the enactment of section 47 of the Finance Act 1986 (see paragraph 22 above), and, secondly, that the House of Lords in the Woolwich 1 case (see paragraph 29 above) ultimately found the 1986 Regulations including the transitional arrangements to be void in their entirety. It is significant in this regard that the Government conceded the merits of the cases brought by the Leeds and the National & Provincial (see paragraph 35 above), thereby indicating that in the absence of section 53 of the 1991 Act they would have lost the cases.", "68. At the same time it must also be observed that the Leeds and the National & Provincial brought their restitution proceedings at a time when the law on restitution was not in fact favourable to the outcome of their cases. The House of Lords judgment in the Woolwich 2 case, which is central to their claim to have an established right amounting to possessions, was in fact delivered one year after the writs had been issued. Furthermore, while it may be the case that the authorities did not intimate to the applicant societies in the course of the Woolwich 1 litigation that they would seek to restore with retroactive effect the original intention of Parliament should that case go against the Inland Revenue, it is reasonable to question whether these two building societies could have had a “legitimate expectation” (see paragraph 62 above) that the Government would not have reacted as they did to the outcome of the litigation. As the Government have pointed out (see paragraph 63 above), the writs were issued after the decision had been taken to rectify with retrospective effect the inadvertent defects in the 1986 Regulations and in the days immediately preceding the official announcement by the Government of this course of action (see paragraphs 30–32 above).", "69. While noting that the Leeds and the National & Provincial may be considered to have at best a precarious basis on which to assert a right amounting to “possessions”, the Court is of the view that the claims asserted in the judicial review proceedings (see paragraphs 38–40 above) and the second set of restitution proceedings brought by all three applicant societies in May and June 1992 respectively (see paragraphs 39 and 40 above) could not be said to be sufficiently established or based on any “legitimate expectation” (see paragraph 62 above) that those claims would be determined on the basis of the law as it stood. By that stage Parliament had shown its continuing resolve to reassert its original intention to tax the interest paid in the gap period by enacting section 53 of the 1991 Act; nor could they have any cast-iron guarantee of obtaining the declaration sought in the judicial review proceedings to enable them to recover their monies in the follow-up restitution proceedings.", "70. While expressing no concluded view as to whether any of the claims asserted by the applicant societies could properly be considered to constitute possessions, the Court, like the Commission (see paragraph 66 above), is prepared to proceed on the working assumption that in the light of the Woolwich 2 ruling the applicant societies did have possessions in the form of vested rights to restitution which they sought to exercise in direct and indirect ways in the various legal proceedings instituted in 1991 and 1992. In so doing, it notes that the arguments which have been advanced in support of their contention that they had possessions are indissociably bound up with their complaints that they were unjustifiably deprived of those possessions. It will therefore treat Article 1 of Protocol No. 1 as applicable for the purposes of examining whether there was an interference with their legal claims and, if so, whether that interference was justified in the circumstances.", "2. Whether there was an interference", "71. The applicant societies asserted that the concrete effect of section 53 of the 1991 Act was to stifle the restitution proceedings instituted by the Leeds and the National & Provincial (see paragraph 35 above). The subsequent enactment of section 64 of the 1992 Act (see paragraphs 42 and 43 above) effectively removed any prospect of securing redress in the domestic courts against the “unlawful expropriation” of their assets. There was accordingly an interference with their possessions.", "72. The Government did not deny that the retrospective effects of the impugned measures brought an end to the applicant societies’ claims to recover the amounts which they had paid to the Inland Revenue.", "73. The Commission concluded that the retrospective measures had the effect of interfering with the applicant societies’ possessions on the hypothesis that the various claims did amount to such.", "74. The Court notes that it is common ground that the retroactive measures operated in a way which constituted an interference with the enjoyment of the applicant societies’ possessions. On the working assumption that the legal claims in issue amounted to possessions within the meaning of Article 1 of Protocol No. 1 (see paragraph 70 above), the Court sees no reason to reach a contrary conclusion. It will therefore assess whether or not that interference was justified.", "3. Whether the interference was justified", "75. The applicant societies reiterated that they were fairly and reasonably entitled to consider themselves in exactly the same position as the Woolwich with vested rights to recover the monies which had been expropriated from them under the 1986 Regulations (see paragraph 62 above). However, the Government intentionally procured the enactment of retrospective primary legislation in order to stifle the opportunity to assert those rights in a way which was repugnant to principles of legal certainty and legitimate expectation. The retrospective measures constituted a disproportionate and discriminatory interference with their rights which left them without any compensation. The measures were solely motivated by the intent of the authorities to retain the applicant societies’ assets and could not be considered justified as being necessary to secure the payment of taxes within the meaning of the second paragraph of Article 1 of Protocol No. 1. The monies expropriated were not tax since all liability to pay tax on the interest earned by their investors in the gap period had been discharged (see paragraphs 51 and 52 above). In any event that provision only concerned procedural measures taken to enforce tax legislation and could not be invoked to justify substantive tax legislation such as the Finance Acts in issue in the instant case.", "76. The Government argued that the ultimate aim of the impugned measures was, in line with the original intention of Parliament, to secure the payment of tax on the interest paid by building societies during the gap period and, in the case of section 64 of the 1992 Act, also to secure GBP 15 billion of revenue which had been collected from 1986 onwards from building societies, banks and other deposit institutions (see paragraph 42 above).", "Having regard to a Contracting State’s margin of appreciation in the tax field and to the public-interest considerations at stake, it could not be said that the decisions taken by Parliament to enact these measures with retrospective effect were manifestly without reasonable foundation or failed to strike a fair balance between the demands of the general interest of the community and the protection of the rights of the applicant societies. The latter were in fact seeking by means of opportunistic legal proceedings to exploit technical defects in the 1986 Regulations and to frustrate the original intention of Parliament. They clearly understood what that intention was and they could not have had any legitimate expectations following the Woolwich 1 litigation that Parliament would be content to leave the law as it then stood and allow them to retain a windfall.", "77. The Commission found that the interference with the applicant societies’ legal claims was justified and that there was no violation of Article 1 of Protocol No. 1. Parliament intended by section 47 of the 1986 Act to authorise the Inland Revenue to charge to tax the interest paid to investors in the gap period. The aim of section 53 of the 1991 Act (see paragraph 33 above) and section 64 of the 1992 Act (see paragraph 42 above) was to prevent building societies from frustrating that intention by exploiting technical defects in the drafting of the Regulations and benefiting from a windfall. In adopting retrospective measures to reaffirm that intention and to secure the payment of tax, the legislature did not upset the fair balance between the demands of the general interest of the community and the protection of the fundamental rights of the applicant societies.", "(a) The applicable rule", "78. The Court recalls that Article 1 of Protocol No. 1 guarantees in substance the right to property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of possessions. The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.", "However, the three rules are not “distinct” in the sense of being unconnected: the second and the third rules are concerned with particular interferences with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, the Gasus Dosier- und Fördertechnik GmbH v. the Netherlands judgment of 23 February 1995, Series A no. 306-B, pp. 46–47 § 55).", "79. Having regard to the fact that the background to the alleged deprivation of the applicant societies’ rights is constituted by the first unsuccessful steps taken by Parliament to ensure that interest paid in the gap period was charged to tax, it would appear to the Court to be the most natural approach to examine their complaints from the angle of a control of the use of property in the general interest “to secure the payment of tax”, which falls within the rule in the second paragraph of Article 1. In so proceeding, it recalls that it has already found that the transitional arrangements contained in the 1986 Regulations did not, contrary to the assertions of the applicant societies, impose double taxation on the interest paid to their investors in the gap period or amount to a wrongful expropriation of their assets (see paragraph 61 above).", "On that factual understanding, the efforts to secure a firm legal basis firstly, and unsuccessfully, in section 47 of the Finance Act 1986 (see paragraphs 22 and 30 above), and secondly in section 53 of the 1991 Act (see paragraphs 33–35 above) to give effect to Parliament’s legitimate aim when adopting the defective Regulations (see paragraphs 15–18 above) could be considered equally to be measures to secure the payment of tax. It is to be recalled in this regard that irrespective of the move to the actual-year system the interest in issue would always have been liable to be brought into account for tax purposes (see paragraphs 58 and 59 above).", "(b) Compliance with the conditions laid down in the second paragraph", "80. According to the Court’s well-established case-law (see, among many other authorities, the Gasus Dosier- und Fördertechnik GmbH judgment cited above, p. 49, § 62), an interference, including one resulting from a measure to secure the payment of taxes, must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, including the second paragraph: there must therefore be a reasonable relationship of proportionality between the means employed and the aims pursued.", "Furthermore, in determining whether this requirement has been met, it is recognised that a Contracting State, not least when framing and implementing policies in the area of taxation, enjoys a wide margin of appreciation and the Court will respect the legislature’s assessment in such matters unless it is devoid of reasonable foundation (see the Gasus Dosier- und Fördertechnik GmbH judgment cited above, pp. 48–49, § 60).", "81. Against that background, the Court notes that in enacting section 53 of the 1991 Act with retroactive effect Parliament was concerned to restore and reassert its original intention which had been stymied by the finding of the House of Lords in the Woolwich 1 litigation that the 1986 Regulations were ultra vires on technical grounds (see paragraphs 29 and 30 above). The decision to remedy the technical deficiencies of the Regulations with retroactive effect was taken before 7 March 1991, namely before the date when the Leeds and the National & Provincial issued their writs (see paragraphs 30 and 33 above) and without regard to the imminent launch of the first set of restitution proceedings. Although section 53 had the effect of extinguishing the restitution claims of those two applicant societies, it does not appear to the Court that the ultimate aim of the measure was without reasonable foundation having regard to the public-interest considerations which underpinned the proposal to legislate with retroactive effect and Parliament’s endorsement of that proposal.", "There is in fact an obvious and compelling public interest to ensure that private entities do not enjoy the benefit of a windfall in a changeover to a new tax-payment regime and do not deny the Exchequer revenue simply on account of inadvertent defects in the enabling tax legislation, the more so when such entities have followed the debates on the original proposal in Parliament and, while disagreeing with that proposal, have clearly understood that it was Parliament’s firm intention to incorporate it in legislation.", "Nor can the applicant societies maintain that the effect of the measure imposed an excessive and individual burden on them given that the interest they had paid to investors in the gap period would have been brought into account for tax purposes had the voluntary arrangements continued in force (see paragraph 58 above). They cannot assert that they had suffered prejudice other than in the sense that they were treated differently from the Woolwich. However, the substance of the latter allegation falls to be considered under their complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see paragraph 84 below).", "82. Furthermore, it is to be noted that the history of the enactment of section 64 of the 1992 Act must also be seen in terms of the same struggle between the legislature’s efforts to safeguard the tax paid by the applicant societies and the latter’s attempts to frustrate by all legal means possible those efforts and recover that tax. The challenge to the validity of the Treasury Orders was in reality an initiative on the part of all three applicant societies to recover indirectly what two of them had been denied under the effect of section 53 of the 1991 Act (see paragraph 35 above).", "If the enactment of the latter provision can be considered to be justified on public-interest grounds (see paragraph 81 above), it must also be the case that the same public-interest justification can be lawfully asserted by the respondent State to thwart the challenge to the Treasury Orders. Indeed, on that occasion much more was at stake than the assertion of Parliament’s right to secure tax on the interest paid by building societies over the course of the gap period since the vulnerability of the Treasury Orders to legal challenge placed at risk very substantial amounts of revenue collected from 1986 onwards from institutions other than building societies. The public-interest considerations in removing any uncertainty as to the lawfulness of the revenue collected must be seen as compelling and such as to outweigh the interests defended by the applicant societies in contesting the legality of the rate set by the Treasury Orders in order to try once again to circumvent Parliament’s original intention.", "83. The Court considers therefore that the actions taken by the respondent State did not upset the balance which must be struck between the protection of the applicant societies’ rights to restitution and the public interest in securing the payment of taxes.", "There has accordingly been no violation of Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 taken IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "84. The applicant societies maintained that the impugned measures gave rise to a breach of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention, having regard to their discriminatory effect. Article 14 of the Convention is worded as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "85. The applicant societies contended that they were in a materially identical situation to that of the Woolwich as regards the application of the 1986 Regulations. Like the Woolwich they enjoyed the same rights to restitution of the monies which they had paid to the Inland Revenue pursuant to an unlawful demand. The Leeds in particular had closely associated itself with the Woolwich’s decision to seek judicial review of the 1986 Regulations and all the applicant societies had at various stages made formal demands for repayment. They were not required to join the Woolwich’s judicial review proceedings given that the outcome of the action would have been declaratory of the law applicable to all taxpayers. They were thus entitled to await the result of that litigation. On the strength of the House of Lords ruling in the Woolwich 1 case the Leeds and the National & Provincial issued writs to institute their own restitution proceedings against the authorities.", "86. Furthermore, section 64 of the 1992 Act could not be said to be non-discriminatory as between the Woolwich and the applicant societies merely because it was of general application. This provision in fact favoured the Woolwich since the Woolwich had recovered all the monies owing to it.", "87. The Commission, with whom the Government agreed, concluded that there had been no breach under this head. In contrast with the Woolwich, none of the applicants had instituted proceedings to challenge the validity of the 1986 Regulations. The Woolwich alone had borne the costs and incurred the risks of litigation. The applicant societies could not therefore be considered to have been in a relevantly similar situation to that of the Woolwich. In any event there was a reasonable and objective justification for the difference in treatment, having regard to the public-interest considerations motivating the enactment of section 53 of the 1991 Act and the appropriateness of excluding the Woolwich from the retroactive effects of that measure given that that building society had secured a final court judgment in its favour.", "As to section 64 of the 1992 Act, the Commission found that this provision applied across the board and could not be considered to be discriminatory in its effect. The Government supported this conclusion.", "88. The Court reiterates that Article 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction. Furthermore, Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (for a recent authority, see the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports of Judgments and Decisions 1996-IV, p. 1507, § 72).", "89. It is clear that the applicant societies were in an analogous if not identical situation with respect to the impact of the transitional mechanism in the 1986 Regulations on the monies held in their reserves. However, the Woolwich alone took an independent and bold stance by mounting a legal challenge to the validity of the Regulations (see paragraph 21 above). That building society was undeterred by the attempt of Parliament to stifle the litigation by enacting section 47 of the Finance Act 1986 (see paragraph 22 above).", "Admittedly, the Woolwich’s action was backed by the applicant societies and the Leeds in particular may be considered to have conspicuously manifested its solidarity with the Woolwich (see paragraph 20 above). However, the Court shares the view of the Commission that the Woolwich alone showed its readiness to bear the costs and risks of the litigation, taking complex and expensive proceedings against the Inland Revenue on two occasions as far as the House of Lords. By the time section 53 of the 1991 Act was enacted, the Leeds and the National & Provincial had not proceeded beyond the stage of issuing writs, whereas the Woolwich had secured a victory in the House of Lords (see paragraphs 29 and 30 above) and there were reasonable prospects that the House of Lords would uphold the decision of the Court of Appeal in its restitution proceedings allowing it interest on the sums paid (see paragraphs 36 and 37 above). It is also to be noted that the authorities had already repaid to the Woolwich the tax which had been collected from it with interest from 31 July 1987 (see paragraph 26 above). In these circumstances, the Court does not accept that the applicant societies were in fact in a relevantly similar situation to that of the Woolwich.", "90. The Court also considers that, even if it were possible to regard the applicant societies as having been in a relevantly similar situation to the Woolwich in view of their arguments on the erga omnes effect of the remedy sought by the Woolwich (see paragraph 85 above), there was nevertheless a reasonable and objective justification for the distinction made in section 53 of the 1991 Act (see paragraph 34 above). It was the aim of Parliament in enacting that provision to restore its original intention to secure the liability to tax of the interest paid to investors in the gap period and to make the Regulations immune from any further exploitation on technical grounds. The decision to do so retrospectively has been found by the Court to be justified in the public interest (see paragraph 81 above). To exclude the Woolwich from the retroactive effect of section 53 could be considered on reasonable and objective grounds to be justified given that by the time of enactment of that section the Woolwich had secured a final judgment in its favour from the House of Lords and it was understandable that Parliament did not wish to interfere with a judicial decision which brought to an end litigation which had lasted over three years.", "91. As to the effect of section 64 of the 1992 Act (see paragraphs 33–35 above), the Court notes that the measure applied generally to building societies, banks and other deposit institutions. Admittedly the Woolwich was not concerned about the validity of the Treasury Orders since it had no interest in challenging them. However, it cannot be maintained that section 64 perpetuated any difference in treatment between the Woolwich and the applicant societies which resulted from section 53 of the 1991 Act given the Court’s earlier conclusions on that complaint (see paragraphs 89 and 90 above).", "92. Having regard to the above considerations, the Court concludes therefore that there has been no breach of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "93. The applicant societies further maintained that the measures taken by the respondent State deprived them of their right of access to a court for a determination of their civil rights to restitution of monies to which they were lawfully entitled. They alleged that there had been a breach of Article 6 § 1 of the Convention, which provides to the extent relevant:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …”", "A. Applicability of Article 6 § 1", "94. The applicant societies maintained that the subject matter of the three sets of legal proceedings which they had initiated (see paragraphs 31, 32 and 38–41 above) was pecuniary in nature and the outcome of the litigation in each instance was decisive for their private-law rights to restitution of the monies of which they had been unlawfully deprived by the respondent State. Should any doubts exist about the classification of the judicial review proceedings which each society set in motion between 10 July 1991 and 3 March 1992 (see paragraphs 38–40 above), the Court should find, like the Commission, that these proceedings were in fact an alternative route to the recovery of their monies. As such, the proceedings could not therefore be considered to be purely of a public-law nature.", "95. The Government disputed the applicability of Article 6 § 1 of the Convention to the various proceedings instituted by the applicant societies. While the first set of restitution proceedings instituted by the Leeds and the National & Provincial (see paragraphs 31 and 32 above) may ostensibly have borne the hallmark of private-law proceedings, they nonetheless concerned a determination of rights and obligations which derived from tax legislation and which were therefore fiscal in nature. The judicial review proceedings instituted by the applicant societies (see paragraphs 38–40 above) were directed at obtaining a discretionary public-law remedy and were not concerned with securing restitution of the monies which they had paid pursuant to the 1986 Regulations. Furthermore, the second set of restitution proceedings brought by the applicant societies (see paragraph 41 above) depended on the outcome of the judicial review proceedings and for this reason could not be considered to be of a private-law nature.", "For the above reasons, the Government maintained that the applicant societies could not rely on Article 6 § 1.", "96. The Commission concluded that Article 6 § 1 was applicable. The two sets of restitution proceedings (see paragraphs 30, 31 and 41 above) were pecuniary in nature. The judicial review proceedings (see paragraphs 38–40 above) were closely linked to the second set of restitution proceedings (see paragraph 41 above) and formed part of a sequence of litigation which had its roots in the defective draftsmanship of section 40 of the Finance Act 1985 and the transitional provisions of the 1986 Regulations.", "97. The Court considers that both sets of restitution proceedings (see paragraphs 30, 31 and 41 above) were private-law actions and were decisive for the determination of private-law rights to quantifiable sums of money. This conclusion is not affected by the fact that the rights asserted in those proceedings had their background in tax legislation and the obligation of the applicant societies to account for tax under that legislation (see, mutatis mutandis, the Editions Périscope v. France judgment of 26 March 1992, Series A no. 234-B, p. 66, § 40).", "98. As to the judicial review proceedings (see paragraphs 38–40 above), it is to be noted that these were closely interrelated with the second set of restitution proceedings and were part of a calculated strategy to reassert the private-law claims which had been extinguished by section 53 of the 1991 Act. In these circumstances and irrespective of the public-law nature of that litigation, the judicial review proceedings must also be considered to have been decisive of private-law rights.", "99. The Court concludes therefore that Article 6 § 1 of the Convention is applicable.", "B. Compliance with Article 6 § 1", "100. The applicant societies contended that the Government of the respondent State intentionally procured the enactment of retrospective legislation to thwart their access to a court to assert their vested rights to restitution of their assets. They argued that the legal victories secured by the Woolwich (see paragraphs 29 and 44 above) left the authorities with no defence to their claims. Indeed, the authorities had in fact conceded this by paying the costs incurred by the Leeds and the National & Provincial in bringing the first set of restitution proceedings (see paragraph 35 above). It was equally significant that the Government minister at the time of the passage through Parliament of the bill which eventually became the 1992 Act declared that section 64 thereof was designed to interfere with ongoing legal proceedings, namely the legal challenge to the validity of the Treasury Orders (see paragraph 42 above).", "101. While accepting that limitations on the right of access to a court guaranteed by Article 6 § 1 may in certain well-defined circumstances be justified having regard to a Contracting State’s margin of appreciation, the applicant societies stressed that any such margin cannot for the purposes of that provision be as broad as the one which may be invoked by a Contracting State under Article 1 of Protocol No. 1. With reference to the Court’s own case-law governing the scope of limitations to the right of access to a court, they insisted that the retrospective measures did not pursue a legitimate aim given that the Government’s overriding concern was to legalise the unlawful expropriation of their assets. The resulting interference was also disproportionate. More importantly, the very essence of their right of access to a court had been impaired since the concrete result of section 53 of the 1991 Act and section 64 of the 1992 Act was to remove with retrospective effect the causes of action and render fruitless any attempt to secure redress before the courts.", "102. The Government reasoned that the “possessions” of which the applicant societies claimed they had been deprived in breach of Article 1 of Protocol No. 1 were in reality their claims to restitution of the monies which they had been required to pay to the Inland Revenue. It must follow therefore that the lawful deprivation of the substance of their claims justified the removal of the procedural protection of those claims. For this reason, a finding by the Court that there had been no violation of Article 1 of Protocol No. 1 compelled a similar finding in respect of the applicant societies’ complaints under Article 6.", "103. The Government further maintained that there was no absolute rule which prohibited the intervention of the legislature in pending legal proceedings to which the State was a party. Whether or not retrospective legislation having this effect was lawful or not from the angle of Article 6 needed to be assessed in the light of factors such as the background to the litigation, the stage reached in the legal proceedings and the reasons which motivated legislative intervention.", "Referring therefore to the arguments which they advanced both to dispute that the applicant societies’ legal claims amounted to possessions and to justify the deprivation of the applicant societies’ legal claims under Article 1 of Protocol No. 1 (see paragraphs 63 and 76 above), the Government requested the Court to find that the same justifications operated in defence of the alleged violation of Article 6.", "104. The Commission concluded that there had been a violation of Article 6 § 1. While there may have been legitimate reasons for the introduction of section 53 of the 1991 Act and section 64 of the 1992 Act, by retrospectively validating the 1986 Regulations and the Treasury Orders which were the subject of pending litigation, the respondent State had intervened through the legislature in a manner which was decisive to ensure a favourable outcome of proceedings to which it itself was party. The effect of the measures was thus to deprive the applicant societies of their right to a determination of their civil rights and obligations following a fair hearing before a court.", "105. The Court recalls that Article 6 § 1 of the Convention embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect.", "However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see the Stubbings and Others judgment cited above, p. 1502, § 50).", "106. It is to be noted at the outset that the effect of section 53 of the 1991 Act was to deprive the Leeds and the National & Provincial of their chances of winning their restitution proceedings against the Inland Revenue (see paragraph 35 above). Section 64 of the 1992 Act effectively removed any hope which all three applicant societies may have had of restoring their chances of securing a favourable outcome against the Inland Revenue and recovering the tax they had paid. At no stage did the legislature intervene directly to bar the applicant societies’ access to a court to seek a determination of the rights which they wished to assert. Admittedly, the end result of sections 53 and 64 was to condemn to failure any attempt by the applicant societies to proceed with their claims since Parliament, by means of primary legislation, had rendered both the 1986 Regulations and the Treasury Orders immune from judicial scrutiny. The applicant societies accordingly took the decision to discontinue the various proceedings which they had launched in the knowledge that they had no prospects of success.", "107. Having regard to the above considerations, the Court must examine whether the action taken by the legislature on both occasions to deprive the applicant societies of their chances of winning litigation against the respondent State constituted an interference with their right of access to a court. In so doing, it will have regard to all the circumstances of the case and will subject to close scrutiny the reasons adduced by the respondent State for justifying any intervention which may have occurred in pending litigation as a result of the retrospective effects of section 53 of the 1991 Act and section 64 of the 1992 Act.", "108. It is to be noted firstly that the applicant societies disputed from the very beginning their liability to pay tax on the interest they had paid to their investors in the gap period. The concerns of building societies were made known to Parliament during the passage of section 40 of the Finance Act 1985 (see paragraphs 15 and 16 above) and section 47 of the Finance Act 1986 (see paragraph 22 above). However, by enacting those measures Parliament clearly affirmed its intention to bring the interest paid in the gap period into account for tax purposes in the manner indicated in the 1986 Regulations.", "109. The applicant societies subsequently became involved in a struggle with the Treasury through the courts in order to circumvent that intention, relying firstly on technical defects in the 1986 Regulations and secondly on alleged defects in the Treasury Orders. They followed closely the outcome of the Woolwich 1 litigation, and when the latter building society succeeded in having the 1986 Regulations invalidated on technical grounds the Leeds and the National & Provincial launched their own proceedings in the form of restitution actions (see paragraphs 31 and 32 above) in order to take advantage of the loophole exposed by the House of Lords in the Woolwich 1 case (see paragraphs 29 and 30 above). However, having regard to the clear aim of Parliament in adopting the impugned measures (see paragraph 108 above), these two applicant societies must reasonably be considered to have anticipated at the close of the Woolwich 1 litigation that the Treasury would seek Parliament’s approval to cure the technical defects in the 1986 Regulations and would not be content on public-interest grounds to allow a substantial amount of already collected revenue to be lost on account of a technicality.", "It is to be noted in this respect that the Director-General of the Building Societies Associations was not surprised by the Treasury’s announcement that retrospective legislation would be introduced in the form of section 53 of the 1991 Act (see paragraph 35 above). It is also to be noted that the Leeds and the National & Provincial instituted their restitution proceedings after the authorities had formally decided to seek Parliament’s approval for the retrospective validation of the 1986 Regulations and in the days immediately before the official announcement of that decision (see paragraphs 30–33 above). In these circumstances, those proceedings must be considered to have been an attempt to benefit from the vulnerability of the authorities’ situation following the outcome of the Woolwich 1 litigation and to pre-empt the enactment of remedial legislation.", "110. Furthermore, the decision of the authorities to legislate with retrospective effect to remedy the defect in the 1986 Regulations was taken without regard to pending legal proceedings and with the ultimate aim of restoring Parliament’s original intention with respect to all building societies whose accounting periods ended in advance of the start of the fiscal year. That the extinction of the restitution proceedings was a significant consequence of the implementation of that aim cannot be denied. Nevertheless, it cannot be maintained that the Leeds and the National & Provincial were the particular targets of the authorities’ decision.", "111. While it is true that it was openly acknowledged by the authorities that the enactment of section 64 of the 1992 Act was intended to bring an end to the judicial review proceedings brought by all three applicant societies (see paragraph 42 above), those proceedings were in reality a next stage in the struggle with the Treasury and a deliberate strategy to frustrate the original intention of Parliament. This is borne out by the aim of the applicant societies in bringing the contingent restitution proceedings to recover no more than they had paid to the Inland Revenue under the 1986 Regulations (see paragraph 41 above). Given the reaction of the authorities to the outcome of the Woolwich 1 litigation, the applicant societies could not safely rely on the Treasury remaining inactive in the face of a further challenge to Parliament’s original intention, the more so since that challenge was directed at the validity of the Treasury Orders which formed the legal basis for the very substantial amounts of revenue collected from 1986 onwards, not just from building societies but also from banks and other deposit institutions (see paragraph 42 above).", "112. As noted above (see paragraph 107) the Court is especially mindful of the dangers inherent in the use of retrospective legislation which has the effect of influencing the judicial determination of a dispute to which the State is a party, including where the effect is to make pending litigation unwinnable. Respect for the rule of law and the notion of a fair trial require that any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection (see the Stran Greek Refineries and Stratis Andreadis judgment cited above, p. 82, § 49).", "However, Article 6 § 1 cannot be interpreted as preventing any interference by the authorities with pending legal proceedings to which they are a party. It is to be noted that in the present case the interference caused by section 64 of the 1992 Act was of a much less drastic nature than the interference which led the Court to find a breach of Article 6 § 1 in the Stran Greek Refineries and Stratis Andreadis case (cited above). In that case the applicants and the respondent State had been engaged in litigation for a period of nine years and the applicants had an enforceable judgment against that State in their favour. The judicial review proceedings launched by the applicant societies had not even reached the stage of an inter partes hearing. Furthermore, in adopting section 64 of the 1992 Act with retrospective effect the authorities in the instant case had even more compelling public-interest motives to make the applicant societies’ judicial review proceedings and the contingent restitution proceedings unwinnable than was the case with the enactment of section 53 of the 1991 Act. The challenge to the Treasury Orders created uncertainty over the substantial amounts of revenue collected from 1986 onwards (see paragraph 42 above).", "It must also be observed that the applicant societies in their efforts to frustrate the intention of Parliament were at all times aware of the probability that Parliament would equally attempt to frustrate those efforts having regard to the decisive stance taken when enacting section 47 of the Finance Act 1986 and section 53 of the 1991 Act. They hadengaged the will of the authorities in the tax sector, an area where recourse to retrospective legislation is not confined to the United Kingdom, and must have appreciated that the public-interest considerations in placing the 1986 Regulations on a secure legal footing would not be abandoned easily.", "113. For the above reasons, the Court concludes that the applicant societies cannot in the circumstances justifiably complain that they were denied the right of access to a court for a judicial determination of their rights. There has accordingly been no breach of Article 6 § 1 of the Convention.", "IV. ALLEGED violation OF ARTICLE 6 § 1 of THE CONVENTION taken IN CONJUNCTION WITH ARTICLE 14", "114. The applicant societies complained in addition that the impugned measures violated Article 6 § 1 of the Convention taken in conjunction with Article 14.", "115. They reiterated that they were in a virtually identical situation to that of the Woolwich. Like the latter building society they possessed common-law rights to restitution of monies expropriated by the respondent State. The Woolwich had been allowed to recover in full following independent judicial determinations of its claims. Unlike the applicant societies, the Woolwich was excluded from the retrospective effects of section 53 of the 1991 Act. The Government minister responsible for the passage through Parliament of the 1992 Act had expressly acknowledged that there had been a disparity of treatment between the Woolwich and other building societies (see paragraph 42 above). That disparity was maintained in section 64 of the 1992 Act on account of the fact that the Woolwich had recovered everything owing to it and was not therefore concerned about the validity of the Treasury Orders.", "116. The Government contended that the applicant societies were not in a relevantly similar position to the Woolwich and, further, that there existed a reasonable and objective justification for the difference in treatment. They relied on the reasoning used by the Commission to reach its finding that there had been no breach of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention (see paragraph 87 above).", "117. The Commission did not find it necessary to examine the applicant societies’ complaints under this head, having regard to its conclusion under Article 6 § 1 of the Convention (see paragraph 104 above).", "118. The Court observes that the complaints raised by the applicant societies under this head reflect the substance of their earlier complaints under Article 1 of Protocol No. 1 taken in conjunction with Article 14 (see paragraphs 84–86 above). It concluded in connection with those complaints that the Woolwich and the applicant societies were not in a relevantly similar situation and that in any event there was a reasonable and objectivejustification for excluding the Woolwich from the retrospective effects of section 53 of the 1991 Act. Furthermore, it could not be validly contended that section 64 of the 1992 Act was discriminatory in its effect (see paragraphs 89–92 above).", "119. The Court considers that the reasons which it has adduced in respect of the above finding equally support the conclusion that there has been no violation of Article 6 § 1 taken in conjunction with Article 14 of the Convention.", "The Court finds therefore that the applicant societies were not victims of a violation under this head." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. Under the General Tax Code as worded until 31 December 1978 the applicant company was liable to value-added tax (VAT) on its commercial activity. It paid a total of 291,816 French francs (FRF) in VAT on its 1978 transactions.", "10. Article 13-B-a of the Sixth Directive of the Council of the European Communities dated 17 May 1977 granted an exemption from VAT for “insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents”. That provision was to come into force on 1 January 1978.", "11. On 30 June 1978 the Ninth Directive of the Council of the European Communities dated 26 June 1978 was notified to the French State. It granted France an extension of time – until 1 January 1979 – in which to implement the provisions of Article 13-B-a of the Sixth Directive of 1977. Since such directives have no retroactive effect, the Sixth Directive ought nonetheless to have been applied from 1 January to 30 June 1978.", "12. Relying on the Sixth Directive, the applicant company sought reimbursement of the VAT it had paid for the period from 1 January to 31 December 1978, which it considered had not been due as the Ninth Directive had no retroactive effect. It also brought an action in damages against the State for failing to bring French law into line with the Sixth Directive within the prescribed period, thereby causing it to sustain damage equal to the amount of the VAT paid. It claimed reimbursement of the VAT paid or, failing that, the amount attributable to the period from 1 January 1978 to the date the Sixth Directive had come into force.", "13. The Paris Administrative Court dismissed its claims in a judgment of 8 July 1982. It held, inter alia, that it was clear from the Treaty of the European Communities that while directives placed an obligation on States to achieve a particular result, the choice of the appropriate means of implementing a directive in domestic law lay within the sole discretion of the national authorities, such that individuals and private bodies could not rely directly on a directive to defeat a provision of domestic law.", "14. On 10 June 1982 a claim by another firm of insurance brokers, S.A. Revert et Badelon, for the reimbursement of VAT paid on its transactions in 1978 was dismissed by the Paris Administrative Court for the same reasons.", "15. In a further development, the authorities directed in an administrative circular issued on 2 January 1986 :", "“... no further action shall be taken to collect sums remaining due at the date of publication of this circular from insurance brokers who have failed to charge value-added tax on their transactions between 1 January and 30 June 1978 and have received supplementary tax assessments as a result.”", "16. In a judgment of 19 March 1986 the Conseil d'Etat dismissed an appeal by the applicant company. It held that individuals and private bodies were not entitled to rely on the provisions of a European directive that had yet to be transposed into domestic law and declared the action in damages inadmissible, as the applicant company had omitted to apply in the first instance to the tax authorities. The main points in its judgment were as follows.", "17. As regards the first head of claim:", "“Article 189 of the Treaty Establishing the European Community of 25 March 1957 makes it clear that, while Council directives are binding upon each member State 'as to the result to be achieved' and while in order to achieve the prescribed results the national authorities are required to adapt the legislation of the member States to comply with the directives addressed to them, it is solely for those authorities to decide how to give effect to the directives in domestic law. Thus, regardless of any instructions they may contain for the member States, directives cannot be pleaded in aid of tax appeals by nationals of those States. It is common ground that appropriate measures to implement the aforementioned Sixth Directive in domestic law had yet to be taken at the time of the relevant reference period for taxation purposes. In these circumstances, the said Directive, which, contrary to what was submitted by the appellant company, does not constitute a regulation within the meaning of the aforementioned Treaty, has in any event no bearing on the application of the preceding statutory provisions, in particular, Article 256 of the General Tax Code ...”", "18. As regards the second head of claim:", "“The Administrative Court did not rule on the claim made in the alternative during the course of the proceedings by the company for compensation in the sum of FRF 291,816. That part of the impugned judgment is therefore defective procedurally and must be quashed.", "In the present circumstances, an immediate examination and determination of the claim which the court below omitted to decide is called for.", "By virtue of the provisions of Article R.89 of the Administrative Courts Code and Article 1 of the decree of 11 January 1965, proceedings may only be brought in the administrative courts by way of an appeal against a decision. S.A. Jacques Dangeville has not produced any decision that shows that the administrative authority refused to pay it the claimed compensation of FRF 291,816; it has not even produced a request to the authority for that amount. Accordingly, in the absence of a prior decision, its claim to compensation is inadmissible ...”", "19. As the second claim had been dismissed on procedural grounds owing to the applicant company's failure to apply in the first instance to the tax authorities, the applicant company made a further claim for reparation, this time after following the prescribed procedure. To that end, it had sent the Minister of the Budget a claim for reparation comprising two limbs on 16 March 1987. In the first, it alleged that the State was at fault for failing to transpose the Sixth Directive into domestic law within the prescribed period and for continuing to apply a provision of French law that no longer complied with Community law. In the second, it argued that the State was strictly liable for failing to maintain an equal distribution of public burdens following the issue of the circular of 2 January 1986.", "20. The claim was rejected by the Minister. An appeal by the applicant company to the Paris Administrative Court was dismissed on 23 May 1989.", "21. In a judgment of 1 July 1992 the Paris Administrative Court of Appeal, sitting as a full court, quashed part of the judgment of the Paris Administrative Court. It held that the State had been at fault and ordered it to pay the applicant company compensation for its loss in the sum of FRF 129,845, being the amount of VAT overpaid, together with compound statutory interest.", "22. The main points made by the Administrative Court of Appeal in its judgment were as follows:", "“The principle of State liability:", "Under the provisions of the Treaty establishing the European Economic Community, and in particular Article 5 thereof, the French State is required to take all appropriate measures to ensure fulfilment of its obligations under the Treaty. These include an obligation to nullify all the illegal consequences of a violation of Community law either directly or, in default, by providing effective reparation for the resulting damage. It follows that the fact that a taxpayer which alleges that it has been taxed on the basis of a statutory provision that is incompatible with the objectives of a Community directive has first referred the issue of taxation to the tax court, which refused to accept that such incompatibility could serve as a cause of action, cannot by itself render inadmissible a claim made by the taxpayer on the basis of the obligations arising under the aforementioned Treaty for reparation for the damage it has sustained as a result of a failure to transpose the objectives of the directive into domestic law.", "By Article 13-B-a of the Sixth Directive of the Council of the European Economic Communities dated 17 May 1977 the legislation of member States was required from 1 January 1978 onwards to exempt from value-added tax insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents. Although the Ninth Directive of 26 June 1978, which was notified to the French State on 30 June 1978, granted France an extension of time – until 1 January 1979 – in which to transpose the provisions of the Sixth Directive, it is construed by the Court of Justice of the European Economic Communities as having no retroactive effect. Thus, the provisions of Article 256 of the General Tax Code as worded prior to 1 January 1979 requiring payment of value-added tax on insurance broking activities of the type carried on by the Jacques Dangeville company were for the period from 1 January to 30 June 1978 incompatible with the objectives set by the Sixth Directive. Accordingly, contrary to the Administrative Court 's decision, the applicant company's claim that the State is liable for the situation that has thus arisen and should be ordered to make good the loss it has sustained as a result of the illegal situation brought about by its being required to pay value-added tax for the above-mentioned period is well-founded.", "Damage:", "In view of the fact that insurance brokers are remunerated on the basis of a percentage calculated by the insurers of the premiums paid by the latter's customers, the value-added tax paid by the Jacques Dangeville company was not passed on to their customers or invoiced. Thus, the damage for which the company is entitled to claim reparation is equal to the amount of the value-added tax it paid for the period from 1 January to 30 June 1978 and comes to FRF 129,845.86.”", "23. The tax authorities appealed to the Conseil d'Etat.", "24. In its pleading lodged on 23 May 1995 the applicant company set out the following ground of defence:", "“... in the instant case the rule that taxpayers should bear the tax burden equally has been contravened by the introduction of measures treating people in the same position differently, since a circular dated 2 January 1986 purported to rule that insurance brokers who had not paid VAT on their transactions between 1 January 1978 and 30 June 1978 and had received supplementary tax assessments as a result would no longer be required to pay the sums they continued to owe on that account at the date the circular was published.", "This is a particularly clear breach of the rule that public liabilities must be borne equally. It is also unjust, as it resulted in discrimination between persons liable to VAT, with those who have paid the tax being adversely affected and those who refrained from doing so deriving a benefit.”", "25. By a judgment of 30 October 1996 the Conseil d'Etat, sitting as a full court, quashed that judgment and dismissed all the applicant company's claims. It held that the applicant company was not entitled to seek through an action in damages a remedy it had been refused in tax proceedings in a decision that gave rise to an estoppel by record, namely the judgment of 26 February 1986.", "26. The essence of the Conseil d'Etat 's decision was as follows:", "“The documents in the file submitted to the Paris Administrative Court of Appeal show that by a decision of 19 March 1986 the Conseil d'Etat, acting in its judicial capacity, dismissed a claim by S.A. Jacques Dangeville seeking reimbursement of value-added tax it had paid for the period from 1 January to 31 December 1978, inter alia, on the ground that its liability to that tax had arisen from the application of statutory provisions that were incompatible with the objectives of the Sixth Directive of the Council of the European Communities of 17 May 1977. The claim by S.A. Jacques Dangeville which the Administrative Court of Appeal examined in the impugned judgment was for payment of 'compensation' in an amount equal to the amount of value-added tax that had thus been paid, by way of reparation for the 'damage' which that tax liability had caused the company to sustain, on the ground that that damage was attributable to the French State's delay in transposing the objectives of the Directive into domestic law. It follows that, as submitted by the Minister of the Budget, the Paris Administrative Court of Appeal erred in law in holding that the fact that the company '[had] first referred the issue of taxation to the tax court' did not render inadmissible a claim for reparation in which the only alleged damage was the damage resulting from the payment of the tax. The Minister of the Budget's application to have the impugned judgment overturned is accordingly founded to the extent that the Administrative Court of Appeal upheld in part the claims made by S.A. Jacques Dangeville in its submissions ...”", "27. On the same day the Conseil d'Etat delivered judgment on an appeal lodged on 23 August 1982 by S.A. Revert et Badelon against the Paris Administrative Court 's judgment of 10 June 1982. The Conseil d'Etat did not follow the line it had taken in its judgment of 26 February 1986 in the applicant company's case, but instead declared S.A. Revert et Badelon's appeal on points of law admissible, holding that the company was entitled to rely on the provisions of the Sixth Directive and should be granted a release from the contested tax liability – for which there was no statutory basis as the statutory provisions conflicted with the objectives of the Directive – for the sums erroneously paid for the period from 1 January to 30 June 1978.", "28. The Government Commissioner lodged submissions that were common to the applicant company's and S.A. Revert et Badelon's cases. He pointed out that the factual and legal issues in each were identical, saying:", "“... [the file in the case of S.A. Revert et Badelon ] raises the same issue of law as that decided by this court on 19 March 1986 on the appeal of the Jacques Dangeville company. The period concerned is the same and the applicable instruments identical. The appellant company, which runs the Revert et Badelon firm, has an activity as insurance brokers which is indistinguishable from that of the Dangeville company ...”", "29. He added:", "“... I invite you to quash the judgment of the Paris Administrative Court of Appeal which upheld the Dangeville company's claims for compensation. It has been that company's misfortune to have its tax claim decided too early. I am conscious that the resulting outcome in its case may appear unjust. I am, however, mindful that upholding the judgment in its favour would mean your making an exception to the principles on which your decision-making process is based that would unreasonably undermine the stability of legal situations created by judicial decision. One isolated case based, moreover, on transitional difficulties, cannot serve to justify making such an exception ...”", "30. In finding in favour of S.A. Revert et Badelon in its judgment of 30 October 1996, the Conseil d'Etat held as follows:", "“Firstly, by virtue of Article 1 of the Sixth Directive of the Council of the European Communities of 17 May 1977 the member States were required to take appropriate measures by no later than 1 January 1978 in order to bring their systems of value-added tax in line with the objectives of the Directive. Although the Ninth Directive of 26 June 1978, which was notified to the French State on 30 June 1978, granted France an extension of time – until 1 January 1979 – in which to transpose the provisions of the Sixth Directive, it is construed by the Court of Justice of the European Economic Communities as having no retroactive effect. Thus, before 30 June 1978 it was unable to afford the French authorities a defence for their failure to enact provisions complying with the objectives of the Sixth Directive on time.", "Further, in so far as they make dealings by insurance brokers liable to value-added tax when the remuneration for them does not take the form of commission or brokerage set by statute or regulations, Articles 256 and 261-4-1 o of the General Tax Code, which were enacted by the Law of 6 January 1966 and remained in force until amended by the Law of 29 December 1978, are not compatible with the objectives of the provisions of sub-paragraph (a) of Article 13-B of the Sixth Directive, which exempts from value-added tax all insurance and reinsurance transactions performed by insurance brokers or agents. Accordingly, it is to that extent necessary to rule that those provisions of Articles 256 and 261-4-1 o were inapplicable for the period from 1 January to 30 June 1978. It follows that the submission by the S.A. Revert et Badelon firm, which carries on an activity as insurance brokers, that there was no basis in law for the demand for it to pay value-added tax on its business dealings during the period from 1 April to 30 June 1978 is well-founded.", "However, for the period from 1 July to 31 December 1978 the company is not entitled to rely on the incompatibility of Articles 256 and 261-4-1 o of the General Tax Code with the objectives of the provisions of sub-paragraph (a) of Article 13-B of the Sixth Directive, as the time-limit by which France was required to bring its legislation into line with that Directive was extended to 1 January 1979 by the Ninth Directive. Subsequently, the applicant company was rightly charged value-added tax for the period from 1 July to 31 December 1978 on the basis of the provisions of Articles 256 and 261-4-1 o of the General Tax Code that remained applicable.", "It follows from the foregoing that the sole valid submission made by the S.A. Revert et Badelon firm is that the Paris Administrative Court erred in its impugned judgment in dismissing its claim for the periods from 1 to 29 February 1978 and 1 April to 30 June 1978 ...”" ]

[ "II. RELEVANT LAW AND PRACTICE", "A. Community law", "1. General principles", "31. As regards the principle of the “precedence of the Community legal system”, see, among other authorities, the following judgments of the Court of Justice of the European Communities (CJEC): Case 6/64, Costa v. E.N.E.L. [1964] European Court Reports (ECR) 585 (“By contrast with ordinary international treaties, the EEC treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply”); Case 34/73, Fratelli Variola Spa v. Amministrazione italiana delle Finanze [1973] ECR 981; and Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629.", "32. CJEC, Case 26/62, Van Gend en Loos v. Administratie der Belastingen [1963] ECR 1:", "“Independently of the legislation of Member States, Community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.”", "33. CJEC, Case 309/85, Barra v. Belgian State and City of Liège [1988] ECR 355, paragraphs 17 and 18:", "“The right to repayment of amounts charged by a Member State in breach of the rules of Community law is the consequence and complement of the rights conferred on individuals by the Community provisions as interpreted by the Court. Whilst it is true that repayment may be sought only in the framework of the conditions as to both substance and form laid down by the various national laws applicable thereto, the fact nevertheless remains that those conditions may not be so framed as to render virtually impossible the exercise of rights conferred by Community law.”", "2. The Directives", "34. CJEC, Case 8/81, Becker v. Finanzamt Münster-Innenstadt [1982] ECR 53, paragraphs 19, 20 and 24:", "“Wherever a directive is correctly implemented, its effects extend to individuals through the medium of the implementing measures adopted by the Member State concerned ... However, special problems arise where a Member State has failed to implement a directive correctly and, more particularly, where the provisions of the directive have not been implemented by the end of the period prescribed for that purpose ... A Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.”", "35. CJEC, Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94, Erich Dillenkorfer and others v. Bundesrepublik Deutschland [1996] ECR I-4845, paragraph 29:", "“Failure to take any measure to transpose a directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of Community law and consequently gives rise to a right of reparation for individuals suffering injury ...”", "CJEC, Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci v. Italian Republic [1991] ECR I-5357, paragraph 36:", "“A further basis for the obligation of Member States to make good such loss and damage is to be found in Article 5 of the Treaty, under which the Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under Community law. Among these is the obligation to nullify the unlawful consequences of a breach of Community law.”", "36. CJEC, Case 188/95, Fantask and others v. Industriministeriet [1997] ECR I-6783, paragraphs 42, 48 and 52:", "“By its seventh question, the national court essentially asks whether Community law prevents a Member State from relying on a limitation period under national law to resist actions for the recovery of charges levied in breach of the Directive as long as that Member State has not properly transposed the Directive ... The Court has thus acknowledged, in the interests of legal certainty which protects both the taxpayer and the authority concerned, that the setting of reasonable limitation periods for bringing proceedings is compatible with Community law. Such periods cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (see, in particular, Case 33/76 Rewe v. Landwirtschaftskammer Saarland [1976] ECR 1989, paragraph 5, Case 45/76 Comet v. Produktschap voor Siergewassen [1976] ECR 2043, paragraphs 17 and 18, and Case 261/95 Palmisani v. Istituto Nazionale della Previdenza Sociale [1997] ECR I-0000, paragraph 28) ... The reply to the seventh question must therefore be that Community law, as it now stands, does not prevent a Member State which has not properly transposed the Directive from resisting actions for the repayment of charges levied in breach thereof by relying on a limitation period under national law which runs from the date on which the charges in question became payable, provided that such a period is not less favourable for actions based on Community law than for actions based on national law and does not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.”", "3. Lack of retrospective effect for the Ninth Directive and period of application of the Ninth Directive in 1978", "37. CJEC, Case 70/83, Kloppenburg v. Finanzamt Leer [1984] ECR 1075, paragraphs 11-14:", "It is necessary to emphasise, as the Court has already done on several occasions, that Community legislation must be unequivocal and its application must be predictable for those who are subject to it. Postponement of the date of entry into force of a measure of general application, although the date initially specified has already passed, is in itself liable to undermine that principle. If the purpose of an extension is to deprive individuals of the legal remedies which the first measure has already conferred upon them, such an effect in practice raises the question of the validity of the amending measure.", "However, such a question of validity could arise only if the intention to produce the above-mentioned effect were expressly stated in the amending measure. That is not so in the case of the Ninth Directive. The text of that Directive merely extends the period for transposing the Sixth Directive into national law in favour of those Member States which were unable to complete, within the period initially prescribed, the legislative procedure required for amending their legislation on value-added tax. It contains nothing to indicate that the extension alters the position of economic operators in relation to transactions carried out by them prior to the entry into force of the measure altering the period allowed for implementation.", "It follows that the Ninth Directive must be interpreted as not having retroactive effect in that regard.", "The answer to the question raised should therefore be that in the absence of the implementation of the Sixth Council Directive, 77/388/EEC, of 17 May 1977, on the Harmonisation of the Laws of the Member States relating to Turnover Taxes – Common System of Value-Added Tax; Uniform Basis of Assessment, it was possible for the provision concerning the exemption of the negotiation of credit ... to be relied upon by a credit negotiator in relation to transactions carried out between 1 January and 30 June 1978 ...”", "B. Domestic case-law", "1. Conseil d'Etat", "38. Judicial Assembly, 22 December 1978, ministre de l'Intérieur v. Cohn-Bendit, Recueil Lebon :", "“... Article 56 of the Treaty establishing the European Economic Community dated 25 March 1957, which does not contain any provision empowering bodies of the European Communities to make regulations on public-policy grounds that are directly applicable in the member States, provides that the coordination of provisions laid down by law or regulation 'providing for special treatment for foreign nationals on grounds of public policy, public security or public health' shall be assured by directives issued by the Council on a proposal from the Commission and after consulting the Assembly. It is clear from Article 189 of the Treaty of 25 March 1957 that while such directives are binding upon each member State 'as to the result to be achieved' and while in order to achieve the prescribed results the national authorities are required to adapt the legislation and regulations of the member States to comply with the directives addressed to them, it is solely for those authorities to determine the form implementation of the directives will take and to decide, subject to supervision by the domestic courts, how to give effect to the directives in domestic law. Thus, regardless of any instructions they may contain for the member States, directives cannot be pleaded in aid of appeals by nationals of those States against individual administrative acts. It follows that Mr Cohn- Bendit's submission to the Paris Administrative Court in support of his application for an order quashing the Minister of the Interior's decision of 2 February 1976, on the ground that it contravened the provisions of the Directive issued on 25 February 1964 by the Council of the European Communities with a view to coordinating, in accordance with the conditions laid down by Article 56 of the Treaty of Rome, the special measures taken to control the movement and residence of aliens on grounds of public policy, public security or public health, is unfounded. Accordingly, in the absence of any contention that the regulatory measures taken by the French Government in order to comply with the directives issued by the Council of the European Communities are unlawful, the decision to be taken on Mr Cohn- Bendit's appeal cannot under any circumstances turn upon the interpretation of the Directive of 25 February 1964. It follows, without there being any need to examine the grounds of the appeal, that the Minister of the Interior's submission is well-founded, namely the Paris Administrative Court erred in its impugned judgment of 21 December 1977 in referring to the Court of Justice of the European Communities the issues concerning the interpretation of that Directive and staying the proceedings pending the Court of Justice's decision ...”", "39. Judicial Assembly, 20 October 1989, Nicolo, Recueil Lebon, p. 190:", "“By section 4 of Law no. 77-729 of 7 July 1977 governing the Election of the Representatives of the Assembly of the European Communities 'the territory of the Republic forms a single constituency' for the purposes of the election of the French representatives to the European Parliament. By virtue of that statutory provision, taken together with Articles 2 and 72 of the Constitution of 4 October 1958, which lay down that the overseas départements and territories are integral parts of the French Republic, those départements and territories are necessarily included in the single constituency within which the election of representatives to the European Parliament takes place. Article 227-1 of the Treaty of 25 March 1957 establishing the European Economic Community provides: 'This Treaty shall apply to the French Republic .' The aforesaid rules set out in the Law of 7 July 1977 are not incompatible with the clear provisions of the aforementioned Article 227-1 of the Treaty of Rome ...”", "40. Judicial Assembly, 28 February 1992, S.A. Rothmans International France et S.A. Philip Morris France, Recueil Lebon, p. 20:", "“Article 37 of the Treaty establishing the European Economic Community provides: 'Member States shall progressively adjust any State monopolies of a commercial character so as to ensure that when the transitional period has ended no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.' Article 5-1 of the Directive of the Council of the European Communities dated 19 December 1972, which was issued with a view to implementing those provisions with regard to manufactured tobacco and the provisions of Article 30 of the Treaty, which prohibits quantitative restrictions and all measures having equivalent effect, provides: 'Manufacturers and importers shall be free to determine the maximum retail selling price for each of their products. This provision may not, however, hinder implementation of the national systems of legislation regarding the control of price levels or the observance of imposed prices.' As the Court of Justice of the European Communities ruled in finding infringements in its judgments of 21 June 1983 and 13 July 1988, the only provisions whose application is reserved by Article 5-1 of the Directive are provisions of national legislation of a general nature that are intended to curb increases in prices. The aforementioned provisions of section 6 of the Law of 24 May 1976 confer on the government a special power to fix the price of tobacco imported from member States of the European Community, independently of the application of the national legislation regarding the control of price levels. They thus enable the government to fix the sale price of imported tobacco in conditions that were not contemplated by Article 5-1 of the Directive of 19 December 1972 and are incompatible with the objectives set out in that Directive. It follows from this that Article 10 of the decree of 31 December 1976 referred to above, which was issued on the basis of section 6 of the Law of 24 May 1976, which must be regarded as inapplicable, is itself devoid of statutory basis. In view of the foregoing, the Minister of the Economy, Finance and the Budget was not entitled in law tacitly to reject the applications by the companies Rothmans International France and Philip Morris France for permission to raise the price of products they imported or distributed as wholesalers by fifty centimes on 1 September 1983. Accordingly, the said decisions must be quashed ...”", "2. Court of Cassation", "41. Mixed Division, 24 May 1975, Administration des douanes v. Société des cafés Jacques Vabre, Sarl J. Weigel et Cie, (Court of Cassation, Bulletin no. 4):", "“... the Treaty of 25 March 1957, which, by virtue of Article [55] of the Constitution, ranks above legislation, establishes a separate branch of law which is integrated into the legal systems of the member States. Owing to that special characteristic, the branch of law set up by the Treaty is directly applicable to nationals of those States and binding on their courts ... Accordingly, the Court of Appeal's decision that Article 95 of the Treaty should be applied in the instant case, to the exclusion of Article 265 of the Customs Code, even though the latter provision is the more recent, was correct and not beyond the Court of Appeal's powers ...", "Since, in the Community legal system, infringements by member States of the European Economic Community of their obligations under the Treaty of 25 March 1957 are actionable under Article 170 of the said Treaty, the plea of lack of reciprocity is not available in the domestic courts ...”", "3. Legal theory", "42. Extracts from Institutions administratives – Droit administratif, by Georges Dupuis and Marie-José Guédon, published by Armand Colin, Paris, 1986, pp. 87-88:", "“The Court of Cassation drew the logical conclusions from the fact that the two legal systems are superimposed: in the event of a conflict between a statute and a Community norm, only the latter is applicable, even if it is prior in time. Consequently, French courts will refuse to apply French law if it is contrary to European law. In other words, they carry out a form of verification of the compatibility of the statute with Community law that is very similar to a review of constitutionality. Basically, the reasoning of the Court of Cassation extends the principle established by Article 55 of the Constitution that international treaties take precedence over statutes. The Court of Cassation relies on two series of arguments: firstly, implicit in the initial treaties is a move towards abandonment of sovereignty by the States and the creation of genuine supra-sovereignty in favour of the Community bodies. Secondly, since the national courts are responsible for applying the provisions emanating from that supra-sovereignty directly, they cannot give precedence to domestic law as, in this system, it is necessarily infra-sovereign (Court of Cassation, Société des cafés Jacques Vabre, 24 May 1975 ...).", "The Conseil d'Etat rejects such reasoning ( Conseil d'Etat, 1 March 1968, Syndicat général des fabricants de semoule de France ...; Conseil d'Etat, 22 December 1978, ministre de l'Intérieur v. Cohn-Bendit ...). It has shown itself to be 'essentially a national jurisdiction, which is persuaded of the excellence of the national system and has resolved to act as the guardian of national legality' (C.-A. Colliard, Le juge administratif français et le droit communautaire, Mélanges offerts à Marcel Waline, LGDJ, Paris, 1974, p. 187; Bruno Genevois'Le Conseil d'Etat et l'ordre juridique communautaire ', EDCE [Studies and documents of the Conseil d'Etat ], 1979-1980, p. 73; Reports and Studies Committee of the Conseil d'Etat ,'Droit communautaire et droit français ', EDCE, 1981-1982, p. 215), notably in two ways. Firstly, it has proscribed all verification of the compatibility of legislation with Community law: according to a Government Commissioner, the administrative courts 'may not criticise or disregard a statute, even on the ground that it violates international law or, more particularly, Community law'. Secondly, on a more specific point, the Conseil d'Etat has chosen not to follow the case-law of the Court of Justice of the European Communities that has blurred the distinction between regulations and directives... The Conseil d'Etat affirms, on the contrary, [that] 'regardless of any instructions they may contain' [directives] cannot be pleaded in aid of an application for review of an individual act. Directives do, however, impose an obligation on the national authorities to adapt their legislation and regulations so as to comply with the directive (see Cohn- Bendit, cited above). Consequently, nationals of member States may challenge the validity of domestic regulatory measures by reference to the Community directives which they purport to implement or which they disregard.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "43. The applicant company alleged a violation of its right of property set out in the second sentence of the first paragraph of Article 1 of Protocol No. 1, which provides:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Existence of possessions within the meaning of Article 1 of Protocol No. 1", "44. The applicant company submitted that it held a definite, immediately payable debt that could be assimilated to an asset as that term was used in Van Marle and Others v. the Netherlands (judgment of 26 June 1986, Series A no. 101, p. 13, § 41), since it had paid the tax as a result of a situation which the Administrative Court of Appeal and the Government Commissioner in the Conseil d'Etat considered to be unlawful. It also had a legitimate expectation of recovering its debt. From 1 January to 30 June 1978 the French value-added tax (VAT) legislation had contravened Community law as set out in Article 13-B-a of the Sixth Directive of 17 May 1977. The applicant company pointed out that the administrative circular of 2 January 1986 had been issued before the Conseil d'Etat 's judgment of 19 March 1986 dismissing its appeal. It had therefore been on the basis of that administrative circular that its second appeal, alleging both fault on the part of the State for failing to transpose the Sixth Directive into domestic law and strict State liability for failing to maintain equality between public burdens, had been lodged.", "When it lodged its second appeal it therefore had a legitimate expectation within the meaning of the Court's judgment in Pressos Compania Naviera S.A. and Others v. Belgium (judgment of 20 November 1995, Series A no. 332) that its claim would be upheld, as a result of the issue of the administrative circular and the consequences it entailed. In addition, the administrative courts did accept jurisdiction to verify the compatibility of international and French norms, as the new precedent laid down in 1996 in S.A. Revert et Badelon did no more than to apply a line of authorities that dated back to 1989 to tax proceedings ( Conseil d'Etat, 20 October 1989, Nicolo, Recueil 190). The Conseil d'Etat had in several earlier decisions held that the State's responsibility was engaged in the event of a violation of Community law, in particular, if it was at fault for allowing an illegal situation to develop through the incompatibility of a domestic measure with a community directive (Judicial Assembly of the Conseil d'Etat, 28 February 1992, Arizona Tobacco Products and S.A. Philip Morris France ). It followed that the judgment of the Administrative Court of Appeal was not an isolated authority and, indeed, it was only overturned by the Conseil d'Etat on procedural grounds based on the “classification of proceedings” rule ( principe de la distinction des contentieux ).", "The applicant company added that at the time its claim for compensation was lodged the classification of proceedings rule was only relative in scope, since as long ago as 1963 the Conseil d'Etat had declared, in a case in which the legal causes of action were identical, that a claim for compensation based on the illegality of an act was admissible, even though an application to have the act set aside as being ultra vires had previously been dismissed ( Conseil d'Etat, 3 May 1963, Alaux, Recueil 261).", "Lastly, since the implementation of the administrative circular of 1986 had created a difference in treatment between taxpayers of the same category, it afforded at minimum a basis on which the applicant company could lay claim to its debt by a second application for compensation (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, judgment of 23 October 1997, Reports of Judgments and Decisions 1997-VII). By exempting from liability those companies which had not paid the VAT, the tax authorities had acknowledged that they were under no obligation to pay it under domestic law and had thereby acknowledged their error.", "45. The Government contended that the applicant company had not shown that it had had a legitimate expectation that could be regarded as a possession within the meaning of Article 1 of Protocol No. 1 when it issued its second action (see Pressos Compania Naviera S.A. and Others, cited above). There were two primary reasons why the applicant company's new appeal could not succeed. Firstly, its action had been brought on the basis that the tax authorities had been at fault in imposing the tax, whereas the existence of any such fault was necessarily excluded by the Conseil d'Etat 's ruling in its judgment on the first appeal that the tax in issue had been lawfully levied. As regards the Paris Administrative Court of Appeal's judgment of 1 July 1992 allowing the applicant company's appeal, the Government argued that it was not in line with the case-law at the time the second appeal was lodged. Secondly, the Government referred to the “classification of remedies” rule ( règle de la distinction des voies de recours ), which, as the Conseil d'Etat had held in its judgment of 30 October 1996, precluded the applicant company from successfully bringing an action in tort after failing in its tax appeal.", "46. The Court notes that, by requiring payment of VAT on transactions negotiated by insurance brokers during the period from 1 January to 30 June 1978, the French legislation was incompatible with the provisions of Article 13-B-a of the Sixth Directive of the Council of the European Communities of 17 May 1977, which was directly applicable from 1 January 1978 for the period concerned. This is apparent from the Sixth and Ninth Directives, the relevant case-law of the Court of Justice of the European Communities (CJEC – see paragraphs 31-37 above), the administrative circular of 2 January 1986 (see paragraph 15 above) and the terms of the Conseil d'Etat 's judgment of 30 October 1996 in S.A. Revert et Badelon (see paragraph 30 above). However, it is common ground that, even though it carried on business as insurance brokers, the applicant company paid VAT for the period from 1 January to 30 June 1978. Indeed, the Administrative Court of Appeal found in favour of the applicant company on 1 July 1992 in the second set of proceedings.", "The Court further notes that since its judgment in Nicolo of 20 October 1989 the Conseil d'Etat has been willing to verify the compatibility of French norms with international norms (see paragraph 39 above). Furthermore, the Conseil d'Etat had already held in a previous case before ruling on the applicant company's second appeal that the State was liable for a violation of Community law owing to the incompatibility of a domestic measure (see paragraph 40 above).", "47. As to the “the classification of remedies” rule relied on by the Government, the Court notes that right from its first appeal the applicant company's claim was based on a Community norm that was perfectly clear, precise and directly applicable. That right did not disappear with the Conseil d'Etat 's judgment of 1986 and, consequently, survived during the second set of proceedings. Further, the Court reiterates that the fact that the Conseil d'Etat relied on a long-standing principle cannot by itself justify a failure to comply with the present requirements of European law (see, mutatis mutandis, Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 19, § 36). It points out in that connection that the Convention is a living instrument that must be interpreted in the light of present-day conditions and the notions currently prevailing in democratic States (see, among other authorities, Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 29, § 28). The procedural rule regarding the “classification of proceedings” cannot therefore cause a substantive right created by the Sixth Directive to disappear.", "48. In the light of the foregoing, the Court finds that the applicant company had a valid claim against the State when it lodged its two appeals for the VAT paid in error for the period from 1 January to 30 June 1978. A claim of that nature “constituted an asset” and therefore amounted to a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1, which was accordingly applicable in the present case (see, among other authorities, Pressos Compania Naviera S.A. and Others, cited above, p. 21, § 31).", "In any event, the Court considers that the applicant company had at least a legitimate expectation of being able to obtain the reimbursement of the disputed sum (see Pine Valley Developments Ltd and Others v. Ireland, judgment of 29 November 1991, Series A no. 222, p. 23, § 51).", "B. Whether there was an interference and the applicable rule", "49. Under the Court's case-law, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 24, § 61; Gasus Dosier-und Fördertechnik GmbH v. the Netherlands, judgment of 23 February 1995, Series A no. 306-B, pp. 46-47, § 55, and p. 49, § 62; Pressos Compania Naviera S.A. and Others, cited above, pp. 21-22, § 33; and Phocas v. France, judgment of 23 April 1996, Reports 1996-II, pp. 541-42, § 51).", "50. The Conseil d'Etat 's judgment of 30 October 1996 deprived the applicant company of its right to have its claim for reimbursement of the amount it had overpaid in VAT examined. The Court further notes that in its first judgment of 26 February 1986 the Conseil d'Etat refused to uphold the applicant company's claim, notwithstanding the provisions of the Sixth Directive and of the administrative circular of 2 January 1986 which exempted insurance brokers from the obligation to pay VAT for the period from 1 January to 30 June 1978. In that connection, it is noteworthy that the administrative circular concerned only taxpayers who had received a supplementary tax assessment for failing to pay the VAT in issue. Those decisions entailed an interference with the right which the applicant company was entitled to assert under Community law and the applicable administrative circular for the reimbursement of debt and, consequently, with the right of all persons, and in particular the applicant company, to the peaceful enjoyment of their possessions.", "51. The Court notes that the applicant company complained that it had been deprived of its possessions within the meaning of the second sentence of the first paragraph of Article 1. It is true that an interference with the exercise of claims against the State may constitute such a deprivation of possessions (see Pressos Compania Naviera S.A. and Others cited above, p. 22, § 34). However, as regards the payment of a tax, a more natural approach might be to examine the complaints from the angle of a control of the use of property in the general interest “to secure the payment of taxes”, which falls within the rule in the second paragraph of Article 1 (see Building Societies, cited above, p. 2353, § 79).", "The Court considers it unnecessary to decide this issue, since the two rules are not “distinct” in the sense of being unconnected, are only concerned with particular instances of interference with the right to peaceful enjoyment of property and must, accordingly, be construed in the light of the principle enunciated in the first sentence of the first paragraph. The Court will therefore examine the interference in the light of the first sentence of the first paragraph of Article 1.", "C. Whether the interference was justified", "52. For the purposes of the first sentence of the first paragraph, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Sporrong and Lönnroth, cited above, p. 26, § 69).", "1. The general interest", "53. The applicant company rejected the Government's submission that the requirement of lawfulness had been complied with, contending that it was contrary to that requirement to allow the “classification of proceedings” rule to prevail over the rule that Community directives enjoyed primacy. It submitted in particular that the “classification of proceedings” rule and the estoppel by record relied on by the Government were only relative in scope, as had being confirmed by recent decisions of the Conseil d'Etat and the CJEC. It should therefore have been allowed to assert the rights it held by virtue of a Community directive. Since it had been prevented from obtaining satisfaction from the tax courts when the first judgment was delivered in 1986, it had been obliged to issue a second set of proceedings for compensation in order to obtain satisfaction.", "54. The Government argued that even assuming, purely for the sake of argument, that the applicant company had been deprived of a legitimate expectation by the decisions of the domestic courts, those decisions complied with the lawfulness requirement and constituted a proportionate measure taken in the public interest. As regards compliance with the lawfulness requirement, the Government said in particular that the claim had been dismissed on the basis of established jurisprudential principles applicable to both private and public law. In ruling that the applicant company's claim was estopped per rem judicatam as a result of its first judgment of 1986, the Conseil d'Etat had applied the “classification of remedies” rule, which prevented a party from bringing an action under the general law of tort for a remedy it had been refused under a special procedure. The justification for the rule lay in the need to ensure compliance with special rules applicable to contentious proceedings, or at least to prevent their being circumvented in a way that rendered them meaningless. Without such a rule, there was a risk of identical situations been treated differently and of a direct breach of the res judicata rule. Lastly, with regard to the compatibility of the “classification of remedies” rule with Community law, the Government argued that the decision of the CJEC in Emmott (C-208/90, Emmott v. Minister for Social Welfare and Attorney General [1991] ECR I-4269) was no longer good law, as, since its Fantask decision of 2 December 1997 (C-188/95, Fantask and others v. Industriministeriet [1997] ECR I-6783), the CJEC now accepted that, subject to certain conditions, it was for the domestic legal system of each member State to lay down the detailed procedural rules for actions seeking the recovery of sums wrongly paid. The “classification of remedies” rule was not, therefore, at variance with the CJEC's case-law.", "The Government also maintained that the administrative circular took the general interest into account and answered the need to ensure the primacy of Community law.", "55. The Court considers that the administrative circular of 2 January 1986 was intended to bring domestic law into line with the relevant provisions of the Sixth Directive of 1977. That, in the Court's view, is clearly a legitimate objective consistent with Article 1 of Protocol No. 1.", "56. With regard to the judgments of the Conseil d'Etat, the Court notes that the Government's case is based on the application of an established jurisprudential principle, namely the “classification of remedies” or “classification of proceedings” rule. The rule prevents a claim being brought under the general law of tort for a remedy that has previously been refused in a special form of action. According to the Government, the Conseil d'Etat had merely applied that rule when it held that the first judgment of 1986 gave rise to an estoppel by record.", "With regard to the argument concerning the application of the “classification of remedies” rule, the Court need only refer to its preceding observations (see paragraph 47 above) and sees no reason to adopt a different approach when assessing the “general interest”. Furthermore, in the circumstances of the present case the Conseil d'Etat 's particularly strict interpretation of that procedural rule deprived the applicant company of the sole domestic procedure that was capable of affording it a sufficient remedy to ensure compliance with the provisions of Article 1 of Protocol No. 1 (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 38, ECHR 2000-I).", "The Court can discern no other reason that could serve to justify on general-interest grounds the Conseil d'Etat 's refusal to give effect to a directly applicable provision of Community law. As to the CJEC's Fantask judgment cited by the Government (see paragraph 54 above), the Court fails to see why it should offer any justification either, since it deals with time-limits for appeals and reliance on limitation periods under national law to resist actions for repayment of charges when they become payable, and not, as in the instant case, a refusal to take the right to reimbursement itself into account (see paragraph 36 above).", "57. In any event, the Court notes that the interference resulted not from any legislative intervention, but on the contrary from the legislature's failure to bring the domestic law into line with a Community directive, such that the relevant administrative courts were forced to rule on that issue. The Court can but note that charging VAT on the activities of insurance brokers for the period from 1 January to 30 June 1978 contravened Article 13-B-a of the Sixth Directive of the Council of European Communities of 17 May 1977. The French authorities sought to render French law compliant by issuing the administrative circular of 2 January 1986. In its judgment of 19 March 1986, the Conseil d'Etat likewise failed to have due regard to the effects of the incompatibility of French law with Community law, notwithstanding the applicant company's failure to draw its attention to that point. The Court further notes that the Conseil d'Etat 's case-law regarding verification of the conformity of national law with international law has substantially evolved since 1989 (see paragraphs 39-40 above) and that the applicant company successfully appealed to the Paris Administrative Court of Appeal (see paragraphs 21-22 above).", "It further notes that the domestic authorities appear to have had difficulty in comprehending Community law, a fact that is, incidentally, confirmed by the Conseil d'Etat 's reference in its S.A. Revert et Badelon decision to “... [the] failure [of the French authorities] to enact provisions that were consistent with the objectives of the Sixth Directive on time”. Thus, the administrative circular bringing French law into line with the Sixth Directive was not issued until 2 January 1986, that is to say more than seven years after the Ninth Directive was notified to the French State (see paragraph 11 above), and in any event concerned only those taxpayers who had refused to the pay the VAT concerned. It is true that the Government have explained that by not referring to the case of taxpayers who had already paid the VAT, the administrative circular left open the possibility of a court action for reimbursement. However, the Conseil d'Etat did not share that view, as it dismissed the applicant company's first appeal more than two and a half months after the administrative circular was issued. Lastly, the Court notes that the Court of Cassation – the highest ranking judicial court – has for its part already accepted that it has jurisdiction to verify whether a domestic norm is consistent with international law (see paragraph 41 above). In the Court's view, the applicant company cannot be required to suffer the consequences of the difficulties that were encountered in assimilating Community law or of the divergences between the various national authorities.", "58. In the light of the foregoing, the Court finds that the interference with the applicant company's right to the peaceful enjoyment of its possessions was not required in the general interest.", "2. Whether a fair balance was struck between the competing interests", "59. The applicant company said that there was no justification for the interference with its right to the peaceful enjoyment of its possessions, as the judgment dismissing its appeal in 1986 had been preceded by the administrative circular of 2 January 1986, which itself did no more than conform to the requirements of the Sixth Directive of 1977. Nor was the interference justified by the 1996 judgment, as the Conseil d'Etat had dismissed the applicant company's second appeal merely on the grounds that it was inadmissible, without ruling on the merits. The applicant company submitted that no estoppel by record had arisen, since there had been no identity of subject matter between its actions for restitution of the VAT and in tort: the former was based on the failure to transpose the Sixth Directive within the prescribed period, while the latter concerned the application of invalid statutory provisions.", "The applicant company also explained that it was prevented by law from effecting a set-off between VAT and employment tax and that three expert witnesses had attested that it could not pass on to its customers the VAT it had paid.", "The applicant company observed that, contrary to Article 1 of Protocol No. 1 and the Court's case-law, it had ultimately been deprived of any compensation from the French authorities, as it had been its misfortune to have its tax appeal heard prematurely and to be denied the guarantees enjoyed by S.A. Revert et Badelon. It therefore contended that it had been a victim of the difficulties caused by the Conseil d'Etat 's case-law, which it said constituted an “individual and excessive burden” such that “the fair balance which should [have been] struck between the protection of the right of property and the requirements of the general interest [had been] upset” (see Hentrich v. France, judgment of 22 September 1994, Series A no. 296).", "60. As to whether the restriction on the applicant company's rights struck a fair balance between the competing interests, the Government said, inter alia, that the Conseil d'Etat had stood by its established principles for two reasons. Firstly, the fact that the applicant company had restricted its action to a tax appeal had not deprived it of the possibility of asserting its rights. Secondly, to have made an exception would have meant unreasonably undermining the principle of legal certainty. Lastly, the Government noted that, since the applicant company had shown that the “classification of remedies” principle was relative in its effects, in particular owing to the requirement for identity of subject matter, it could have taken that factor into account when preparing its second appeal and based its claim not on the VAT paid, an issue that had been dealt with in 1986, but on the commercial and financial damage actually sustained. Thus, the inadmissibility of the applicant company's appeal was the result of its choice of cause of action and had by no means been inevitable.", "The administrative circular was based on an objective difference in the situation of the companies concerned. Furthermore, it had not placed exempted companies in a radically different situation from those that were not: companies such as the applicant company that had been charged VAT could deduct the VAT they had paid and pass it on to their customers, notably by increasing the prices they invoiced for their services. While it was true that the exempted companies had the benefit of the unpaid VAT, the corollary of that was that they could not pass it on to their customers. The complaint was therefore in any event manifestly ill-founded.", "61. The Court finds that in the instant case the interference with the applicant company's right to the peaceful enjoyment of its “possessions” was disproportionate. Both the negation of the applicant company's claim against the State and the absence of domestic procedures affording a sufficient remedy to ensure the protection of the applicant company's right to the peaceful enjoyment of its possessions upset the fair balance that must be maintained between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see, mutatis mutandis, Phocas, cited above, pp. 544-45, § 60).", "D. Conclusion", "62. Consequently, there has been a violation of Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "63. The applicant company alleged a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Article 14 provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "64. The applicant company submitted that by adopting the administrative circular abandoning proceedings against companies that had not paid the VAT, the authorities had been guilty of discrimination by giving those who had defaulted on their tax an advantage over law-abiding taxpayers; that discrimination had been compounded by the authorities' failure to take action to refund the sums which the law-abiding taxpayers had paid in error.", "It pointed out that in National & Provincial Building Society, the Court held that there had been no violation after noting that the applicant building societies had failed to take proceedings challenging the regulations in issue and were accordingly not in the same situation as that of the Woolwich Building Society. It noted that although in Fredin v. Sweden the Court had found no violation of Article 14, on the ground that different classes of complainants could be created (judgment of 18 February 1991, Series A no. 192), it had ruled that a distinction made to the detriment of persons whose situations were similar was discriminatory (see Darby v. Sweden, judgment of 23 October 1990, Series A no. 187). In the instant case, the applicant company said that it was in an identical situation to all those companies carrying on business as insurance brokers who had not paid VAT for 1978 by the time the administrative circular was issued on 2 January 1986. The difference in treatment was directly attributable to the administrative circular, which excluded from its ambit only those businesses that had paid VAT voluntarily. While it was true that the latter were entitled to request a refund of the VAT, the Conseil d'Etat had dismissed the applicant company's claim for such a refund. In practice, an application for judicial review of the administrative circular, which as a regulatory circular was in any event not amenable to such review, would have had no effect.", "The applicant company argued that the administrative circular did not pursue a legitimate aim and that the means used were not reasonably proportionate to the aim pursued. If the purpose of the administrative circular had been to transpose the Sixth Directive of 1977 into domestic law, there was no justification for the difference in treatment between the companies concerned by the Sixth Directive. Those companies that had voluntarily paid the VAT, even though it had been levied unlawfully, had not received any benefit in exchange.", "Lastly, the applicant company contended that it had received less favourable treatment than S.A. Revert et Badelon. Both companies had paid the same tax, made an initial claim for a refund, appealed to the administrative court and, following the dismissal of their claims, lodged almost simultaneous appeals to the Conseil d'Etat in 1982. The Conseil d'Etat had dismissed the applicant company's appeal in 1986, whereas S.A. Revert et Badelon's appeal papers had been lost and consideration of the appeal consequently delayed until it was set down for hearing at the same session as the applicant company's second appeal. The Conseil d'Etat reached different decisions in the two cases, notwithstanding the fact that the legal position of the two companies was identical, the sole difference being that S.A. Revert et Badelon's case file had been mislaid by the Conseil d'Etat for several years. The appeal by S.A. Revert et Badelon was not heard until ten years after the applicant company's and it benefited from favourable developments in the case-law.", "65. The Government considered that neither the decisions of the Conseil d'Etat nor the administrative circular adopted on 2 January 1986 by the tax authorities amounted to discrimination. The decisions in the applicant company's case and in S.A. Revert et Badelon did not concern the same issue of law or appellants in identical situations. The European Court of Human Rights had held that there could be no discrimination unless the difference in treatment concerned persons in identical situations (see Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, and Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112). The Government noted that the appeals lodged concurrently with the applicant company's first appeal had likewise been dismissed. Nonetheless, the Government accepted that the 1986 decisions of the Conseil d'Etat on the applicant company's appeal and its decision on Revert et Badelon's appeal were at variance. The reason for the difference was that the Conseil d'Etat, which in this instance had identical arguments before it, decided in the second case – which, ten years after the first, raised the same question of law – to depart from its previous case-law. Changes in the case-law, which by definition entailed a conflict between decisions delivered before and after the change, could not be regarded as violating Article 14. For them to be regarded otherwise would be contrary to the Court's traditional interpretation of the provisions of Article 14 (see Case relating to certain aspects of the laws on the use of languages in education in Belgium (merits), judgment of 23 July 1968, Series A no. 6).", "The Government said that the indisputable effect of the administrative circular of 2 January 1986 was to put the applicant company in an ostensibly less favourable position than that of the companies referred to in the circular. As the “ Belgian linguistic ” case showed, the Court took into consideration the extent of the difference in treatment and whether it was proportionate to the situation of the persons concerned. The States thus enjoyed a margin of appreciation that varied according to the circumstances, the domain and the background (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98). In the instant case the administrative circular had been issued because of the primacy of the Community norm, in accordance with an undertaking given to the Commission of the Communities. The circular was therefore in the public interest and satisfied an existing legal obligation, but without depriving the companies concerned of their prospects of recovering the tax in the pending legal proceedings. Furthermore, the difference in treatment was based on an objective difference in the situation of the companies concerned. Some of the companies had decided not to seek a refund of the tax, while others had made an application to the courts for a refund which, in view of the genuine doubt as to the validity of the tax liability, the authorities had, as in the instant case, quite legitimately left for the courts to decide in the proceedings that were pending at that stage. Lastly, the authorities had logically enough, in view of the high degree of uncertainty over their outcome, chosen not to issue proceedings against those companies that had simply refrained from paying the tax. The Government noted that the Court had recognised that it was legitimate for public authorities to treat companies differently, depending on whether or not the company concerned had chosen to bring proceedings (see National & Provincial Building Society, cited above).", "Lastly, the Government argued that the difference in treatment had to be put into perspective, since companies which, like the applicant company, had paid the VAT had enjoyed an exemption from employment tax and had been able to pass on all or part of the VAT to their customers, unlike the companies that had not paid the VAT.", "66. In the light of its finding in paragraphs 61 and 62 above, the Court considers that no separate examination of this complaint is necessary.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "67. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "68. The applicant company sought payment of the sum of 291,816 French francs (FRF), being the amount of VAT it had paid for the year 1978. As regards the Government's argument that it would have had to pay employment tax had it enjoyed an exemption from VAT, the applicant company referred to the relevant provisions of the Code of Tax Procedure, which precluded any set-off between employment tax and VAT. As to the possibility of passing the VAT on to its customers, it produced, inter alia, three witness statements that showed that brokers' remuneration took the form of commission paid directly and exclusively by the insurance companies without any payment on the part of the insured, such that VAT that had been paid could not be passed on.", "69. The Government submitted that any damage to which the applicant company might be entitled was not the sum it had paid in VAT for 1978 but that sum less both the employment tax it would have had to pay had it enjoyed an exemption from VAT and the amount of VAT it had passed on to customers in its price lists. The Government added that they were unable to state the exact amount of employment tax concerned, since the events in issue had taken place more than twenty years ago and the tax authorities had not retained the tax returns and other documents necessary to perform a calculation.", "70. The Court finds that while the applicant company may have sustained non-pecuniary damage, the present judgment provides sufficient compensation for it. However, as regards pecuniary damage, in view of the violation which the Court has found of Article 1 of Protocol No. 1, the most suitable form of reparation would be reimbursement of the VAT that was unduly paid for the period from 1 January to 30 June 1978. As to the sums which the Government say should have been deducted from the VAT paid for 1978, the Court notes, firstly, that it has not been clearly demonstrated that employment tax would have been payable and, in any event, it is now impossible to calculate the amount. Secondly, the applicant company has produced witness statements that show that, owing to the nature of its activity, it could not pass on the VAT to its customers (see also, on this point, paragraphs 22 and 69 above). Above all, the Court observes that it has not been alleged, still less demonstrated (see paragraph 69 above), that such amounts were claimed from S.A. Revert et Badelon by way of set-off after its successful appeal to the Conseil d'Etat. Nor is there any reference in the Conseil d'Etat 's judgment to any obligation to deduct certain sums from the amount of the VAT that was to be refunded. The applicant company has furnished documents showing that the amount of VAT for the period in issue (taking into account the fact that there was a one month's gap before it received commission on the premiums enacted by the insurance companies) comes to FRF 142,568.09, that is to say 21,734.49 euros (EUR). In the light of the foregoing, the Court awards that sum to the applicant company for pecuniary damage.", "B. Costs and expenses", "71. The applicant company sought payment of FRF 139,000 net of tax, that is to say EUR 21,190,41, for the costs and expenses it had incurred in the Administrative Court, the Paris Administrative Court of Appeal, the Conseil d'Etat and the European Court of Human Rights.", "72. The Government contended that those amounts were excessive, since the decisions which the applicant company alleged were at the origin of its loss, namely the decisions delivered by the Conseil d'Etat as a final court of appeal and the administrative circular of 2 January 1986, had at no stage been contested before the domestic courts. Accordingly, only the costs incurred before the Convention institutions could, subject to being proved, be taken into account.", "73. The Court points out that it has already ruled in its decision of 12 September 2000 that the applicant company has satisfied the rule on the exhaustion of domestic remedies, notably as regards any need to appeal against the administrative circular itself. As a subsidiary consideration, the Court has found no statutory provision of domestic law that would allow a decision delivered by the Conseil d'Etat as a final court of appeal to be challenged. It cannot, therefore, be contended that the applicant company has failed to refer its complaints to the relevant courts. On the contrary, in its second appeal, it expressly sought an order for the reimbursement of the overpaid VAT and, accordingly, reparation from the domestic courts for the complaint it has made to the Court.", "As regards the amount of the applicant company's claim, the Court finds that it has been substantiated by Mr Garreau, who defended the applicant company's interests before the Court, the Administrative Court, the Administrative Court of Appeal and the Conseil d'Etat. Accordingly, the Court awards the applicant company EUR 21,190.41 for costs and expenses.", "C. Default interest", "74. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 4.26% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant is a limited company specialising in petroleum products. Its predecessor was called Greek petroleum, oil and lubricants – Industrial and commercial limited company (EKO AVEE).", "9. On 8 May 1987 the applicant company paid the tax authorities 137, 020, 491 drachmas (GDR ) ( approximately 402, 338 euros (EUR)) as an advance payment on the income tax due for the tax year 1987. On 11 May 1987 the tax authorities granted the applicant company a 10 % reduction on the amount paid, as a bonus for paying the full advance payment due without requesting to pay by instalments. Accordingly, the advance tax payment ultimately paid by the applicant company amounted to GDR 123,387, 306 ( approximately EUR 362, 105).", "10. On 10 May 1988 the applicant company filed its tax return with the tax authorities for the year 1987. The return showed that the company had sustained a substantial loss of profit, which meant that the authorities had to refund the applicant company the amount paid as an advance payment since it had been unduly paid.", "11. On 24 June 1988 and 9 December 1991 the applicant company sought a refund of GDR 123, 387, 306 from the Athens tax authorities dealing with limited companies, which was the amount levied in income tax for the year 1987. On an unspecified date the State refused to comply with its request.", "12. On 27 December 1991 the applicant company brought proceedings against the State in the Athens Administrative Court. It requested a refund, under section 38 ( 2 ) of Law no. 1473/1984, of the sum of GDR 123, 38 7, 306 that had been unduly paid in income tax. It also claimed default interest on that amount accruing from 10 May 1988, when the State had been informed that the tax had been unduly paid, up until payment. The applicant company based its claims on Article 345 of the Civil Code, which provides for the payment of default interest in the event of a pecuniary debt.", "13. Law no. 2120/1993 was published on 4 March 1993. Section 3 of that Law provides that the State will pay interest in the event of a refund of tax unduly paid. With regard to cases pending at the time of publication of the Law, it provides that interest shall start to accrue on the first day of the month following a period of six months after its publication.", "14. On 12 November 1993, prior to the hearing in the case listed for 23 September 1994, the State refunded the applicant company GDR 123,387, 306, which corresponded to the tax it had paid. In its submissions before the Administrative Court, the applicant company limited its claims to statutory interest for the delay in paying the refund.", "15. On 26 January 1995 the Administrative Court declared the applicant company ’ s application inadmissible (decision no. 512/1995). On 3 November 1995 the applicant company appealed.", "16. On 6 June 1996 the Athens Administrative Court of Appeal declared the applicant company ’ s appeal admissible, but held that it was ill-founded on the ground that at the material time the Code for the Collection of Public Revenues did not provide that the State was liable to pay interest in the event of a delay in refunding tax unduly paid. Moreover, the court held that Article 345 of the Civil Code did not apply to the present case, since the provision governed only civil-law relations (decision no. 4042/1996).", "17. On 27 June 1997 the applicant company lodged an appeal on points of law.", "18. On 8 November 2000, by judgment no. 3547/2000, the Supreme Administrative Court dismissed the appeal. It found that the State was not bound to pay late-payment interest in the event of tax unduly paid. Such an obligation did not derive from the relevant provisions of the Civil Code relating to late-payment interest because these did not apply to a debt arising from a public -law relationship. Furthermore, the Supreme Administrative Court pointed out that no such obligation had been incumbent on the State prior to Law no. 2120/1993, published on 4 March 1993 (see paragraphs 21 and 22 below ). That judgment was finalised and certified by the court on 26 October 2001." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "19. The relevant Articles of the Civil Code provide:", "Article 345", "“ A creditor of a pecuniary debt is entitled, when serving notice to pay, to claim default interest stipulated by law or by the legal document concerned without having to prove loss. Subject to any contrary statutory provision, a creditor who also establishes other loss is entitled to claim compensation for that as well. ”", "Article 346", "“ A debtor owing a pecuniary debt, even if not served with a notice to pay, shall be liable to pay statutory interest accruing from the date of service of legal proceedings relating to the debt due. ”", "Article 904", "“ Anyone who has been unjustly enriched by means of or to the detriment of another ’ s property shall make restitution of the gain. This obligation shall apply, inter alia, in the event of a payment made unduly or a service rendered for a purpose that has not been realised or has ceased to exist or is illegal or immoral. ...”", "Article 911", "“ Anyone who benefits [ inter alia from unjust enrichment ] shall be subject to the same obligations as if a writ of action had been served on him : ( 1) in the event of a claim for an amount unduly received, if he was aware that the debt did not exist or from the time when he became aware; ( 2) in the event of a claim on grounds of an illegal or immoral purpose. ”", "20. Article 6 of Legislative Decree no. 356/1974 provides :", "“ Debts due and owing from the State shall be subject to a late - payment surcharge that shall accrue from the first working day following the date on which the debt falls due. The surcharge shall accrue at a rate of 1% per month ’ s delay. ”", "21. Section 38 ( 2 ) of Law no. 1473/1984 provided that the State was bound to refund tax unduly paid without having to pay interest. Section 3 of Law no. 2120/1993 amended section 38 ( 2 ) of Law no. 1473/1984. That provision, as amended, now provides :", "“Any direct or indirect, principal or additional, tax or duty, or any fine, recognised in a final decision of an administrative court as having been unduly paid ... shall be offset or refunded with interest at the rate applicable to State bonds for a three-month period. .. . With regard to cases pending at the time of publication of this statute, interest shall start to accrue from the first day of the month following a period of six months after publication of the said statute.”", "22. In two judgments (nos. 1274 and 1275/2002 ) the Supreme Administrative Court held that the State had an obligation to pay default interest even in respect of cases that were pending, that is, those in which the tax unduly paid had not yet been refunded on the date of publication of Law no. 2120/1993 ( 4 March 1993). According to the Greek Supreme Administrative Court, that obligation was incumbent on the State from the date on which proceedings were brought in the relevant courts.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "23. The applicant company complained of the tax authorities ’ refusal to pay it interest in compensation for the late payment of a tax credit in its favour. It relied on Article 1 of Protocol No. 1, which provides:", "“ No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "24. The Government alleged that the applicant company had not had a “ possession ” within the meaning of Article 1 of Protocol No. 1. They submitted that its obligation to pay tax for the year 1 987 had been based on an administrative provision. That provision was presumed legal until annulment by the administrative or judicial authorities. The State had refunded the applicant company the entire sum paid in tax on 12 November 1993, that is, before the case was heard before the Administrative Court. Consequently, the debt claimed by the applicant company had never been acknowledged by a judicial decision as definite and immediately payable. Furthermore, the Government asserted that, in its judgment no. 3547/2000, the Supreme Administrative Court had held that the authorities were not under an obligation to pay late-payment interest on tax unduly paid. In their submission, the Court could not substitute its own point of view for the decision reached by the domestic courts.", "25. The applicant company alleged that the State had owed it a debt from the time it had been proved that the tax had been unduly paid. Accordingly, the State had to honour that obligation on the basis of the provisions relating to unjust enrichment (Articles 345, 346 and 904 of the Civil Code ). Moreover, refunding the tax payment in 1993 without late-interest payment – despite the State having been informed in June 1988 that the tax was not owing – amounted to a practice contrary to Article 1 of Protocol No. 1. In the applicant company ’ s submission, the State, through the courts, had not complied with the principle of lawfulness. Articles 345, 346 and 911 of the Civil Code expressly provided for payment of default and statutory interest. Furthermore, in the present case the Supreme Administrative Court had not followed its own case-law, which obliged the State to pay interest even where the case in question was still pending, that is, in cases where the tax unduly paid had not yet been refunded on the date of publication of Law no. 2120/1993.", "26. The Court reiterates that a debt can be a “ possession ” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable ( see, inter alia, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A no. 301 ‑ B ).", "27. In the present case the Court observes that, in accordance with section 38 ( 2 ) of Law no. 1473/1984, the State must refund any tax or duty recognised by a final court decision as having been unduly paid. On 2 4 June 1988 the applicant company applied to the tax authorities for the first time for a refund of GDR 123, 387, 306. After the applicant company had instituted legal proceedings, the authorities refunded the amount that had been unduly paid on 12 November 1993. In doing so, the authorities acknowledged that they owed the applicant company the tax that had been unduly paid. There is no doubt that the applicant company had a pecuniary interest amounting to a “ possession ” within the meaning of Article 1 of Protocol No. 1 regarding the refund of the tax unduly paid ( see, mutatis mutandis, Buffalo S. r. l. in liquidation v. Italy, no. 38746/97, §§ 28-29, 3 July 2003 ).", "28. It therefore remains to be determined whether the State ’ s refusal to pay the applicant company interest to compensate for the delay in refunding the tax unduly paid is compatible with Article 1 of Protocol No. 1. In the Court ’ s view, this question falls to be examined under the first sentence of the first paragraph of Article 1 of Protocol No. 1, which lays down the principle of the peaceful enjoyment of property in general terms ( see, among many other authorities, Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 48, ECHR 2000 ‑ I ).", "29. In that connection the Court points out that in its case-law it has consistently linked the payment of default interest to delays by the authorities in refunding credits. In particular, the Court has held on several occasions that the adequacy of compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as unreasonable delay ( see Angelov v. Bulgaria, no. 44076/98, § 39, 22 April 2004, and Almeida Garrett, Mascarenhas Falcão and Others, cited above, § 54). In such a case the Court will mainly have regard to whether the authorities have paid late-payment interest to offset the depreciation of the amount due on account of the time that has elapsed ( see, among other authorities, Akkuş v. Turkey, 9 July 1997, § 29, Reports of Judgments and Decisions 1997 ‑ IV ). In short, under Article 1 of Protocol No. 1 the payment of interest is intrinsically linked to the State ’ s obligation to make good the difference between the amount owed and the amount ultimately received by the creditor.", "30. With particular regard to the payment of taxes, the Court reiterates that the financial obligation arising out of the levying of taxes or contributions may infringe the rights guaranteed in Article 1 of Protocol No. 1 if the conditions for a refund impose an excessive burden on the person or entity concerned or fundamentally interfere with their financial security ( see, to that effect, Buffalo S. r. l. in liquidation, cited above, § 32). In that case the Court, examining a question similar to the one under consideration here, held that there had been a breach of Article 1 of Protocol No. 1 on the sole ground that the prolonged unavailability of the tax that had been unduly paid by the applicant company had had a definite and considerable impact on its financial situation ( ibid., § 37).", "31. In the instant case the Court observes that the tax unduly paid was refunded on 12 November 1993, that is, five years and approximately five months after 24 June 1988, when the applicant company sought a refund of the sum that it had unduly paid from the Athens tax authorities dealing with limited companies. In the light of the foregoing, the Court considers that the authorities ’ refusal to pay late-payment interest for such a long period upset the fair balance that has to be struck between the general interest and the individual interest.", "Accordingly, there has been a violation of Article 1 of Protocol No. 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "32. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary and non-pecuniary damage", "33. With regard to pecuniary damage, the applicant company submitted to the Court an expert report drawn up at its request by Hadjipavlou Sofianos & Campanis S.A., representatives in Greece of the law firm Deloitte & Touche. The experts established the pecuniary damage sustained by the applicant company for the period between 10 May 1988 and 12 November 1993 as follows :", "( i ) either EUR 612, 524 corresponding to the total simple default interest accrued on the sum of GDR 123 ,387,306 ( EUR 362, 105) in respect of the aforementioned period;", "( ii ) or EUR 1,231, 831 for the total compound default interest accrued on the sum of GDR 123 ,387, 306 (EUR 362, 105) in respect of the aforementioned period.", "34. The applicant company also sought EUR 6, 000 for non-pecuniary damage.", "35. The Government submitted that a finding of a violation would in itself constitute sufficient just satisfaction.", "36. The Court notes that in the instant case the interference in question relates to the State ’ s refusal to pay the applicant company default interest on the tax unduly paid. The failure to pay default interest together with the inability to use the money in question and the resulting uncertainty undoubtedly caused the applicant company to sustain both pecuniary and non-pecuniary damage that must be compensated.", "37. Having regard to the uncertainties inherent in any attempt to estimate the actual loss sustained by the applicant company, and ruling on the basis of equitable considerations as required by Article 41 of the Convention, the Court decides to award the applicant company, by way of a lump sum for the period from 24 June 1988 to 12 November 1993, 6% per annum of the sum refunded ( EUR 362 ,105 ), namely, EUR 120, 000, plus any tax that may be due on that amount ( see, mutatis mutandis, Malama v. Greece (just satisfaction), no. 43622/98, § 11, 18 April 2002 ).", "38. With regard to non-pecuniary damage, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction.", "B. Costs and expenses", "39. In respect of the costs and expenses incurred before the domestic courts and the Court, the applicant company claimed EUR 33,386. 29, which it broke down as follows :", "( i ) EUR 2, 024. 40 for the proceedings in the domestic courts;", "( ii ) EUR 20 ,564. 89 for the proceedings before the Court;", "( iii ) EUR 10, 797 for the fees and expenses relating to the preparation of the expert report.", "The applicant company provided vouchers in support of the expenses referred to under ( ii ) and ( iii ), but not those referred to under ( i ).", "40. The applicant company pointed out that, on account of the complexity of the case, it had had to retain three lawyers, whose expertise had been necessary to pursue the case both before the domestic courts and the Court.", "41. The Government replied that retaining three lawyers from Deloitte & Touche had not been necessary for this type of case. They submitted that the amount claimed for costs and expenses was excessive.", "42. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and are also reasonable as to quantum ( see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI ). In the present case the Court notes that the applicant company has not produced any invoice in respect of the costs incurred before the courts that dealt with the case. This part of its claims must therefore be dismissed. With regard to the costs incurred for the requirements of representing the applicant company before it, the Court observes that the applicant company has provided a breakdown of its claims together with the necessary supporting vouchers. Moreover, the Court points out that it has already held that the use of more than one lawyer may sometimes be justified by the importance of the issues raised in a case ( ibid., § 56 ). However, it considers that, even if the present case was of some complexity, it was not necessary to employ three lawyers. Lastly, the question of the application of Article 41 was not so complex as to require an expert opinion from a specialist firm ( contrast Malama (just satisfaction), cited above, § 17). Having regard to the foregoing, the Court decides to award the applicant company EUR 4, 000 in reimbursement of the costs incurred in the Strasbourg proceedings, plus any tax that may be chargeable on that amount.", "C. Default interest", "43. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant company, “Intersplav” (hereinafter “the applicant”), is a joint venture enterprise, based in the town of Sverdlovsk in the Lugansk Region, Ukraine.", "9. The facts of the case, as submitted by the parties, may be summarised as follows.", "10. The applicant manufactures goods using recycled scrap metal purchased in Ukraine, bearing a 20 % VAT rate. The major part of the applicant ’ s production is exported from Ukraine at a zero VAT rate. The applicant is thereby entitled to a refund of the VAT due on the price of the scrap metal. Under the Law on Value-Added Tax (see the Domestic Law part below) such a refund should be made within a one-month period following the applicant ’ s submission of the relevant calculations to the local tax administration. If the refund is delayed, compensation is payable. Both payments (the refund and compensation) are made by the State Treasury upon the submissions of the relevant tax authority.", "11. Since April 1998, the VAT refund to the applicant has been systematically delayed due to the failure of the Sverdlovsk Town Tax Administration to confirm the amounts involved. For the same reason, the applicant could not receive compensation for the delayed VAT refund.", "12. Since 1998, the applicant has complained to the Lugansk Regional Tax Administration and the State Tax Administration about the failure of the Sverdlovsk Town Tax Administration to issue certificates for the VAT refunds on time. However, these authorities found no illegalities in the actions of the Sverdlovsk Town Tax Administration, whilst recognising the existence of the State ’ s debts to the applicant.", "13. The applicant also complained to the Sverdlovsk Prosecutor and the General Prosecutor ’ s Office, without any result.", "14. In its letter of 22 October 2002, the applicant claimed that further obstacles had arisen in running its business, including new discriminatory legislation, transport controls by the police, and judicial proceedings against its employees for defamation instituted by the Tax Administration.", "15. Since 1998, the applicant has instituted a number of proceedings, more than 140 [1] so far, in the Lugansk Commercial Court against the Sverdlovsk Town Tax Administration and the State Treasury Department in order to receive compensation for the delayed refund of the VAT.", "16. In the proceedings during 1999-2000, the applicant requested the court to oblige the Tax Administration to confirm the amounts of compensation due to the applicant. The court found for the applicant and ordered the tax administration to issue the requested confirmation for the amounts claimed.", "17. In the proceedings during 2001-2003, the applicant changed the subject of its claim and requested the courts to award it the amounts of the VAT refund and compensation directly. The Tax Administration and Treasury both opposed the claims; the former on the basis of an alleged lack of competence in VAT refunding, the latter on the basis of the impossibility of refunding any VAT without prior confirmation of such an amount by the Tax Administration. The court found for the applicant and awarded the claimed amounts in its decisions between 2001 and 2004. It confirmed the applicant ’ s right to compensation for the various delayed VAT refunds.", "18. The court decisions given between 1999 and 2002 were executed within periods ranging from four days to two years and eight months. The oldest decision that remained unenforced in February 2004, according to the applicant, was given on 18 March 2003.", "19. In its further correspondence, the applicant maintained that the Tax Authorities claimed that the court decisions given in its favour should not be directly enforceable, but would require the prior confirmation of the awarded amounts by the Tax Administration.", "20. On 17 March 2004 the applicant lodged a claim with the Lugansk Commercial Court against the Lugansk Regional Department of the State Treasury and the Sverdlovsk Town Tax Administration for their refusal to enforce the judgments rendered by the said court in the period between March 2003 and February 2004 (see the annex) and for a proposal to convert the amounts awarded by the above judgments into loan bonds with a five-year term.", "21. On 24 May 2004 the court found for the applicant and ordered the defendants to enforce the impugned judgments.", "22. The applicant maintained that, as of 18 June 2004, the amount of the State debt to the company confirmed by court decisions was UAH 26,363,200 ( around EUR 4,119,250 )." ]

[ "II. RELEVANT DOMESTIC LAW", "23. The collection and refunding of value-added tax (VAT) is regulated by the Law on Value-Added Tax. Article 3 of the law provides that both the sale of goods in Ukraine and the export of goods from Ukraine are subject to taxation. Under Article 6 of the law, the former is taxed at a 20 % rate, whereas the latter is taxed at 0 %.", "24. The procedure to establish the amount of VAT due or to be refunded is regulated by Articles 7 and 8, which provide as relevant:", "“7.7. The procedure to establish the amount of tax to be paid into the budget or to be used as compensation from the budget, and the terms of settlements within the budget", "7.7.1. The amount of tax to be paid into the budget or refunded from the budget shall be determined as the difference between the total amount of tax obligations, which commence with any sale of goods (works, services) within the reporting period, and the amount of tax to be credited during the reporting period.", "Payment of the tax shall be made not later than the twentieth day of the month that follows the reporting period.", "7.7.2. The tax payer shall submit a tax declaration to the local body of State tax services ...", "7.7.3. Where ... the amount determined by subparagraph 7.7.1 of this Article is negative, it shall be refunded to the tax payer from the State budget of Ukraine within a month following the reporting period. ...", "Amounts that are not so refunded to the tax payer ... shall be considered a budget debt. Interest at 120 % of the basic rate of the National Bank of Ukraine shall be charged on that debt from the moment it arises and for the whole period of its validity, the repayment date inclusive. The tax payer is entitled at any moment after commencement of the budget debt to apply to a court with an action to collect the budget funds and establish the liability of the officials responsible for the untimely refund of overpaid taxes. ...", "7.7.5. Amounts of value-added tax are included in the State budget and shall first be used for budget refunds of value-added tax according to this Law. ... Where the amount of budget receipts obtained from the payment of value-added tax ... does not cover the amount subject to refunding ..., funds from other [State budget] resources ... shall be used for such compensation. ...", "8.1. A tax payer that performs export operations ... and files calculations for export compensation ... may receive such compensation within 30 calendar days from the date of submitting such calculations. ...", "8.6. Export compensation shall be provided within 30 calendar days, following the day of the filing of export compensation calculations.", "In case the tax payer fails to submit the calculation of export compensation within the established terms, export compensation shall not be provided and the amounts of such compensation shall be taken into account when calculating the tax payer ’ s future tax obligations ... Calculations of export budgetary compensation shall be submitted together with the declarations for the corresponding reporting period.”", "25. According to the Procedure for the Refund of Value Added Tax, adopted by the joint decree of the State Tax Administration of Ukraine and the Main Department of the State Treasury of Ukraine No. 209/72 on 2 July 1997, the VAT refund is made by the State Treasury of Ukraine on the basis of a confirmation by the tax authorities or a court decision. The VAT refund shall be made within five days after the tax authority has submitted the confirmation of the amount claimed.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION", "26. The applicant company claimed that the State ’ s practice of groundlessly refusing to confirm its entitlement to VAT refunds constituted an interference with the peaceful enjoyment of its property in violation of Article 1 of Protocol No. 1 to the Convention. This provision reads as follows :", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Whether there was a possession", "1. The submissions of the parties", "27. The Government maintained that the applicant ’ s entitlement to VAT refunds could only be considered a “possession” under Article 1 of Protocol No. 1 after confirmation of the amounts by court decisions. If the tax authorities disputed the entitlement of the applicant to the claimed VAT refund, it was only by virtue of a court decision that the applicant acquired “possessions” or “legitimate expectations” to receive them.", "28. The Government disagreed with the conclusion reached in the admissibility decision that the tax authorities had not objected to the amounts of the VAT refund claimed by the applicant.", "29. The applicant maintained that the basis for the VAT refund under the law was the information provided by the applicant itself in its tax declarations. The court decisions given in its favour in the present case showed that its right to the VAT refunds was violated prior to its application to the courts, thus demonstrating that the right existed prior to those decisions. Moreover, under the law, the State could only use funds received from VAT payments for other purposes after all VAT refunds had been made. Until then, therefore, the link between the VAT and the taxpayer remained. It concluded that the right to VAT refunds, and compensation for delays in their payment, constituted “possessions” within the meaning of Article 1 of Protocol No. 1.", "2. The Court ’ s assessment", "30. The Court points out that the concept of “possessions” in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is independent from the formal classification in domestic law (see Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I). The issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant an entitlement to a substantive interest protected by Article 1 of Protocol No. 1.", "31. In this connection, the Court notes that in the instant case the dispute does not concern the particular amount of a VAT refund or of compensation for the delay, but the applicant ’ s general entitlement under the law to VAT refunds and compensation. The Court observes that, having met the criteria and requirements established by the domestic legislation, the applicant could reasonably expect the refund of the VAT it had paid in the course of its business activities, as well as compensation for any delay. Even though a particular claim for a VAT refund may be subject to checks and objections from the competent State authorities, the relevant provisions of the Law on Value-Added Tax do not require the prior judicial review of a claim to validate a company ’ s eligibility for a refund.", "As to the Government ’ s objection to the conclusion reached in the admissibility decision that the tax authorities had not objected to the amounts of the VAT refund claimed by the applicant, the Court notes that that conclusion was based on the materials in its possession. From the case-file materials it appears that the tax authorities did not dispute the amounts of the VAT refunds to be paid to the applicant, but simply refused to confirm them without any apparent reason, relying erroneously on a lack of competence in refunding matters. It is true, however, that on several occasions, and only once successfully, the calculations of the compensation for the VAT refund delay made by the applicant had been objected to by the tax authorities in the courts ’ proceedings. This latter point, however, does not negate the Court ’ s conclusion about the original VAT refund proceedings.", "32. While the Court does not find it necessary to determine the precise content and scope of the legal interest in question, it is nevertheless satisfied that the factors outlined above show that the applicant had a proprietary interest recognised by Ukrainian law, and protected by Article 1 of Protocol No. 1 (see, mutatis mutandis, Buffalo S.r.l. en liquidation v. Italy, no. 38746/97, § 29, 3 July 2003).", "B. Whether there was interference", "33. The parties did not dispute that the delays in refunding the VAT to the applicant could be regarded as interference with the applicant ’ s right to peaceful enjoyment of its possession. In the Court ’ s opinion, this situation comes within the first sentence of the first paragraph of Article 1 of Protocol No. 1, which lays down the principle of peaceful enjoyment of property in general terms (see Buffalo S.r.l. en liquidation, cited above, § 31).", "C. Whether the interference was justified", "1. The submissions of the parties", "34. The Government maintained that there were exceptional circumstances that necessitated measures to protect the economic interests of the country. The State faced a situation in which the system of VAT refunding was abused; in particular, there were numerous cases of VAT evasion, groundless claims for VAT refunds and fictitious export operations. In this situation the Government were required to take measures to stop such abuses and to prevent them in the future. In the Government ’ s opinion, the judicial control over the VAT refunding was necessary to secure the public interest and to prevent abuses.", "35. The Government further stated that the tax authorities ’ actions in the present case were based on a disproportion between the amounts paid by the applicant in taxes and the amounts of VAT refund which it claimed. This created a suspicion that the applicant was using fictitious companies for its scrap metal supplies. According to the Government, such fictitious enterprises had indeed been discovered by the authorities.", "36. The Government considered, therefore, that the measures taken were within the State ’ s margin of appreciation and the interference was proportionate, and therefore a fair balance had been struck between the interests of the applicant and the public interest.", "37. The applicant maintained that it had paid its taxes lawfully and these payments had been checked on numerous occasions by the State authorities. It pointed out that it was not responsible for other companies from whom it bought metal, the price of which was inclusive of VAT. The obligation to pay that VAT was on the latter companies, not the applicant. The applicant underlined that it had neither the competence nor the possibility to control other businesses, and the situation referred to by the Government demonstrated the unsatisfactory workings of the tax authorities, for which the applicant should not be held liable. It further underlined that numerous checks of its activities conducted by the tax authorities had revealed no irregularities on which the latter could base their refusals.", "2. The Court ’ s assessment", "38. The Court reiterates that States have a wide margin of appreciation in determining what is in the public interest as the national legislature has a wide discretion in implementing social and economic policies. However, that margin of appreciation is not unlimited and its exercise is subject to review by the Convention institutions (see Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 50-51, §§ 121-22 ). In the Court ’ s view, when the State authorities possess any information about abuse of the VAT refund system by a concrete entity, they can apply appropriate measures to prevent or stop such abuses. The Court cannot, however, accept the argument about a general situation with the VAT refunds advanced by the Government, in the absence of any indication of the applicant ’ s direct involvement in such abusive practices.", "39. The Court further notes that since April 1998 the VAT refunds to the applicant have been systematically delayed. Such delays were caused by the situation in which the tax authorities, not disputing, as it appears from the case-file, the amounts of VAT refunds due to the applicant, constantly failed to confirm these amounts. Such failure prevented the applicant from recovering the claimed amounts in due time and created a situation of chronic uncertainty. Furthermore, it forced the applicant to appeal to the courts on a regular basis with identical claims. In the Court ’ s view, it may be considered reasonable to require that such refusals be challenged in a single or a few cases. However, in the present case, the applicant ’ s recourse to this remedy has not prevented the tax authorities from continuing the practice of delaying payment of the VAT refunds, even after court decisions have been given in the applicant ’ s favour (cf. paragraph 18 above). The systematic nature of the failings of the State authorities has resulted in an excessive burden being imposed on the applicant.", "40. In these circumstances, therefore, the Court considers that interference with the applicant ’ s possession was disproportionate. In fact, the constant delays with VAT refund and compensation in conjunction with the lack of effective remedies to prevent or terminate such an administrative practice, as well as the state of uncertainty as to the time of return of its funds, upset the “fair balance” between the demands of the public interest and the protection of the right to peaceful enjoyment of possessions. In the Court ’ s view, the applicant bore and continues to bear an individual and excessive burden (see, mutatis mutandis, Buffalo S.r.l. en liquidation, cited above, § 39). There has accordingly been and continues to be a violation of Article 1 of Protocol No. 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "41. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "42. The applicant claimed UAH 52,909,140 (around EUR 826,709.38 ) as compensation for loss of profits, UAH 8,380,385.68 (around EUR 1,309,435.26 ) as compensation for inflation losses, UAH 2,114,900.06 (around EUR 330,435.13 ) of expenses for bank credits, and UAH 583,943.12 (around EUR 91,241.11 ) of expenses for severance payment.", "43. The Government maintained that the applicant ’ s claims under this head were ill-founded.", "44. The Court takes into account that in the present case interest at 120 % of the basic rate of the National Bank of Ukraine should be charged on debts of VAT refund to the applicant from the moment they arise and for the whole period of their validity. Whilst the Court cannot speculate as to the economic performance of the applicant, it does not find it unreasonable to regard the applicant as having suffered some material loss. Ruling on an equitable basis, in accordance with Article 41, the Court awards EUR 25,000.00 (see, mutatis mutandis, Pélissier and Sassi v. France [GC], no. 25444/94, § 80, ECHR 1999 ‑ II).", "2. Non-pecuniary damage", "45. The applicant claimed a symbolic sum of 1 Euro for non-pecuniary damage.", "46. The Government left the issue to the Court ’ s discretion, if the latter should find a violation of the Convention.", "47. The Court considers that in the present case, there is no call for a pecuniary award under this head. Accordingly, it does not make any award in that respect.", "48. The Court further considers that in the circumstances of the present case the most appropriate form of redress would, in principle, be the elimination of the administrative practice of delaying the VAT refund, which has been found to be contrary to Article 1 of Protocol No. 1.", "B. Costs and expenses", "49. The applicant claimed UAH 3,585.16 (around EUR 560 ) for travel expenses and UAH 106,953.77 (around EUR 16,711.53 ).", "50. The Government considered this claim unsubstantiated, without giving any further specification.", "51. The Court considers that in so far as the applicant claims travel expenses, given the number of the domestic proceedings ( see paragraph 15 ), the claimed amount appears to be justified. The Court, therefore, awards it in full. As to the court fees which remained due to the applicant in the domestic proceedings at issue (see appendix to the admissibility decision of 31 May 2005), the Court considers that full payment of the court fees awarded to the applicant within the domestic proceedings listed in the Annex to the admissibility decision of 31 March 2005 would constitute final settlement in this part.", "C. Default interest", "52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The taxable transaction", "6. On 16 August 2000 the applicant company purchased goods from another company (“the supplier”).", "7. Both companies were registered under the Value Added Tax Act 1999 (“the VAT Act”) and the transaction constituted a taxable supply under the said Act.", "8. The total cost of the received supply was 21,660 Bulgarian levs (BGN) (11,107 euros (EUR)), of which BGN 18,050 (EUR 9,256) was the value of the goods and BGN 3,610 (EUR 1,851) was value-added tax (“VAT”).", "9. The supplier issued invoice no. 12/16.08.2000 to the applicant company, which the latter paid in full, including the VAT of BGN 3,610 (EUR 1,851).", "10. The applicant company recorded the purchase in its accounting records for the month of August 2000 and filed its VAT return for that period by 15 September 2000.", "11. The supplier, on the other hand, did not record the sale in its accounting records for the month of August 2000, but for October 2000, and reported it in its VAT return for the latter period, which it filed on 14 November 2000.", "B. The VAT audit", "12. On an unspecified date the tax authorities conducted a VAT audit of the applicant company covering the period from 10 February to 31 December 2000. In the course of the inspection a cross-check of the supplier was conducted in order to ascertain whether it had properly reported and recorded the supply in its accounting records. As a result, the above reporting discrepancy was discovered (see paragraphs 10 and 11 above).", "13. On 31 January 2001 the “ Yug ” Tax Office of the Plovdiv Territorial Tax Directorate issued the applicant company with a tax assessment. It refused the applicant company the right to deduct the VAT it had paid to its supplier (“the input VAT”), amounting to BGN 3,610 (EUR 1,851), because the supplier had entered the supply in its accounting records for the month of October 2000 and had reported it for that period rather than for August 2000. The Territorial Tax Directorate therefore considered that no VAT had been “charged” on the supply in the August 2000 tax period, that the applicant company could not therefore deduct the amount it had paid to its supplier as VAT and, furthermore, that it was liable to pay the VAT on the received supply a second time. Accordingly, it ordered the applicant company to pay the VAT in the amount of BGN 3,610 (EUR 1,851) into the State budget, together with interest of BGN 200.24 (EUR 102) for the period from 15 September 2000 to 31 January 2001.", "14. The applicant company appealed against the tax assessment on 20 February 2001.", "15. In a decision of 26 February 2001 the Plovdiv Regional Tax Directorate dismissed the applicant company ’ s appeal and upheld the tax assessment in its entirety. It recognised that the applicant company had fully complied with its VAT reporting obligations in respect of the received supply, but found that the supplier had failed to enter its invoice in its own accounting records on the date it had been issued, 16 August 2000, and had not reported its VAT-taxable supply for the month of August 2000 as it should have done. It therefore concluded that no VAT had been “charged” on the supply in question and that the applicant company was accordingly not entitled to deduct the input VAT, in spite of the fact that the supplier had subsequently reported the supply for the month of October 2000.", "16. The applicant company appealed against the decision of the Regional Tax Directorate on 19 March 2001, arguing that it could not be denied the right to deduct the input VAT solely because of its supplier ’ s belated compliance with its VAT reporting obligations. The applicant company also claimed that the supplier ’ s right to deduct the VAT it had paid to its own supplier had been recognised by its tax office, while the applicant company was being denied that right. In its submissions the applicant company relied, inter alia, on Article 1 of Protocol No. 1 to the Convention.", "17. In a judgment of 21 September 2001 the Plovdiv Regional Court dismissed the applicant company ’ s appeal and upheld the decisions of the tax directorates. It stated as follows:", "“The Court finds that the ... objection of the [applicant company] is ... unsubstantiated. In particular, [the applicant company objected that] it had been the compliant party, while the supplier had not complied with its obligations. The right to ... [deduct the input VAT] arises for the recipient of a [taxable] supply only if the supplier has fulfilled the conditions under section 64 in conjunction with section 55 of the VAT Act. The Act does not differentiate between the parties to a supply transaction as regards compliance; the court cannot therefore introduce such an element into this judgment. ”", "18. On 26 October 2001 the applicant company appealed to the Supreme Administrative Court.", "19. In a final judgment of 24 October 2002 the Supreme Administrative Court concurred with the findings and conclusions of the tax authorities and stated the following:", "“... In this case the non-compliance of the supplier impacts unfavourably on the recipient ..., because the right to recover the [input VAT] does not arise for [the latter] and it does not matter that the recipient of the [taxable] supply [acted] in good faith and [was] compliant..., as this is irrelevant for the [purposes of] taxation. ... There [is] also [no] ... violation of ... Article 1 of Protocol No. 1, because the refusal to recognise the claimant ’ s right to [deduct the input VAT] under section 64 (2) of the VAT Act did not violate its property rights, due [to the fact that] the recognition of its substantive right [to deduct] under section 64 of the VAT Act is conditional on the actions of its supplier and [the latter ’ s] discharge [of its obligations] vis-à-vis [the State] budget. ...”" ]

[ "II. RELEVANT DOMESTIC LAW", "The VAT Act", "(a) General information", "20. The VAT Act came into force on 1 January 1999. Although at the time Bulgaria was not a member of the European Union (EU), domestic VAT legislation in many respects followed the provisions of Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes, known as the Sixth VAT Directive, which at the time was the principal basis for the system of value ‑ added tax in the EU.", "21. In general, VAT was charged on the price due for a supply of goods or services plus certain costs, taxes and charges not including the VAT itself. Most domestic supplies of goods and services, as well as imports, were subject to the standard rate of twenty percent VAT.", "22. VAT was generally reported and paid monthly. Monthly VAT returns had to be filed and monthly VAT payments made by the fourteenth day of the following month.", "23. At the relevant time, any person (legal or natural, resident or non ‑ resident) who had a taxable turnover exceeding BGN 75,000 (EUR 38,461) during any preceding twelve-month period was obliged to register for VAT purposes (section 108). Voluntary and optional registration was also possible in certain cases.", "24. On 1 January 2007, when Bulgaria became a member of the EU, the VAT Act was replaced by a new act of the same name.", "(b) The right to deduct the input VAT", "25. At the relevant time the input VAT – the so-called “tax credit” under domestic legislation – was the amount of tax which a VAT ‑ registered person had been charged under the VAT Act for receipt of a taxable supply of goods or services, or for imported goods, in a given tax period, which the person in question had the right to deduct (section 63).", "26. During the relevant period and in the context of the present case, where the VAT incurred on supplies exceeded the VAT charged on sales in a given tax period, the excess VAT was first carried forward for a period of six months to offset any VAT debt due in those six months, as well as other liabilities to the State (sections 63 and 77). If at the end of the six-month period the excess VAT, or part thereof, had still not been recovered, the balance was refunded within a further forty-five days (section 77). This period could be extended if the tax authorities initiated a tax audit (section 78 § 7).", "27. At the relevant time, section 64 of the VAT Act provided that the recipient of a supply could deduct the input VAT when the following conditions were fulfilled:", "(a) the recipient of the supply on which VAT had been charged was a VAT-registered person;", "(b) the VAT had been charged by the supplier, who was a VAT ‑ registered person, at the latest on the date of issuance of the VAT invoice;", "(c) VAT was chargeable on the supply in question;", "(d) the goods or services received were used, were being used or would be used for VAT-taxable supplies; and,", "(e) the recipient was in possession of a VAT invoice which met the statutory requirements.", "28. Further to the above, in respect of item (b), VAT was considered during the relevant period to have been charged when the supplier:", "(1) issued an invoice which indicated the VAT;", "(2) recorded the issuance of the invoice in its sales register;", "(2) entered the VAT charged in its accounting records as a liability to the State budget; and", "(3) declared the VAT charged in its VAT return filed with the tax authorities (section 55 § 6).", "III. COMMUNITY LAW", "29. At the relevant time, Bulgaria was not a member of the European Union. Accordingly, the acquis communautaire was not directly applicable or transposed into domestic legislation. However, as noted above, its domestic VAT legislation in many respects followed the provisions of the Sixth VAT Directive (see paragraph 20 above).", "30. Consequently, it is worth mentioning in the context of the present case the following two judgments of the Court of Justice of the European Communities (CJEC), which examine the entitlement of the recipient of a supply to reimbursement of the VAT charged on such a supply in cases of suspected “carousel fraud”. This type of fraud, a kind of VAT missing trader intra-Community fraud, occurs when goods are imported VAT-free from other Member States, are then re-sold through a series of companies at VAT-inclusive prices and subsequently re-exported to another Member State with the original importer disappearing without paying over to the tax authorities the VAT paid by its customers.", "31. In its judgment of 12 January 2006 in joined cases C-354/03, C ‑ 355/03 and C-484/03, Optigen Ltd (C-354/03), Fulcrum Electronics Ltd (C-355/03) and Bond House Systems Ltd (C-484/03) v Commissioners of Customs & Excise : reference for a preliminary ruling from the High Court of Justice (England & Wales), Chancery Division – United Kingdom, European Court Reports (ECR ) 2006, page I-00483, the CJEC concluded as follows:", "“Transactions such as those at issue in the main proceedings, which are not themselves vitiated by value added tax fraud, constitute supplies of goods or services effected by a taxable person acting as such and an economic activity within the meaning of Articles 2 (1), 4 and 5 (1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, where they fulfil the objective criteria on which the definitions of those terms are based, regardless of the intention of a trader other than the taxable person concerned involved in the same chain of supply and/or the possible fraudulent nature of another transaction in the chain, prior or subsequent to the transaction carried out by that taxable person, of which that taxable person had no knowledge and no means of knowledge. The right to deduct input value added tax of a taxable person who carries out such transactions cannot be affected by the fact that in the chain of supply of which those transactions form part another prior or subsequent transaction is vitiated by value added tax fraud, without that taxable person knowing or having any means of knowing.”", "32. In a similar judgment of 6 July 2006 in joined Cases C-439/04 and C-440/04, Axel Kittel v Belgian State (C-439/04) and Belgian State v Recolta Recycling SPRL (C-440/04) (ECR 2006, page I-06161), the CJEC went on to state the following.", "“Where a recipient of a supply of goods is a taxable person who did not and could not know that the transaction concerned was connected with a fraud committed by the seller, Article 17 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as meaning that it precludes a rule of national law under which the fact that the contract of sale is void – by reason of a civil law provision which renders that contract incurably void as contrary to public policy for unlawful basis of the contract attributable to the seller – causes that taxable person to lose the right to deduct the value added tax he has paid. It is irrelevant in this respect whether the fact that the contract is void is due to fraudulent evasion of value added tax or to other fraud.", "By contrast, where it is ascertained, having regard to objective factors, that the supply is to a taxable person who knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of value added tax, it is for the national court to refuse that taxable person entitlement to the right to deduct.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1", "33. The applicant company complained under Article 1 of Protocol No. 1 that, in spite of its full compliance with its own VAT reporting obligations, the domestic authorities had deprived it of its right to deduct the input VAT it had paid on the received supply of goods, because its supplier had been late in complying with its own VAT reporting obligations. Moreover, as a result of the refusal to allow the aforesaid deduction, the applicant company had unjustifiably had to pay the input VAT a second time, this time directly into the State budget under the tax assessment, together with interest.", "Article 1 of Protocol No. 1 reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. The parties ’ submissions", "1. The Government", "34. The Government stated that the applicant company could have initiated an action against its supplier under the general rules of tort in order to seek compensation for the input VAT it had not been allowed to deduct because of the supplier ’ s failure to comply with its VAT reporting obligations.", "35. On the merits, the Government noted that in principle the collection of taxes fell within the ambit of the second paragraph of Article 1 of Protocol No. 1 as it related to measures to control the use of property in accordance with the general interest.", "36. They further noted that such measures were legitimate when they were provided for in a statute or other normative act, and considered that a State enjoyed considerable freedom in determining the “laws ... it deems necessary to control the use of property” as provided in the second paragraph of Article 1 of Protocol No. 1 (the Government referred to AGOSI v. the United Kingdom 24 October 1986, § 52, Series A no. 108). They also considered that, in so far as most measures for control of the use of property did not involve confiscation, the Convention gave the domestic authorities considerable freedom of action in regulating, based on their own social and economic criteria, the use of private property. Following this line of thought, according to the Government, the Court had stated in its judgment in the case of Handyside v. the United Kingdom ( 7 December 1976, Series A no. 24) that the second paragraph of Article 1 of Protocol No. 1 “sets the Contracting States up as sole judges of the ‘ necessity ’ for an interference” (ibid., § 62).", "37. The Government stated that a further requirement in order for a measure to be legitimate was for it to be in accordance with the “general interest”; in this respect States enjoyed a “wide margin of appreciation” (they referred to Tre Traktörer AB v. Sweden, 7 July 1989, § 62, Series A no. 159).", "38. As to the case at hand, the Government noted that it related to a “tax credit”, the input VAT which according to section 63 of the VAT Act could be deducted only if the tax had been charged. Accordingly, it related to the right of the applicant company to deduct an amount due in respect of VAT only if specific statutorily defined conditions had been met: (a) an invoice had been issued with VAT included, (b) the invoice had been recorded in the VAT sales register, (c) the supplier had entered the invoice in its accounting records and (d) the supplier had entered it in the VAT return it had duly filed (section 55 § 6). Only when these four conditions were cumulatively met did the right to deduct the input VAT arise, constituting thenceforth a “possession” within the meaning of Article 1 of Protocol No. 1. Hence, only from that moment on could the applicant company claim that there had been interference with its right to deduct the input VAT. In view of the above, the Government considered that the applicant company did not have a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention which could have been the subject of interference.", "39. They further argued that the right to deduct the input VAT was the result of a complex tax relationship between the supplier and the applicant company and that the latter had implicitly consented to a situation whereby the right to such a deduction depended on the actions of the supplier. This situation, the Government claimed, was widely known, was predictable and applied to all VAT-taxable supplies.", "40. The Government also submitted that the domestic authorities had acted in the general interest in order to ensure the collection of taxes and enforce discipline in the tax reporting of transactions. They considered this to have been in conformity with the discretion granted to States under the second paragraph of Article 1 of Protocol No. 1.", "41. The Government also considered that, in the event that the Court should find that there had been interference with a conditional possession of the applicant company, this should not be considered to have represented an excessive burden for it, as the amount of VAT had been known and had been fixed at twenty percent. Accordingly, the Government considered that the present case did not amount to an excessive burden imposed on the applicant company but simply to a refusal to allow the input VAT to be deducted.", "2. The applicant company", "42. The applicant company stated that it could not seek compensation from its supplier under the general rules of tort as they were in a contractual relationship and domestic legislation precluded it from initiating such an action in those circumstances. In addition, it claimed that the supplier ’ s failure to comply with its VAT reporting obligations in timely fashion could not be said to have directly caused it damage, and that the supplier had not enriched himself in any way as a result. The applicant company considered that it was the tax authorities ’ actions, and their conclusions in the tax assessment as to the repercussions of the supplier ’ s belated compliance, which had caused it damage. Accordingly, it claimed that an action under the general rules of tort against its supplier could not afford it appropriate redress in respect of its complaint under Article 1 of Protocol No. 1.", "43. On the merits, the applicant company claimed that the right to deduct the input VAT constituted a “possession” within the meaning of Article 1 of Protocol No. 1 which should be considered to have arisen at the moment it had fully complied with its own VAT reporting obligations. It argued that the fact that recognition of the right to deduct the input VAT was conditional on the compliance of the supplier – a factor which was beyond the control of the recipient of a supply – made the relevant provisions of the VAT Act unpredictable and arbitrary in their application. Accordingly, the applicant company considered that the refusal of the authorities to allow it to deduct the input VAT amounted to a deprivation of its possession, resulting from the fact that the price it had paid to its supplier included BGN 3,610 (EUR 1,851) in VAT. Hence, it had not only lost the amount it had paid to its supplier in respect of VAT but had also had to pay the same amount a second time to the State budget under the tax assessment, together with interest in the amount of BGN 200.24 (EUR 102). In addition, the applicant company claimed that, as a result of the refusal to allow it to deduct the VAT, the amount it had paid to its supplier as VAT had not been tax ‑ deductible as an expense and had been subject to corporate income tax, which amounted to a further deprivation of its “possessions” within the meaning of Article 1 of Protocol No. 1.", "44. Alternatively, the applicant company argued that it had had a legitimate interest in the deduction of the input VAT which also fell within the scope of Article 1 of Protocol No. 1 (the applicant company referred to Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, Series A no. 332). In particular, in so far as it had acted in good faith towards its supplier and the tax authorities, had paid the VAT charged by the supplier and had recorded the transaction in its accounting records in timely fashion, it had legitimately acquired a legal expectation that the right to deduct the input VAT would be recognised. The applicant company further claimed that the right to deduct the input VAT constituted an asset in respect of which it had a “legitimate expectation” that it would obtain effective enjoyment of a property right.", "45. In view of the above, the applicant company considered that Article 1 of Protocol No. 1 was applicable and that there had undoubtedly been interference with its “possessions” within the meaning of that Article.", "46. As to whether the interference had been necessary, the applicant company recognised that it had sought to protect the community ’ s interest in the effective collection of taxes. However, even assuming that the interference with its property rights had served a legitimate aim, the applicant company considered that the interference had not been in the general interest, as the VAT on the supply in question had been paid into the State budget by the supplier with only a slight delay.", "47. The applicant company further argued that the interference in question had not been proportionate, as it had failed to strike a fair balance between the demands of the general interest of the community and its own right to protection of its property rights. In particular, although it agreed with the Government that States enjoyed a wide margin of appreciation under the second paragraph of Article 1 of Protocol No. 1 in implementing fiscal legislation, their discretion in that respect could not be considered to be limitless. In that connection it argued that it had had to bear an individual and excessive burden which upset the fair balance that had to be maintained between the demands of the general interest of the community and the requirements of the protection of the right of property. In particular, although the applicant company had complied with its VAT reporting obligations fully and in time, because of its supplier ’ s failure to discharge its VAT reporting obligations in the same manner (a) it had still been denied the right to deduct the input VAT of BGN 3,610 (EUR 1,851); (b) it had then been ordered to pay the VAT of BGN 3,610 (EUR 1,851) a second time, but this time to the State budget; (c) it had additionally been ordered to pay interest of BGN 200.24 (EUR 102) on that amount; (d) the VAT it had paid to its supplier had not been recognised as a tax-deductible expense and corporate income tax had then been charged on it; (e) it had incurred additional court fees and expenses in challenging the tax assessment; (f) it had thus been unduly and severely sanctioned for an infringement by the supplier, which had in fact discharged its VAT reporting obligations, but with a slight delay; and (g) general uncertainty had arisen in the fiscal affairs of the applicant company because all its VAT supplies could similarly be compromised by the failure of a supplier to discharge its VAT reporting obligations. Moreover, the applicant company would have no knowledge of this until such time as the tax authorities refused to recognise the right to deduct the input VAT relating to a particular transaction.", "48. Hence, the applicant company considered that the severe pecuniary and non-pecuniary consequences it had suffered, despite having acted in complete conformity with the law, were evidence of the inadequacy and disproportionate nature of the State interference.", "B. Admissibility", "49. The Government claimed that the applicant company could have initiated an action against its supplier under the general rules of tort in order to seek compensation for the input VAT it had not been allowed to deduct because of the supplier ’ s failure to comply with its VAT reporting obligations (see paragraph 34 above). They did not submit any domestic case ‑ law to support their assertion that this was a viable alternative which could have afforded redress to the applicant company. The Court observes in this regard the position of the applicant company and its claim that such an action was not available to it under domestic legislation (see paragraph 42 above).", "50. The Court recognises that where the Government claim non ‑ exhaustion, they bear the burden of proving that the applicant has not used a remedy that was both effective and available at the relevant time. The availability of any such remedy must be sufficiently certain in law as well as in practice ( see Vernillo v. France, 20 February 1991, § 27, Series A no. 198 ). In so far as the Government failed to show that the suggested remedy was both effective and available at the relevant time by providing examples of domestic judgments, the Court finds that it cannot be considered that the applicant company failed to exhaust the available domestic remedies by not having initiated an action against its supplier under the general rules of tort.", "51. In any event, the Court notes that the applicant company appealed against the tax assessment issued against it, presented its arguments before the domestic courts and afforded them the opportunity to prevent or put right the alleged violation of Article 1 of Protocol No. 1. Hence, it exhausted the available domestic remedies in respect of the complaint submitted to the Court.", "52. Accordingly, the Court finds that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "1. Existence of a possession within the meaning of Article 1 of Protocol No. 1", "53. The Court reiterates its established case-law whereby an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of that provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non ‑ fulfilment of the condition (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 ‑ IX; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82 and 83, ECHR 2001 ‑ VIII; and Gratzinger and Gratzingerova v. the Czech Republic ( dec .) [GC], no. 39794/98, § 69, ECHR 2002 ‑ VII ).", "54. The Court observes that in the present case the right to claim a deduction of input VAT arose for the applicant company when the VAT it had incurred on purchases exceeded the VAT it had charged on sales. In order to take advantage of its right to deduct, the applicant company fully complied with its own obligations under the VAT Act: (a) it paid the VAT on the supply on the basis of the VAT invoice issued by its supplier; (b) it entered the supply in its accounting records for the month of August 2000; and (c) it reported it in its VAT return for that period. Thus, the applicant company did everything that was within its power, under the applicable legislation, in order to attain the right to deduct the input VAT.", "55. The Court notes, however, the Government ’ s argument that this was not sufficient to create an entitlement for the applicant company to deduct the input VAT on the supply in question, because not all the conditions of section 63 of the VAT Act had been met (see paragraph 38 above). In particular, after the tax authorities conducted a cross-check of the supplier they established a reporting discrepancy which led them to conclude that no VAT had been charged on the supply in the August 2000 tax period, and they refused to recognise the applicant company ’ s right to deduct the input VAT (see paragraphs 12 and 13 above). Accordingly, the right to deduct the input VAT did not constitute an “existing possession” of the applicant company.", "56. The Court further notes the Government ’ s argument that by entering into a contractual relationship with the supplier, which inevitably had tax consequences for both parties, the applicant company had implicitly consented to a situation whereby the right to deduct the input VAT depended on the actions of the said supplier (see paragraph 39 above). The Court observes, however, that the rules governing the VAT system of taxation – including the conditions for registration, charges, recharges, exemptions, deductions and reimbursements – are exclusively set and regulated by the State. Hence, as a result of the rules imposed by the State the applicant company had limited or no choice as to whether and how it would participate in the VAT system of taxation. Likewise, in respect of the supply in question, the applicant company, as a VAT ‑ registered person, did not have a choice in respect of the applicable VAT rules. It therefore cannot be considered that by entering into a contractual relationship with its supplier it had consented to any particular VAT rules that might subsequently have had a negative effect on its tax position.", "57. In the light of the foregoing, the Court considers that, in so far as the applicant company had complied fully and in time with the VAT rules set by the State, had no means of enforcing compliance by its supplier and had no knowledge of the latter ’ s failure to do so, it could justifiably expect to be allowed to benefit from one of the principal rules of the VAT system of taxation by being allowed to deduct the input VAT it had paid to its supplier. Moreover, only once a claim for such a deduction had been made and a cross-check of the supplier had been conducted by the tax authorities could it be ascertained whether the latter had fully complied with its own VAT reporting obligations. Thus, the Court considers that the applicant company ’ s right to claim a deduction of the input VAT amounted to at least a “legitimate expectation” of obtaining effective enjoyment of a property right amounting to a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1 (see, mutatis mutandis, Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no. 222; S.A. Dangeville v. France, no. 36677/97, § 48, ECHR 2002 ‑ III; Cabinet Diot and S.A. Gras Savoye v. France, nos. 49217/99 and 49218/99, § 26, 22 July 2003; and Aon Conseil and Courtage S.A. and Christian de Clarens S.A. v. France, no. 70160/01, § 45, ECHR 2007 ‑ ... ).", "58. Separately, as a result of the authorities ’ conclusion that no VAT had been “charged” on the supply in the August 2000 tax period and of their refusal to recognise the applicant company ’ s right to deduct the input VAT, the latter was ordered to pay the VAT on the supply a second time, together with interest, to the State budget (see paragraph 14 above). In addition, the applicant company ’ s first payment of VAT on the supply, which it had made to its supplier, was purportedly no longer recognised as an expense for corporate income tax purposes. This in turn increased the applicant ’ s taxable base for the tax year in question, with the result that it had to pay higher corporate income tax than it would allegedly have paid otherwise. These amounts, which the applicant company incurred as a result of the authorities ’ refusal to allow it to deduct the input VAT, unquestionably constituted possessions within the meaning of Article 1 of Protocol No. 1.", "2. Whether there was interference and the applicable rule", "59. The Court reiterates that the authorities denied the applicant company the right to deduct the VAT it had been charged by and had paid to its supplier, because the latter had been late in complying with its VAT reporting obligations. This was in spite of the authorities ’ recognition of the fact that the applicant company had fully complied with its own VAT reporting obligations (see paragraphs 15 and 19 above). Moreover, as a result of the foregoing, the authorities ordered the applicant company to pay all the VAT due on the supply, together with interest, which in turn apparently led to the applicant company having a higher liability for corporate income tax for the tax year in question.", "60. The Court notes that the applicant company complained that it had been deprived of its possessions, a situation which fell to be examined under the second sentence of the first paragraph of Article 1 of Protocol No. 1. It is true that interference with the exercise of claims against the State may constitute such a deprivation of possessions (see Pressos Compania Naviera S.A. and Others, cited above, § 34). However, as regards the payment of a tax, a more natural approach is to examine the complaint from the angle of control of the use of property in the general interest “to secure the payment of taxes”, which falls within the rule in the second paragraph of Article 1 of Protocol No. 1 (see S.A. Dangeville, cited above, § 51, and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 79, Reports of Judgments and Decisions 1997 ‑ VII ). The Government argued in favour of this characterisation (see paragraph 35 above).", "61. The Court, however, considers that it may not be necessary to decide this issue, since the two rules are not “distinct” in the sense of being unconnected, are only concerned with particular instances of interference with the right to peaceful enjoyment of property and must, accordingly, be construed in the light of the principle enunciated in the first sentence of the first paragraph. The Court therefore takes the view that it should examine the interference in the light of the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see S.A. Dangeville, cited above, § 51).", "3. Whether the interference was justified", "62. The Court reiterates that according to its well-established case-law, an instance of interference, including one resulting from a measure to secure payment of taxes, must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, including the second paragraph: there must be a reasonable relationship of proportionality between the means employed and the aims pursued.", "63. However, in determining whether this requirement has been met, it is recognised that a Contracting State, not least when framing and implementing policies in the area of taxation, enjoys a wide margin of appreciation, and the Court will respect the legislature ’ s assessment in such matters unless it is devoid of reasonable foundation (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52; National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society, cited above, § 80; and M.A. and 34 Others v. Finland ( dec .), no. 27793/95, 10 June 2003).", "64. Accordingly, the Court cannot fail to exercise its power of review and must determine whether the requisite balance was maintained in a manner consonant with the applicant company ’ s right to “the peaceful enjoyment of [its] possessions”, within the meaning of the first sentence of Article 1 of Protocol No. 1 (see Sporrong and Lönnroth, cited above, § 69; Lithgow and Others v. the United Kingdom, 8 July 1986, §§ 121-22, Series A no. 102; and Intersplav v. Ukraine, no. 803/02, § 38, 9 January 2007 ).", "(a) The general interest", "65. The Court considers that in the present case the general interest of the community was in preserving the financial stability of the VAT system of taxation with its complex rules regarding charges, recharges, exemptions, deductions and reimbursements. Essential elements of the preservation of that stability were the attainment of full and timely discharge by all VAT ‑ registered persons of their VAT reporting and payment obligations and, ultimately, the prevention of any fraudulent abuse of the said system. In this respect, the Court accepts that attempts to abuse the VAT system of taxation need to be curbed and that it may be reasonable for domestic legislation to require special diligence by VAT ‑ registered persons in order to prevent such abuse.", "(b) Whether a fair balance was struck between the competing interests", "66. Following from the above, it is necessary to assess whether the means employed by the State to preserve the financial stability of the VAT system of taxation and to curb any fraudulent abuse of the system amounted to proportionate interference with the applicant company ’ s right to peaceful enjoyment of its “possessions”.", "67. The Court notes once again that the applicant company fully complied with its VAT reporting obligations. In addition, the Court notes that the applicant company ’ s supplier also eventually complied with its VAT reporting obligations, but with a two-month delay. As a result, the supplier either paid the VAT into the State budget or deducted the amount of input VAT it had paid to its own supplier and paid the balance of the VAT to the State budget. Thus, the VAT due on the chain of supplies in question was eventually paid to the State.", "68. In view of the above, by 31 January 2001, when the tax authorities refused the applicant company ’ s right to deduct the input VAT on the supply in question, it should have been apparent that there had been no negative effect on the State budget. On the contrary, in the end the State budget in fact received two payments of VAT for the same supply – one from the supplier who had received payment from the applicant company and one from the applicant company itself when it was ordered to pay the VAT together with interest. Accordingly, the refusal to allow the applicant company to deduct the input VAT does not seem, in itself, to be justified by the need to secure payment of the taxes, all of which had been paid, or at least reported, by the supplier by that time, albeit belatedly. The Court notes in this respect the rigid interpretation of the provision on which the authorities relied in refusing the applicant company ’ s right to deduct the input VAT and the absence of any assessment of the overall effect on the State budget of the supplier ’ s belated compliance with its obligations.", "69. Separately, the Court notes that the applicant company had absolutely no power to monitor, control or secure compliance by its supplier with its VAT reporting, filing and payment obligations. Accordingly, the Court finds that the applicant company was placed in a disadvantaged position by having no certainty as to whether, in spite of its own full compliance, it would be able to deduct the input VAT it had paid to its supplier, since the recognition or otherwise of the right to deduct was also dependent on the tax authorities ’ assessment as to whether the latter had discharged its VAT reporting obligations in timely fashion.", "70. Lastly, as regards efforts to curb fraudulent abuse of the VAT system of taxation, the Court accepts that when Contracting States possess information of such abuse by a specific individual or entity, they may take appropriate measures to prevent, stop or punish it. However, it considers that if the national authorities, in the absence of any indication of direct involvement by an individual or entity in fraudulent abuse of a VAT chain of supply, or knowledge thereof, nevertheless penalise the fully compliant recipient of a VAT-taxable supply for the actions or inactions of a supplier over which it has no control and in relation to which it has no means of monitoring or securing compliance, they are going beyond what is reasonable and are upsetting the fair balance that must be maintained between the demands of the general interest of the community and the requirements of the protection of the right of property (see, mutatis mutandis, Intersplav, cited above, § 38).", "4. Conclusion", "71. Considering the timely and full discharge by the applicant company of its VAT reporting obligations, its inability to secure compliance by its supplier with its VAT reporting obligations and the fact that there was no fraud in relation to the VAT system of which the applicant company had knowledge or the means to obtain such knowledge, the Court finds that the latter should not have been required to bear the full consequences of its supplier ’ s failure to discharge its VAT reporting obligations in timely fashion, by being refused the right to deduct the input VAT and, as a result, being ordered to pay the VAT a second time, plus interest. The Court considers that this amounted to an excessive individual burden on the applicant company which upset the fair balance that must be maintained between the demands of the general interest of the community and the requirements of the protection of the right of property.", "There has accordingly been a violation of Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "72. The applicant company alleged a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. It argued that the domestic VAT legislation was discriminatory because it had deprived the applicant company of its possession with the sole aim of securing payment of the VAT due by another company. It also considered this to be discriminatory because it provided for different degrees of protection for State and private property. The applicant company further alleged that its supplier had been treated differently, since the tax authorities had recognised its right to deduct the VAT it had paid in respect of the supply, while denying that right to the applicant company.", "Article 14 provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "73. The Government contested the arguments of the applicant company and claimed that the relevant VAT regulations were clear, concise and applied in the same manner to all recipients of VAT-taxable supplies. The Government also noted that the applicant company and its supplier had different roles and occupied different levels in the VAT chain of supply. Accordingly, any difference in their treatment was justified on that basis and could not be construed as discriminatory.", "74. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "75. However, having regard to its finding relating to Article 1 of Protocol No. 1 (see paragraph 71 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 14 of the Convention (see, mutatis mutandis, S.A. Dangeville, cited above, § 66).", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "76. The applicant company complained under Article 13, taken in conjunction with Article 14 and Article 1 of Protocol No. 1, that it lacked effective domestic remedies for its Convention complaints and that the domestic courts had not addressed its arguments concerning alleged violations of the Convention.", "Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "77. The Court notes that the applicant company had the right of appeal against the tax assessment, of which it made use. In the course of these proceedings it submitted and argued its Convention complaints before the domestic courts, which examined them, albeit finding against the applicant company. Accordingly, no issue arises under this provision.", "It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "78. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "79. The applicant company claimed 3,810.24 Bulgarian levs (BGN) (1,953 euros (EUR)) in respect of pecuniary damage. The amount claimed comprised the value of the input VAT, in the amount of BGN 3,610 (EUR 1,851), and the interest charged to the applicant company by the tax authorities ( BGN 200.24 (EUR 102), see paragraph 13 above).", "80. The applicant company also claimed EUR 3,000 in respect of non ‑ pecuniary damage stemming, in particular, from the frustration, insecurity and uncertainty endured by its executive director.", "81. The Government did not comment.", "82. In view of the violation it has found of Article 1 of Protocol No. 1, the Court considers that, as regards pecuniary damage, the most suitable form of reparation would be to award the value of the input VAT (EUR 1,851) that the applicant company was ordered to pay a second time, plus the interest that was charged on the aforesaid amount (EUR 102) (see S.A. Dangeville, cited above, § 70). Thus, the Court awards the sum of EUR 1,953 to the applicant company for pecuniary damage.", "83. The Court further considers that while the applicant company may have sustained non-pecuniary damage, the present judgment provides sufficient compensation for it (ibid.).", "B. Costs and expenses", "84. The applicant company claimed BGN 546.61 (EUR 280) in respect of the costs and expenses incurred in the proceedings before the domestic courts. The amount claimed comprised the court fee paid for challenging the decision of the Regional Tax Directorate (BGN 50 (EUR 26)), the court fee paid for appealing against the judgment of the Plovdiv Regional Court (BGN 28 (EUR 14)), its lawyer ’ s fees before the domestic courts (BGN 200 (EUR 102)), and the costs and expenses awarded to the tax authorities (BGN 268.61 (EUR 138)). In support of its claim, the applicant company furnished a decision of 16 January 2001 of the Plovdiv Regional Court awarding BGN 268.61 (EUR 137) in costs and expenses to the tax authorities, a legal-fees agreement with its lawyer and receipts for payment of court fees.", "85. The applicant company claimed a further EUR 2,097.80 in respect of the costs and expenses incurred in the proceedings before the Court for fifty-two hours ’ legal work by its lawyer at an hourly rate of EUR 70 and for postal, photocopying and office supply expenses (EUR 27). The applicant company furnished a legal-fees agreement, an approved time sheet and postal receipts in support of its claim. It requested that the costs and expenses incurred for the proceedings before the Court be paid directly to its lawyer, Mr M. Ekimdjiev, with the exception of the first BGN 500 (EUR 256.41), which it had paid as advance payment.", "86. The Government did not comment.", "87. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award in full the sums incurred for costs and expenses, which total EUR 2,377.80, of which EUR 1,841.39 is to be paid directly to the applicant company ’ s lawyer, Mr M. Ekimdjiev.", "C. Default interest", "88. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant, OAO Neftyanaya Kompaniya YUKOS, was a publicly-traded private open joint-stock company incorporated under the laws of Russia. It was registered in Nefteyugansk, the Khanty-Mansi Autonomous Region, and at the relevant time was managed by its subsidiary, OOO “YUKOS” Moskva, registered in Moscow.", "7. The applicant was a holding company established by the Russian Government in 1993 to own and control a number of stand-alone entities specialised in oil production. The company remained fully State-owned until 1995-1996 when, through a series of tenders and auctions, it was privatised.", "A. Proceedings in respect of the applicant company’s tax liability for the year 2000", "1. Tax assessment 2000", "(a) Original tax inspection", "8. Between 13 November 2002 and 4 March 2003 the Tax Inspectorate of the town of Nefteyugansk (“the Tax Office”) conducted a tax inspection of the applicant company.", "9. As a result of the inspection, on 28 April 2003 the Tax Office drew up a report indicating a number of relatively minor errors in the company’s tax returns and served it on the company.", "10. Following the company’s objections, on 9 June 2003 the Tax Office adopted a decision in which it found the company liable for having filed incomplete returns in respect of certain taxes.", "11. The decision of the Tax Office was accepted and complied with by the company on 7 July 2003.", "(b) Additional tax inspection", "12. On 8 December 2003 the Tax Ministry (“the Ministry”), acting as a reviewing body within the meaning of section 87 (3) of the Tax Code, carried out an additional tax inspection of the applicant company.", "13. On 29 December 2003 the Ministry issued a report indicating that the applicant company had a large tax liability for the year 2000. The detailed report came to over 70 pages and had 284 supporting documents in annex. The report was served on the applicant company on the same date.", "14. The Ministry established that in 2000 the applicant company had carried out its activities through a network of 22 trading companies registered in low-tax areas of Russia (“the Republic of Mordoviya, the town of Sarov in the Nizhniy Novgorod Region, the Republic of Kalmykiya, the town of Trekhgornyy in the Chelyabinsk Region, the town of Lesnoy in the Sverdlovsk Region and the Evenk Autonomous District”). For all legal purposes, most of these entities were set up as entirely independent from the applicant, i.e. as belonging and being controlled by third persons, although their sole activity consisted of commissioning the applicant company to buy crude oil on their behalf from the company’s own oil-producing subsidiaries and either putting it up for sale on the domestic market or abroad, or first handing it over to the company’s own oil-processing plants and then selling it. There were no real cash transactions between the applicant company, its oil-processing and oil-producing subsidiaries and the trading entities, and the company’s own promissory notes and mutual offsetting were used instead. All the money thus accumulated from sales was then transferred unilaterally to the “Fund for Financial Support of the Production Development of OAO Neftyanaya Kompaniya YUKOS”, a commercial entity founded, owned and run by the applicant company. Since at all relevant times the applicant company took part in all of the transactions of the trading companies, but acted as the companies’ agent and never as an owner of the goods produced and processed by its own subsidiaries and since the compensation paid by the trading entities for its services was negligible, the applicant company’s real turnover was never reflected in any tax documents and, consequently, in its tax returns. In addition, most of the trading companies were in fact sham entities, as they were neither present nor operated in the place of their registration. In addition, they had no assets and no employees of their own.", "15. The Ministry found it established, among other things, that:", "(a) the actual movement of the traded oil was from the applicant company’s production sites to its own processing or storage facilities;", "(b) the applicant company acted as an exporter of goods for the purpose of customs clearance, even though the goods had formally been owned and sold by sham companies;", "(c) through the use of various techniques, the applicant company indirectly established and, at all relevant times de facto, controlled and owned the sham entities;", "(d) all accounting operations of the companies were carried out by the same two entities, OOO “YUKOS” FBC and OOO “YUKOS” Invest, both dependant on or belonging to the applicant company;", "(e) the network of sham companies was officially managed by OOO “YUKOS” RM, all official correspondence, including tax documents, being sent from the postal address of OOO “YUKOS” Moskva, the applicant company’s managing subsidiary;", "(f) the sham companies and the applicant company’s subsidiaries entered into transactions with lowered prices for the purpose of reducing the taxable base of their operations;", "(g) all revenues perceived by the sham companies were thereafter unilaterally transferred to the applicant company;", "(h) statements by the owners and directors of the trading entities, who confessed that they had signed documents that they had been required to sign by the officials of the applicant company, and had never conducted any independent activity on behalf of their companies, were true;", "(i) and, lastly, that the sham companies received tax benefits unlawfully.", "16. Having regard to all this, the Ministry decided that the activities of the sham companies served the purpose of screening the real business activity of the applicant company, that the transactions of these companies were sham and that it had been the applicant company, and not the sham entities, which conducted the transactions and became the owner of the traded goods. In view of the above, and also since neither the sham entities nor the applicant company qualified for the tax exemptions in question, the report concluded that the company, having acted in bad faith, had failed properly to reflect these transactions in its tax declarations, thus avoiding the payment of VAT, motorway tax, corporate property tax, tax for improvement of the housing stock and socio-cultural facilities, tax in respect of sales of fuels and lubricants and profit tax.", "17. The report also noted specifically that the tax authorities had requested the applicant company to facilitate reciprocal tax inspections of several of its important subsidiaries. Five of the eleven subsidiary companies refused to comply, four failed to answer, whilst two entities filed incomplete documents. It also specified that during the on-site inspection the applicant company failed to provide the documents requested by the Ministry concerning the transportation of oil.", "18. The report referred, inter alia, to Articles 7 (3), 38, 39 (1) and 41 of the Tax Code, section 3 of Law no. 1992-1 of the Russian Federation (RF) of 6 December 1991 “On Value-Added Tax”, sections 4 and 5 (2) of RF Law no. 1759-1 of 18 October 1991 “On motorway funds in the Russian Federation”, section 21 (“Ch”) of RF Law no. 2118-1 of 27 December 1991 “On the basics of the tax system”, Article 209 (1-2) of the Civil Code, section 2 of RF Law no. 2030-1 of 13 December 1991 “On corporate property tax”, section 2 (1-2) of RF Law no. 2116-1 of 27 December 1991 “On corporate profit tax”, Decision no. 138-O of the Constitutional Court of Russia of 25 July 2001 and Article 56 of the Tax Code.", "19. On 12 January 2004 the applicant company filed its detailed thirty-page objections to the report. The company admitted that for a very short period of time it had partly owned three out of the twenty-two organisations mentioned in the report, but denied its involvement in the ownership and management of the remaining nineteen companies. They maintained this position about their lack of involvement in the companies in question throughout the proceedings.", "20. During a meeting between the representatives of the Ministry and the company on 27 January 2004, the applicant company’s counsel were given an opportunity to state orally their arguments against the report.", "21. Having considered the company’s objections, on 14 April 2004 the Ministry adopted a decision establishing that the applicant company had a large outstanding tax liability for the year 2000. As the applicant company had failed properly to declare the above-mentioned operations in its tax declarations and to pay the corresponding taxes, in accordance with Article 122 (3) of the Tax Code the Ministry found that the company had underreported its tax liability for 2000 and ordered it to pay 47,989,241,953 Russian roubles (“RUB”) (approximately 1,394,748,234 euros, (“EUR”) ) in tax arrears, RUB 32,190,599,501.40 (approximately EUR 935,580,142) in default interest and RUB 19,195,696,780 as a 40% penalty (approximately EUR 557,899,293), totalling RUB 99,375,538,234.40 (approximately EUR 2,888,227,669). The arguments contained in the decision were identical to those of the report of 29 December 2003. In addition, the decision responded in detail to each of the counter-arguments advanced by the company in its objections of 12 January 2004.", "22. The decision was served on the applicant company on 15 April 2004.", "23. The company was given until 16 April 2004 to pay voluntarily the amounts due.", "24. The applicant company alleged that it had requested the Ministry to clarify the report of 29 December 2003 and that the Ministry had failed to respond to this request.", "(c) Institution of proceedings by the Ministry", "25. Under a rule which made it unnecessary to wait until the end of the grace period if there was evidence that the dispute between the tax authority and the taxpayer was insoluble, the Ministry did not wait until 16 April 2004.", "26. On 14 April 2004 it applied to the Moscow City Commercial Court (“the City Court”) and requested the court to attach the applicant company’s assets as a security for the claim.", "27. By decision of 15 April 2004 the City Court initiated proceedings and prohibited the applicant company from disposing of some of its assets pending the outcome of litigation. The injunction did not concern goods produced by the company and related cash transactions.", "28. By the same decision the court fixed the date of the preliminary hearing for 7 May 2004 and invited the applicant company to respond to the Ministry’s claims.", "29. On 23 April 2004 the applicant company filed a motion in which it argued that the City Court had no territorial jurisdiction over the company’s legal headquarters and requested that the case be referred to a court in Nefteyugansk, where it was registered.", "30. On 6 May 2004 the Ministry filed a motion inviting the court to call the applicant company’s managing subsidiary OOO “YUKOS” Moskva as a co-defendant in the case.", "(d) Hearing of 7 May 2004", "31. At the hearing the City Court examined and dismissed the applicant company’s motion of 23 April 2004. Having regard to the fact that the applicant company was operated by its own subsidiary OOO “YUKOS” Moskva, registered and located in Moscow, the court established that the applicant company’s real headquarters were in Moscow and not in Nefteyugansk. In view of the above, the court concluded that it had jurisdiction to deal with the case.", "32. On 17 May 2004 the applicant company appealed against this decision. The appeal was examined and dismissed by the Appeals Division of the Moscow City Commercial Court (“the Appeal Court”) on 3 June 2004.", "33. The City Court also examined and granted the Ministry’s motion of 6 May 2004. The court ordered OOO “YUKOS” Moskva to join the proceedings as a co-defendant and adjourned the hearing until 14 May 2004.", "34. At the hearing of 7 May 2004 the applicant company lodged with the City Court a separate action against the tax assessment of 14 April 2004, seeking to have the assessment decision declared unlawful. The applicant company’s brief came to 42 pages and had 22 supporting documents in annex. This action was examined separately and dismissed as unsubstantiated by the City Court on 27 August 2004. The judgment of 27 August 2004 was upheld on appeal on 23 November 2004. On 30 December 2005 the Circuit Court upheld the decisions of the lower courts.", "(e) Hearing of 14 May 2004", "35. In the meantime the tax assessment case continued. On 14 May 2004 the City Court rejected the applicant company’s request to adjourn the proceedings, having found that the applicant company’s counterclaim did not require such adjournment of the proceedings concerning the Ministry’s action.", "36. OOO “YUKOS” Moskva also requested that the hearing be adjourned as, it claimed, it was not ready to participate in the proceedings.", "37. This request was rejected by the court as unfounded on the same date.", "38. At the hearing the respondent companies also requested the City Court to vary their procedural status to that of interested parties.", "39. The court rejected this request and, on the applicant company’s motion of 15 April 2004, ordered the Ministry to disclose its evidence. The company’s motion contained a lengthy list of specific documents which, it alleged, should have been in the possession of the Ministry in support of its tax claims.", "40. The court then decided that the merits of the case would be heard on 21 May 2004.", "41. On 17 May 2004 the Ministry invited the applicant company to examine the evidence in the case file at its premises. Two company lawyers went to the Ministry on 18 May and four lawyers went on 19 May 2004.", "42. According to the applicant company, the supporting material underlying the case was first provided to the company on 17 May 2004, when the Ministry filed approximately 24,000 pages of documents. On 18 May 2004 the Ministry allegedly disclosed approximately a further 45,000 pages, and a further 2,000 pages on the eve of the hearing before the City Court, that is, on 20 May 2004.", "43. Relying on a record dated 18 May 2004 [1], drawn up and signed by S. Pepelyaev and E. Aleynikova (Ministry representative A. Bondarev allegedly refused to sign it), the applicant company submitted that the documents in question had been presented in an indiscriminate fashion, in unpaginated and unsorted piles placed in nineteen plastic crates (ten of which contained six thousand pages each, with nine others containing some four thousand pages each). All of the documents were allegedly crammed in a room measuring three to four square metres, with two chairs and a desk. No toilet facilities or means of refreshment were provided.", "44. According to the Government, the documents in question (42,269 pages - and not 45,000 pages as claimed by the applicant- filed on 18 May 2004, and a further 1,292 - and not 2,000 pages as claimed by the applicant company, filed on 20 May 2004) were well-known to the applicant company; moreover, it had already possessed these accounting and legal documents prior to the beginning of the proceedings. The documents allegedly reflected the relations between the applicant company and its network of sham entities, and the entirety of the management and accounting activities of these entities had been conducted by the applicant company from the premises of its executive body OOO Yukos-Moskva, located in Moscow. All of the documents were itemised in the Ministry’s document dated 17 May 2004 and filed in execution of the court’s order to disclose the evidence.", "45. The Government also submitted that the applicant company’s lawyers could have studied the evidence both in court and at the Ministry’s premises throughout May, June and July 2004.", "(f) First-instance judgment", "46. The hearings on the merits of the case commenced on 21 May and lasted until 26 May 2004. It appears that the applicant company requested the court repeatedly to adjourn the proceedings, relying, among other things, on the lack of sufficient time to study the case file.", "47. The Government submitted that the first day of the hearings, 21 May 2004, was devoted to hearing and resolving various motions brought by the applicant company and OOO Yukos-Moskva. On 24 May 2004, after hearing further motions by OOO Yukos-Moskva, the court proceeded to the evidence phase of the trial. The Tax Ministry then explained the evidence that it had submitted to the court. During this phase of the trial, which continued on 25 May 2004, the applicant company’s representatives were able to ask questions, and the defendants made various motions. According to the Government, where the court found that the applicant company had not had an opportunity to review a particular document that the Ministry wished to refer to, the court refused to allow the document to be entered in the record. On 26 May 2004 the applicant company was afforded an opportunity to explain its evidence and to submit additional evidence. The applicant company chose instead to address questions to the Ministry. The applicant company concluded the first-instance hearing of the case with over three hours of pleadings, whilst the Ministry limited its pleadings to brief references to its own tax inspection report, the decision dated 14 April 2004 and the statement of claim.", "48. On 26 May 2004, at the end of the hearings, the City Court gave its judgment in which, for the most part, it reached the same findings and came to the same conclusions as in the Ministry’s decision of 14 April 2004. Having confirmed the factual findings of the decision of 14 April 2004 in respect of the relations and transactions between the sham companies and the applicant company with reference to sundry pieces of evidence, including the statements by the nominal owners of the trading companies, acknowledging to the true nature of their relations with the applicant company, the court then reasoned as follows:", "“... Under section 3 of RF Law no. 1992-1 of 6 December 1991 ‘On value-added tax’, part 2 of section 5 and section 4 of RF Law no. 1759-1 of 18 October 1991 ‘On motorway funds in the Russian Federation’, subpart ‘ch’ of section 21 of RF Law no. 2118-1 of 27 December 1991 ‘On the basics of the tax system’, the sale of goods (works and services) gives rise to an obligation to pay VAT, motorway users’ tax, tax on the sale of oil and oil products and tax for the maintenance of the housing stock and socio-cultural facilities.", "Under part 1 of Article 38 of the Tax Code, objects of taxation may consist of the sale of goods (works and services), assets, profit, value of sold goods (works and services) or other objects having value, quantity or physical characteristics on the presence of which the tax legislation bases the obligation to pay tax.", "Under part 1 of Article 39 of the Tax Code, sales are defined as the transfer of property rights in respect of goods. Under subpart 1 and 2 of Article 209 of the Civil Code (taking into account Article 11 of the Tax Code) the owner of goods is the person who has the rights of ownership, use and disposal of his property, that is, the person who is entitled to carry out at his own discretion in respect of this property any actions which are not against the law and other legal acts and do not breach the rights and protected interests of other persons ...", "The court established that the owner of the oil sold under contracts concluded with organisations registered in low-tax territories had been OAO Yukos. The respondents’ arguments about the unlawfulness of the use of the notion of de facto owner ( фактический собственник ) on the basis that, according to Article 10 (3) and Article 8 (1) part 3 of the Civil Code ... there existed a presumption of good faith on the part of parties involved in civil-law transactions and that therefore the persons indicated as owners in the respective contracts should be regarded as the owners, are baseless, because the above-mentioned organisations never acquired any rights of ownership, use and disposal in respect of oil and oil products ( поскольку прав владения, пользования и распоряжения нефтью и нефтепродуктами у данных организаций не возникало ).", "OAO NK Yukos was therefore under an obligation to pay [the taxes], and this obligation has not been complied with in good time.", "Article 41 of the Tax Code establishes that profit is an economic gain in monetary form or in kind, which is taken into account if it is possible to evaluate it and in so far as it can be assessed. Under subparts 1 and 2 of section 2 of RF Law no. 2116-1 of 27 December 1991 ‘On profit tax of enterprises and organisations’ which was then in force, the object of taxation is the gross profit of the enterprise, decreased (or increased) in accordance with the provisions of the present section. The gross profit is the total of revenues (receipts) from the sale of products (works and services), main assets (including plots of land), other property belonging to the enterprise and the profit derived from operations other than sales, less the sum of expenses in respect of these operations. Since it follows from the case file that the economic profit from the sale of oil and oil products was perceived by OAO NK Yukos, it was incumbent on [the applicant company] to comply with the obligation to pay profit tax.", "Section 2 of RF Law no. 2030-1 of 13 December 1991 ‘On corporate property tax’ taxes the main assets, non-material assets, reserves and receipts which are indicated on the taxpayer’s balance sheet. It follows that the obligation to pay property tax was incumbent on the person who was legally responsible for reflecting the main assets, non-material assets, reserves and receipts on its balance sheet. Since it follows from the materials of the case that OAO NK Yukos was under such an obligation, this taxpayer was also under an obligation to pay property tax.", "The court does not accept the respondent’s arguments that the tax authorities lacked the power to levy taxes from OAO NK Yukos in respect of the sums ... perceived by other organisations. The power of the tax authorities to bring proceedings in courts to ensure the payment of taxes to the budget in cases of bad-faith taxpayers is confirmed by decision no. 138-O of the Constitutional Court of the Russian Federation, dated 25 July 2001. At the same time the bad faith of taxpayer OAO NK Yukos and the fact that the proceeds from transactions in oil and oil products were remitted to it is confirmed by the materials of the case file.", "The court has also established that the use of tax benefits by organisations which were dependent on OAO NK Yukos and participated in the tax-evasion scheme set up by that company was unlawful.", "Pursuant to Article 56 of the Tax Code, tax benefits are recognised as preferences provided for in the tax legislation for certain groups of taxpayers in comparison with other taxpayers, including the possibility of not paying a tax or of paying it at a lower rate.", "The court believes that tax payers must use their right to such benefits in good faith.", "Meanwhile, it follows from the materials of the case that the taxpayers [concerned] used their right in bad faith.", "The entities registered on the territory of the Republic of Mordoviya (OOO Yu-Mordoviya ..., ZAO Yukos-M ..., OAO Alta-Treyd ..., OOO Ratmir ..., OOO Mars XXII ...) applied benefits governed by Law of the Republic of Mordoviya no. 9-Z of 9 March 1999 ‘On conditions for the efficient use of the socio-economic potential of the Republic of Mordoviya’, which sets out a special taxation procedure for entities, for the purpose of creating beneficial conditions for attracting capital to the territory of the Republic of Mordoviya, developing the securities market and creating additional jobs. Under section 2 of that law, this special taxation procedure applies in respect of entities (including foreign entities operating through permanent representative offices established in the territory of the Republic of Mordoviya), established after the entry into force of the law (with the exception of entities conducting leasing activities, banks and other credit institutions) and whose business meets one of the following conditions: export operations, with the resulting quarterly earnings totalling at least 15% of the whole of the entity’s earnings; wholesale trading of combustibles and lubricants and other kinds of hydrocarbons with the resulting quarterly earning totalling at least 70% of the whole of the entity’s earnings; and other conditions enumerated in that law. Pursuant to sections 3 and 4 of the Law, the Government of the Republic of Mordoviya passed resolutions on the application of the special taxation procedure in respect of the mentioned entities and, consequently, on the application of the following tax rates: at the rate of 0% in respect of profit tax in so far as it is credited to the republican and local budgets of the Republic of Mordoviya; at the rate of 0% on motorway users’ tax in so far as it is credited to the Territorial Road Fund of the Republic of Mordoviya; and at the rate of 0% on corporate property tax. Moreover, the above-mentioned entities were exempted by local government resolutions from payment of tax for the maintenance of the housing stock and socio-cultural facilities.", "However, the special taxation procedure is provided for [by this law] for the purposes of creating favourable conditions in order to attract capital to the territory of the Republic of Mordoviya, develop the securities market and create additional jobs. The entities which used those benefits did not actually carry out their activities on the territory of this subject of the Russian Federation, did not attract capital and did not facilitate the strengthening of the Republic’s socio-economic potential, but, on the contrary, inflicted material damage through non-payment of taxes to the budget of the Republic, the local budget and the federal budget. Thus, the use of the tax benefits in respect of these entities was not aimed at improving the economy of the Republic of Mordoviya but pursued the aim of evading taxes on the production, refining and sales operations in respect of oil and oil products by OAO NK Yukos and is, as a consequence, unlawful.", "The entity registered on the territory of the Republic of Kalmykiya (OOO Sibirskaya Transportnaya Kompaniya ...) did not pay profit tax, property tax, motorway users’ tax, tax on the acquisition of vehicles and other taxes, under Law no. 12 ‑ P-3 of the Republic of Kalmykiya of 12 March 1999 ‘On tax benefits to enterprises investing in the economy of the Republic of Kalmykiya’, which establishes advantages in respect of taxes and duties for the ... taxpayers that invest in the economy of the Republic of Kalmykiya and are registered as such enterprises with the Ministry of Investment Policy of the Republic of Kalmykiya. Moreover, the entity in question was exempt from the payment of local taxes and ... of profit tax to the consolidated budget.", "At the same time, it follows from the presumption of good faith on the part of taxpayers (Decisions no. 138-O of the Constitutional Court of 25 July 2001, no. 4-O of 10 January 2002 and no. 108-O of 14 May 2002, Rulings of the Presidium of the Supreme Commercial Court no. 9408/00 dated 18 September 2001, no. 7374/01 of 18 June 2002, no. 6294/01 of 5 November 2002 and no. 11259/02 of 17 December 2002 and letter no. С5-5/уп-342 of the Deputy President of the Supreme Commercial Court of 17 April 2002) that, for the use of tax advantages to become lawful, the amount of advantages provided and the sum of investments made by the entity should be commensurate. Since the amounts of benefits declared for tax purposes by the above-mentioned entities and the sums of investment made are obviously not commensurate, application of the advantages is unlawful. The application of tax advantages by the given entity is not aimed at improving the economy of the Republic of Kalmykiya but pursues the aim of tax evasion by OAO NK Yukos in respect of the operations of production, refining and sales of oil and oil products and, consequently, is unlawful.", "The entity registered in the closed administrative territorial formation (‘ZATO’) town of Sarov in the Nizhniy Novgorod Region (OOO Yuksar ...) concluded a tax agreement on the provision of tax concessions with the Sarov municipal administration. The granting of additional tax advantages on the territory of the Sarov ZATO (Federal Nuclear Centre) in 2000 was regulated by the norms of Articles 21 and 56 of the Tax Code, section 58 of Law no. 227-FZ of 31 December 1999 ‘On the federal budget for the year 2000’, section 5 of Law no. 3297-1 ‘On closed administrative territorial formations’ of 14 July 1992, Item 2 of Paragraph 30 of Decree no. 222 of the Russian Government of 13 March 2000 ‘On measures for implementation of the Federal Law ‘On the Federal Budget for 2000’ and Regulations ‘On the investment zone of the town of Sarov’, approved by a Resolution of the Sarov Duma on 30 December 1999. According to the tax agreement, the Sarov administration confers advantages in respect of taxes payable into the Sarov budget to the entity in question in the form of a reduction in the share of taxes and other compulsory payments to the budget, up to 25% of the sums due in VAT, property tax, tax on the sale of fuel and lubricants, motorway users’ tax, tax on vehicle owners, tax on the acquisition of vehicles, profit tax, tax on operations with securities and excise duties; in exchange, the entity undertakes to participate in investment projects (programmes) implemented in the Sarov investment zone or with its participation, aimed at raising additional budget receipts and solving the problems of Sarov’s socio-economic development by transferring quarterly at least 1% of the sum of the tax advantages.", "At the same time, according to Paragraph 1 of section 5 of the Federal Law no. 3297-1 ‘On closed administrative territorial formations’ of 17 July 1992, additional benefits on taxes and duties are granted by the appropriate local government authorities to entities registered as taxpayers with the authorities of the closed administrative territorial formations in compliance with the above-mentioned law. Entities possessing at least 90% of their capital assets and conducting at least 70% of their activities on the territories of the closed administrative territorial formations (including the requirement that at least 70% of the average number of employees on the payroll must be made up of persons who permanently reside on the territory of the formation in question and that at least 70% of the labour remuneration fund must be paid to employees who permanently reside on the territory of the formation in question) enjoy the right to obtain the benefits in question. Given that OOO Yuksar did not actually carry out any activity on the territory of Sarov, was not actually present on the territory of Sarov and that there were no assets and production facilities necessary for the procurement and storage of oil on the territory of Sarov, Nizhniy Novgorod Region, the given entity applied the tax advantages unlawfully.", "Thus, the use of tax advantages by the given entity is not aimed at improving the economy of the Sarov ZATO but pursued the aimed of tax evasion by OAO NK Yukos in respect of its obligation to pay taxes on production and refining operations and the sale of oil and oil products and is, consequently, unlawful.", "Entities registered in the Trekhgornyy ZATO in the Chelyabinsk Region (OOO Kverkus ..., OOO Muskron ..., OOO Nortex ..., OOO Greis ... and OOO Virtus ...) concluded tax agreements with the administration of the town of Trekhgornyy, according to which entities were granted advantages in respect of profit tax, tax for the maintenance of the housing stock and socio-cultural facilities, property tax, land tax, tax on the sale of fuel and lubricants, motorway users’ tax, tax on vehicle users, and tax on the acquisition of vehicles, provided that the entities remitted the sum of 5% of the total amount of tax advantages conferred, for implementation of the town’s socio-economic programmes, to the Trekhgornyy administration... Reasoning from the contents and meaning of the tax agreements, it follows that their purpose was implementation of the particularly important socio-economic task of developing the educational, medical and housing spheres in the Trekhgornyy ZATO. At the same time, the sums which were transferred to the budget by the taxpayers in question were many times lower than the sums of the declared tax advantages (the sum of investments is around 0.006% of the sum of the advantages for each taxpayer). Thus, the investments made by the taxpayers did not influence the development of Trekhgornyy’s economy. On the contrary, since the above-mentioned organisations did not in fact carry out any activities, were never located on the territory of Trekhgornyy, had no assets and none of the production facilities necessary to buy and store oil on the territory of Trekhgornyy, the application of tax advantages by the above-mentioned organisations is contrary to part 1 of section 5 of RF Law no. 3297-1 of 17 July 1992 ‘On closed administrative territorial formations’.", "The organisations registered in the Lesnoy ZATO in the Sverdlovsk Region (OOO Mitra ..., OOO Vald-oyl ..., OOO Bizness-oyl ...) concluded tax agreements on the granting of a targeted tax concession under which organisations were granted the concession in respect of profit tax, land tax, tax on the sales of fuel and lubricants, motorway users’ tax, vehicle users’ tax, tax on the acquisition of vehicles, tax for the maintenance of the housing stock and socio-cultural facilities and property tax, whilst the organisations [in question] were under an obligation to transfer to ... the Lesnoy municipal administration sums amounting to 5% of the sums of the granted tax concessions, but no less than 6,000 roubles quarterly, for implementation of the town’s socio-economic programmes. [However], the amounts received from the taxpayers are many times lower than the totals of the declared tax advantages. Accordingly, the investments made by the taxpayers did not influence the development of the economy of the town of Lesnoy because the above-mentioned organisations never carried out any activities on the territory of Lesnoy, were never in fact located on the territory of Lesnoy and had no assets and none of the production facilities required to sell and store oil on the territory of Lesnoy, [and thus] the application of the tax advantages in respect of the above-mentioned organisations is contrary to part 1 of section 5 of RF Law no. 3297-1 of 17 July 1992 ‘On closed administrative territorial formations’.", "The organisation registered in the Evenk Autonomous District (OOO Petroleum-Treiding) without in fact carrying out any activity on the territory of the district in question and without in fact being located on the territory of the Evenk Autonomous District, abused its right granted by Law no. 108 of the Evenk Autonomous District of 24 September 1998 ‘On specific features of the tax system in the Evenk Autonomous District’. The mentioned organisation was registered in the given district solely for the purpose of acquiring the right to the tax concession that could be granted in the Evenk Autonomous District. The use of the tax benefits by the organisation in question is not aimed at strengthening of economy of the Evenk Autonomous District, but is instead aimed at tax evasion by OAO NK Yukos in respect of extraction and processing transactions and the sale of oil and oil products and is thus unlawful.", "Thus, the use of tax concessions by the above-mentioned organisations is not aimed at strengthening the economy of the regions in which they were registered but is aimed at evading the taxes due in respect of the operations of extraction and processing transactions and the sale of oil and oil products by OAO NK Yukos and is thus unlawful. ...”", "49. The first-instance judgment also responded to the applicant company’s submissions. As regards the argument that the Ministry’s calculations were erroneous in that they led to double taxation and the failure to take account of the right to a refund of VAT for export operations, the court noted that, contrary to the applicant company’s allegations, both the revenues and expenses of the sham entities had been taken into account by the Ministry so as to avoid double taxation. In addition, under Law no. 1992-1 of 6 December 1991 “On value-added tax”, in order to claim a refund of the VAT paid during export operations a taxpayer had to justify the claim in accordance with a special procedure and the applicant company had failed to apply for a refund either in 2000 or at any later date. As to the argument that the Ministry’s claim was time-barred, the court refuted it with reference to Article 113 of the Tax Code and Decision no. 138-O of the Constitutional Court of 21 July 2001. The court held that the rules on limitation periods were inapplicable in the case at issue as the applicant company had acted in bad faith. In response to the company’s argument that the interdependency within the meaning of Article 20 of the Tax Code was only relevant for the purposes of price correction under Article 40 of the Code, the court observed that the interdependency of the sham companies and the applicant company was one of the circumstances on the basis of which the tax authorities had proved that the tax offence had been committed by the applicant company in bad faith.", "50. Accordingly, by the judgment of 26 May 2004 the court upheld the decision of 14 April 2004, albeit slightly reducing the payable amounts by reference to the Ministry’s failure to prove the relations of the applicant company with one of the entities mentioned in the decision of 14 April 2004. The court ordered the applicant company to pay RUB 47,989,073,311 (approximately EUR 1,375,080,541) in taxes, RUB 32,190,430,314 (approximately EUR 922,385,687) in default interest and RUB 19,195,606,923 (approximately EUR 550,031,575) in penalties, totalling RUB 99,375,110,548 (approximately EUR 2,847,497,802) and ordered its managing subsidiary OOO “YUKOS” Moskva to comply with this decision. The judgment could be appealed against by the parties within a thirty-day time-limit.", "51. At the hearings of 21 to 26 May 2004 the applicant company and its managing subsidiary were represented by eight counsel. The reasoned copy of the judgment of 26 May 2004 was produced and became available to the parties on 28 May 2004.", "(g) Appeal proceedings", "52. On 1 June 2004 OOO “YUKOS” Moskva filed an appeal against the judgment of 26 May 2004.", "53. The Ministry appealed against the judgment on 2 June 2004.", "54. On 4 June 2004 the Appeal Court listed the appeals of OOO “YUKOS” Moskva and the Ministry to be heard on 18 June 2004.", "55. On 17 June 2004 the applicant company filed its appeal against the judgment of 26 May 2004. The brief came to 115 pages and contained 41 documents in annex. The company complained, in particular, that the time for filing an appeal had been unlawfully abridged, in breach of its rights to fair and adversarial proceedings, that the first-instance judgment was ungrounded and unlawful, that the evidence in the case was unlawful, that the first-instance court had erred in interpretation and application of the domestic law, in that it had lacked legal authority to “assign” the tax liabilities of one company to another, and that the court’s interpretation of the legislation on tax concessions had been erroneous. The company also argued that the lower court had wrongly assessed the evidence in the case and had come to erroneous factual conclusions in respect of the relationships between the applicant company and the sham companies, that in any event some of the operations of the sham companies had been unrelated to the alleged tax evasion and that the respective sums should not be “assigned” to the applicant company, and also that the case should have been tried in the town of Nefteyugansk, where the company was registered.", "56. The Government submitted that the applicant company attempted to delay the examination of the case by dispatching the appeal brief to an erroneous address. According to the applicant, the above allegation was unsubstantiated.", "57. The appeal hearing in the case lasted from 18 to 29 June 2004.", "58. At the beginning of the hearing on 18 June 2004 the applicant company requested the Appeal Court to adjourn the proceedings. The company considered that the hearing had been fixed for too early a date, before the expiry of the statutory time-limit for lodging appeals.", "59. The court refused this request as unfounded.", "60. At the hearings of 21 and 28 June 2004 the applicant company filed four supplements to its appeal. The company and its managing subsidiary were represented by ten counsel.", "61. Under Article 268 of the Code of Commercial Court Procedure the court fully re-examined the case presented by the Ministry rather than simply reviewing the first-instance judgment.", "62. At the end of the hearing of 29 June 2004 the court delivered its judgment, in which it reached largely similar findings and came to the same conclusions as the first-instance judgment. The court dismissed the company’s appeals as unfounded, but decided to alter the first-instance judgment in part. In particular, it declared the Ministry’s claims in respect of VAT partly unfounded, reduced the amount of the VAT arrears by RUB 22,939,931 (approximately EUR 649,336) and quashed the corresponding penalty of RUB 10,334,226 (approximately EUR 292,520).", "63. The court judgment, in its relevant parts, read as follows:", "“... The parties declared under part 5 of Article 268 of the Code of Commercial Courts Procedure that there was a need to verify the lawfulness and grounds of the first-instance judgment and to hold a fresh hearing of the case in full.", "The Appeal Court has checked the lawfulness and grounds of the first-instance judgment pursuant to ... Article 268 ... of the Code of Commercial Court Procedure. ...", "The Appeal Court does not accept the arguments of the respondents concerning erroneous interpretation and application of the norms of the substantive law by the first-instance court and concerning the factual incorrectness of that court’s conclusions.", "[The court went on to review and confirm all factual findings made by the Ministry and the first-instance court in respect of the tax-evasion scheme set up by the applicant company.]", "... Bearing in mind the above-mentioned circumstances, the Appeal Court has established that the de facto owner of the oil was [the applicant company]. The acquisition of the oil and its transfer and subsequent sale was in reality carried out by [the applicant company] as the owner, which is proved by the control of [the applicant company] over all operations, and the actual movement of the oil from the extracting entities to processing entities or oil facilities controlled by [the applicant company], which is proved by the materials of the case.", "...", "The [applicant company’s] ownership of the oil is confirmed by the interdependence of the contracting parties, by the control that [the applicant company] had over them, by the registration of the contracting parties on territories with a low-tax regime, by the lack of activities by these entities at their place of registration, by the fact that the accounting operations for these entities was carried out by OOO Yukos-Invest or OOO Yukos-FBC, companies officially dependant on [the applicant company], by the fact that the accounting for these entities was filed from the addresses of [the applicant company] and OOO Yukos-Moskva, by the fact that their bank accounts were opened in the same banks owned by [the applicant company], by the presence and character of commercial relations between [the applicant company] and the dependent entities, and by the use of promissory notes and mutual offsetting between them.", "...", "Under the legislation then in force, such as section 3 of RF Law no. 1992-1 of 6 December 1991 ‘On value-added tax’, part 2 of Section 5 and section 4 of RF Law no. 1759-1 of 18 October 1991 ‘On motorway funds in the Russian Federation’, subpart ‘ch’ of section 21 of RF Law no. 2118-1 of 27 December 1991 ‘On the basics of the tax system’, the sale of goods (works and services) gives rise to an obligation to pay VAT, motorway users’ tax, tax on the sale of oil and oil products and the tax for the maintenance of the housing stock and socio-cultural facilities.", "Under part 1 of Article 39 of the Tax Code, sales are defined as the transfer of property rights in respect of goods. Under subpart 1 and 2 of Article 209 of the Civil Code (taking into account Article 11 of the Tax Code) the owner of goods is the person who has the rights of ownership, use and disposal of his property, that is, the person who is entitled to carry out at his own discretion in respect of this property any actions which are not against the law and other legal acts and do not breach the rights and protected interests of other persons...", "It follows that the person who in fact has the rights of ownership, use and disposal of the property and who, in view of these rights, exercises in reality and at his discretion in respect of his property any actions, including transfers of property to other persons ... is the owner of this property.", "Therefore, OAO NK Yukos, being the de facto owner of the oil, was under an obligation to pay [the taxes], which has not been complied with in good time.", "As was previously established, Article 41 of the Tax Code sets out that profit is an economic gain in monetary form or in kind, which is taken into account if it is possible to evaluate it and in so far as it can be assessed, and determined in accordance with the chapters ‘Taxes in respect of the profits of natural persons’, ‘Taxes in respect of the profits of organisations’, and ‘Taxes in respect of the capital profits’ of the Tax Code of the Russian Federation. Under subparts 1 and 2 of section 2 of RF Law no. 2116-1 of 27 December 1991 ‘On profit tax of enterprises and organisations’ which was then in force, the object of taxation is the gross profit of the enterprise, decreased (or increased) in accordance with the provisions of the present section. The gross profit is the total of revenues (receipts) from the sale of products (works and services), main assets (including land parcels), other property of the enterprise and the profit derived from operations other than sales, less the sum of expenses in respect of these operations. The court established that the economic profit from the sale of oil and oil products was perceived by OAO NK Yukos, [and] it was incumbent on [the applicant company] to comply with the obligation to pay profit tax.", "Section 2 of RF Law no. 2030-1 of 13 December 1991 ‘On corporate property tax’ taxes the main assets, non-material assets, reserves and receipts which are indicated on the taxpayer’s balance sheet. It follows that the obligation to pay property tax was incumbent on the person who was legally responsible for reflecting the main assets, non-material assets, reserves and receipts on its balance sheet. Since it follows from the materials of the on-site tax inspection that OAO NK Yukos was under such an obligation, this taxpayer was also under an obligation to pay property tax.", "The Constitutional Court of the RF in its decision of 25 July 2001 no. 138-0 stated that it followed from the meaning of the norm contained in part 7 of Article 3 of the Tax Code of the RF that there is a presumption of good faith on the part of taxpayers. In order to refute this and establish the taxpayer’s bad faith, the tax authorities have the right – in order to strike a balance between public and private interests – to carry out necessary checks and bring subsequent claims in commercial courts in order to guarantee the payment of taxes to the budget.", "In view of the above, the tax authorities ... have the right to carry out checks with a view to establishing the de facto owner of sold property and the de facto recipient of the economic profit, and also with a view to establishing [the owner’s] bad faith as expressed in use of the tax-evasion scheme. At the same time, the tax authorities establish the de facto owner with regard to the actual relations between the parties to the transaction, irrespective of whether the persons were declared as owners of the property in the documents submitted during the tax inspections.", "The circumstances indicating that OAO NK Yukos had in fact the rights of ownership, use and disposal of its oil and oil products and, at its discretion, carried out in this connection any actions, including the sale, transfer for processing, etc., through specially registered organisations dependant on OAO NK Yukos is confirmed by the materials of the case.", "...", "In view of the above, the court does not accept the respondent’s arguments about the unlawfulness and the lack of factual basis of the decision to levy additional taxes from OAO NK Yukos as the de facto owner of the oil and oil products.", "The respondent’s argument that OAO NK Yukos had not perceived any economic profit from the application of benefits by the entities mentioned in the decision of the Ministry contradicts the materials of the case. The court had established that OAO NK Yukos received economic profit in the form of unilateral transfers of cash. OAO NK Yukos set up the Fund for Financial Support of the Production Development of OAO NK Yukos [to this end].", "...", "The argument of OAO NK Yukos that the Ministry is levying taxes in respect of transactions “within the same owner” is unsupported, since the calculations of additional taxes (except for the property tax in respect of which [this is inapplicable]) also take into account the expenses connected with the acquisition of the oil and oil products.", "The court does not accept the respondent’s arguments that the tax authorities lacked the power to levy taxes from OAO NK Yukos in respect of the sums ... perceived by other organisations. The power of the tax authorities to bring proceedings in courts to ensure the payment of taxes to the budget in cases of bad-faith taxpayers is confirmed by decision no. 138-O of the Constitutional Court of the Russian Federation, dated 25 July 2001. At the same time the bad faith of taxpayer OAO NK Yukos and the fact that the proceeds from transactions involving oil and oil products belonged to it is confirmed by the materials of the case file.", "The circumstances of the ... acquisition and sale of the oil and oil products, taken in their entirety, as established by the Appeal Court, indicate the presence of bad faith in the actions of OAO NK Yukos, which was expressed in intentional actions aimed at tax evasion by the use of unlawful schemes. In accordance with part 2 of Article 110 of the Tax Code of the RF the tax offence is considered intentional if the person who has committed it knew about the unlawful character of the actions (inactions), wished them or knowingly accepted the possibility of the harmful consequences of such actions (inactions).", "Since OAO NK Yukos intentionally committed actions aimed at tax evasion, and its officers were aware of the unlawful character of such actions, wished or knowingly accepted the possibility of harmful consequences due to such actions, OAO NK Yukos must be held liable under part 3 of Article 122 of the RF Tax Code for the non-payment or incomplete payment of taxes due to the lowering of the taxable base or incorrect calculation of the tax or other unlawful actions (inactions) committed intentionally, in the form of a fine equivalent to 40% of the unpaid taxes.", "...", "Having re-examined the case and verified the lawfulness and grounds of the first-instance judgment in full, having examined the evidence and having heard the arguments of the parties, the Appeal Court has come to the conclusion that the decision of the Ministry dated 14 April 2004 ... is in compliance with the Tax Code as well as with Federal laws and other laws on taxes...", "The claims for payment of taxes, interest surcharges and fines made in the decision of the Ministry of 14 April 2004 ... are grounded, lawful and confirmed by the primary documents of the materials of the inspection submitted in justification to the court. ...”", "64. The appeal judgment also responded to the applicant company’s other arguments. As regards the alleged breaches of procedure and the lack of time for the preparation of the defence at first instance, the court noted that it had examined this allegation and that there had been no violation of procedure at first instance and that, in any event, the applicant company had had ample opportunities to study the evidence relied on by the Ministry both at the Ministry’s premises and in court. As regards the argument that the evidence used by the Ministry was inadmissible, the court noted that the materials of the case had been collected in full compliance with the requirements of the domestic legislation. The court also agreed with the first-instance court that the three-year statutory time-limit had been inapplicable in the applicant company’s case since the company had been acting in bad faith.", "65. The first-instance judgment, as upheld on appeal, came into force on 29 June 2004.", "66. The applicant company had two months from the date of the delivery of the appeal judgment to challenge it in third-instance cassation proceedings ( кассация ).", "(h) Cassation proceedings", "67. On 7 July 2004 the applicant company filed a cassation appeal against the judgments of 26 May and of 29 June 2004 with the Federal Commercial Court of the Moscow Circuit (“the Circuit Court”). The applicant company’s brief came to 77 pages and had 6 documents in annex. The arguments in the brief were largely similar to those raised by the applicant company on appeal, namely that the judgment was unlawful and unfounded, that the entities mentioned in the report ought to have taken part in the proceedings, that the trial court had had insufficient evidence to conclude that the applicant company and other entities were interrelated, that the evidence used by the trial court was unlawful, that the trial proceedings had not been adversarial and that the principle of equality of arms had been breached. In addition, the company alleged that it had had insufficient time to study the evidence and had been unable to contest the evidence in the case, that the Ministry had unlawfully applied to a court before the applicant company had had an opportunity to comply voluntarily with the decision of 14 April 2004, that the entities mentioned in the report had in fact been eligible for the tax exemptions, that the rules governing tax exemption had been wrongly interpreted, that the Ministry’s claims had been time-barred, that the company had had insufficient time for the preparation of the appeal, and that the case ought to have been examined by a court in Nefteyugansk.", "68. A copy of the reasoned version of the appeal judgment of 29 June 2004 was attached to the brief.", "69. It appears that on an unspecified date the Ministry also challenged the judgments of 26 May and 29 June 2004.", "70. On 17 September 2004 the Circuit Court examined the cassation appeals and upheld in substance the judgments of 26 May and 29 June 2004.", "71. In respect of the applicant company’s allegations of unfairness in the appeal proceedings, the court noted that both defendant companies had had ample opportunities to avail themselves of their right to bring appeals within the statutory time-limit, as the appeal decision was not taken until 29 June 2004, which was more than thirty days after the date of delivery of the judgment of 26 May 2004. Furthermore, the court observed that the evidence presented by the Ministry and examined by the lower courts was lawful and admissible, and that it had been fully available to the defendant companies before the commencement of the trial hearings. The court also noted that on 14 May 2004 the City Court specifically ordered the Ministry to disclose all the evidence in the case, that this order had been complied with by the Ministry and that, despite the fact that the evidence was voluminous, the applicant company had had sufficient time to examine and challenge it repeatedly throughout the proceedings between May and July 2004.", "72. As regards the applicant company’s complaint that the Ministry had brought proceedings before the expiry of the time-limit for voluntary compliance with the decision of 14 April 2004, the court noted that the Ministry and lower courts had acted in compliance with Article 213 of the Code of Commercial Court Procedure, as there were irreconcilable differences between the parties and, throughout the proceedings, the applicant company had had insufficient funds to satisfy the Ministry’s claims.", "73. In respect of the applicant company’s argument that the case should have been tried by a court in Nefteyugansk, the court noted that the City Court had had jurisdiction over the case under Article 54 of the Civil Code and decision no. 6/8 of the Plenary Session of the Supreme Court and Supreme Commercial Court of 1 July 1996.", "74. On the merits of the case, the court noted that the lower courts had reached reasoned conclusions that the applicant company was the effective owner of all goods traded by the sham companies registered in low-tax areas, that the transactions of these entities were in fact those of the applicant company, that neither the applicant company nor the sham entities were eligible for the tax exemptions and that the applicant company had perceived the entirety of the resulting profits. The court upheld the lower courts’ conclusion that, acting in bad faith, the applicant company had failed properly to declare its transactions for the year 2000 and to pay corresponding taxes, including VAT, profit tax, motorway users’ tax, property tax, the tax for the maintenance of the housing stock and socio-cultural facilities and tax on the sale of fuel and lubricants.", "75. The court noted some arithmetical mistakes in the appeal judgment of 29 June 2004, increasing the penalty by RUB 1,158,254.40 (approximately EUR 32,613) and reducing the default interest by RUB 22,939,931 (approximately EUR 645,917) accordingly.", "(i) Constitutional review", "76. On an unspecified date the applicant company lodged a complaint against the domestic courts’ decisions in its case with the Constitutional Court. It specifically raised the question of the lower courts’ refusal to apply the statutory time-limit set out in Article 113 of the Tax Code.", "77. By decision of 18 January 2005 the Constitutional Court declared the complaint inadmissible for lack of jurisdiction. The court noted that the applicant company did not in fact challenge the constitutionality of Article 113 of the Code but rather insisted that this provision was constitutional and should be applied in its case. Therefore, the applicant company was not complaining about the breach of its rights by the above-mentioned provision and, accordingly, the court had no competence to examine the applicant company’s claims.", "(j) Supervisory review", "78. Simultaneously to bringing the cassation appeal, on 7 July 2004 the applicant company also challenged the judgments of 26 May and 29 June 2004 by way of supervisory review before the Supreme Commercial Court of Russia.", "79. On 31 December 2004 the applicant company’s case was accepted for examination by the Supreme Commercial Court.", "80. By a decision of 13 January 2005 the Supreme Commercial Court, sitting as a bench of three judges, decided to relinquish jurisdiction in favour of the Presidium of the Supreme Commercial Court. Addressing one of the applicant company’s arguments, the court noted that the lower courts had decided that the three-year statutory time-bar was inapplicable in the case at issue since the applicant company had been acting in bad faith. It further noted that such an interpretation of the rules governing the time-limits was not in line with the existing legislation and case-law and that therefore the issue should be resolved by the Presidium of the Supreme Commercial Court.", "81. On 19 April 2005 the Presidium of the Supreme Commercial Court referred the above-mentioned issue to the Constitutional Court and adjourned the examination of the applicant company’s supervisory review appeal pending a ruling by the Constitutional Court.", "82. By a decision of 14 July 2005 the Constitutional Court decided that it was competent to examine the question of the compatibility of Article 113 of the Tax Code with the Constitution, having cited the application of an individual, one G. A. Polyakova, and the referral by the Supreme Commercial Court. At the same time, it noted specifically that it had no competence to decide individual cases and its ruling would only deal with the points of law in abstracto.", "83. It appears that the legal issues raised by G. A. Polyakova and the applicant company were different. G. A. Polyakova was dissatisfied with the established court practice which required the tax authorities, rather than the courts, to hold a taxpayer liable for a tax offence within the three-year time-limit set out in Article 113 of the Code. On the facts of her individual case, the decision of the tax authorities was taken on time, whilst later the final decision by the courts was taken outside the specified time-limit. As regards the applicant company, it raised the same point which had been previously declared inadmissible by the Constitutional Court in its decision dated 18 January 2005, namely the refusal of the courts in its case to follow the established practice and to declare the claims of the authorities time-barred, as they related to the year 2000 and were set out in the decision to hold the applicant liable for a tax offence on 14 April 2004, that is, outside the three-year time-limit laid down by Article 113 of the Code.", "84. As a result of its examination, the Constitutional Court upheld Article 113 of the Tax Code as compatible with the Constitution, having ruled that the legal provisions on the statutory time-limits ought to be applied in all cases without exception. The court made an abstract review of the provision in question and mentioned the “principles of justice”, “legal equality” and “proportionality” in giving its own “constitutional interpretation” of Article 113. The court noted that the rule set out in Article 113 of the Code was too strict and failed to take into account various relevant circumstances and the actions of taxpayers, including those aimed at hindering tax control and delaying the proceedings. It further ruled that:", "“... the provisions of Article 113 of the Tax Code of the Russian Federation in their constitutional and legal sense and in the present legal context do not exclude [the possibility] that, where the taxpayer impedes tax supervision and the conduct of tax inspections, the court may excuse the tax authorities’ failure to bring the proceedings in time ...”", "“... In their constitutional and legal sense in the context of the present legal regulation... [these provisions] mean that the running of the statutory time-bar in respect of a person prosecuted for tax offences stops on the date of the production of the tax audit report in which the supported facts of the tax offences revealed during the inspection are mentioned and in which there are reference to the relevant articles of the Tax Code or - in cases where there was no need to produce such a report - from the moment on which the respective decision of the tax authority, holding a taxpayer liable for a tax offence, was taken. ...”", "85. Three out of the nineteen judges filed separate opinions in this case.", "86. Judge V. G. Yaroslavtsev disagreed with the majority, having noted that the Constitutional Court acted ultra vires and openly breached the principle of lawfulness by creating an exception from the rule set out in Article 113 where there had previously been none.", "87. Judge G. A. Gadzhiev concurred with the conclusions of the majority but would have preferred to quash, rather than uphold, Article 113 of the Tax Code as unconstitutional and breaching the principle of equality.", "88. Judge A. L. Kononov dissented from the majority ruling, having considered that the Constitutional Court clearly had no competence to decide the matter and that indeed there had been no constitutional issue to resolve as, among other things, there had been no prior difficulties in application of Article 113 of the Tax Code and the contents of this provision had been quite clear. He also criticised the “inexplicable” way in which the Constitutional Court had first rejected the application by the applicant company and had then decided to examine the matter again. Judge Kononov further noted that the decision of the Constitutional Court was vague, unclear and generally questionable.", "89. The case was then returned to the Presidium of the Supreme Commercial Court.", "90. On 4 October 2005 the Presidium of the Supreme Commercial Court examined and dismissed the applicant company’s appeal. In respect of the company’s argument that the Ministry’s claims were time-barred, the court noted that during the tax proceedings the company had been actively impeding the tax inspections. In view of this and given the Constitutional Court’s ruling, the court concluded that since the Ministry’s tax audit report in the applicant’s case had been completed on 29 December 2003, that is, within the statutory three-year time-limit as interpreted in the Constitutional Court’s decision of 14 July 2005, the case was not time-barred.", "2. Enforcement measures relating to the 2000 Tax Assessment", "91. Simultaneously with the determination of the case before the courts in respect of the applicant company’s tax liability for the year 2000, the parties also took part in various enforcement proceedings.", "(a) Attachment of the applicant’s property", "(i) The City Court’s decision of 15 April 2004", "92. On 15 April 2004 the City Court accepted for consideration the Ministry’s action in respect of the year 2000 and attached certain of the applicant company’s assets, excluding goods produced by the company and related cash transactions, as a security for the claims. The court also issued writs of execution in this respect (see paragraph 27). This decision was upheld by the Appeal Court on 2 July 2004.", "(ii) Enforcement of attachment by the bailiffs", "93. By a decision of 16 April 2004 the bailiffs instituted enforcement proceedings in connection with the attachment.", "94. On the same day they executed the attachment order by informing the applicant company and the holder of its corporate register, ZAO ‘M-Reestr’, of the decision of 15 April 2004.", "95. According to the Government, the applicant company impeded the execution of the writs issued by the court by hiding its corporate register from the bailiffs. In particular, they alleged that a few hours prior to the bailiffs’ visit, the applicant company had cancelled its contracts with ZAO ‘M ‑ Reestr’. The register was then dispatched by ordinary post to a location in Russia so that, over the next weeks, it could not be physically found and the execution writs could not be enforced.", "(iii) The company’s offer of 22 April 2004", "96. On 22 April 2004 the applicant company filed its first court request to have the attachment of the entirety of its assets replaced by the attachment of shares belonging to it in OAO Sibirskaya neftyanaya kompaniya (“the Sibneft company”, a major Russian oil company which had attempted unsuccessfully to merge with the applicant company in 2003), which were allegedly worth three times as much as the then liability. The applicant company also alleged that the attachment order adversely affected its proper functioning and invited the authorities to opt for less intrusive measures, insisting on the lack of any risk of asset-stripping.", "97. By a decision of 23 April 2004 the City Court examined and dismissed this request as unfounded. The court found no evidence that the interim measures affected any of the company’s production activities.", "98. On 17 May 2004 the applicant company appealed against the decision of 23 April 2004.", "99. The outcome of court proceedings in respect of the applicant company’s appeal of 17 May 2004 is unclear.", "100. The Government provided the following background information in connection with the company’s offer of shares in Sibneft. The applicant company had attempted to merge with Sibneft in May-September 2003. As a result of the initial stages of the merger, the applicant company acquired 92% of Sibneft: 20% of these shares were bought for cash, whilst 57.5% were exchanged for 17.2% of the applicant company’s newly issued shares and 14.5% were swapped for 8.8% of the applicant company’s existing shares. In November 2003 it was announced publicly that, at the request of the former Sibneft owners, the parties had decided not to go ahead with the merger. In February 2004 the owners of Sibneft sued the applicant company in this connection, demanding cancellation of the operation whereby the applicant had issued 17.2% of shares. Among other things, on 14 February 2004 they obtained an attachment order in respect of the Sibneft shares remaining in the possession of the applicant company pending the proceedings. On 1 March 2004 the City Court decided to cancel the issue of 17.2% shares by the applicant company. The Government submitted that it was clear from the above-mentioned account that on 22 April 2004, the date on which the applicant company first made the offer of Sibneft shares, the owners of Sibneft already anticipated suing the applicant company again, this time demanding back the 57.5% of Sibneft shares swapped for the cancelled 17.2% of the applicant company’s shares. At the same time, the fate of the remaining issues of Sibneft shares still in the possession of the applicant company was also uncertain.", "(iv) The applicant company’s request for an injunction against the attachment", "101. On 23 April 2004 the City Court also examined the applicant company’s request for an injunction order against the attachment and rejected it. The court noted that the attachment did not interfere with the company’s day-to-day operations and it was a reasonable measure aimed at securing the Ministry’s claims.", "102. On 2 July 2004 the Appeal Court rejected the company’s appeal and upheld the judgment.", "103. It does not appear that the applicant company brought cassation proceedings in this respect.", "(b) Enforcement of the Tax Ministry’s decision of 14 April 2004", "104. In the meantime, on 7 May 2004 the applicant company applied to the City Court with a separate action against the tax assessment of 14 April 2004, seeking its invalidation (see paragraph 34 and 35 above). The company also requested interim measures in this connection.", "105. Following the applicant company’s request for interim measures, on 19 May 2004 the City Court stayed the enforcement of the Tax Ministry’s decision of 14 April 2004, having noted that the Ministry could have enforced the decision in the part relating to taxes and default interests even without waiting for the outcome of the Ministry’s claim (Article 46 of the Tax Code [2] ). The court decided, however, that this might be detrimental to the applicant company and stayed the decision of 14 April 2004 accordingly.", "106. On 27 May 2004 the applicant company made a public announcement that:", "“... it [was] under an injunction prohibiting it from selling any of its property, including the shares owned by the company. Until the injunction is lifted, the Company is unable to sell its assets in order to obtain liquid funds. Consequently, if the Tax Ministry’s efforts continue, we are very likely to enter a state of bankruptcy before the end of 2004”.", "107. It appears that the City Court’s decision of 19 May 2004 to stay the enforcement was appealed against by the Ministry. Having examined the Ministry’s arguments at the hearing of 23 June 2004, the Appeal Court quashed the first-instance decision of 19 May 2004 as unlawful and rejected the applicant company’s request for interim measures as unfounded.", "108. It does not appear that the applicant company appealed against this decision before the Circuit Court.", "(c) Enforcement of the judgments concerning the 2000 Tax Assessment", "(i) First-instance judgment of 26 May 2004 and the appeal decision of 29 June 2004", "109. As mentioned above (paragraphs 46-66), by a judgment of 26 May 2004 the City Court found in favour of the Tax Ministry, upholding the Tax Assessment of 14 April 2004. The Tax Assessment was upheld by the Appeal Court with minor reductions and became enforceable on 29 June 2004.", "110. On 30 June 2004 the Appeal Court issued the writ of enforcement in this respect. The applicant company was to pay RUB 47,958,133,380 (approximately EUR 1,358,914,565) in reassessed taxes, RUB 32,190,430,314 (approximately EUR 912,129,842) in interest surcharges and RUB 19,185,272,697 (approximately EUR 543,623,045) in penalties.", "(ii) Enforcement proceedings in respect of the writ of 30 June 2004", "111. On 30 June 2004 the bailiffs instituted enforcement proceedings based on the above judgment and gave the applicant company five days to pay. The applicant company was informed that it would be liable to pay enforcement fees of 7%, totalling RUB 6,953,375,547 (approximately EUR 197,026,920), in the event of failure to honour the debt voluntarily. Upon the Ministry’s application, the bailiffs issued sixteen orders freezing the cash held by the applicant company in its Russian bank accounts. The orders did not concern cash added to the accounts after 30 June 2004.", "(iii) The applicant company’s challenge to the decision of 30 June 2004", "112. On 7 July 2004 the applicant company challenged the bailiffs’ decision of 30 June 2004.", "113. It argued that the decision to open enforcement proceedings had been unlawful as it was in breach of the rules of bailiffs’ territorial competence as the enforcement ought to have taken place in Nefteyugansk and not in Moscow, that the five-day term for voluntary compliance with the court decisions had been too short and that the cash-freezing orders had made such compliance impossible.", "114. On 30 July 2004 the City Court examined and dismissed these claims as groundless. The court ruled that the bailiffs had acted lawfully and that the cash-freezing orders did not interfere with its ability or inability to honour its debts, as the applicant company had been free to dispose of any cash not in the frozen accounts and any cash added to those accounts after 30 June 2004.", "115. It does not appear that the company brought appeal proceedings against this judgment.", "(d) Seizure of 24 subsidiary companies and related proceedings", "116. In the meantime, on 1 July 2004 the bailiffs decided to seize 24 subsidiary companies belonging to the applicant company.", "117. The applicant appealed against the decision in court.", "118. By a first-instance judgment of 17 September 2004 the appeal was dismissed as unfounded. The judgment was produced on 20 September 2004.", "119. The applicant did not appeal against the judgment before the Appeal Court, though it did bring further appeal proceedings before the Circuit Court.", "120. On 2 February 2005 the judgment was upheld by the Circuit Court.", "(e) The applicant company’s proposal of 5 July 2004 and related proceedings", "121. In addition to the above attempts to stay the enforcement of the judgments concerning the 2000 Tax Assessment, the applicant company, by a letter dated 2 July and filed on 5 July 2004, suggested to the bailiffs for the second time that it repay its debts by using 34.5% of Sibneft stock allegedly worth over 4 billion United States dollars (“USD”, or some EUR 3.3 billion), citing its vertically integrated structure as a possible reason for seeking to find the least intrusive solution as well as the need to honour its contractual debts.", "122. The Government provided the following background information in connection with the applicant’s second offer of Sibneft shares (see paragraph 121 above). At this point, the owners of Sibneft had already obtained a court judgment in their favour by the City Court on 1 March 2004, ordering the applicant company to return the 57.5% of Sibneft shares swapped for the cancelled 17.2% of the applicant company’s shares and on 6 July 2004, that is, on the day after the applicant’s second offer, they had filed court claims demanding the return of 14.5% of the shares previously exchanged for 8.8% of the applicant company’s existing shares. In addition, by a decision of 6 July 2004 the owners of Sibneft had obtained an attachment order in respect of the Sibneft shares in question.", "123. On 14 July 2004 the applicant company filed an action against the bailiffs on account of their alleged failure to respond to the company’s offer of 5 July 2004.", "124. On 17 August 2004 the City Court dismissed this action, having noted that the failure to respond was lawful and within the scope of the bailiffs’ discretion. The court established that some of the steps undertaken by the applicant company during the unsuccessful merger with the Sibneft company had been contested in a different set of proceedings as unlawful. In addition, the applicant company’s ownership of the Sibneft shares had been contested by third parties in two different sets of proceedings. On the basis of these findings, the court concluded that the bailiff had not breached the law by ignoring the company’s offer.", "125. It does not appear that the applicant company appealed against the judgment.", "(f) Default notice of 5 July 2004", "126. On 5 July 2004 the applicant company received a default notice from syndicated lenders, a group of international banks, who had previously loaned the company USD 1 billion (EUR 821,894,430). The lenders considered that a default had occurred as a result of the recent and well-publicised events in respect of the applicant company and their actual or potential impact on the applicant company’s business and assets. The notice stated that as a result of the default notice the loans were due and payable on demand.", "(g) The company’s cassation appeal of 7 July 2004 and the motion to stay the enforcement", "127. As set out above (paragraph 67), on 7 July 2004 the applicant company filed a cassation appeal against the court judgments on the 2000 Tax Assessment and at the same time it moved to stay the enforcement proceedings. It argued that its assets were highly valuable, but that it had insufficient cash to honour the debts immediately and that the attachment of assets made any voluntary settlement impossible. The applicant company also argued that enforcement of the court judgments in the case would irreparably damage its business, since a reversal of the enforcement would be impossible.", "128. By a decision of 16 July 2004 the Appeal Court agreed to consider the cassation appeal and, having examined the motion to stay the enforcement, dismissed it as unsubstantiated and unfounded, as the circumstances referred to by the applicant company were irrelevant under the domestic law. The court noted that it would be possible to reverse the enforcement, since the plaintiff was the Treasury.", "129. This decision was upheld by the Circuit Court on 4 August 2004.", "(h) 7% enforcement fee", "130. By a decision of 9 July 2004 the bailiffs levied an enforcement fee of 7% in respect of the applicant company’s failure to comply with the execution writs of 30 June 2004 (see paragraph 110 above). The applicant company was to pay RUB 6,848,291,175.45 (approximately EUR 190,481,640)", "131. On 19 July 2004 the applicant company challenged this decision in court.", "132. By a decision of 3 August 2004 the City Court examined the applicant company’s action and quashed the decision of 9 July 2004 as disproportionate and unjustified. The court decided that the enforcement fee could only be levied if the respondent had acted in bad faith and found that the bailiffs had failed to examine this question. The court also noted that 7% was the highest possible rate and that the bailiffs’ decision failed to explain why the fee could not be lower. Among other things, the court referred to section 3 of Constitutional Court Ruling no. 13-P of 30 July 2001.", "133. Following an appeal by the Ministry, on 27 August 2004 the Appeal Court quashed the decision of 3 August 2004 as erroneous and held that the bailiffs’ actions had been lawful and justified. The court noted that the applicant company had failed to demonstrate that it had taken any steps to meet the liabilities. It further noted that the cash in the applicant company’s accounts was only frozen in certain specified amounts and that, above those amounts, the company was free to function as usual. As to the company’s proposal to offer the Sibneft shares as payment, the court noted that this could not be accepted, because the applicant company’s property rights in respect of these shares had been questioned by a third party in a parallel set of proceedings. In addition, the court noted that the applicant company had failed to use a remedy provided in Article 324 of the Commercial Procedure Code.", "134. The Circuit Court upheld the appeal decision on 6 December 2004.", "(i) Overall debt in respect of 2000", "135. Overall, in respect of 2000, the applicant company was ordered to pay RUB 99,333,836,391 (approximately EUR 2,814,667,452)", "(j) The applicant company’s proposal of 13 July 2004 and related proceedings", "136. On 13 July 2004 the applicant company again repeated its offer of 34.5% of Sibneft shares to the bailiffs. On the next day the offer was amended to include only 20% of Sibneft shares. The domestic courts at three instances analysed this offer in detail in their decisions of 6, 18 August and 25 October 2004 (see paragraphs 139-146 below).", "(k) Seizure of shares in OAO Yuganskneftegaz", "(i) Decision of 14 July 2004", "137. On 14 July 2004 the bailiffs seized the shares of OAO Yuganskneftegas, one of the applicant company’s principal production subsidiaries. The decision referred to the applicant company’s inability to meet its liabilities. The attachment did not affect the applicant company’s ability to manage OAO Yuganskneftegaz, but rather prevented the company from selling or encumbering those shares.", "(ii) The applicant company’s challenge to the decision of 14 July 2004", "138. The applicant company appealed against this decision in court. With reference to section 59 of the Enforcement Proceedings Act, it argued that the bailiffs ought firstly to claim assets which were not involved in the production process, secondly those goods and other values which were not related to the production process and, thirdly, immovable objects, raw material and other main assets relating to the production cycle. In addition, the applicant company referred to Ruling no. 4 of the Plenary Supreme Commercial Court “On certain questions arising out of seizure and enforcement actions in respect of corporate shares”, dated 3 March 1999, which suggested, in respect of those companies which had been privatised by the State as parts of bigger holding groups through the transfer of controlling blocks of shares, that the production cycle of the respective production unit should be preserved as much as possible. The company further claimed that the above ruling was applicable to the case at issue, that OAO Yuganskneftegas was a major production unit and that the bailiffs had produced no evidence that the assets and goods and other values not involved in the production process were insufficient. In addition, it reiterated its offer of the shares in Sibneft.", "(iii) First-instance proceedings", "139. On 6 August 2004 the City Court examined and allowed the applicant company’s challenge of this seizure.", "140. At the hearing the Ministry and bailiffs referred to sections 9 (5) and 51 (1-4) of the Enforcement Proceedings Act and Government Decree no. 934 “On seizure of securities” of 12 August 1998. They argued that, under the applicable domestic law, the seizure should be made first in respect of the cash-flow and then, under section 46 (5) of the Enforcement Proceedings, it would be open to the bailiffs to assess and seize the assets depending on their liquidity. They countered the applicant company’s arguments by saying that the latter’s references were invalid in that they related to the other stage of enforcement proceedings (the collection of debt and not the seizure as such). Furthermore, they argued that Ruling no. 4 of the Plenum of the Supreme Commercial Court was inapplicable since, in the case of Yuganskneftegas, the State had transferred only 38% of the shares and not a controlling block. With regard to the offer of Sibneft stock, the Ministry and bailiffs argued that the applicant company’s rights in respect of these shares had been contested in separate sets of court proceedings and it was therefore risky to accept them as a payment. Lastly, they informed the court that the applicant company had recently hidden the shareholder registers of its three major subsidiaries, OAO Yuganskneftegas, OAO Samaraneftegas and OAO Tomskneft, which, in their view, demonstrated the risk of possible asset-stripping by the applicant company.", "141. Having examined the parties’ submissions, the court upheld the applicant company’s arguments. It noted that the applicant company’s references to the applicable domestic law were correct. With regard to the non-controlling block argument, the court noted that at the time of transfer of the shares, 25% of shares were privileged and non-voting. For the remaining 75% of the voting stock, the 38% transferred by the State constituted the controlling block. As regards the offer of shares in Sibneft, the court noted that the exact quantity of the contested shares was unclear and that the bailiffs should find out the exact figures and that they should consider the uncontested shares as a possible means of partial settlement. The court concluded that the decision of 14 July 2004 was unlawful and quashed it.", "(iv) Appeal proceedings", "142. On 9 August 2004 the Ministry challenged the decision of 6 August 2004 on appeal.", "143. On 18 August 2004 the Appeal Court quashed the decision, finding that the first-instance court had erred both in law and fact. In particular, the court confirmed that it was up to the bailiffs to choose the most liquid assets and dispose of them with a view to honouring the applicant company’s huge debt. It also noted that Ruling no. 4 of the Plenary Supreme Commercial Court was inapplicable to the case in issue, as the applicant company, in the years following its privatisation, had restructured its initial shareholding in OAO Yuganskneftegaz in 1999 in such a manner as to take those shares outside the scope of the exception provided by Ruling no. 4.", "(v) Cassation proceedings", "144. Following an appeal by the applicant company, on 25 October 2004 the Circuit Court upheld the decision of 18 August 2004.", "145. The applicant company’s attempts to bring supervisory review proceedings against this decision proved unsuccessful.", "146. The respective complaint was dismissed by a decision of the Supreme Commercial Court dated 17 December 2004.", "(l) Seizure of shares of OAO Tomskneft-VNK and OAO Samaraneftegaz", "147. In addition to seizing the shares of OAO Yuganskneftegaz, on 14 July 2004 the bailiffs also seized the shares of OAO Tomskneft-VNK and OAO Samaraneftegas, the applicant company’s two other principal production units.", "148. The applicant company’s complaint against the seizure of OAO Tomskneft-VNK proved unsuccessful.", "149. The City Court dismissed its complaint as unfounded on 13 August 2004.", "150. The applicant company did not contest that judgment before the Appeal Court.", "151. On 5 November 2004 the Circuit Court dismissed the applicant company’s cassation appeal in respect of the judgment of 13 August 2004. The court noted that the seizure was intended to protect the creditor’s claims and that there was no indication that the seizure impeded the production cycle or otherwise disturbed the normal functioning of the company.", "152. The company also complained unsuccessfully about the seizure of its shares in OAO Samaraneftegaz.", "153. The City Court, acting as a first-instance court, dismissed the appeal on 2 September 2004.", "154. The applicant company failed to appeal the judgment before the Appeal Court, although though it did pursue cassation proceedings.", "155. On 18 January 2005 the Circuit Court upheld the judgment.", "(m) The applicant company’s request to the Ministry of Finance dated 16 July 2004", "156. On 16 July 2004 the applicant company wrote a letter to the Ministry of Finance, applying for respite or payment in instalments in respect of the sums due. It appears that this letter remained unanswered. The Government submitted that the Ministry of Finance had not had any authority to respond to the request, as the issue of respite and payment in instalment lay within the competence of the courts.", "157. On 12 August 2004 the City Court examined the applicant company’s request to re-pay the 2000 Tax Assessment award in instalments and rejected it as unfounded. The court noted, among other things, that the tax debt had resulted from intentional tax evasion by the applicant company and that the conduct of the debtor in court and during the enforcement proceedings demonstrated that it did not intend to pay the debts voluntarily.", "158. It does not appear that the applicant company brought any appeal proceedings in respect of this judgment.", "(n) The applicant company’s offer of 9 August 2004", "159. On 9 August 2004 the applicant company offered the bailiffs the 20% stake in Sibneft and shares in fifteen other subsidiary companies as a settlement for its debts, requesting that the bailiffs respond within one day.", "160. It appears that the bailiffs responded to the company’s offer on 9 September 2004. It does not appear that the company brought any court proceedings in respect of that response.", "(o) The Ministry’s response of 22 September 2004", "161. It appears that on 22 September 2004 the Ministry responded to four of the applicant company’s letters about the settlement of the debt, rejecting the offers.", "162. It does not appear that the company brought any separate court proceedings in this respect.", "(p) The applicant company’s announcement in respect of the shares in Sibneft", "163. On 8 October 2004 the applicant company announced that it would comply with the City Court’s judgment of 1 March 2004, which had cancelled the issue of additional shares in the applicant company, used for the purpose of acquiring Sibneft. The applicant company, acting in compliance with the court order, instructed the registrar to return its 57.5% stake in Sibneft to its former owners.", "B. Proceedings in respect of the applicant company’s tax liability for the year 2001", "1. Tax Assessment 2001", "(a) Proceedings before the Ministry", "164. On 23 March 2004 the Tax Ministry commenced tax inspection in respect of the applicant company’s activities in 2001. The inspection ended on 30 June 2004 and on 5 July 2004 the Ministry served the resultant report on the applicant company.", "165. On the basis of the above-mentioned report, by a decision of 2 September 2004 the Ministry issued a tax assessment for the year 2001 (“the 2001 Tax Assessment”), finding the company liable for having used essentially the same tax arrangement as in the previous year. The Tax Assessment 2001 relied on a similarly wide range of evidence as the Tax Assessment 2000, including the documentary evidence and detailed statements of those involved in the nominal ownership and running of the trading companies. This time the applicant company had to pay RUB 50,759,436,900 (approximately EUR 1,424,746,313) in tax arrears, RUB 28,520,204,254 (approximately EUR 800,522,195) in default interest and RUB 40,607,549,520 in penalties (approximately EUR 1,139,797,051). Since the applicant company had recently been found guilty of a similar offence, the penalty was doubled.", "(b) The applicant company’s request for a court injunction", "166. On 14 September 2004 the applicant company lodged an appeal against the decision of 2 September 2004 and requested an injunction against the immediate enforcement of this decision.", "167. On 5 October 2004 the City Court turned down the request for an injunction and on 13 October 2004 it issued execution writs in respect of the Ministry’s decision of 2 September 2004. The court referred to Information Letter no. 83 of the Supreme Commercial Court of 13 August 2004, which recommended that requests for interim measures in such situations be granted only if an applicant could demonstrate some security for a creditor’s future claims. The court noted that, in the present case, the applicant company clearly had insufficient cash to satisfy the creditor’s claims, and had failed to produce any security, and dismissed the claims accordingly.", "168. The judgment of 5 October 2004 was upheld by the Appeal Court on 3 December 2004 and by the Circuit Court on 29 March 2005.", "2. Enforcement measures relating to the 2001 Tax Assessment", "(a) Enforcement of additional taxes and interest surcharges", "169. As the 2001 Tax Assessment was similar to the 2000 Tax Assessment, the Ministry decided to enforce it directly in the part relating to additional taxes and interest surcharges, without taking the matter to the courts. The applicant company was to pay the amounts due by 4 September 2004.", "170. On 9 September 2004 the bailiffs instituted enforcement proceedings in connection with the decision of 2 September 2004. The company was to pay RUB 50,759,436,900 (approximately EUR 1,424,746,313) in tax arrears and RUB 28,520,204,254 (approximately EUR 800,522,195) in default interest.", "171. It appears that the 2001 Tax Assessment, in the part relating to additional taxes and interest surcharges, was upheld by the City Court on 11 October 2004. The judgment of 11 October 2004 was upheld on appeal on 16 February 2005. The Circuit Court upheld the decisions of the lower courts on 9 December 2005.", "172. The applicant company’s request for an injunction pending those proceedings was unsuccessful. The City Court dismissed it in its judgment of 5 October 2004. The refusal was upheld by the Appeal Court on 3 December 2004 and by the Circuit Court on 29 March 2005.", "(b) Enforcement of penalties", "173. On 3 September 2004 the Ministry applied to the City Court to recover the penalties arising from the 2001 Tax Assessment..", "174. It appears that on 11 October 2004 the action was examined and granted by the City Court. The judgment in the case was produced on 15 October 2004.", "175. According to the applicant company, its appeal against the judgment of 15 [3] October 2004 was dismissed by the Appeal Court on 18 November 2004. It appears that the Circuit Court upheld these two decisions on 15 November 2005.", "176. On 19 November 2004 the bailiffs instituted enforcement proceedings in respect of the Tax Assessment 2001 in the part relating to penalties. The company was to pay RUB 39,113,140,826 in penalties (approximately EUR 1,097,851,399) [4].", "(c) 7% enforcement fee in respect of additional taxes and interest surcharges", "177. On 20 September 2004 the bailiffs decided to impose a 7% enforcement fee in respect of the applicant company’s failure to abide by the 2001 Tax Assessment in the part relating to taxes and interest surcharges. The applicant company was to pay RUB 5,549,574,880.78 (approximately EUR 155,693,193).", "178. The resolution was served on the applicant company on 1 October 2004.", "179. On 29 October 2004 the City Court examined and dismissed the challenge to the decision of 20 September 2004 as groundless.", "180. It does appear that the company pursued appeal proceedings.", "181. On 1 December 2004 the company appealed in cassation against the judgment of 29 October 2004.", "182. The appeal was dismissed by the Circuit Court on 3 March 2005.", "(d) 7% enforcement fee in respect of penalties", "183. On 9 December 2004 the bailiff decided to impose a 7% enforcement fee in respect the applicant company’s failure to abide by the 2001 Tax Assessment in the part relating to penalties. The company was to pay a 7% enforcement fee of RUB 7,102,488,295 or approximately EUR 190,077,377.", "184. On 23 December 2004 the company challenged this decision in court.", "185. On 3 February 2005 the City Court dismissed the action.", "186. The applicant company failed to appeal the judgment of 3 February 2005.", "187. The Circuit Court upheld the judgment of 3 February 2005 on 16 June 2005.", "(e) Overall debt in respect of 2001", "188. Overall, in respect of 2001 the applicant company was ordered to pay RUB 132,539,253,849.78 (approximately EUR 3,710,836,129).", "C. Proceedings in respect of the applicant company’s tax liability for the year 2002", "1. Tax Assessment 2002", "189. On 29 October 2004 the Ministry produced an audit report in respect of the applicant company’s activities for the year 2002. The report was received by the company on 1 November 2004.", "190. On 16 November 2004 the Ministry took a decision to levy further tax liabilities, this time in respect of the year 2002 (“the 2002 Tax Assessment”). The applicant company was to pay RUB 90,286,552,485 (approximately EUR 2,425,825,387) in taxes, RUB 31,485,110,355.58 (approximately EUR 845,944,140) in default interest and RUB 72,040,907,796 (approximately EUR 1,935,600,133) in penalties.", "191. The decision established the use of the same tax-evasion scheme (in respect of profit tax, VAT, corporate property tax and motorway users’ tax) as in the decisions concerning the years 2000 and 2001. It mentioned that the company had carried out its activities through OOO Ratmir, OOO Alta-Treid, ZAO Yukos-M, OOO Yu-Mordoviya, OOO Ratibor, OOO Petroleum treyding, OOO Evoyl, OOO Fargoyl, most of which had also been used by the applicant company in previous years. The entities in question, acting in breach of Article 575 of the Civil Code, which prohibits grants and gifts between independently functioning commercial entities, had transferred the entirety of their profits unilaterally to a fund owned and controlled by the applicant company. The decision mentioned that the transfers had been wrongly reflected in the applicant company’s financial accounting and that the company had failed to explain the origin of these funds and had failed to take these sums into account for tax purposes. Accordingly, the applicant company had failed to pay taxes in respect of these amounts.", "192. The decision referred to several other mistakes in the applicant company’s tax declarations. In particular, the tax in respect of the company’s securities transactions was wrongly calculated, there were many general mistakes in the company’s financial accounting, and there were some mistakes in the company’s request for reimbursement of the VAT on export operations (e.g. on one occasion the company failed to submit the required sales contract; it also mentioned one contract but received the money on the basis of a different contract; on some occasions the company failed to submit documents proving customs clearance, indicated wrongly calculated sums, and made multiple mistakes in VAT export documents). There were further multiple mistakes in tax deductions in respect of internal VAT.", "193. The decision also established that the applicant company had used sham entities to lower its group taxes, that the entities and the company’s subsidiaries had entered into transactions with reduced prices, that on some occasions the company had declared the extracted oil as “hydrocarbon liquid” in order to lower the applicable price even further, that there were no cash transactions between the entities and subsidiaries and that the company’s own promissory notes and mutual offsetting had been used instead and that the whole set-up, which had no economic purpose other than tax evasion, had resulted in massive tax evasion by the applicant company. The decision also noted that use of tax concessions in the Republic of Mordoviya and the Evenk Autonomous District by the sham entities had been unlawful, because they had failed to qualify for the exemptions and also because they had been sham companies. The decision was detailed in respect of the composition and all the activities of the sham entities: the Ministry analysed the entirety of their activities month by month.", "194. The applicant company had until 17 November 2004 to meet the debts voluntarily.", "2. Enforcement measures relating to the 2002 Tax Assessment", "(a) Enforcement of additional taxes, interest surcharges and penalties", "195. By a decision of 18 November 2004 bailiffs proceeded to enforcement of the decision of 16 November 2004 in so far as it related to additional taxes and interest surcharges.", "196. The City Court joined the proceedings by which the applicant company tried to contest the decision of 16 November 2004 and on 23 December 2004 it examined and, in the most part, dismissed the applicant company’s appeals against the decision of 16 November 2004. The court declared the Ministry’s conclusions partly unfounded and reduced the company’s tax liability by RUB 325,628,742 (approximately EUR 8,752,543), its default interest payments by RUB 98,515,758 (approximately EUR 2,647,995) and the penalty by RUB 851,419,688 (approximately EUR 22,885,227). The court also ordered the applicant to pay the penalty in question.", "197. This decision was upheld by the Appeal Court on 5 March 2005 and the Circuit Court on 30 June 2005.", "198. On 28 December 2004 the applicant company also appealed against the Ministry’s decision in respect of the year 2002, in so far as it had ordered that the tax debts and default interest payments be collected directly.", "199. It appears that on 7 February 2005 the City Court examined and dismissed the claim as unfounded. The judgment was upheld on appeal on 4 April 2005. The Circuit Court upheld the decisions of the lower courts on 15 June 2005.", "(b) 7% enforcement fee in respect of additional taxes and interest surcharges", "200. On 9 December 2004 the bailiffs decided to impose a 7% enforcement fee in respect of the applicant company’s failure to comply voluntarily with the 2002 Tax Assessment in the part relating to additional taxes and surcharge interests.", "201. On 23 December 2004 the company appealed against this decision in court, initially claiming that the decision had been unlawful and asking to reduce the fee to 1%. The company then withdrew its claim in the part relating to the reduction of the fee.", "202. On 10 February 2005 the City Court judgment dismissed the appeal.", "203. It does not appear that the company brought any proceedings before the Appeal Court in respect of the judgment.", "204. The applicant company’s cassation appeal was examined and dismissed by the Circuit Court on 16 June 2005.", "(c) Overall debt in respect of 2002", "205. Overall in respect of the year 2002 (excluding the 7% enforcement fee), the applicant company was ordered to pay RUB 192,537,006,448.58 (approximately EUR 4,344,549,434).", "(d) Written information report communicated by ZAO PricewaterhouseCoopers Audit to the applicant company’s management in respect of the year 2002", "206. In their observations of 15 April 2005 the Government submitted a copy of a report communicated to the applicant company’s management by its auditor ZAO PricewaterhouseCoopers Audit. The applicant company did not comment on the contents of the report.", "207. In contrast to “ordinary” audit reports, which were made public, the internal information report was produced exclusively for the applicant company’s management.", "208. The report noted specifically that the applicant company’s “Fund for Financial Support of the Production Development of OAO Neftyanaya Kompaniya YUKOS” was in breach of the domestic law in that the relevant legislation disallowed unilateral transfers and gifts between commercial entities. It also noted that the applicant company’s accounting policy in respect of the operations involving promissory notes had been incompatible with the legislation in force and provided a distorted view of the company’s activities.", "209. In addition, on 15 June 2007 the applicant company’s auditor, ZAO PricewaterhouseCoopers Audit, disavowed its audit certifications in respect of the applicant company’s financial statements for the years 1995-2004 on account of the applicant company’s deliberate attempts to conceal its tax-evasion scheme, as well as its failure to disclose all relevant documents during the respective inspections conducted by the company’s auditors at the time.", "D. Proceedings in respect of the applicant company’s tax liability for the year 2003", "1. Tax Assessment 2003", "210. On 28 October 2004 the Tax Ministry commenced a tax inspection in respect of the year 2003, which resulted in an audit report that was dated 19 November 2004 and served on the applicant company on the same date.", "211. On the basis of the report, by a decision of 6 December 2004 the Ministry levied tax liabilities for the year 2003 (“the 2003 Tax Assessment”), consisting of RUB 86,228,187,852 (approximately EUR 2,327,114,103) in taxes, RUB 15,235,930,657.66 (approximately EUR 411,185,136) in default interest and RUB 68,939,326,976.40 (approximately EUR 1,860,524,778) in penalties.", "212. The decision established that the company was guilty of having evaded taxes (in particular, VAT, profit tax and advertising tax) by using the same arrangement as in previous years. The decision mentioned the following entities registered either in the Republic of Mordoviya or the Evenk Autonomous District: OOO Yu-Mordoviya, ZAO Yukos-M, OOO Alta-Treyd, OOO Ratmir, OOO Energotreyd, OOO Makro-Treyd, OOO Fargoyl, and OOO Evoyl. It was alleged that the entities were sham and that they had made unilateral transfers to the applicant company, in breach of Article 575 of the Civil Code, that the applicant company had failed to reflect the transferred amounts as its profits, to account for them and to pay taxes in this connection and that the company had used lowered prices to avoid the payment of taxes. The decision contained a detailed contract-by-contract analysis of the sham entities’ transactions.", "213. The decision also mentioned that some of the applicant company’s expenses were unjustifiably deducted from the company’s taxable income, that the company failed to account for some of its operations with promissory notes, that there were some mistakes in calculation of the VAT owed by the company and that the company had evaded payment of advertising tax in Moscow.", "214. The applicant company had one day to comply with the decision, that is, until 7 December 2004.", "2. Enforcement measures relating to the 2003 Tax Assessment", "(a) Enforcement of additional taxes, interest surcharges and penalties", "215. On 9 December 2004 the bailiffs proceeded to enforcement of the decision of 6 December 2004 in so far as it related to taxes and interest surcharges.", "216. It appears that the City Court joined the proceedings by which the applicant company tried to contest the decision of 9 December 2004 and on 28 April 2005 it examined the company’s challenge. In respect of the company’s request to recalculate automatically the export VAT on operations conducted by the sham entities in the course of these proceedings, the court noted the request was unsubstantiated and also lodged out of time. In particular, the company had failed to submit a proper claim with monthly calculations and evidence that the goods in question had indeed been exported. The court also addressed the applicant company’s argument that Article 75 (3) of the Tax Code prevented the authorities from levying the interest surcharges. It noted that the provision in question only applied to cases in which the sole reason for the taxpayer’s inability to pay tax debts was the seizure of its assets and cash funds. On the facts, the applicant company was unable to pay because it had insufficient funds and not because its assets were frozen. The court concluded that the applicant company’s argument was unfounded. The court also reduced the amount of additional taxes to be paid to RUB 86,221,835,476.37 (EUR 2,399,884,085) and the amount of fines to RUB 68,918,264,491 (EUR 1,918,259,397). The amount of interest surcharges was reduced accordingly. The exact figure of the interest surcharges to be paid by the applicant is unclear.", "217. The judgment was upheld on appeal on 16 August 2005.", "218. The applicant company appealed on cassation.", "219. On 5 December 2005 the Circuit Court upheld the decisions of the lower courts.", "220. The bailiffs instituted enforcement proceedings in respect of the payment of fines on 4 October 2005.", "(b) 7% enforcement fee", "221. On 17 March 2006 the bailiffs decided to impose a 7% enforcement fee in respect of the applicant company’s failure to comply voluntarily with the 2003 Tax Assessment. The applicant company was to pay RUB 7,102,488,296 (EUR 211,872,906) in respect of the unpaid reassessed taxes and interest surcharges and RUB 4,824,278,304 (EUR 143,912,080) in respect of the unpaid fines.", "(c) Overall debt in respect of the year 2003", "222. Overall, in respect of 2003 (excluding the 7% enforcement fee and the interest surcharges, the exact amount of which is unclear) the applicant company was ordered to pay RUB 155,140,099,967.37 (approximately EUR 4,318,143,482).", "E. Forced auctioning of OAO Yuganskneftegaz", "223. On 20 July 2004 the Ministry of Justice announced the forthcoming evaluation and sale of OAO Yuganskneftegaz as a part of its ongoing enforcement procedures.", "224. On 22 July 2004 the applicant company announced that:", "“...the company management [is] currently making every effort to raise additional funds in order to repay, as soon as possible, the tax liability and to finance current operations. However, should those efforts prove unsuccessful and Yuganskneftegaz [be] sold, in the present circumstances, the management of the Company would be compelled to announce the bankruptcy of Russia’s largest oil company”.", "1. Valuation report of 17 September 2004", "225. On 17 September 2004 the valuation commissioned by the bailiffs and the Ministry of Justice from Dresdner Kleinwort Wasserstein, the investment branch of Dresdner Bank AG (working in Russia as ZAO Dresdner bank), for the purposes of the enforcement proceedings, estimated that 100% of shares in OAO Yuganskneftegas were worth between USD 15.7 and 18.3 billion ( between EUR 15.2 and 17.7 billion ), excluding the pending and probable tax liabilities of this entity.", "226. The report evaluated 100% of the price of OAO Yuganskneftegaz as a separate entity and, having deduced its corresponding obligations, calculated the cost of its shares, on the basis of which it would be possible to calculate the price of one share in OAO Yuganskneftegaz.", "227. It was specifically mentioned in the report that the valuation was not an opinion concerning the attainable price in the event of the sale of OAO Yuganskneftegaz or any kind of recommendation concerning the starting bid of the auction in the event of the sale of Yuganskneftegaz by the Ministry of Justice or any other State institution, or any recommendation concerning particular actions to be undertaken by the Ministry of Justice with a view to levying the judicially determined or estimated amount of the applicant company’s tax debt.", "228. Among the basic risks affecting the price of OAO Yuganskneftegaz, the report mentioned the tax claims, the validity of oil extraction licences, future oil prices, export quotas etc. The report also mentioned that the price of OAO Yuganskneftegaz as a part of the applicant company could be substantially different from the price of OAO Yuganskneftegaz as a separate entity. The report also mentioned various valuations of OAO Yuganskneftegaz made by third parties, including investment institutions and banks, and ranging from USD 9 to 22 billion (between EUR 7.4 to 18.1 billion). It also mentioned that, because of the size of OAO Yuganskneftegaz, not many buyers would be financially capable of acquiring it.", "229. The valuation (between USD 15.7 and 18.3 billion or EUR 15.2 and 17.7 billion ) did not take account of already pending and probable tax claims against OAO Yuganskneftegaz. If and when lodged, these claims would “substantially influence the assessment” of the equity of OAO Yuganskneftegaz. The claims already announced (as on that date) were USD 951.3 million.", "230. In carrying out the valuation, the report used the following three methods: the method of discounted cash flows, a method based on the analysis of comparable transactions, and a method based on the analysis of comparable publicly-held companies.", "231. The report also specifically noted that:", "“...the decision concerning the starting bid of the auction is a tactical one and should strike a balance between the desire to reach the highest price on the one hand, and the need to attract the maximum number of potential buyers on the other. Because of this, the starting bid is most likely to be different from the assessment of the price.”", "2. Service of the valuation report on the applicant company on 13 October 2004", "232. A copy of the valuation report was served on the applicant company on 13 October 2004.", "233. It does not appear that the applicant company contested the report’s valuations report before the courts.", "234. On 21 October 2004 the bailiffs confirmed to the Ministry that they had collected 79,584,690,127 RUB (approximately EUR 2,183,447,331).", "3. The applicant company’s reply of 4 November 2004", "235. On 4 November 2004 the applicant company responded to the valuation report. It disagreed with the decision to evaluate and sell OAO Yuganskneftegaz, and would have preferred to sell its other assets first. The applicant company informed the bailiffs that it had already honoured a major part of the debt (apparently referring to its tax liability for the year 2000 only) and that the remaining sum was USD 2.5 billion (around EUR 2 billion). The company claimed that it would be more reasonable to lift the seizure and let it dispose of its minor assets in order to honour the remaining debt.", "236. As regards OAO Yuganskneftegas, the company referred to independent valuations by JP Morgan PLC, valuing the subsidiary at “no less than USD 14 billion (some EUR 11 billion)” and “between USD 16.1 billion (EUR 12.6 billion) and USD 22.1 billion (EUR 17.378 billion), including tax liabilities” respectively.", "237. The letter mentioned that the Ministry had brought tax claims against OAO Yuganskneftegaz totalling USD 2.903 billion.", "4. The bailiffs’ decision of 18 November 2004", "238. On 18 November 2004 the bailiffs noted that the applicant company’s debt to the Ministry on that date was RUB 204,902,386,620 (approximately EUR 5,506,781,584 or USD 7,147,250,717). Having referred to sections 4, 46 (6), 54 (2) and 88 of the Enforcement Proceedings Act, the bailiffs decided to sell 76.79 % of the shares in OAO Yuganskneftegas at an auction which would take place on 19 December 2004. The published minimum bidding price for 76.79 % of the shares in OAO Yuganskneftegas was RUB 246,753,447,303.18 (approximately USD 8.65 billion or EUR 6.63 billion).", "239. The sale was entrusted to the Russian Fund of Federal Property (“the Property Fund”), a specialised State Institution in charge of organising sales of federal property and the property of those who had debts towards the State.", "240. On the same date, the Property Fund issued a regulation setting out the parameters and rules that would govern the auction, including the number of shares to be sold (43 ordinary shares representing 76.79% of the capital of OAO Yuganskneftegaz), the starting price (RUB 248.6 billion or some USD 8.85 billion), the date and place of the auction (19 December 2004), the eligibility requirements for bidders (the auction was open to all perspective bidders, including foreign individuals and legal entities), which included a cash deposit of RUB 49.4 billion (USD 1.7 billion, or 20% of the starting price), to be paid no later than the day before the auction.", "5. Court action against the decision of 18 November 2004", "241. The decision of 18 November 2004 was challenged in court on 26 November 2004.", "242. It appears that on 3 December 2004 the City Court dismissed the appeal against the decision of 18 November 2004.", "243. On 21 January and 3 May 2005 that judgment was upheld on appeal and in cassation respectively.", "244. The applicant company argued that the valuation report had failed to give a market valuation of the asset and that the decision of 18 November 2004 failed to mention a specific price for OAO Yuganskneftegaz. In response, the courts noted that 43 ordinary and 13 privileged shares in OAO Yuganskneftegaz had been seized by the bailiffs in satisfaction of the applicant company’s liability, that the shares had been valued by ZAO Dresdner Bank and that the applicant company had been informed of all of the bailiffs’ actions in the course of the enforcement proceedings. They also noted that the seizure of shares in OAO Yuganskneftegaz had previously been declared lawful, that the applicant company had been properly notified of all of the steps taken by the bailiffs in the course of the enforcement proceedings and could bring court proceedings against them, that the valuation by ZAO Dresdner Bank had not been contested by the applicant in accordance with the special procedure provided for by the legislation in force, and that the bailiffs had properly indicated the amount of the applicant company’s debt and requested the Fund to sell the amount of shares necessary to satisfy the debt.", "6. Announcement about the sale of OAO Yuganskneftegaz", "245. In the meantime, on 19 November 2004, the Russian Gazette, an official Government newspaper, published an announcement about the sale of 76.79% of shares in OAO Yuganskneftegaz at a public auction organised by the Property Fund. The only two conditions for participating in the auction were to file an application between 19 November and 18 December 2004 and to make a deposit payment.", "246. On 10 December 2004 OOO Gazpromneft, ZAO Intercom and OAO First Venture Company filed applications with the Federal Antimonopoly Service and thus were expected to bid at the auction.", "247. The media reported that OAO Gazprom, a parent company of OOO Gazpromneft, had begun negotiating a financing arrangement with a consortium of international banks to finance its bid at the auction. It was also reported that a number of non-Russian companies, such as ENI, Chevron Texaco, China National Petroleum Corporation and E.ON, had expressed interest in participating in the auction.", "248. On 17 December 2004 the bailiffs noted that the applicant company’s consolidated debt on that date, regard being had also to the 2001 Tax Assessment, was RUB 344,222,156,424.22 (EUR 9,210,844,560.93, or USD 12,365,545,256.86).", "7. The applicant company’s application for bankruptcy in the United States of America and its request for injunctive relief", "(a) Filing of bankruptcy petition and request for injunctive relief", "249. On 14 December 2004 the applicant company filed a voluntary petition under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the Southern District of Texas, Houston Division (“the U.S. Bankruptcy Court”).", "250. Simultaneously, the applicant company filed a request for injunctive relief, pursuant to section 105 of the U.S. Bankruptcy Code in order, among other things, to enforce the automatic stay set out in section 362 (a) of the Bankruptcy Code by enjoining certain parties from participating in the Yuganskneftegaz Auction. The request was directed specifically against “... defendants the Russian Federation, OOO Gazpromneft, ZAO Intercom, OAO First Venture Company, ABN Amro, BNP Paribas, Calyon, Deutsche Bank, JP Morgan and Dresdner Kleinwort Wasserstein ...”.", "(b) Scope of automatic stay", "251. Under U.S. law, an automatic stay went into immediate effect when the applicant company filed for bankruptcy. The automatic stay protected the company’s assets by preventing the creditors from collecting claims that arose prior to the bankruptcy filing or from taking “possession” or “control” of the applicant company’s property covered under the filing.", "(c) Temporary restraining order of 16 December 2004", "252. On 16 December 2004, having examined the applicant company’s request, the U.S. Bankruptcy Court issued a temporary restraining order barring certain specific entities from taking any actions with respect to the shares in OAO Yuganskneftegaz, including participation in the auction. Among other things, Judge Letitia Z. Clark stated the following:", "“... The court is mindful of the need for deference to the judicial determination of another jurisdiction. This is ... of exceptional importance when it involves that of agencies of another sovereign state. However, in the instant case, the [applicant company] has made a showing that it needs a short additional time to hold its shareholder meeting scheduled for December 20, 2004 and may elect to file for bankruptcy under Russian law in order to proceed with a more orderly adjustment of its assets and debts in accordance with Russian law or to continue to seek international arbitration ...”.", "253. The entities mentioned in the order were (a) the three companies registered to bid at the Auction, including OOO Gazpromneft, ZAO Intercom and OAO First Venture Company, (b) six western financial institutions that had announced their intention to fund OOO Gazpromneft’s bid at the auction (ABN Amro, BNP Paribas, Calyon, Deutsche Bank, JP Morgan and Dresdner Kleinwort Wasserstein) and (c) those persons in active concert or participation with them.", "(d) Outcome of the bankruptcy proceedings in the U.S.", "254. On 24 February 2005 the U.S. Bankruptcy Court dismissed the applicant company’s petition for bankruptcy with reference to section 1112 (b) of U.S. Bankruptcy Code which gave the court discretion to dismiss a case “in the best interest of the creditors and the estate”.", "255. The court noted that most of the applicant company’s assets were oil and gas within Russia, so that the court’s ability to carry out a re-organisation without the cooperation of the Russian government was extremely limited, that the applicant company sought to substitute U.S. law in place of Russian, European Convention and/or international law, that the applicant company had commenced proceedings in other fora, including the European Court of Human Rights, and the court did not feel that it was uniquely qualified or more able that these other fora to consider the issues presented. Lastly, the court noted that the vast majority of the business and financial activities of the applicant company continued to occur in Russia and that the applicant company was one of the largest producers of petroleum products in Russia. The court held that “the sheer size of [the applicant company] and its impact on the entirety of the Russian economy weighs heavily in favour of allowing resolution in a forum in which participation of the Russian government is assured”.", "8. Auction of 19 December 2004", "256. On 19 December 2004 the Property Fund auctioned 76.79% of the shares in OAO Yuganskneftegaz. It appears that media reporters were able to attend the auction.", "257. There were two participants in the auction, OOO Baykalfinansgrup and OOO Gazpromneft. OOO Baykalfinansgrup, the only bidder in the auction, made two bids, first of USD 8.65 billion and then of RUB 260,753,447,303.18 (USD 9.4 billion or EUR 7.05 billion). It appears that whilst taking part in the auction OOO Gazpromneft was prevented from bidding by the injunction of 16 December 2004 (see paragraph 253 above ).", "9. The decisions and reports concerning the outcome of the auction", "258. On 21 December 2004 the Ministry of Justice issued a report accepting that the Property Fund had properly carried out the services due under the contract of 18 November 2004.", "259. On 21 December 2004 the Property Fund publicly reported the sale of the shares in OAO Yuganskneftegaz.", "260. On 31 December 2004 the bailiffs issued a resolution confirming the results of the auction. The resolution stated that OOO Baykalfinansgrup had won the auction for 43 shares in OAO Yuganskneftegaz (76.79% of its stock) for RUB 260,753,447,303.18 (approximately EUR 6,896,341,940 or USD 9,396,960,842). By the time that resolution was issued, the money had already been transferred to the bailiffs.", "10. Takeover of OOO Baykalfinansgrup by OAO Rosneft", "261. According to press reports of 31 December 2004, OAO Rosneft, a State-owned oil company, acquired OOO Baykalfinansgrup and thus took control of OAO Yuganskneftegas.", "262. In its consolidated financial statements 2003-2005, dated 15 May 2005,OAO Rosneft declared:", "“... In late December 2004 [OAO Rosneft] acquired a 100% interest in [OOO Baykalfinansgrup], which a few days earlier had won an auction for the sale of a 76.79% interest in [OAO Yuganskneftegaz], which represents 100% of the common shares of [OAO Yuganskneftegaz]. ...”", "11. Court proceedings in connection with the auction", "263. It appears that on 26 May 2005 the applicant company filed an action in the City Court against the Property Fund, OOO Baykalfinansgrup, OAO Rosneft, OOO Gazpromneft, OAO Gazprom and the Ministry of Justice, seeking to annul the auctioning of 43 shares in OAO Yuganskneftegas and the deed of sale. It also claimed damages in excess of RUB 324 billion.", "264. The action was examined and dismissed by the City Court on 28 February 2007. The court decided that both the Ministry of Justice and the Property Fund [5] had acted within their statutory powers, that the auction procedure had been fully complied with and that the applicant company’s allegation about the auction participants acting in concert had been unsupported by any evidence.", "265. The judgment was upheld by the Appeal Court on 30 May and by the Circuit Court on 12 October 2007.", "266. On 27 January 2005 the applicant company also initiated parallel proceedings against OAO Rosneft, OOO Baykalfinansgrup, Deutsche Bank AG, Deutsche Bank AG London, Deutsche Bank Luxembourg S.A., Deutsche Bank Trust Company Americas and the Russian Federation before the U.S. Bankruptcy Court for violation of the automatic stay.", "267. The applicant company voluntarily withdrew the entire proceedings on 28 March 2005, after its bankruptcy petition was dismissed by the U.S. Bankruptcy Court.", "F. Bankruptcy proceedings", "268. It does not appear that any enforcement measures took place in respect of the applicant company after the auctioning of OAO Yuganskneftegaz until September 2005.", "269. On 8 September 2005 a consortium of foreign banks represented by the French bank Société Générale (“the banks”) filed an application with the City Court for recognition and enforcement of an English High Court judgment ordering the applicant company to re-pay the contractual debt of USD 482 million (around EUR 385 million), resulting from the applicant company’s default under a USD 1 billion loan agreement dated 24 September 2003.", "270. On 22 September 2005, at the banks’ request, the bailiffs again attached the applicant company’s property.", "271. In October 2005 the applicant company challenged this order.", "272. On 30 November 2005 the City Court dismissed the appeal as groundless.", "273. The first-instance judgment was upheld by the Appeal Court and by the Circuit Court on 27 February and 12 May 2006 respectively.", "274. In the meantime, on 28 September 2005, the City Court allowed recognition and enforcement of the English High Court judgment.", "275. On 5 December 2005 the Circuit Court granted the applicant company’s cassation appeal and quashed the judgment of 28 September 2005. It remitted the case for a fresh hearing.", "276. On 21 December 2005, having re-examined the case, the City Court allowed the banks’ claims.", "277. On 25 January 2006 the applicant company appealed against the judgment of 21 December 2005.", "278. On 2 March 2006 the Circuit Court dismissed the appeal.", "279. It appears that on 13 December 2005 the banks reached an agreement with the Rosneft company to sell to the latter the applicant company’s debt to the banks.", "280. On 6 March 2006 the banks lodged a petition with the City Court to declare the applicant company bankrupt.", "281. On 9 March 2006 bankruptcy proceedings were initiated against the applicant company upon the banks’ petition. It appears that the Ministry decided to join the proceedings as one of the bankruptcy creditors in respect of remaining tax debts of the 2000-2003 Tax Assessments still owed by the applicant company.", "282. On 14 March 2006 the banks notified the City Court about the decision to sell the debts owed by the applicant company to Rosneft.", "283. On 29 March 2006 the City Court substituted Rosneft in the place of the banks as a bankruptcy creditor. By the same decision the court imposed a supervision order on the applicant company and appointed Mr Eduard Rebgun as the applicant company’s interim receiver. It also prohibited the company’s management from disposing of any of its property exceeding RUB 30 million in value.", "284. On 6 and 7 April 2006 the applicant company appealed against the decision of 29 March 2006 on all three points.", "285. On 27 April 2006 the Appeal Court dismissed the appeals.", "286. On 21 June 2006 the applicant company appealed against the lower courts’ decisions to the Circuit Court. The outcome of these proceedings is unclear.", "287. On 21 April 2006 the Ministry submitted a claim to the City Court, seeking to be included in the list of the applicant company’s creditors for the amount of 353,766,625,235.66 RUB (approximately EUR 10,435,809,153), along with 2,118 pages of documentation. The claim was based on the company’s reassessed tax liability for the year 2004.", "288. In June 2006 the City Court made a number of rulings concerning the formation of the list of creditors. In particular, on 1 and 7 June 2006 the City Court held hearings on the claim. On 14 June 2006 the final hearing of the claim was held. The court allowed the claims in its entirety and dismissed the application for stay.", "289. On 21 June 2006 the City Court delivered a full version of the judgment of 14 June 2006. It decided to include the Ministry in the list of the applicant company’s creditors for the amount claimed and refused to stay the proceedings.", "290. On 3 and 6 July the applicant company appealed against the judgment of 14 June 2006 concerning the allowed claims.", "291. On 4, 7 and 11 August 2006 the Appeal Court heard the applicant company’s arguments.", "292. On the latter date the Appeal Court dismissed the applicant company’s appeal.", "293. It appears that on 18 August 2006 the Appeal Court delivered a full version of the appeal decision.", "294. On 25 July 2006 the Committee of Creditors rejected the rehabilitation plan offered by the management and recommended the applicant company’s liquidation.", "295. On 31 July 2006 the applicant company appealed against this decision.", "296. On 4 August 2006 the City Court examined the applicant company’s situation, declared that the company was bankrupt and dismissed its management. The court appointed Mr E. Rebgun as the applicant company’s trustee. It also refused the company’s request to stay the proceedings.", "297. Both parties appealed on 15 August 2006", "298. The judgment was upheld on appeal and entered into force on 26 September 2006.", "299. It appears that on 22 August 2006 Mr E. Rebgun, acting as the trustee in the company’s bankruptcy proceedings, revoked the authority of all counsel appointed by the applicant company’s previous management, including Mr P. Gardner.", "300. On 23 October 2006 Mr E. Rebgun appointed a consortium of independent appraisers led by ZAO Roseko (“the consortium”), selected through an open tender, to inventory and evaluate the applicant company’s assets with a view to auctioning them.", "301. The consortium carried out its evaluation from October 2006 to July 2007.", "302. From 27 March to 15 August 2007 Mr E. Rebgun held 17 public auctions at which all of the applicant company’s assets were sold in line with the evaluations which had been made earlier by the consortium. The aggregate proceeds amounted to over RUB 860 billion (around USD 33.3 billion). The assets sold included a 20% stake in OAO Sibneft (sold, along with 12 fully owned subsidiaries, blocks of shares in 5 more entities and some exchange notes, for RUB 151.536 billion, or some EUR 4.387 billion), 9.44% of shares of OAO Rosneft (sold, along with 12 exchange notes of OAO Yuganskneftegaz, for RUB 197.840 billion, or some EUR 5.728 billion) and scores of the company’s subsidiary companies.", "303. By a decision of 12 November 2007, the full version of which was produced on 15 November, the City Court examined the applicant company’s situation, heard the report by Mr E. Rebgun and decided to terminate the liquidation proceedings. The applicant company ceased to exist, leaving over RUB 227.1 billion (around USD 9.2 billion) in unsatisfied liabilities.", "304. On 21 November 2007 a certificate was issued to the effect that the applicant company had been liquidated on the basis of the court decision.", "305. It appears that a company Glendale Group Limited and Yukos Capital S.A.R.L. contested the decision of 12 November 2007 before the Appeal Court. The appeal of Glendale Group was declared inadmissible for the failure to submit it on time, whilst the appeal of Yukos Capital S.A.R.L. has been accepted for examination. The hearing in this respect was scheduled by the Appeal Court on 19 November 2007.", "306. The outcome of these proceedings remains unclear.", "I. Price adjustment mechanism of the Tax Code", "396. Under Article 40 (2) of the Tax Code, the tax authorities are empowered to overrule the above presumption by verifying and correcting the prices for taxation purposes. A finding that the prices were lowered usually leads to the conclusion that the taxpayer understated the taxable base and thus failed properly to pay his taxes (see Article 122 of the Tax Code below).", "397. This may happen only (1) when the parties are interdependent within the meaning of Article 20 of the Tax Code; (2) in the event of barter transactions, or; (3) international transactions; (4) when the prices set by a taxpayer during the same short period for certain identical types of goods, work or services fluctuate by more than 20%.", "398. Article 20 (1) of the Tax Code defines interdependent parties as natural persons and (or) organisations whose mutual relations may influence the terms or economic results of their respective activities or the activities of the parties that they represent. In particular, (a) one organisation has a direct and (or) indirect interest in another organisation, and the aggregate share of such interest is more than 20%. The share accounted for by the indirect interest held by one organisation in another, through a chain of separate organisations, is defined as the product of the direct interest shares that the organisations in this chain hold in one another; (b) one natural person is subordinate to another natural person ex officio; (c) in the case of individuals, they are spouses, relatives, adopters or adoptees, guardians or wards under the family law of the Russian Federation.", "399. Article 20 (2) of the Tax Code provides that the court may recognize persons as interdependent on other grounds, not provided for by Item 1 of that Article, if the relations between these persons may have influenced the results of transactions in the sale of goods (work, services).", "J. Applicable tax offences and related penalties", "400. Article 122 §§ 1 and 3 of the Tax Code imposes a penalty of 40% of the unpaid tax liability on intentional non-payment or incomplete payment of the tax due, as a result of understating the taxable base. Articles 112 § 2 and 114 § 4 of the Tax Code provide for a 100% increase in this penalty in the event of a repeated offence by the same taxpayer. Article 114 § 3 of the Code also provides for a possibility of reducing the fine by half if there were extenuating circumstances on the facts of the case.", "401. Article 114 § 7 of the Code makes it mandatory to recover the penalties in court. This rule does not apply to reassessed fines and interest surcharges.", "402. Article 75 of the Tax Code provides for payment of an interest surcharge by taxpayers in cases of late payment of the taxes due. The interest surcharge amounts to one three-hundredth of the statutory rate for each day of the delay. Persons and entities that were unable to meet their tax liabilities in due time because their bank account was suspended by the tax authority or a court are excused from payment of the interest surcharge for the duration of the respective suspension (Article 75 § 3 of the Tax Code).", "K. Statutory time-bar", "1. Situation prior to the Constitutional Court’s decision of 14 July 2005", "(a) Statutory law", "403. In accordance with Article 113 § 1 of the Tax Code (Chapter 15 General provisions concerning liability for tax offences), a person could not be held liable for a tax offence under Article 122 of the Code if three years had expired since the first day after the end of the tax period during which the offence was committed. The above provision only applied to the payment of fines. Article 115 of the Code sets out an additional six-month time-limit within which the authorities must collect the fines. It starts running from the date of adoption of the relevant audit report.", "404. As regards the reassessed taxes and interest surcharges, Article 87 of the Tax Code (as in force as the relevant time) limited the ability of the authorities to carry out tax inspections by stating that “the[y] ... [may] only be carried out in respect of the activities of the relevant taxpayer ... during the three calendar years immediately preceding the year of the tax inspection” (see also decision no. 3803/01 of the Supreme Commercial Court below).", "(b) Practice directions by the Supreme Commercial Court", "405. In paragraph 36 of Resolution of the Plenum of the Supreme Commercial Court no. 5 dated 28 February 2001 “On certain issues arising from application of the first part of the Tax Code”, the court indicated to the lower courts that “a taxpayer is considered to have been held liable [within the meaning of Article 113 of the Tax Code] on the date on which the head of the [relevant] tax body or his deputy takes a decision to hold this person liable of a tax offence in accordance with [the rules set out in] the Code”.", "406. This interpretation was subsequently used by the Presidium of the Supreme Commercial Court in its decision no. 3803/01 (Averyanov v. the Tax Ministry), taken in 2002, where an offence had been committed in 1996, whilst the time-limit began to run on 1 January 1997 and expired on 1 January 2000. The Ministry’s decision was issued on 25 January 2000 and was, accordingly, time-barred in so far as the fines were concerned.", "(c) Case no. F09-3155/05-AK (OAO Bashselstroy v. the Tax Ministry)", "407. On 30 September 2003 the Federal Commercial Court of the Ural Circuit reviewed and quashed the lower courts’ decisions in a tax dispute involving the Tax Ministry and a private shareholding. Among other things, the Circuit Court stated that the time-limit set out in Article 113 of the Code started running from the date on which the relevant facts came to the attention of the competent authorities (as a result of a tax inspection or other types of tax control).", "(d) Cases referred to by the applicant company", "408. In a number of cases pre-dating the decision of the Constitutional Court of 14 July 2005, the courts applied Article 113 in line with an interpretation given by Resolution no. 5 of the Plenum of the Supreme Commercial Court of 28 February 2001 (see decision no. F04/7-1527/A27-2002 of 4 January 2003 of the Federal Commercial Court of the Western Siberia Circuit, decision no. F04/7-1527/A27-2002 of 8 January 2003 of the Federal Commercial Court of the Northern Western Circuit, decision no. F03-A59/03-2/745 of 23 April 2003 of the Federal Commercial Court of the Far-Eastern Circuit, decision no. A48-1188/03-2 of 12 November 2003 of the Federal Commercial Court of the Central Circuit, decision no. A82-471/2004-8 of 8 October 2004 of the Federal Commercial Court of the Volgo-Vyatskyy Circuit, decision no. F03-A73/04-2/947 of 19 May 2004 of the Federal Commercial Court of the Far Eastern Circuit, decision no. A19-3142/04-40-F02-3338/04-C1 of 24 August 2004 of the Federal Commercial Court of the Eastern Siberia Circuit, decision no. A19-9731/03-15-F02-4732/03-C1 of 9 January 2004 of the Federal Commercial Court of the Eastern Siberia Circuit, decision no. A33-15117/03-C3-F02-1877/04-C1 of 2 June 2004 of the Federal Commercial Court of the Eastern Siberia Circuit, decision no. KA-A41/9494-04 of 20 October 2004 of the Federal Commercial Court of the Moscow Circuit, decision no. F09-4221/04AK of 13 October 2004 of the Federal Commercial Court of the Ural Circuit, and decision no. F09-3799/04AK of 4 September 2004 of the Federal Commercial Court of the Ural Circuit). None of these cases involved a situation whereby a taxpayer had hindered a tax inspection or had deliberately sought to delay the tax proceedings.", "2. Situation after the Constitutional Court’s decision of 14 July 2005", "(a) Case no. KA-A40/5876-06 (OAO Korus-holding v. the Tax Ministry)", "409. By a decision of 28 July 2006 the Federal Commercial Court of the Moscow Circuit, acting as a cassation review instance, reviewed the application of the time-limits of Article 113 of the Code. The audit report prepared by the Ministry in respect of the calendar year 2001 was dated 28 February, whilst the decision to hold the taxpayer liable was issued on 29 March 2005. The Circuit Court decided that the authorities could be said to have been acting in time provided that they respected the requirements of Article 87 of the Code, which sets out a three-year time-limit for conducting tax inspections and Article 23 § 8 (1) of the Code, which sets out a four-year time-limit for the maintenance of accounting documents. The Circuit Court also specifically noted the actions of OAO Korus-holding, which had sought to hinder and complicate the tax inspection.", "(b) 2006 amendments to Article 113 of the Tax Code", "410. The text of Article 113 has been amended by Federal Law no. 137-FZ of 27 July 2006, which came into force on 1 January 2007. The provision now contains § 1.1., which states:", "“1.1. The running of the time-limit for holding a taxpayer liable stops if [the taxpayer] actively hindered an on-site tax inspection, thus creating an insurmountable obstacle for that inspection and for the determination by the tax authorities of the amount of taxes due to the budgetary system of the Russian Federation.", "The running of the time-limit [in question] is suspended on the date of adoption of a report [setting out the circumstances in which the taxpayer denied the tax authorities access to the relevant documents]. In this case, the running of the time-limit continues on the date when the above-mentioned circumstances no longer exist and a decision on continuation of the on-site tax inspection is taken.”", "(c) Case no. F08-2786/2007-1290A (the Tax Ministry v. N. A. Borshcheva)", "411. On 31 May 2007 the Federal Commercial Court of the North Caucasian Circuit, acting as a cassation review instance, reviewed the application of the time-limits of Article 113 of the Code. The audit report prepared by the Ministry in respect of the calendar years 2001-2004 was dated 18 July 2006, whilst the decision to hold the taxpayer liable was issued on 4 September 2006. Again, the Circuit Court decided that the authorities had been acting in time, regard being had to the taxpayer’s actions for the purpose of delaying and hindering the tax inspection.", "L. Applicable rules on court procedure", "1. First-instance proceedings", "(a) Territorial jurisdiction", "412. Under Article 35 of the Code of Commercial Court Procedure of 24 July 2003 no. 95-FZ (as in force at the relevant time), claims should be brought to a court having jurisdiction over the defendant’s official place of business.", "413. Article 54 of the Civil Code defines a company’s official place of business as the place of the company’s registration, unless, in accordance with the law, the company’s articles of association do not specify otherwise.", "414. Decision no. 6/8 of the Plenary Session of the Supreme Court and Supreme Commercial Court of 1 July 1996 specifies that the company’s official place of business is the location of its entities.", "(b) Interim measures", "415. Under Article 91 of the Code of Commercial Court Procedure, a party may apply for proportionate security measures, including attachment of a defendant’s assets, pending the examination of the case by the courts.", "(c) Grace period", "416. Article 213 of the Code of Commercial Court Procedure provides that in tax cases a court suit may be filed by the authorities when their demands have not been complied with voluntarily, or when the term for voluntary compliance has expired.", "(d) Time-limits for examination of cases concerning mandatory payments and penalties", "417. Article 215 of the Code of Commercial Court Procedure sets out a two-month time-limit during which a first-instance court is to finalise the examination on the merits of any case which involves mandatory payment and related penalties.", "(e) Time-limits for the preparation and examination of the case at first instance", "418. Article 134 of the Code of Commercial Court Procedure establishes a two-month time-limit for the preparation of the case for examination at first instance.", "419. Pursuant to Article 152 of the Code, the first-instance court should examine the case and deliver its judgment within one month of a decision to list the case for a hearing.", "(f) Rules on adding evidence to the case after the beginning of the hearing", "420. Article 65 (3) of the Code of Commercial Court Procedure makes it mandatory for a party to disclose all evidence relied upon in their claims or objections prior to the beginning of the hearings in a case.", "421. In paragraph 35 of Information Letter no. 82, dated 13 August 2004, the Supreme Commercial Court gave the following recommendation in respect of whether the trial court ought to accept and examine evidence that was previously undisclosed by the parties prior to the beginning of the hearings in a case:", "“Any evidence undisclosed by the parties to the case prior to the hearing, but submitted later during the examination of the evidence, shall be examined by the commercial court at first instance regardless of the reasons for which the procedure for disclosure of evidence was breached ...”", "(g) Right to lodge an appeal against the first-instance judgment", "422. Under Articles 257 and 259 of the Code of Commercial Court Procedure participants in the proceedings have one month from the delivery of the first-instance judgment to lodge an appeal.", "2. Appeal proceedings", "423. Under Article 267 of the Code of Commercial Courts Procedure, an appeal court must examine an appeal lodged against the first-instance judgment within one month, starting from the date of its filing. This term includes any time necessary for case preparation and for reaching the appeal decision. By federal law no. 205-FZ dated 19 July 2009 the time-limit was increased to two months. By federal law no. 69-FZ dated 30 April 2010 the provision in question has been amended. The time-limit became extendable up to six months depending on the complexity of the case and the number of participants. The provision also made it clear that the time-limit started running on expiry of the time-limit for lodging an appeal.", "424. Under Article 268 of the Code, an appeal court fully re-examines the case using the evidence contained in the case and any newly-presented additional evidence. In examining procedural motions by the parties, including requests to call and hear additional witnesses or adduce and examine additional pieces of evidence, the appeal court is not bound by previous refusals of the same motions by the first-instance court.", "425. Under Articles 180, 271 and 318 of the Code, the first-instance judgment becomes enforceable on the date of the entry into force of the appeal decision confirming it. The enforcement takes place on the basis on a writ issued by the respective court.", "3. Cassation proceedings", "426. In accordance with Article 286 of the Code, a cassation instance court, among other things, reviews the lower courts’ decisions and verifies whether the conclusions of the lower courts in respect of both law and fact correspond to the circumstances of the case.", "427. Article 283 of the Code provides for a possibility of applying for a stay of enforcement of the lower courts’ decisions. The applicant must show that it would be impossible to reverse the effects of an immediate enforcement of the lower courts’ decisions if the cassation appeal were successful.", "M. Domestic courts’ case-law", "428. In its rulings no. 7-P dated 6 June 1995, no. 14-P dated 13 June 1996 and no. 14-P dated 28 October 1999, the Constitutional Court formulated and reiterated the principle that the constitutional right to judicial protection could not be respected unless courts examined in substance the factual circumstances of the case, without merely limiting themselves to formalistic application of the legal norms. It has frequently referred to this principle in subsequent rulings.", "1. Court disputes involving re-characterisation of sham arrangements", "(a) Case no. A40-31714/97-2-312 (the Tax Ministry v. OOO TF Grin Haus)", "429. In 1996 the respondent legal entity was involved in a series of intertwined transactions (rent contracts and loan agreements) with two third parties: as a result, the respondent leased a building in central Moscow to the third parties, but was able to avoid inclusion of the rent payments in the taxable base of its operations by claiming that they were interest payments in respect of the loan agreement. The Ministry discovered the tax evasion scheme, re-characterised the transactions in question as rent and ordered the taxpayer to pay RUB 2 billion in back taxes.", "430. The case was examined in three rounds of court proceedings by the courts at three levels of jurisdiction. Having regard to the substance of the transactions entered into by the respondent, the terms of payment and execution of the contested contracts, and, generally, to the conduct of the respondent company and the third parties, the courts decided that the contractual arrangement had been sham, re-characterised the arrangement as rent and upheld the Ministry’s decision.", "431. In the first round of proceedings the courts adopted their decisions on the following dates: 1 December 1997, 27 January 1998 and 30 March 1998.", "432. In the second round of proceedings the decisions were adopted by the first-instance and appeal courts on 26 May 1998 and 21 July 1998. The decision of the cassation court was taken on an unspecified date.", "433. The third round of proceedings involved decisions on 17 November 1998, 25 January 1999 and 2 March 1999.", "(b) Case no. KA-A40/2183-98 (the Tax Ministry v. AuRoKom GMBH)", "434. The respondent legal entity entered into a loan agreement with a third party; the tax authorities considered it a sham, re-characterised it as a rent contract and reassessed the tax due in respect of the profits made. The lower courts disagreed and quashed the tax authority’s decision. By a decision of 17 September 1998 the cassation court quashed the lower courts’ decisions and ordered that the matter be re-examined, giving due regard to all relevant circumstances, including the substance of the transaction. The courts were to reconsider all relevant clauses in the agreement in question, the conduct of the parties and the fact of physical occupation of the allegedly rented space.", "(c) Case no. A40/36819/04-75-387 (the Tax Ministry v. OAO AKB Rossiyskiy Kapital)", "435. The respondent legal entity is a bank which in 2001-2002 conducted business by buying and then reselling precious metals. To avoid the payment of full VAT on its sales operations in this respect, the bank entered into commission agreements with the sellers from which it bought the metals, in order to be considered not as the owner of the traded goods, but merely as the sellers’ agent.", "436. The domestic courts took account of the substance of the bank’s transactions (terms of payment, actual circumstances of delivery and other relevant factual details) and, having established that in reality the bank had been buying and reselling the precious metals, re-characterised the bank’s activity as sales. The courts referred to Article 209 of the Civil Code (containing the legal definition of an owner) and concluded that the bank first bought the precious metals, thus becoming the “owner” within the meaning of the said provision and thereafter resold the goods. They found the bank liable for tax evasion under Article 122 of the Tax Code, ordered it to pay reassessed VAT in the amount of RUB 1,091,123,539.42, default interest of RUB 408,289.76 and penalties of RUB 436,391,918.65.", "437. The first-instance judgment was adopted on 3 November 2004 and upheld on appeal on 11 January 2005.", "2. Tax evasion schemes involving sham rent agreements and letter-box entities registered in the domestic offshore town of Baykonur", "(a) Case no. A41 K1-13539/02 (the Tax Ministry v. OAO Ufimskiy NPZ and ZAO Bort-M)", "438. OAO Ufimskiy NPZ, the main production unit of one of the biggest Russian oil companies, OAO Bashneft, physically located in the town of Ufa, used the domestic tax offshore territory situated in the town of Baykonur, the territory rented by Russia from the Republic of Kazakhstan for its space-related projects. The town’s tax regime was similar to that in the closed administrative-territorial formations (see above).", "439. On 1 February 2001 the respondents OAO Ufimskiy NPZ and ZAO Bort-M, a letter-box entity registered in Baykonur, entered into a rent agreement whereby the entirety of OAO Ufimskiy NPZ’s production facilities were rented by ZAO Bort-M in exchange for nominal compensation. Since ZAO Bort-M was registered in Baykonur, the activity of OAO Ufimskiy NPZ enjoyed lower rates in respect of excise duties. The tax authorities discovered “the scheme” and contested it in court as sham and therefore null and void.", "440. On 8 October 2002 the first-instance court had regard to the substance of the transaction and, having established that, despite the contractual arrangement, OAO Ufimskiy NPZ had continued to operate the facilities in question, that furthermore the letter-box entity was never properly registered and licensed as the operator of oil processing and oil storage facilities in accordance with the relevant law, and that the letter-box entity could not operate the facility because it had rented only one part of the production cycle (which, in technological terms, could not be split in two), that the sole aim and effect of the arrangement was tax evasion and that OAO Ufimskiy NPZ and ZAO Bort-M had “malicious intent” to evade taxes, upheld the tax authorities’ claim.", "441. The first-instance judgment was upheld on appeal and in cassation on 17 December 2002 and 19 March 2003 respectively.", "(b) Cases nos. A41 K1-13244/02 (the Tax Ministry v. OAO Novo-ufimskiy NPZ and ZAO Bort-M), A41 K1-11474/02 (the Tax Ministry v. OAO Novo-ufimskiy NPZ and OOO Korus-Baykonur), A41 K1-137828/02 (the Tax Ministry v. OAO Ufimskiy NPZ and OOO Korus-Baykonur)", "442. These cases are essentially follow-ups to the previous case: OAO Novo-Ufimskiy NPZ is the second main production unit of OAO Bashneft and was involved in exactly the same tax-evasion scheme, using the sham offshore entities ZAO Bort-M and OOO Korus-Baykonur. The domestic courts examined all three cases at three instances and granted the Ministry’s claims. The decisions in the first set of proceedings were taken on 9 October, 16 December 2002 and 13 March 2003. The decisions in the second set of proceedings were taken on 19 September 2002, 5 December 2002 and 28 February 2003. The decisions in the third set of proceedings were taken on 18 December 2002, 20 February 2003 and 26 May 2003.", "(c) Case no. A41 K1-9254/03 (the Tax Ministry v. OOO Orbitalnye sistemy and OAO MNPZ)", "443. This case concerns exactly the same tax-evasion scheme as in the previous cases, but involves OAO MNPZ, a major oil-processing facility located in Moscow and owned by the Government of Moscow, as the defendant.", "444. The decisions in the case were taken on 29 October and 27 December 2004.", "(d) Case no. KA-A41/6270-03 (the Tax Ministry v. OOO Ekologiya)", "445. This case also concerns the tax-evasion scheme described in the previous cases. The Ministry assessed the company, apparently a sham entity belonging to an oil producer, and found that it owed additional taxes, surcharges and penalties. The entity prevailed at first instance on 15 May 2003. On 10 October 2003 the cassation court quashed the first-instance judgment, as the lower court had failed to take into account the relevance of the entity’s activity for the economy of the town of Baykonur, which was one of the criteria the law considered relevant to the issue of the lawfulness of tax exemptions.", "3. Sham rent agreements and letter-box entities registered in the domestic offshore town of Ozersk (closed administrative-territorial formation, ZATO)", "(a) Case no. A55-1942/04-24 (the Tax Ministry v. OAO Novokuybyshevskiy NPZ and OOO SK-STR)", "446. The case concerns the same tax-evasion scheme as in the previous cases (involving the sham renting agreement), but the offshore territory at issue is the town of Ozersk and the taxpayer is OAO Novokuybyshevskiy NPZ, one of the applicant company’s subsidiary oil-processing units.", "447. The scheme operated from January 1999 and was prosecuted in 2004. The first-instance judgment in favour of the Ministry was taken on 13 August 2004. The court applied the same ‘substance over form’ approach as in the previous cases and, having assessed the defendants’ conduct, the character of their relations and statements by the officials of the entities, granted the Ministry’s claims and also ordered OAO Novokuybyshevskiy NPZ to pay RUB 120,688,860 in reassessed taxes.", "(b) Case no. A55-5015/2004-33 (the Tax Ministry v. OAO Novokuybyshevskiy NPZ and OOO SK-STR)", "448. This is a follow-up to the previous case: in the first-instance judgment the court declared the defendants’ contractual arrangement to be sham and unlawful and ordered OAO Novokuybyshevskiy NPZ to pay RUB 252,963,364 in reassessed taxes.", "449. The first-instance judgment in the case, dated 19 October 2004, was upheld on appeal on 19 October 2004.", "(c) Case no. A55-1941/2004-40 (the Tax Ministry v. OAO Syzranskiy NPZ and OOO SK-STR)", "450. This is a follow-up to the previous cases and involved OAO Syzranskiy NPZ, a production unit belonging to the applicant company. The rent agreement between the letter-box entity and the applicant company’s production unit was declared sham and annulled. OAO Syzranskiy NPZ was ordered to pay RUB 30,309,119 in reassessed taxes.", "451. The first-instance judgment of 18 August 2004 was upheld on appeal on 4 November 2004.", "4. Sham arrangements and VAT fraud", "(a) Case no. 367/96 (the Tax Ministry v. Russian-Austrian Joint Stock Enterprise “Sibservis”)", "452. The respondent legal entity is a privately-owned enterprise specialised in importing and assembling computer equipment. In 1995 the respondent disguised a portion of its sales as loan agreements with its clients in order to avoid payment of VAT. The first-instance judgment and the appeal decision in the case were taken on 31 August and 11 October 1995. On 17 September 1996 the Presidium of the Supreme Commercial Court of Russia reviewed the lower courts’ decisions and quashed them, ordering the lower courts to investigate the exact circumstances of the case, including everything relating to “the sales disguised as loans” arrangements.", "(b) Case no. A57-11990/01-5 (the Tax Ministry v. FGUP Nizhnevolzhskgeologiya)", "453. The respondent legal entity is a State-owned enterprise specialising in geological exploration and identification of oil fields. In 2000 it entered into a series of deliberately unprofitable oil trading transactions with a third party, OOO Roza-Mira Processing. Since the transactions preceded the actual export of oil, the two taxpayers, acting in concert, intended to obtain an artificially increased VAT refund. Having regard to the substance of the transaction and the relevant circumstances of the case, such as the terms of actual payment and execution, the courts decided that the transactions were sham, declared them null and void and refused the respondent’s request for a VAT refund. In addition, the courts recovered the unpaid VAT with penalties.", "454. The domestic courts reached their respective decisions on 22 November 2001, 29 April and 8 July 2002.", "(c) Case no. 7543/02-16 (the Tax Ministry v. OAO Saratovneftegaz)", "455. The respondent legal entity is the main production unit of OAO NK Russneft, a large Russian private oil company, which was involved in a dispute with the Ministry over VAT refunds in respect of its export operations. The courts established that in 2001 the respondent entered into a series of transactions with a number of third parties, aimed at deceiving the Ministry and claiming an artificially increased VAT refund. The courts took account of the overall economic effect of the transactions in their entirety, numerous discrepancies and contradictions between the contractual arrangements, the actual movement of oil, the documents certifying the customs clearance of the goods in question, etc., and refused to recognise them as valid for the purposes of reimbursement of VAT. The courts concluded that the Ministry had been acting lawfully by refusing the respondent company’s request for a refund of export VAT.", "456. The domestic courts reached their respective decisions on 30 June 2003, 31 May and 16 September 2004.", "(d) Case no. A28-7017/02-301/21 (the Tax Ministry v. OAO Kirovskiy Shinnyy Zavod)", "457. This is essentially a follow-up to the previous cases. The courts reached similar conclusions in respect of the respondent company and recovered RUB 5,000,000 in overpaid VAT in favour of the Ministry.", "458. The decisions in the case during the first round of proceedings were taken on 19 December 2002, 19 March 2003 and 27 June 2003.", "459. The second round of proceedings resulted in the first-instance judgment of 19 December 2002, the appeal decision of 19 March 2003 and the supervisory review decision of 23 December 2003.", "(e) Case no. A09-846/03-28 (the Tax Ministry v. ZAO Melkruk, OOO Antareks-Unit, OOO Starlayt-N)", "460. The first respondent legal entity is a big producer of grains, cereals and related processed products. It was involved in a dispute with the Ministry over VAT refunds in respect of export operations, whereby it had commissioned the second respondent to sell certain equipment abroad. The equipment was bought by the third respondent and resold “at an economic loss” to an entity registered in a foreign offshore location. Having regard to various circumstances, including the conduct of the entities involved and the fact that no actual hard cash had been paid for the equipment in question, the Ministry applied to court, asking it to invalidate the transactions in question as sham. The first-instance court dismissed the claim but the appeal and cassation review courts subsequently reversed that judgment, essentially upholding the Ministry’s approach.", "461. The domestic courts took their respective decisions on 14 April 2003, 4 August 2003 and 10 December 2003.", "(f) Case no. A09-1646/03-GK (the Tax Ministry v. OAO Belkamneft, Baxter Trading Inc, OOO Tekhnotreyd)", "462. The first respondent legal entity was involved in a dispute with the Ministry over VAT refunds in respect of export operations, whereby it had entered in complex relations with the other two respondents to sell certain goods abroad. Having regard to various circumstances, including the conduct of the entities involved and the fact that no actual hard cash had been paid for the goods in question, the Ministry applied to court, asking it to invalidate the transactions in question as sham and therefore null and void. The courts at three instances upheld the Ministry’s approach.", "463. The domestic courts took their respective decisions on 28 December 2002, 10 April 2003 and 1 July 2003.", "(g) Case no. F09-1071/03-AK (the Tax Ministry v. OOO Khudozhestvennaya masterskaya “Tvorchestvo”)", "464. The respondent entity was involved in a dispute with the Ministry over the latter’s refusal to refund the VAT in respect of the entity’s export operations. The Ministry uncovered an arrangement whereby there had been no hard cash transactions between the parties to the export operation, the respondent had “traded at a loss” and the allegedly exported produce had had nothing to do with the respondent’s usual business activity. Having regard to various circumstances, including the conduct of the entities involved, the courts at three instances upheld the Ministry’s approach.", "465. The domestic courts took their respective decisions on 29 October 2002, 6 February 2003 and 17 April 2003.", "5. Case-law of the domestic courts concerning the invalidity of sham transactions", "466. By a decision dated 15 May 1997 in the case of the Tax Ministry against Commercial Bank Mechel-Bank and OAO Mechel (no. F09-162/97-AK), the Federal Commercial Court of the Ural Circuit quashed the decisions of lower courts in which they had upheld the lawfulness of a “kickback” contract which had been concluded between the respondent bank and the respondent company. The Circuit Court ruled that the lower courts had failed to study and to take account of all of the circumstances relevant to the case at issue. In particular, the court noted the finding that the contract had been concluded specifically to avoid the payment of taxes. Accordingly, it reversed and invalidated the contract as unlawful, contrary to the legal order and morality, and ordered that the proceeds (RUB 1.5 bn) derived by the parties from the contract be seized in favour of the State.", "467. In a decision of 9 December 1997 in case no. 5246/97, the Presidium of the Supreme Commercial Court of Russia invalidated a loan secured by a promissory note and a related pay-off agreement as imaginary and sham respectively. The court had regard to the terms of contracts concluded between the parties and the manner of their execution, in particular the fact that the loan had never been used by the borrower; it concluded that the transactions in question covered the sale of a promissory note and invalidated them as sham.", "468. In a decision of 6 October 1998 in case no. 6202/97 the Presidium of the Supreme Commercial Court of Russia invalidated two contracts for the sale of securities and a related loan agreement as sham, having regard to the terms of contracts in question, the manner of their execution and the contractual prices. The court established that the sales contracts in fact covered the loan agreement secured by the pledge of securities and remitted the case for re-trial.", "N. Enforcement proceedings in respect of a presumably solvent debtor", "1. General principles", "469. The Enforcement Proceedings Act (Law no. 119-FZ) of 21 July 1997 (as in force at the relevant time) establishes the procedure by which a creditor may enforce a court award against a presumably solvent legal entity debtor. According to Article 46 § 6 of the Act, execution was to be levied against the debtor’s property “in such amount and such scope as is required to ensure the satisfaction of claims set out in the enforcement document”.", "470. Russian legislation provides for a set of special procedures in respect of presumably insolvent legal entity debtors (see section O below).", "2. Term for voluntary compliance with the execution writ", "471. Under section 9 (3) of the Enforcement Proceedings Act, on an application by the creditor, the bailiff institutes enforcement proceedings, fixes the time-limit for enforcement of the execution writ - which may not exceed five days from the date of institution of enforcement proceedings - and notifies the debtor accordingly.", "3. Various ways to stay or delay enforcement proceedings", "472. Article 324 of the Commercial Procedure Code sets out a procedure whereby a court may alter the method and order of enforcement of a final court decision. Among other thing, it provides as follows:", "“1. If there are circumstances which make it difficult to enforce the judicial act, the commercial court which issued a writ may, upon an application by the creditor, debtor or bailiff, grant respite in respect of the enforcement or arrange for the payment in instalments, or otherwise change the method or order of enforcement. ...”", "473. At the same time, Articles 62, 64 (1) and (2) of the Tax Code specify that a respite or possibility of repaying in instalments concerns only the taxes, and not the interest surcharges and penalties, and may be granted by a court only for a period from one to six months from the original deadline for payment, may only be granted on specific grounds enumerated in the law and cannot be granted if there are tax proceedings pending against the applicant (Article 62 (1)).", "474. The Enforcement Proceedings Act provides for three possibilities, namely: (a) to postpone enforcement actions for a term of up to 10 [6] days (section 19); (b) to suspend the enforcement proceedings (section 21); or (c) to defer the execution of enforcement of a debt or arrange for payment in instalments (section 18).", "475. With regard to (a), the bailiff takes the decision in the “appropriate circumstances” either on an application by the debtor or of its own motion.", "476. With regard to (b), the decision may only be taken in seven enumerated cases: if the bailiff applied to the court with a request to interpret the judicial act; on a request from a debtor who has been drafted to serve in the army; if the debtor is on a long-term mission; if the debtor is hospitalised and being treated; if the actions of the bailiff are being contested in court; if the debtor himself or his property is being searched for; if the debtor or creditor are on holiday and cannot be contacted.", "477. As regards (c), the debtor, creditor or bailiff has the right to request the court to defer the execution of enforcement of a debt or arrange for payment in instalments if there are “circumstances impeding the enforcement actions”.", "4. Seizure of the debtor’s assets", "478. If the debtor does not comply within the specified time-limit, under section 9 (5) of the Enforcement Proceedings Act the bailiff, on an application by the creditor, has the right to make an inventory of the debtor’s property and to seize it.", "479. Under section 9 (5) of the Law on Enforcement Proceedings the bailiff is empowered to seize any of the debtor’s assets to secure enforcement. In seizing the debtor’s assets the bailiffs are obliged to follow the order of priority of arrest and sale set out in section 46 (2) of the Law on Enforcement, which provides:", "“... execution under enforcement documents shall, in the first priority, be levied on the debtor’s monetary funds in roubles and in foreign currency, and on other valuables, including those kept in banks and other credit institutions”.", "At the same time, the Supreme Commercial Court specified in its Information Letter no. 6, dated 25 July 1996:", "“... the freezing of cash ... may not be imposed on the respondent’s account and on amounts that will enter this account in the future ...”.", "In its Resolution no. 11 of 9 December 2002 the Plenary Supreme Commercial Court ruled:", "“... arrest on cash owned by the debtor shall be imposed not on its account in credit institutions but on cash that is on the accounts, within the limits of the monetary claims ...”", "480. Section 46 (5) of the Enforcement Proceedings Act provides that, if a debtor lacks sufficient cash funds to satisfy the creditor’s claims, the debt may be levied from the other forms of the debtor’s property, unless the federal law states otherwise. The debtor has the right to indicate his preferred order of priority, but the final order is determined by the bailiff.", "481. Section 51 of the Enforcement Proceedings Act establishes a one-month time-limit for the seizure of the debtor’s property from the date on which the ruling on the institution of enforcement proceedings is served. The seizure is intended, inter alia, to secure the safety of the debtor’s property and the creditor’s claims, which shall be subject to a subsequent transfer to the creditor or to a subsequent sale. The seizure of securities is carried out in conformity with the procedure defined by the Government of the Russian Federation in Decree no. 934 “On the seizure of securities”, dated 12 August 1998.", "482. Section 59 of the Enforcement Proceedings Act establishes the order of priority in the seizure and forced sale of a debtor’s property in three stages. Firstly, the bailiff sells property which is not immediately involved in the debtor’s production cycle (securities, cash on the debtor’s deposit and other accounts, currency valuables, cars, office equipment, etc.); secondly, finished products (goods) and other material values not immediately involved in production and not intended to play an immediate part in it; and, thirdly, real-estate objects, as well as raw and other materials, machine-tools and equipment and other fixed assets, intended for immediate involvement in production.", "483. In Ruling no. 4 “On certain questions arising out of seizure and enforcement actions in respect of corporate shares”, dated 3 March 1999, the Plenum of the Supreme Commercial Court decided that in respect of companies which had been privatised by the State as parts of bigger holding groups through the transfer of controlling blocks of shares, the production cycle of the respective production unit should be preserved as much as possible.", "5. Enforcement fee", "484. Section 81 of the Enforcement Proceedings Act penalises a debtor’s failure to comply voluntarily with a writ of execution with a 7% enforcement fee. Under Section 77 of the Act the fee is a priority payment which should be made by the debtor even before it begins repaying the principal debt.", "485. In ruling no. 13-P of 30 July 2001 the Constitutional Court of Russia described the enforcement fee as an administrative penal sanction having a fixed monetary expression, exacted by compulsion, formalised by the decision of an authorised official and levied in favour of the State. The Constitutional Court struck the above provision down as unconstitutional, in so far as it did not allow the debtor to excuse his failure to comply with the writ by reference to certain extraordinary, objectively inevitable circumstances and to other unforeseeable and insurmountable obstacles beyond the debtor’s control.", "486. The Government referred to over a dozen cases from across Russia which, they claimed, confirmed that that the 7% enforcement fee was levied by bailiffs as a matter of standard practice in the event of the debtor’s failure to pay, routinely and without exceptions, even if the debtor was a State-owned entity or indeed a State body. Here are some examples: enforcement proceedings dated 19 January 2001 no. 6-26/2001, in respect of RUB 304,078,000, owed by a State-owned private-law entity GUP Tatvodokanal; enforcement proceedings dated 18 November 2005 no. 3068/62/2/2006 in respect of RUB 108,083,008.64, owed by the Ministry of Education of the town of Kazan; enforcement proceedings dated 18 December 2002 no. 2-12/2002 in respect of RUB 19,0311,000, owed by OAO Tatavtodor; enforcement proceedings dated 25 February 2004 no. 7-18/04 in respect of RUB 445,336,550.84, owed by OAO Vertolety-MI; enforcement proceedings dated 13 November 2001 no. 5-17/2001 in respect of RUB 917,787,000, owed by FKP Kazanskiy zavod tochnogo mashinostroeniya imeni M. I. Kalinina.", "6. Forced sale of arrested assets", "(a) Rules concerning valuation of frozen property", "487. Section 53 of the Enforcement Proceedings Act requires the bailiff to evaluate the arrested property on the basis of market prices on the date of execution of the enforcement writ. Should valuation be problematic for technical or any other reasons, the bailiff is to appoint a specialist to carry out the valuation.", "488. According to a Decree of the Ministry of Justice dated 27 October 1998, the bailiff is obliged to appoint a specialist to conduct the valuation if the seized property is shares or other securities ( ценные бумаги ). Under the same Decree the bailiff is to inform the debtor and creditor of the resulting valuation.", "(b) General rules concerning the sale of frozen property", "489. Section 54 of the Enforcement Proceedings Act requires the bailiff to sell the arrested property in satisfaction of the debt within two months of the date of seizure. The sale is carried out by a specialised institution on the basis of a commission contract with the bailiff.", "490. According to Government Decree no. 418 “On the Russian Fund of Federal Property” of 29 November 2001 and Government Decree no. 260 “On the Sale of Seized, Confiscated and Other Property ...” of 19 April 2002, the Fund is entrusted with the task, inter alia, of auctioning property seized in satisfaction of the debts owed to Russia.", "7. Distribution of levied sums and order of priority in the event of multiple claimants", "491. Section 77 of the Enforcement Proceedings Act provides that, in respect of the sums levied from the debtor, including the proceeds from the forced sale of the debtor’s property, the bailiffs first recover enforcement fees and all related payments and the remainder is used in satisfaction of the creditors’ claims.", "492. If the proceeds from the forced sale(s) are insufficient to satisfy all creditors, the following order of priority applies (section 78 of the Enforcement Proceedings Act): tort claims, employment and labour-related claims, claims made on behalf of the Pension Fund and the Social Security Fund of Russia, claims made on behalf of the budgets of various territorial levels and finally all other claims.", "8. Court appeals against bailiffs’ decisions", "493. Under section 90 of the Enforcement Proceedings Act, all actions by the bailiff in the course of enforcement proceedings can be appealed against within ten days from the date of proper notification of the action in question.", "494. Any damage inflicted on the debtor as a result of the bailiff’s omission is compensated in accordance with the applicable legislation.", "O. Enforcement proceedings in respect of an insolvent debtor legal entity", "495. The enforcement of court awards and more generally debt claims against insolvent or presumably insolvent debtor legal entities are regulated by the Insolvency (Bankruptcy) Act of 26 October 2002 (Law no. 127-FZ).", "1. Definition of the state of insolvency (bankruptcy)", "496. Section 3 of the Insolvency (Bankruptcy) Act defines the state of bankruptcy of a legal entity as follows:", "“A legal entity is regarded as being unable to satisfy the claims of creditors in respect of pecuniary obligations and (or) to fulfil its obligations in respect of mandatory payments if the respective obligations and (or) obligation are not complied with within three months of the date on which compliance should have occurred.”", "497. In accordance with section 4 of the Act, the obligations are, as a general rule, defined/recognised by the court on the date of examination of the bankruptcy petition.", "498. Bankruptcy proceedings in respect of a legal entity may only be instituted by a court if the overall amount of debt claims exceeds RUB 100,000 (section 6 of the Act).", "2. Bringing of a bankruptcy petition", "499. Under section 7 of the Act the debtor, the debtor’s creditors in respect of pecuniary claims and State bodies competent to take part in bankruptcy proceedings in which the State is a creditor in respect of mandatory payments are entitled to bring a bankruptcy petition.", "500. Whilst the executive body of the debtor has the right to file for bankruptcy in circumstances where it is obvious that the debtor would be unable to fulfil its obligation in due time (section 8 of the Act), it has a legal duty to do so if the forced seizure of the debtor’s property in satisfaction of a claim would make the debtor’s economic activity extremely difficult or impossible (section 9 of the Act). In this latter respect, the petition should be brought within one month from the date on which the respective relevant circumstances occurred.", "501. Failure to abide by the above rules exposes the offender to civil liability action by virtue of section 10 of the Act and may also make the offender vicariously liable for any resulting damage.", "3. Examination of a bankruptcy petition", "502. The admissibility of the bankruptcy petition is examined by a single-judge bench (section 48 of the Act). Having declared the petition well-founded (admissible), the judge is to impose a supervision order in respect of the debtor (see below).", "503. The merits of the bankruptcy petition should be examined by a court within seven months of the date of its filing (section 51 of the Act).", "504. Having examined the merits of the bankruptcy petition, the court takes one of the following decisions (section 52 of the Act): (a) it declares the debtor bankrupt and applies the liquidation procedure in respect of the debtor; (b) it rejects the request to declare the debtor bankrupt; (c) it introduces a “financial improvement order” in respect of the debtor; (d) it applies the procedure of external management; (e) it discontinues the bankruptcy proceedings; (f) it disallows the bankruptcy petition; (g) it approves the friendly settlement of the case.", "4. Various solutions available to a court in resolving a bankruptcy case", "505. The following five procedures may be applicable in respect of the debtor in a bankruptcy case (section 27 of the Act): (a) supervision order; (b) financial improvement order; (c) external management; (d) liquidation; (e) friendly settlement.", "506. A supervision order is defined as the first procedure applied to the debtor (see above). It consists of securing the debtor’s property, analysing its financial condition, composing the list of creditors and carrying out the first assembly of creditors (section 2 of the Act). The decision to impose a supervision order is taken by a judge in accordance with section 9 of the Act. It can be appealed against to a higher court. In the decision, the judge should also appoint an interim receiver.", "507. A financial improvement order is a bankruptcy procedure intended to re-establish the debtor’s solvency and consisting in repayment of the debts in accordance with a debt repayment schedule (section 2 of the Act).", "508. External management is a bankruptcy procedure intended to re-establish the debtor’s solvency (section 2 of the Act).", "509. Liquidation is a bankruptcy procedure applied in respect of a debtor who has been declared bankrupt. It is essentially the sale of the debtor’s property by a court-appointed trustee in proportionate satisfaction of the creditors’ claims (section 2 of the Act).", "510. Friendly settlement is a bankruptcy procedure applicable at any stage of bankruptcy proceedings whereby the creditors and the debtor reach an agreement in respect of the debtor’s liability (section 2 of the Act).", "5. Supervision order and its consequences", "511. The automatic consequences of the decision to adopt a supervision order in respect of the debtor legal entity (section 63 of the Act) are, in particular, the following: all debts due after the date of the decision are recoverable only pursuant to a special procedure; enforcement of execution writs already issued, including any pecuniary claims (with the exception of those relating to payment of salaries and tort claims) against the debtor, is halted, and the seizure in respect of the debtor’s property is lifted.", "512. The law also introduces some restrictions in respect of operations with the debtor’s shares and the actions of the debtor itself (section 64 of the Act). However, the debtor’s management team remains in place, subject to limitations restricting their ability to dispose of the debtor’s property above a certain value (more than 5% of the book costs of the debtor’s property) or to indebt the debtor further by contracting loans, issuing guaranties or sureties, transferring debts to third parties or transferring the debtor’s property for external management by a third party.", "513. An interim receiver is appointed by a court in accordance with sections 45 and 65 of the Act. At this stage of proceedings, he or she has no management functions and is essentially responsible for securing the debtor’s property, watching over the activities of the debtor’s management, analysing the debtor’s financial condition and identifying the debtor’s creditors. The interim receiver is accountable to a court and is in charge of organising the first meeting of creditors.", "514. For a period of thirty days from the date of publication of the supervision order notice, the creditors have the right to file their claims against the debtor (section 71 of the Act). The claims may be included in the list of creditors on the basis of the court’s decision.", "515. At least ten days prior to the date of termination of the supervision order, the interim receiver must organise the first meeting of creditors (section 72 of the Act). At the meeting, the creditors are competent, among other things, to decide either: (a) to introduce a financial supervision order and lodge the relevant request with the court; (b) to introduce an external management order and lodge the respective request with the court; or (c) to request the court to declare the debtor bankrupt and impose a liquidation order (section 73 of the Act)." ]

[ "II. Relevant domestic law and practice", "A. Tax liability", "1. General provisions", "307. Under Article 57 of the Constitution of Russia, everyone is liable to pay taxes and duties established by law.", "308. Article 44 of the Tax Code of 31 July 1998 no. 146-FZ (as in force at the relevant time) states that an obligation to pay a tax or a duty arises, alters or ceases in accordance with that Code and other legislative acts on taxes and fees.", "309. Articles 45 and 80 of the Tax Code provide that, as a general rule, taxpayers must comply with their obligation to pay a tax on their own initiative, and define a tax declaration as the written statement by taxpayers on their revenues and expenses, sources of revenue, tax benefits and the calculated sum of the tax, as well as other data related to calculation and payment of the tax.", "310. Under Article 45, in the event of non-payment or incomplete payment of the tax in due time, the tax authorities may levy the tax liability directly from the taxpayer’s bank account.", "311. Article 11 (2) of the Tax Code defines a branch of an organisation as a geographically separate department, with stable employment posts.", "2. Tax inspections", "312. Under Articles 82 and 87 of the Tax Code, the tax authorities may carry out documentary and on-site tax inspections of taxpayers. Such inspections may cover only the three calendar years of the taxpayer’s activity directly preceding the year of inspection. In exceptional cases the authorities are allowed to carry out repeated on-site tax inspections. Such cases include, among other things, on-site inspections conducted by way of supervision of the activities of the tax authority that conducted the initial audit (Article 87 (3) of the Code).", "313. Article 101 (4) 2 of the Tax Code states that the tax authority may use as evidence during its inspections documents earlier demanded by the authority from a taxpayer, documents submitted or obtained during documentary and on-site tax inspections of that taxpayer as well as other documents in the possession of the authority.", "314. Under Article 100 (5) of the Tax Code a taxpayer has two months to file a detailed reply to the report drawn up by the tax authorities on the outcome of the tax inspection.", "315. Under Article 81 of the Tax Code, a taxpayer may not be fined in respect of any errors if, prior to commencement of the on-site tax inspection for the relevant year, it files amended tax returns and voluntarily satisfies the related tax liabilities, including default interest.", "316. By order no. BG-3-29/159 dated 2 April 2003 the Tax Ministry decided that the period for performance of the demand to pay tax addressed to a taxpayer may not exceed ten calendar days from the date of its receipt by the taxpayer.", "317. The Government relied on the following cases as examples of typical terms given to taxpayers for voluntary payment of reassessed taxes and surcharges:", "(a) Case no. A82-11/2003-A/6", "318. On 13 November 2000 the Tax Ministry demanded that respondent OAO Slavneft-YANOS pay reassessed taxes and interest surcharges amounting to over RUB 53 million within one day. The court decisions in the case were taken on 11 June 2003, 7 October 2003 and 19 January 2004.", "(b) Case no. A33-16983/01-S3a-F02-1826/02-S1", "319. On 31 May 2001 the Tax Ministry ordered the Municipal Housing and Utilities Infrastructure of the Kansk District to pay reassessed taxes in the amount of RUB 814,581.54 within one day. The first judgment of 9 April 2002 was upheld by the cassation instance on 16 July 2002.", "(c) Case no. F04/1724-594/A27-2004", "320. On 23 January 2003 the Tax Ministry ordered FGUP PO Progress to pay reassessed taxes in the amount of RUB 72,827,208 within one day. The court decisions were taken on 4 September, 16 December 2003 and 5 April 2004 respectively.", "(d) Case no. A26-8688/03-26", "321. On seven occasions in 2003 the Tax Ministry ordered OOO Krasnaya Rybka to pay reassessed taxes and interest surcharges in the overall amount of RUB 760,043.19 within one day. The first-instance judgment in the case, dated 13 February 2004, was upheld by a cassation decision of 16 June 2004.", "(f) Case no. F04-2648/2005(10969-A61-37)", "322. On 25 August 2004 the Tax Ministry ordered OOO YamalGIS-Servis to pay reassessed taxes in the amount of RUB 268,083 on the same day. The court decisions upholding the demand were taken on 9 December 2004, 24 February and 4 May 2005.", "B. Applicable taxes", "1. General provisions", "323. Article 38 of the Tax Code provides that objects of taxation may be operations involving the retailing of goods, works and services, property, profit, income, value of retailed goods, works and services or other objects having cost, quantitative or physical parameters on the existence of which the tax legislation bases the obligation to pay tax.", "324. Article 39 of the Code defines retailing of goods, works and services as, inter alia, the transfer (including exchange of services, works and goods) in return for compensation of property rights in respect of goods and results of works from one person to another, as well as the rendering of services from one person to another in exchange for compensation.", "325. Article 41 of the Code defines profits as economic gains in monetary form or in kind.", "2. Value-added tax", "(a) Before the entry into force of the Second Part of the Tax Code on 1 January 2001", "326. Section 3 of RF Law no. 1992-1 of 6 December 1991 “On Value-Added Tax” (as in force at the relevant time) subjects to VAT, among other things, the turnover generated by the retailing of goods, works and services on the territory of Russia, the rates of which range between 10% and 20%. Under section 5 of the Law, exported goods are exempt from payment of the tax. The exemption becomes effective only if the taxpayer properly justifies the claim. Until these documents are filed, the tax remains payable under the non-export rate.", "327. Letter no. B3-8-05/848, 04-03-08 of the State Tax Service of Russia and the Ministry of Finance, dated 21 December 1995, stated that taxpayers were to file the following documents to justify this tax exemption: a contract concluded between the legal personality taxpayer registered in Russia with its foreign partner, proof of payment in respect of the goods, and a customs declaration bearing the appropriate stamp of the customs body, confirming the export of goods from the customs territory of Russia.", "(b) After the entry into force of the Second Part of the Tax Code on 1 January 2001", "328. In respect of VAT, the applicable tax rate is 0% if the traded goods are placed in an “export” customs regime and physically removed from the customs territory of the Russian Federation (Article 164 (1) of the Tax Code). In addition, the taxpayer may claim a refund of the “incoming” VAT already paid in respect of the exported goods.", "329. For the zero rate to become effective and in order to claim the VAT refund, it is necessary to justify the claim by filing the following documents with the tax authorities (Article 165 of the Tax Code): the export contract concluded between the taxpayer and the foreign buyer, a bank statement confirming receipt of funds from the foreign buyer by a Russian bank duly registered with the tax authorities, a relevant customs declaration bearing the stamp of the customs bodies confirming the export of the goods from the customs territory of Russia, and copies of relevant transport bills and shipping documents, bearing the stamps of the customs bodies, confirming the export of goods from the customs territory of Russia.", "330. On 14 July 2003 the Constitutional Court issued ruling no. 12-P, in which it essentially upheld the constitutionality of Article 165 of the Code. The court distinguished between documents required by public-law norms, such as the taxpayer’s customs declaration bearing the relevant stamps from the customs bodies, and which are mandatory in all cases, and other documents such as contracts, transport bills etc. In view of the different practices of the economic actors, which made the latter type of documents mutually replaceable, the authorities were constitutionally permitted to require a taxpayer to file these documents, but without an excessive degree of formalism.", "331. The relevant documents are to be filed with the competent tax authority within 180 days from the date of the customs clearance of the goods in question (Article 165 (9) of the Tax Code). Until these documents are filed, the tax remains payable under the non-export rate. A taxpayer is not precluded from filing the documents in question even after the expiry of the time-limit in question (Article 176 of the Tax Code).", "332. By a decision of 28 April 2003 (case no. F09-1159/03-AK) in the case of ZAO Aktsionernaya neftyanaya kompaniya v. the Tax Ministry, the Federal Commercial Court of the Ural District, acting as a cassation review court, rejected the company’s claims for VAT refunds with reference to its failure to satisfy the requirements of Article 165 of the Code. The company could not prove the fact of actual payment for the allegedly exported goods.", "333. By a decision of 17 February 2004 (case no. F09-187/04-AK) in the case of OOO Firma Galaktika v. the Tax Ministry, the Federal Commercial Court of the Ural District, acting as a cassation review court, rejected the company’s claims for VAT refunds with reference to its failure to satisfy the requirements of Article 165 of the Code. The company failed to submit a proper bank statement confirming receipt of funds from the foreign buyer.", "334. By a decision of 3 May 2005 (case no. A56-31805/04) in the case of ZAO Stroitelnyy trest no. 28 v. the Tax Ministry, the Federal Commercial Court of the North Western District examined the decisions of lower courts whereby the company had been refused VAT refunds at first instance (by a judgment of 11 October 2004 – the company failed to submit the properly stamped customs declaration confirming the actual export of the goods) and had subsequently been granted them on appeal (by a decision of 21 January 2005 – the appeal court decided that the fact of the actual export had been established by a final court decision in a related court dispute). The cassation court quashed the appeal decision, having noted that the requirements set out in Article 165 of the Code were strict and unequivocal and that the law did not allow for any replacement of the customs declaration by other means of proof.", "335. By a decision of 9 March 2005 (case no. F09-563/05-AK) in the case of OAO Kachkanarskiy gorno-obogatitelnyy kombinat Vanadiy v. the Tax Ministry, the Federal Commercial Court of the Ural District quashed the decisions of lower courts whereby the company had been granted VAT refunds. The cassation court noted that the requirements set out in Article 165 of the Code were strict and unambiguous and that the law required the taxpayer to prove the actual export solely by means of the properly stamped customs declaration, which had not been done by the company in the present case. Accordingly, the court rejected the company’s claims.", "336. By a decision of 27 September 2005 (case no. F09-4252/05-C2) in the case of OAO Nauchno-proizvodstvennyy centr vysokotochnoy tekhniki Izhmash v. the Tax Ministry, the Federal Commercial Court of the Ural District, acting as a cassation review court, rejected the company’s claims for VAT refunds with reference to its failure to satisfy the requirements of Article 165 of the Code in a timely manner, that is, within six months.", "3. Motorway fund tax", "337. Section 5 (2) of RF Law no. 1759-1 of 18 October 1991 “On motorway funds in the Russian Federation” provides for a 1% motorway users’ tax from the turnover of the retail of goods, works and services, payable by all motorway users. Section 4 also makes subject to a 25% tax the turnover (excluding VAT) of companies trading in fuels and lubricants.", "338. This tax was abolished from 1 January 2003.", "4. Tax for the maintenance of the housing stock and socio-cultural facilities", "339. Section 21 (“Ch”) of RF Law no. 2118-1 of 27 December 1991 “On the foundations of the tax system” imposes a tax of up to 1.5% for the maintenance of the housing stock and socio-economic facilities.", "340. This tax was abolished with the entry into force of the Second Part of the Tax Code on 1 January 2001.", "5. Corporate property tax", "(a) Before the entry into force of the Second Part of the Tax Code on 1 January 2001", "341. Section 2 (1-2) of RF Law no. 2030-1 of 13 December 1991 “On corporate property tax” provided for a tax of up to 2% in respect of organisations’ property.", "(b) After the entry into force of the Second Part of the Tax Code on 1 January 2001", "342. Chapter 30 of the Tax Code provides for a tax of up to 2.2% in respect of organisations’ property. The exact rate is defined by the regional authorities.", "6. Profit tax", "(a) Before the entry into force of the Second Part of the Tax Code on 1 January 2001", "343. Law no. 2116-1 of 27 December 1991 “On profit tax on enterprises and organisations” (sections 2 and 5) provided for a profit tax, the rate of which could vary depending on the type of taxable activity and the rate fixed by the local authorities. The mandatory rate to be transferred to the Federal budget was 11%.", "(b) After the entry into force of the Second Part of the Tax Code on 1 January 2001", "344. Chapter 25 of the Tax Code provides for a profit tax of up to 24% (6.5% to be transferred to the Federal budget and the rest to the regional budget).", "7. Advertising tax", "345. Section 21 (1) “z” of RF Law no. 2118-1 of 27 December 1991 “On the foundations of the tax system” imposed a tax in respect of the cost of advertisement services.", "346. This tax was abolished from 1 January 2005.", "C. Tax advantages", "1. General provisions", "347. Article 56 of the Tax Code defines a tax benefit as a full or partial exemption from the payment of taxes, granted by the tax legislation.", "348. In letter no. 04/06/08, dated 21 October 1998, the Ministry of Finance noted, inter alia :", "“...[that] experience in creating and operating free economic zones in the Russian Federation, established pursuant to both federal laws (the special economic zone in the Kaliningrad region) and resolutions of the authorities of constituent entities of the Federation (Kalmykiya, Tuva), [has] demonstrate[d] that the creation of such zones across such vast areas in the absence of a proper analysis of investment projects leads to abuses of the tax and customs incentives granted and, accordingly, to serious losses suffered by the federal and local budgets, as reported by the Ministry of Finance of Russia to the Government of Russia on multiple occasions.”", "2. Requirements relating to the registration of taxpayers", "349. Under Article 83 (1) of the Tax Code, taxpayers which are legal entities are required to register with the tax authorities at their headquarters (location of their executive bodies), at the location of their branches and at the location of any real estate and places where vehicles belonging to them are registered.", "350. Special registration rules applied in respect of large taxpayers, including the applicant company.", "351. By Decree no. АП-3-10/399 of the Tax Ministry, dated 15 December 1999, such taxpayers are required to register at their main location, at the location of their branches and at the location of real estate and places where vehicles belonging to them are registered, and in certain specific tax offices (inter-district level or as specifically indicated by the Ministry).", "352. Annex 3 to the Decree contains the form “On subsidiary and dependant companies and subsidiary enterprises”, to be filled in by the taxpayer. During registration the taxpayer is required to indicate all of its subsidiary and dependant companies.", "353. In respect of domestic off-shore territories, according to commentators, this requirement means that in practice the taxpayer’s executive body should always be physically located and functioning on the territory of the off-shore. If the taxpayer fails to comply with the requirement, the tax authorities could declare its registration void with the subsequent recovery of the entirety of the perceived tax benefits (see A.V. Bryzgalin, Practical Tax Encyclopaedia, Moscow, 2003-2006, Chapter 3 “Methodology of tax optimisation”).", "3. Closed administrative-territorial formations (the town of Sarov in the Nizhniy Novgorod Region, the town of Trekhgornyy in the Chelyabinsk Region and the town of Lesnoy in the Sverdlovsk Region)", "(a) Legal provisions", "354. Under section 5 of Law no. 3297-1 of the Russian Federation “On closed administrative-territorial formations”, tax concessions are provided to businesses if, inter alia, they have at least 90% of their fixed assets and conduct at least 70% of their activities on the territory of the respective formation (including a requirement that at least 70% of their employees be made up of persons permanently residing in the ZATO in question, and that at least 70% of their wage bill be paid to employees permanently residing in that territory).", "355. Letter no. AП-6-01/505 of the Tax Ministry, dated 24 June 1999, contained Methodological Directions to the tax bodies on issues concerning the lawfulness of the use of additional tax benefits granted by local authorities in the closed administrative-territorial formations. It stated that the tax authorities ought to verify the actual presence of the taxpayer’s assets on the territory in question by checking its accounting records and financial statements, and by confirming the physical location of the organisation at the indicated address and the fact of genuine performance by the taxpayer’s employees at the taxpayer’s registered location.", "(b) Case no. A42-6604/00-15-818/01 (The Tax Ministry v. OOO Pribrezhnoe), referred to by the applicant company", "356. The respondent legal entity was OOO Pribrezhnoe, registered in the closed administrative territorial formation town of Snezhnogorsk, which has a privileged tax regime. The Ministry tried unsuccessfully to contest the use of tax concessions by the respondent, by demonstrating that the entity had not been actually present at the place of its registration. The domestic court found for the respondent. They established that the entity had some assets on the territory of Snezhnogorsk, a number of permanent employees (including a lawyer and the cleaning lady), and a cash account in the local bank, which proved that the entity satisfied the criteria provided for in law.", "357. The final decision in the case was taken by the Court of Cassation on 5 June 2002.", "4. The Republic of Mordoviya", "358. Under Law no. 9-FZ of the Republic of Mordoviya of 9 March 1999 “On the conditions of efficient use of the socio-economic potential of the Republic of Mordoviya”, tax concessions are granted to taxpayers whose entities were established after the entry into force of that law and whose activities meet certain conditions, including but not limited to the following:", "(a) they conduct export operations, the quarterly proceeds from which account for at least 15%of the business’s total earnings;", "(b) they engage in wholesale trade in fuel and lubricants and other types of hydrocarbon raw materials, the quarterly proceeds from which account for at least 70% of the business’ total earnings.", "359. Section 1 of the Law states that “this Law establishes concessions with the objective of creating favourable conditions for attracting capital into the territory of the Republic of Mordoviya, strengthening the socio-economic potential of the Republic of Mordoviya, developing the securities market and creating new jobs through special arrangements for the taxation of organisations”.", "5. The Republic of Kalmykiya", "360. Law no. 12-P-3 of the Republic of Kalmykiya of 12 March 1999 “On tax concessions for companies investing in the Republic of Kalmykiya” provides tax concessions to those who meet the following criteria:", "(a) the taxpayer is not a user of mineral resources in the territory of the Republic;", "(b) the taxpayer is registered with the Ministry of Investment Policy of the Republic of Kalmykiya as an enterprise investing in the economy of the Republic;", "(c) the enterprise’s investment in the economy of the Republic meets the criteria established by the Ministry of Investment Policy of the Republic in accordance with this law.", "361. By a decision of 16 April 2002 (case no. F08-1134/2002-402) in the case of OOO Simpleks v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy.", "362. By a decision dated 29 April 2002 (case no. F08-1368/2002-506A) in the case of OOO Impuls v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and indeed made any investments in the local economy.", "363. By a decision of 20 May 2002 (case no. F08-1678/2002-614A) in the case of OOO Sibirskaya transportnaya kompaniya (one of the sham entities belonging to the applicant company) v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District ruled as follows:", "“[b]ased on the content and meaning of the [above-mentioned] law and Resolution no. 7 of the Elista Town Administration, [the purpose of the municipal legislation] is to attract funds from various investors for development of the regional and local economies, given the lack of funds in the regional and local budgets and the need for their replenishment to ensure the activities of the Kalmyk Republic and the town of Elista ...", "The case documents show that RUB 27,196 came from the plaintiff for development of the regional and local economies, whereas RUB 6,918,617 did not enter the regional and local budgets directly. Thus, the investments made by [OOO Sibirskaya transkportnaya kompaniya] amount to 0.4% of the amount of taxes that would otherwise have been payable by it. They have no effect on the development of the economy [and] do not cover the budgetary losses related to the granting of incentives to taxpayers; on the contrary, they have consequences in the form of unfair enrichment at the expense of budgetary funds. Thus, given that the amount of the investments made by the plaintiff is incommensurate to the amount of incentives used, the plaintiff abused its right, that is, it acted in bad faith”.", "Accordingly, the court quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had complied with the above-mentioned conditions and whether it had acted in good faith.", "364. By a decision of 28 May 2002 (case no. F08-1793/2002) in the case of ZAO Telekom Zapad Komplekt v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District ruled that:", "“[b]ased on the meaning and contents of the [above-mentioned] law and Resolution no. 7 of the Elista Town Administration, it follows that [the purpose of the municipal legislation] is to attract funds from various investors for development of the regional and local economies, given the lack of funds in the regional and local budgets and the need for their replenishment to ensure the activities of the Kalmyk Republic and the town of Elista...", "... [the court has to examine] the proportion between the investments made by the [taxpayer] and the amount of tax that did not enter the budget [in order] to resolve the issue of the plaintiff’s good faith and its abuse of its rights”.", "Accordingly, the court quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had complied with the above-mentioned conditions and had acted in good faith.", "365. By a decision of 4 June 2002 (case no. F08-1864/2002-697A) in the case of ZAO Promyshlennaya korporaciya Shar v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy.", "366. By a decision of 5 August 2002 (case no. F08-2762/2002-1009A) in the case of OOO Promet v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy.", "367. By a decision of 13 August 2002 (case no. F08-2892/2002-1051A) in the case of OOO TD Dion v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy.", "368. By a decision of 29 August 2002 (case no. F08-3158/2002-1140A) in the case of ZAO Stanford v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy.", "369. By a decision of 20 February 2003 (cases nos. F08-270/2003-91A and F08-1679/2002-622A) in a dispute between the Tax Ministry and OOO “Vostochnaya perestrakhovochnaya kompaniya”, the Federal Commercial Court of the North-Caucasian Circuit found as follows:", "“The investments made by the [taxpayer] amount to 0.14% of the amount of taxes that would otherwise have been payable by it. They have no effect on the development of the economy... but ... their effect is unfair enrichment .... Therefore, [as] the amount of investments by [the taxpayer] was incommensurate to the amount of the benefits received, [the taxpayer] abused its right, that is, it acted in bad faith”", "370. By a decision of 20 February 2003 (case no. F08-268/2003-98A) in the case of OOO Bazis Sekyuritis v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy.", "371. By a decision of 8 April 2003 (case no. F08-1013/2003-383A) in the case of OOO Gravite v. the Tax Ministry, the Federal Commercial Court of the North-Caucasian District quashed the decisions of the lower courts and instructed them to investigate further whether the taxpayer had indeed complied with the conditions mentioned in the law, had acted in good faith in this respect and had indeed made any investments in the local economy.", "6. The Evenk Autonomous District", "372. Under section 9 of Law no. 108 of the Evenk Autonomous District “On specific features of the tax system in the Evenk Autonomous District” of 24 September 1998, substantially lower tax rates apply to local businesses whose activities meet certain conditions with regard to the special taxation procedure set out in section 8 of that Law.", "D. The use and interpretation of terms of civil legislation in tax disputes", "373. Under Article 11 of the Tax Code, the institutions, notions and terms of the civil legislation of Russia used in the Tax Code keep their respective meanings, unless specifically stated.", "E. General principles governing the status of legal entities", "1. Presumption of independence", "374. Under Article 2 of Civil Code of 30 November 1994 no. 51-FZ (as in force at the relevant time), the legal status of parties involved in civil-law transactions, the grounds for the creation of ownership and other property rights and the order of exercising those rights are defined by the civil legislation, which also regulates contractual and other obligations.", "375. The civil legislation regulates the relations between persons engaged in business activities or in those activities performed with their participation, on the assumption that business activity is an independent activity performed at one’s own risk and aimed at systematically deriving a profit from the use of property, the sale of commodities, the performance of work or the rendering of services by those persons registered in this capacity in conformity with the legally-established procedure.", "376. It is formally prohibited to make any unilateral property transfers (gifts, grants or gratuitous loans) between independent commercial legal entities (Articles 575 and 690 of the Civil Code). Unilateral property transfers are permitted by Article 251 (1) 11 of the Tax Code and not counted for the purposes of profit tax if they are made between associated entities, where one of them holds more than 50% of shares in the equity of the other entity.", "2. Rules applicable to subsidiary and dependant companies", "377. Article 105 of the Civil Code provides that a subsidiary company is one controlled by another company, either through ownership of the subsidiary company’s shares, by virtue of a contract or by any other means.", "378. The controlling company is jointly responsible for debts incurred by the subsidiary company as a result of compliance with the controlling company’s instructions. The controlling company may be held vicariously responsible for a debt of the subsidiary company in the event of the latter’s insolvency.", "379. Article 106 of the Code provides that a company is dependant when the other company owns over 20% of the first company’s voting stock. A company which purchases over 20% of the voting shares in other companies is obliged to make this information public.", "380. Similar rules are established in respect of limited liability companies ( обществa с ограниченной ответственностью ) by section 6 of Law no. 14-FZ on limited liability companies of 8 February 1998.", "F. Definition of a property owner", "381. Article 209 of the Civil Code defines an owner as the person who has the rights of possession, use and disposal of his property. In respect of this property, the owner is entitled, at his will, to perform any actions not contradicting the law and the other legal acts, and not violating the rights and legally protected interests of other persons.", "G. Contractual freedom and its limits", "1. Presumption of good faith and prohibition on abuse of rights", "382. Articles 9 and 10 of the Civil Code provide that the parties involved in civil-law transactions are free to act contractually within the limits defined by law.", "383. Article 10 (1 and 2) of the Code states specifically that parties involved in civil-law transactions are prohibited from abusing their rights. In such cases, the courts may deny legal protection in respect of the right which is being abused. Article 10 (3) establishes a refutable presumption of good faith and reasonableness of actions on the parties in civil-law transactions.", "2. Examples of the case-law of the domestic courts concerning the notion of bad faith", "384. In its decision no. 24-P dated 12 October 1998, the Constitutional Court of Russia for the first time made use and interpreted the notion of “bad/good faith” to assess the legal consequence of the conduct of taxpayers in its jurisprudence. In this case this was done to define the moment at which a taxpayer can be said to have discharged his or her constitutional obligation to pay taxes.", "385. In its decision no. 138-O dated 25 July 2001, the Constitutional Court of Russia again confirmed that there existed a refutable presumption that the taxpayer was acting in good faith and that a finding that a taxpayer had acted in bad faith could have unfavourable legal consequences for the taxpayer. The case again concerned the definition of a moment at which a taxpayer can be said to have discharged his or her constitutional obligation to pay taxes.", "386. The domestic commercial courts applied this approach in a number of cases concerning the eligibility of taxpayers to tax concessions in the Republic of Kalmykiya, such as decision no. F08-1134/2002-402 of 16 April 2002 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-1864/2002-697A of 4 June 2002 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-2762/2002-1009A of 5 August 2002 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-2892/02-1015A of 12 August 2002 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-3158/2002-1140A of 29 August 2002 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-268/2003-98A of 20 February 2003 of the Federal Commercial Court of the North Caucasian Circuit, decision no. F08-1013/2003-383A of 8 April 2003 of the Federal Commercial Court of the North Caucasian Circuit.", "387. In its decision no. 168-O of 8 April 2004 the Constitutional Court noted that it would be inadmissible for bad-faith taxpayers to manipulate the legal civil-law institutions to create and operate schemes for unlawful enrichment at the expense of the State budget. The case concerned the use of exchange notes in the sphere of VAT refunds.", "3. Rules governing sham transactions", "(a) Statutory law", "388. Under Article 153 of the Civil Code, transactions are defined as activities of natural and legal persons creating, altering and terminating their civil rights and obligations.", "389. Article 166 of the Civil Code states that a transaction may be declared invalid on the grounds established by that Code, either by force of its being recognized as such by the court (a voidable transaction, оспоримая сделка ), or regardless of such recognition (a void transaction, ничтожная сделка ).", "390. Under Article 167 of the Civil Code, void transactions entail no legal consequences, apart from those relating to their invalidity, and are invalid from the moment they are conducted.", "391. Article 170 (2) establishes specific rules in respect of two types of void transactions: ‘imaginary’ transactions (“ мнимая сделка ”, effected only for form’s sake, without the intention to create the corresponding legal consequences) and ‘sham’ transactions (“ притворная сделка ”, which are effected for the purpose of screening other transactions). This provision condemns both imaginary and sham transactions as void.", "392. It also provides that in the event of sham transactions, the rules governing the transaction that was in fact intended by the parties may be applied by a court, regard being had to the substance of this transaction (the so-called “substance over form” rule).", "393. Under Article 45 (2) 3 of the Tax Code the power to re-characterise transactions by a taxpayer with third parties, their legal status and the nature of the taxpayer’s activity in tax disputes lies with the courts (as opposed to executive bodies). Section 7 of Law no. 943-1 of 21 March 1991 “On Tax Authorities in the Russian Federation” vests the power to contest such transactions and recover everything received in such transactions with the State budget.", "(b) Academic sources", "394. Comments on the Civil Code (O.N. Sadikov, Comments on the Civil Code, Yuridicheskaya firma Kontrakt Infra-M, Moscow, 1998) states, with reference to Bulletin no. 11 of the Supreme Court of RSFSR (page 2), that any evidence admitted by the rules on civil procedure may also serve as proof of the invalidity of sham transactions.", "H. General rules on price formation and the price adjustment mechanism", "395. Article 40 (1) of the Tax Code requires that the parties trade at market prices. It also establishes a refutable presumption that the prices agreed to by the parties correspond to market levels and are used for taxation purposes.", "THE LAW", "I. COMPLIANCE WITH ARTICLE 35 § 2 (b) OF THE CONVENTION", "516. The Court reiterates that it declared this application admissible on 29 January 2009 (see OAO Neftyanaya Kompaniya Yukos v. Russia (dec.), no. 14902/04, 29 January 2009) and decided to hold a hearing on the merits of the case. Subsequently, but prior to the hearing, the Court was informed that arbitration proceedings, allegedly brought against the Russian Federation by the applicant company’s former owners, were pending and considered that these developments raised an issue of the applicant company’s compliance with the requirements of Article 35 § 2 (b) of the Convention. It invited the parties to address this question in their submissions at the hearing.", "A. The parties’ submissions", "517. The Government submitted that in February 2005 the applicant company’s former majority shareholders Hulley Enterprises Ltd, Yukos Universal Ltd and Veteran Petroleum Ltd, which had jointly owned over 60% of shares in the applicant company, brought arbitration proceedings against the Russian Federation for the alleged breaches of the Energy Charter Treaty in the Permanent Court of Arbitration in The Hague. The Government pointed out that the applicant company had ceased to exist and that it was obvious that the above-mentioned majority shareholders had been behind the present case in the Court and that they would be the end-beneficiaries of any eventual award in these proceedings. The Government also mentioned a number of arbitration proceedings brought against the Russian Federation by groups of minority shareholders under bilateral investment treaties. Overall, the Government invited the Court to discontinue the case with reference to Article 35 § 2 (b) of the Convention.", "518. The applicant company denied any participation in and any knowledge of any other international proceedings that may be of relevance. At the same time, it invited the Court to rule that the parties in the proceedings before this Court (the applicant company) and in The Hague arbitration proceedings (the applicant company’s controlling shareholders) were not the same. According to the applicant company, the subject-matter in the two cases was different. It also claimed that the arbitration proceedings in the Hague were conducted before ad hoc tribunals, constituted by the parties, and were not comparable to the Court in their structure, permanence or authority. Overall, the applicant company argued that its application complied with Article 35 § 2 (b) of the Convention and that any parallel proceedings should not undermine its case before the Court.", "B. The Court’s assessment", "519. The Court will examine this issue under Article 35 § 2 (b) of the Convention, which reads as follows:", "“... 2. The Court shall not deal with any application submitted under Article 34 that ...", "(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information. ...”", "520. At the outset, the Court would reiterate that Article 35 § 2 (b) of the Convention is intended to avoid the situation where several international bodies would be simultaneously dealing with applications which are substantially the same. A situation of this type would be incompatible with the spirit and the letter of the Convention, which seeks to avoid a plurality of international proceedings relating to the same cases (see, among others, Smirnova v. Russia, (dec.) nos. 46133/99 and 48183/99, 3 October 2002, and Calcerrada Fornieles and Cabeza Mato v. Spain, no. 17512/90, Commission decision of 6 July 1992, Decisions and Reports (DR) 73). In determining whether its jurisdiction is excluded by virtue of this Convention provision the Court would have to decide whether the case before it is substantially the same as a matter that has already been submitted to a parallel set of proceedings and, if that is so, whether the simultaneous proceedings may be seen as “another procedure of international investigation or settlement” within the meaning of Article 35 § 2 (b) of the Convention.", "521. The assessment of similarity of the cases would usually involve the comparison of the parties in the respective proceedings, the relevant legal provisions relied on by them, the scope of their claims and the types of the redress sought (see Vesa Peltonen v. Finland (dec.), no. 19583/92, 20 February 1995; Cereceda Martin and Others v. Spain, no. 16358/90, Commission decision of 12 October 1992; Smirnova, cited above, and Decision on the competence of the Court to give an advisory opinion [GC], § 31, ECHR 2004 ‑ VI).", "522. As regards the analysis of the character of parallel proceedings, the Court’s examination would not be limited to a formal verification but would extend, where appropriate, to ascertaining whether the nature of the supervisory body, the procedure it follows and the effect of its decisions are such that the Court’s jurisdiction is excluded by Article 35 § 2 (b) (see Lukanov v. Bulgaria (dec.), 21915/93, Commission decision of 12 January 1995; Decision on the competence of the Court to give an advisory opinion [GC], cited above; Celniku v. Greece, no. 21449/04, §§ 39-41, 5 July 2007, and Peraldi v. France (dec.), no. 2096/05, 7 April 2009).", "523. Turning to the case at hand, the Court finds that there is no need for it to examine whether the proceedings in the Hague brought by the company’s majority shareholders or the proceedings brought under the bilateral investment treaties brought by various groups of the company’s minority shareholders may be seen as “another procedure of international investigation of settlement” as it is clear that the cases are not “substantially the same” within the meaning of Article 35 § 2 (b) of the Convention for the following reasons.", "524. The Court observes that it was Hulley Enterprises Ltd and Veteran Petroleum Ltd (both registered in Cyprus) and Yukos Universal Ltd (registered in the Isle of Man), which in February 2005 initiated arbitration proceedings against the Russian Federation before the Permanent Court of Arbitration in the Hague, referring, among other things, to the same events and proceedings as those complained of by the applicant company in the present application before the Court and alleging numerous violations of their rights as investors under the Energy Charter Treaty. Some of the company’s foreign minority shareholders also initiated similar proceedings under bilateral investment treaties. The Court notes, however, that despite certain similarities in the subject-matters of the present case and of the arbitration proceedings, the claimants in those arbitration proceedings are the applicant company’s shareholders acting as investors, and not the applicant company itself, which at that moment in time was still an independent legal entity.", "525. The Court further notes that the present case has been introduced and maintained by the applicant company in its own name. Although the above-mentioned entities could arguably be seen as having been affected by the events leading to the applicant company’s liquidation, they have never taken part, either directly or indirectly, in the Strasbourg proceedings. The Court reiterates that in November 2007 the applicant company was liquidated and that despite this fact in its admissibility decision of 29 January 2009 it nevertheless accepted the application “because the issues raised by the case transcend[ed] the person and the interests of the applicant [company]” and “... striking the application out of the list under such circumstances would undermine the very essence of the right of individual applications by legal persons, as it would encourage governments to deprive such entities of the possibility to pursue an application lodged at a time when they enjoyed legal personality...”, which shows that the Court has throughout placed emphasis on the applicant company in its own right.", "526. In these circumstances, the Court finds that the parties in the above-mentioned arbitration proceedings and in the present case are different and therefore the two matters are not “substantially the same” within the meaning of Article 35 § 2 (b) of the Convention. It follows that the Court is not barred, pursuant to this provision, from examining the merits of this case.", "II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION", "527. The Court notes that in the admissibility decision in this case it has established that Article 6 applied under its criminal head to the 2000 Tax Assessment proceedings and has declared admissible the company’s grievances that:", "(1) the Ministry had brought the action in these proceedings within the grace period;", "(2) the time to prepare for trial had been too short;", "(3) its lawyers could not obtain from the Ministry answers to all the questions they wished to ask in the hearings before the first-instance court and the first-instance court pronounced its judgment without having studied all the evidence;", "(4) the statutory time-limit for appeal had been unjustifiably abridged;", "(5) and that the appeal court had delayed the delivery of the reasons for its judgment thereby preventing the applicant company from lodging a cassation appeal.", "528. The Court will examine these grievances under Article 6 of the Convention, which, in its relevant parts, provides as follows:", "“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.", "...", "3. Everyone charged with a criminal offence has the following minimum rights:", "(b) to have adequate time and facilities for the preparation of his defence; ...”", "A. The parties’ submissions", "1. The applicant company’s submissions", "529. As regards the first instance proceedings, at the admissibility stage of proceedings before this Court the applicant company argued that the supporting material underlying the Tax Assessment for 2000 had first been provided to it as a result of the City Court’s decision of 14 May 2004. It alleged that the disclosure did not occur until 17 May 2004, when the Ministry filed 24,000 pages of documents, and continued on 18 May 2004 with approximately 45,000 further pages and a further 2,000 pages late on 20 May 2004, i.e. on the eve of the first-instance hearing. The company conceded that its representatives had indeed been given access to all these materials, both prior to the hearings and during the trial, but submitted that the manner and time for such access had been so unsatisfactory that it was of no practical use. It also argued that it had been unable effectively to access the court’s filed documents during the first-instance hearings except during the lunch breaks. Overall, the company insisted that it had had insufficient time to prepare its defence and familiarise itself with the evidence before the court and that it had not had an opportunity to take cognisance of and comment on all of the evidence adduced or observations filed, nor to express its views on every document in the file, contrary to Article 6. It referred to the Ruiz-Mateos v. Spain and Krčmář v. Czech Republic cases. In their post-admissibility observations the company submitted that the Ministry had had sufficient time to disclose the evidence, as the relevant documents had been in the possession of the Ministry and that the Ministry could have disclosed them at any point from 8 December 2003 (some six months before the beginning of the hearing). It further noted that the documents filed by the Ministry had been in complete disorder and had been stored in nineteen plastic crates (ten of them containing six thousand pages each and nine more containing some four thousand pages each) and simply could not be studied properly over such a short period. The documents were kept in a room measuring three to four square metres and containing two chairs, a desk and one window. A request for additional space had been turned down. The above-mentioned conditions were reflected in a record dated 18 May 2004, drawn up by the applicant company’s counsel. The Ministry’s representative had refused to sign it and stated that he disagreed with its contents. More generally, the applicant company criticised the Ministry for bringing an action against it before the expiry of the grace period and argued that the first instance proceedings had been unfair because its lawyers could not obtain from the Ministry answers to all the questions they wished to ask in the hearings and that it was under the impression that the first-instance court had pronounced judgment without having studied all the evidence.", "530. As regards the appeal proceedings, the applicant company also insisted on the breach of Article 6. It submitted that the domestic courts had failed to address the question of whether the abridgement of time had affected its substantive right to a fair hearing and that, equally, it did not rely on Article 267 of the Code of Commercial Courts Procedure, referred to by the respondent Government. Also, the rule in Article 267 requiring an appeal to be determined within one month is not respected in practice by the Russian courts; failure to comply with this requirement, even for a whole year, has no consequences for the proceedings. There was, according to the applicant company, no evidence of any particular urgency in listing or resolving the appeal: neither the Ministry, nor the co-appellant, OOO ‘YUKOS’ Moscow, sought expedition when their appeals were lodged and the co-appellant did not oppose the applicant company’s applications to adjourn the appeal hearing. In response to the Government’s criticism suggesting that the company’s appeal was misaddressed by the omission of part of the postal code from the envelope, the applicant stated that no evidence had been provided of any mistake in this respect and that, after all, the appeal had been received by the court and the tax authorities. In any event, the court had made no criticism of the company in relation to the exercise of this appeal. Overall, the abridgement of the appeal period was a serious interference with the company’s right to prepare for the appeal hearings, which failed to cure but rather accentuated the unfairness of the first-instance proceedings, and no substantive reason has been offered as to why this acceleration was lawful, necessary or consistent with the requirements of a fair trial.", "531. The applicant company submitted in respect of the complaint about the delay in the delivery of the appeal judgment that the delay meant that the decision had been immediately enforced against the company, rendering any further cassation appeal nugatory. Only an application for a stay of enforcement pending an appeal in cassation, coupled with a valid appeal in cassation, could have been effective against the enforcement. In the company’s view, such a valid appeal was strictly dependent on filing of the reasons by the appeal court. The appeal decision had become subject to immediate forcible execution, the company had become liable for an additional surcharge of 7% of the total liability and the opportunity to exercise an effective appeal against these measures had been circumvented.", "2. The Government’s submissions", "532. As regards the argument that the company had insufficient time for preparation of the defence, the Government referred in their admissibility observations to the domestic legislation, which established a two-month time-limit for the examination of the case at first instance (Article 134 of the Code of Commercial Courts Procedure). The applicant company had at least 37 days to prepare its defence from the date of the filing of the suit, which, in view of the above time-limit, had not been unreasonable. Furthermore, the applicant company first became aware of the Ministry’s arguments on 29 December 2003, when the Ministry issued the report indicating the applicant company’s large tax liability and by 12 January 2004 the company had also filed its objections to the report under Article 100 (5) of the Tax Code. Moreover, the principal arguments contained in these objections remained unchanged throughout the proceedings. It could not be said therefore that the applicant company was unprepared to state its case, since it was well aware of the Ministry’s arguments five months prior to the beginning of the court proceedings. In addition, the Government pointed out that the applicant company’s lawyers were given an opportunity to study the evidence both in court and at the Ministry’s premises throughout May, June and July 2004. According to the documents submitted by the Government, counsel for the applicant company availed themselves of this opportunity at least on two occasions, on 18 and 19 May 2004 respectively. Lastly, the Government argued that the applicant company’s arguments about insufficient time for the preparation of the case had been carefully examined and eventually dismissed by the domestic courts as unfounded. In their post-admissibility observations the Government also submitted that the proceedings before commercial courts in Russia were generally conducted without serious delays (referring, for instance, to the lack of any cases against Russia on account of length of proceedings before the commercial courts). They further argued that in its submissions the applicant company had asserted generalities and had never mentioned any specific documents to which they had not had proper access. The evidence in question had been documents which were well known to the applicant company, as the Ministry had requested these documents from it during the on-site inspection (the Government relied on Article 101 (2) 4 of the Tax Code in this respect) and that the documents had been itemised in a register dated 17 May 2004 no. 14-3-02/22-13-1 and had been copies of original documentation reflecting the relations between the applicant company and its sham entities. In addition, the Government argued that any number of the company’s lawyers could have come to study the evidence and that the applicant company had apparently felt no need to do so, since it had been represented by eight lawyers in the first-instance proceedings and only two to four of them had studied the documents. Overall, the Government suggested that the dispute was more legal rather than factual, so that the crux of the applicant company’s objections concerned the interpretation of the domestic law rather than controversy about the particular circumstances of the tax evasion. In addition, the Government argued that the appeal hearing constituted a de novo examination of the case and that by then the applicant company had had a perfectly adequate opportunity to review the documentary record. By asking to adjourn the proceedings the applicant merely intended to delay the delivery of the judgment.", "533. As regards the appeal proceedings, in the Government’s view they too were in compliance with Article 6. The applicant company had brought appeal proceedings against the first-instance judgment of 26 May 2004: the possibility of review on both points of fact and law had been expressly provided for by Russian law (Article 268 of the Code of Commercial Courts Procedure) and the company had used it. Under Article 267 of the Code of Commercial Courts Procedure, which requires an appeal court to examine the appeals by the parties within a month of the date on which they were filed, the Appeal Court had to examine the case within a month of 1 June 2004, which was the date on which one party to the case, OOO ‘YUKOS’ Moskva, first lodged an appeal brief, notwithstanding the fact that the applicant company lodged its appeal on 17 June 2004. The appeal hearings, which represented a full re-trial of the case within the meaning of Article 268 of the Code of Commercial Courts Procedure, started on 18 June and lasted eight days, that is, until 29 June 2004, which was in line with the above rule. In addition, the applicant company deliberately delayed the examination of the case by dispatching the appeal brief to an erroneous address. Lastly, the Government underlined that the appeal decision had not been final and had been appealed against by the applicant company both in cassation instance and by way of supervisory review. The Government submitted that the fact that the reasoned copy of the Appeal Court decision of 29 June 2004 had been produced on 9 July 2004 did not affect the fairness of the proceedings as, in any event, it was open to the applicant company to lodge its cassation appeal within a two-month time-limit from the date of delivery of the appeal decision on 29 June 2004, even in the absence of the reasoned copy of the decision. The applicant company had lodged its cassation appeal on 6 July 2004 in the absence of the reasoned copy of the appeal decision. The cassation appeal was accepted for consideration and on 17 September 2004 its full version was examined and dismissed by the Circuit Court.", "B. The Court’s assessment", "534. The Court would reiterate that while Article 6 of the Convention guarantees the right to a fair hearing, it is not the Court’s function to deal with errors of fact or of law allegedly committed by a national court and the question which must be answered is rather whether the proceedings as a whole were fair (see, for example, Öcalan v. Turkey [GC], no. 46221/99, §§ 148-49, ECHR 2005 ‑ IV; Gäfgen v. Germany [GC], no. 22978/05, §§ 162-88, ECHR 2010 ‑ ...). The Court will examine the applicant company’s grievances in turn to make an overall conclusion in this connection.", "1. The complaint about the bringing of the action by the Ministry", "535. Turning to the applicant company’s complaint that in the proceedings before the Moscow City Court the action in respect of the Tax Assessment 2000 and the request to attach the company’s assets as a security for the claim was brought by the Ministry within the grace period (see paragraphs 25 and 26 ), the Court observes that this argument was examined by the Circuit Court, which dismissed it as unfounded and recognised the Ministry’s action as lawful in this respect (see paragraph 72 ). The Court recalls the the Ministry’s action was lodged under the rule which made it unnecessary to wait until the end of the grace period if there was evidence that the dispute was insoluble and, regard being had to the circumstances of the case, finds no indication of arbitrariness or unfairness within the meaning of Article 6 of the Convention in this connection.", "2. The complaint about the allegedly insufficient time for preparation of the defence at first instance", "536. The Court notes that it is common ground between the parties that during the first-instance proceedings the applicant company did not have access to the documents in the court file, other than the report of 29 December 2003, the decision of 14 April 2004 and their annexes, until 17 May 2004 when the Ministry invited the company’s lawyers to study the documents at its premises (see paragraphs 41 -45). It is also undisputed that the hearings in the case commenced on 21 May 2004, which is four working days later, and the evidence at issue amounted to at least 43,000 pages (see paragraphs 44 and 46 ). It is also not in dispute that on a few occasions the applicant company requested to adjourn the hearings referring to, among other things, their wish to study the evidence in the case, and that these requests were turned down by the trial court as unfounded (see paragraph 46 ).", "537. The Court further notes that according to the applicant company this period was manifestly short, whilst the Government argued with reference to the sequence of the events in the proceedings and the applicant company’s conduct that it had no real need to study these documents since the documents came from the company itself and it was entirely familiar with them. The Government also argued that the appeal hearing constituted a de novo examination of the case and that by then the applicant company had had a perfectly adequate opportunity to familiarise itself with the evidence at issue.", "538. The Court reiterates that the principle of equality of arms is one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may meet this requirement. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment on them (see Brandstetter v. Austria, 28 August 1991, §§ 66 and 67, Series A no. 211; Ruiz-Mateos v. Spain, 23 June 1993, § 67, Series A no. 262; mutatis mutandis, Milatová and Others v. the Czech Republic, no. 61811/00, § 65, ECHR 2005 ‑ V and, a fortiori, Krčmář and Others v. the Czech Republic, no. 35376/97, §§ 41-45, 3 March 2000). Furthermore, the Court reiterates that Article 6 § 3 (b) guarantees “adequate time and facilities for the preparation of his defence” and therefore implies that the substantive defence activity on the accused’s behalf may comprise everything which is “necessary” to prepare the trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Can v. Austria, no. 9300/81, § 53, Commission’s report of 12 July 1984, Series A no. 96, and Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008). The facilities which should be enjoyed by everyone charged with a criminal offence include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands (dec.), no. 29835/96, 15 January 1997, and Galstyan v. Armenia, no. 26986/03, § 84, 15 November 2007).", "539. Turning to the case at hand, the Court observes that the Ministry’s claims to the applicant company in respect of the year 2000 were based on the audit report of 29 December 2003, which became available to the applicant company on the same date and was later used in the decision of 14 April 2004, served on the applicant on 15 April 2004. It is true that these two documents were very detailed, and contained the attachments to substantiate the Ministry’s position, and that the applicant company had on a few occasions opportunity to contest them. The fact remains, however, that the object of the trial court’s examination during the hearings of 21 to 26 May 2004 was neither the audit report of 29 December 2003 and the decision of 14 April 2004 as such, nor the copies of the documents allegedly already in possession of the applicant company, but rather the Ministry’s court claims based on the above-mentioned two documents and the additional body of evidence filed by the Ministry and comprising at least 43,000 pages. It is clear to the Court that in order to provide the applicant company with an adversarial trial and “adequate time and facilities for the preparation of [its] defence” the applicant company should have been given an adequate opportunity to study the entirety of these documents and, more generally, to prepare for the hearings of the merits of the case on reasonable terms.", "540. Having regard to the parties’ arguments and the circumstances of the case, the Court is of the view that the trial court failed to reach this objective, as the mere four days during which the applicant company could have access to the case materials were insufficient for the applicant company to prepare properly, no matter the number of lawyers in its defence team or the amount of other resources which the applicant company would have been able to commit during its preparations. As regards the Government’s reference to the applicant company’s conduct during the proceedings and its argument that the company had no real need to study that evidence, the Court finds that it was incumbent on the trial court in the situation at hand to ensure that the applicant company had a sufficiently long period of time during which it could study such a voluminous case file and prepare for the trial hearings and it was up to the applicant company to use this time as it wished. As regards the Government’s argument that the trial court was simply doing its best to comply with the two-month time-limit set out in Article 215 of the Code of Commercial Court Procedure for examination of cases of this category, the Court is of the view that even though it is no doubt important to conduct proceedings at good speed, this should not be done at the expense of the procedural rights of one of the parties, especially given the relatively short overall duration of the proceedings for a case of such magnitude and complexity.", "541. Overall, the Court is of the view that the applicant company did not have sufficient time to study the case file before the first instance hearings.", "542. The Court takes note of the Government’s argument that any possible defects in the fairness of the proceedings at first instance have been remedied on appeal or in the cassation instance. Since this argument is too closely related to the applicant company’s complaint about the early beginning of the appeal hearings in the 2000 Tax Assessment case, the Court will examine them together below.", "3. The complaints about the trial hearings and the allegedly bad quality of the first instance judgment", "543. As regards the applicant company’s allegations that its lawyers could not obtain answers from the Ministry to all the questions they wished to ask in the hearings before the court and that the trial court abruptly interrupted the pleadings of the applicant company’s lawyer, the Court finds that these complaints are vague and unspecific and there is nothing in the company’s arguments to suggest that the conduct restrictions imposed by the first-instance or appeal court on the company’s counsel during the hearings were arbitrary or adversely affected the fairness of the proceedings as a whole. The Court also finds unsubstantiated the applicant company’s allegation that the Moscow City Court had given its judgment without having studied the evidence.", "4. The complaints about the early beginning of the appeal hearings", "544. The Court observes that under Articles 257 and 259 of the Code of Commercial Court Procedure a party has thirty days to file its appeal (see paragraph 422 above). It further notes that the full text of the first-instance judgment of 26 May 2004 became available to the parties on 28 May 2004 and that, despite the applicant company’s requests for adjournment, the appeal hearing in the case commenced on 18 and lasted until 29 June 2004 (see paragraphs 51, 57 and 58 ).", "545. The Court finds that the beginning of the appeal proceedings on 18 June 2004, that is, twenty-one days after the full text of the first-instance judgment on 28 May 2004 had become available, restricted the applicant company’s ability to advance its arguments and, more generally, to prepare for the appeal hearings by shortening the statutory time-limit by nine days. Given the number of the participants, the complexity and magnitude of the case as well as the previous restrictions on the applicant company’s ability to study the case at first instance, the Court finds that the applicant company did not have “adequate time and facilities for the preparation of [its] defence” within the meaning of Article 6 § 3 (b) on account of the restricted time for preparation of the appeal hearing. It also finds that the appeal court failed to acknowledge, let alone to remedy the shortcomings committed by the first-instance court as regards the applicant company’s restricted access to the case file.", "546. In so far as the Government relied on Article 267 of the Code of Commercial Court Procedure to justify the promptness in question, the Court would again reiterate that the legitimate goal of conducting proceedings at good speed should not have been achieved at the expense of the procedural rights of one of the parties, especially given the lack of any indication of unjustified delays in the proceedings which lasted at the first two instances for only 3 months and 15 days. In any event, the Court is not persuaded by the interpretation of the text of the provision in question suggested by the Government. It would take note of the fact that recently the domestic authorities themselves have found it necessary to modify and explain the provision in question by amending it (see paragraphs 422 and 423). In its present day version the time-limit in question lasts two months rather than one, and starts running only after the expiry of the time-limit for bringing appeals, and not simultaneously to it, as suggested by the Government in its submissions. In addition, the appeal court now has the discretion to increase the term up to six months, depending on the number of the participants and the complexity of the case.", "547. Lastly, in so far as the respondent Government argued that the subsequent examination of the case at the cassation instance had remedied these shortcomings, the Court observes that the cassation hearing took place on 17 September 2004, four months after the disclosure of the evidence and about three months after the appeal hearing which took place between 18 and 29 June 2004. Despite the fact that the company may have had enough time to prepare for the cassation hearing, the cassation court, as a review court, had restricted competence in relation to the assessment of evidence already made by the first-instance and appeal courts (see paragraph 426) and, on the facts, it failed to recognize any shortcomings in the judgments of the lower courts (see paragraph 71 ).", "548. Overall, the Court finds that the early beginning of the appeal hearing impeded the applicant company’s ability to prepare and present properly its case on appeal.", "5. The complaint about the alleged delay in the production of a reasoned version of the appeal judgment", "549. In so far as the applicant company also complained about the alleged delay in providing the reasons for the Appeal Court’s judgment in the proceedings in respect of the 2000 Tax Assessment, the Court would note that the applicant company did not complain about the proceedings in cassation as such but rather claimed that, in its situation, effective access to the cassation court was impossible without a stay of enforcement of the appeal decision of 29 June 2004. In this respect, the Court observes that the immediate enforcement of the appeal decision did not prevent the company from lodging its cassation appeal and whilst Article 6 provides an applicant with the right of access to court, it does not guarantee, as such, the right to an automatic stay of enforcement of an unfavourable court decision. The Court would underline that the applicant company in the present case had access to courts of two levels of jurisdiction before any enforcement measures were taken and that the enforcement of the appeal decision of 29 June 2004 did not make it impossible for the applicant company to exercise its right to appeal in cassation, or to pursue further proceedings by way of supervisory review or before the Constitutional Court. The applicant company lodged its cassation appeal and additional submissions on the basis of the reasoned copy of the appeal decision of 29 June 2004 on 7 July 2004 (see paragraph 67 ). The appeal was accepted for consideration, and on 17 September 2004 its full version was examined and dismissed by the Circuit Court (see paragraph 70 ). Not only the cassation appeal, but also the request to stay the enforcement of the appeal decision of 29 June 2004 were examined by the domestic courts at two instances and eventually dismissed as unfounded (see paragraphs 127 - 129 ).", "550. Overall, the Court concludes that there is no indication of unfairness within the meaning of Article 6 on account of the alleged restrictions on the applicant company’s access to the cassation instance.", "6. Conclusion", "551. Having regard to the above, the Court finds that the applicant company’s trial did not comply with the procedural requirements of Article 6 of the Convention for the following reasons: the applicant company did not have sufficient time to study the case file at first instance, and the early beginning of the hearings by the appeal court unjustifiably restricted the company’s ability to present its case on appeal. The Court finds that the overall effect of these difficulties, taken as a whole, so restricted the rights of the defence that the principle of a fair trial, as set out in Article 6, was contravened. There has therefore been a violation of Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (b).", "III. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 1, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLES 1, 7, 13, 14 AND 18 OF THE CONVENTION", "552. Under Article 1 of Protocol No. 1, taken alone and in conjunction with Articles 1, 7, 13, 14 and 18 of the Convention, the applicant company complained about the allegedly unlawful, arbitrary and disproportionate imposition and enforcement of the 2000-2003 Tax Assessments. The company complained furthermore that the sale of OAO Yuganskneftegaz had been unlawful, arbitrary and disproportionate.", "553. These grievances fall to be examined principally under Article 1 of Protocol No. 1, regard being had, where appropriate, to other Convention provisions relied on by the applicant company.", "Article 1 of Protocol No. 1 reads:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "554. The Court reiterates that in accordance with its constant and well-established case-law Article 1 of Protocol No. 1 comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph. The three rules are not, however, “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 61, Series A no. 52, and James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98).", "555. The Court notes that between December 2003 and January 2005 the domestic authorities subjected the applicant company to a number of measures in connection with its alleged failure to pay the correct amount of tax for the years 2000-2003. In particular, as a result of the Tax Assessment proceedings the applicant company was found guilty of repeated tax fraud and was ordered to pay an overall sum of at least RUB 572 billion (around EUR 16 billion) in outstanding taxes, default interest and penalties. In the enforcement proceedings, simultaneously conducted, the applicant company was ordered to pay an additional 7% enforcement fee on the overall amount of the debt: its assets were attached and seized, whilst 76.79 percent of shares in its main production unit, OAO Yuganskneftegaz, were sold in satisfaction on the mentioned liability.", "556. The Court notes that the parties did not dispute that these measures, whether taken alone or together, constituted an interference with the applicant company’s property rights as guaranteed by Article 1 of Protocol No. 1. The Court further notes that the company complained about the measures separately and that it also complained about the Government’s intentions in connection with those measures. In this latter respect, the applicant company argued that, in bringing the relevant proceedings, the authorities had sought to destroy the company and expropriate its assets. The Court has now to satisfy itself that each instance of such interference met the requirement of lawfulness, pursued a legitimate aim and was proportionate to the aim pursued.", "557. Having regard to the circumstances of the case and the nature of the applicant company’s complaints, the Court finds that the complaints concerning the separate decisions and measures in the context of the proceedings against the applicant company fall to be examined under the third rule of Article 1 of Protocol No. 1, taken in conjunction, where appropriate, with other Convention provisions relied on by the applicant company. The Court will examine the complaints in the following order:", "(A) the complaints about various aspects of the tax assessment proceedings for the years 2000-2003;", "(B) the complaints concerning the measures taken by the domestic authorities to enforce the debt resulting from the tax assessment proceedings on the applicant company and the Government’s related plea of non-exhaustion, which in the decision on admissibility of 29 January 2009 it joined to the merits;", "(C) the applicant company’s allegations concerning the Government’s intentions in these proceedings, made under Article 18 of the Convention, taken in conjunction with Article 1 of Protocol No. 1.", "A. The complaints about the Tax Assessments 2000-2003", "558. The Court reiterates that it was not in dispute between the parties that the Tax Assessments 2000-2003 represented an interference with the applicant company’s property rights. It remains to be determined whether these decisions met the requirement of lawfulness, pursued a legitimate aim, were proportionate to the aim pursued, as required by Article 1 of Protocol No. 1, and whether they were not discriminatory within the meaning of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1.", "1. Compliance with Article 1 of Protocol No. 1", "(a) Whether the Tax Assessments 2000-2003 complied with the Convention requirement of lawfulness", "559. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second paragraph recognises that the States have the right to control the use of property by enforcing “laws” (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 ‑ II). This means that the interference should be in compliance with the domestic law and that the law itself be of sufficient quality to enable an applicant to foresee the consequence of his or her conduct. As regards the compliance with the domestic law, the Court has limited power in this respect since it is a matter which primarily lies within the competence of the domestic courts (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 47, Series A no. 171 ‑ A, and, mutatis mutandis, Tre Traktörer AB v. Sweden, 7 July 1989, § 58, Series A no. 159). As regards the quality of the law, the Court’s task is to verify whether the applicable provisions of domestic law were sufficiently accessible, precise and foreseeable (see Hentrich v. France, 22 September 1994, § 42, Series A no. 296-A, and Lithgow and Others v. the United Kingdom, 8 July 1986, § 42, Series A no. 110). In so far as the tax sphere is concerned, the Court’s well-established position is that States may be afforded some degree of additional deference and latitude in the exercise of their fiscal functions under the lawfulness test (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, §§ 75-83, Reports 1997 ‑ VII) and that, in view of the complexity of the relevant field of regulation, corporate entities, as opposed to individual taxpayers, may be required to act with additional caution and diligence by consulting competent specialists in this sphere (see Špaček, s.r.o., v. the Czech Republic, no. 26449/95, § 59, 9 November 1999).", "560. The applicant company argued in respect of the Tax Assessment 2000 that prosecution for tax evasion had been time-barred. Furthermore, it also argued that the decisions in question had been generally unlawful in that they had not been based on any reasonable and foreseeable interpretation of the domestic law, for which reason there had been no basis in law to impose taxes, double fines or to deny the repayment of VAT in respect of the export of oil and oil products. The applicant company also complained that it had been the first entity ever to have been punished for the tax optimisation scheme, hitherto generally tolerated.", "i. The allegation that the prosecution for the alleged tax evasion during the year 2000 was time-barred", "α. The applicant company’s submissions", "561. The applicant company complained that in the Tax Assessment proceedings for the year 2000 the domestic courts had failed to apply the three-year statutory time-bar set out in Article 113 of the Tax Code. Since the relevant claims by the Ministry had been time-barred by virtue of Article 113 of the Tax Code, the Tax Assessment 2000 had been unlawful, unforeseeable and retroactive in the light of the decision of the Constitutional Court of 14 July 2005. It also noted that this domestic provision applied to tax assessments proceedings in general and not just to fines and that the doubling of the fines for the year 2001 had also been unlawful.", "β. The Government’s submissions", "562. The Government disagreed. They underlined that the issue only concerned the fines for the year 2000, and not reassessed taxes or surcharges. They argued that the decision of the Constitutional Court of 14 July 2005 had simply confirmed the proper application of Article 113 of the Tax Code for all taxpayers, that it explained the meaning of this norm, that this meaning had been in line with international practice and that it had not been aimed at the applicant individually. The Government also stated that the decision had concerned the specific situation of a bad-faith tax evasion where a taxpayer hinders and obstructs tax inspections, and also relied on examples from foreign jurisdictions, where specific rules apply to taxpayers in such situations. They quoted certain Russian cases where the courts applied the Constitutional Court’s ruling in a manner similar to that in the applicant company’s case and also referred to the Court’s judgment in the case of National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the UK. They also noted that the three-year time-limit had not been particularly long and that in other countries time-limits were even longer.", "γ. The Court’s assessment", "563. The Court finds at the outset that this grievance concerns the outcome of the Tax Assessment proceedings for the year 2000 only in the part concerning the imposition of penalties, since Article 113 of the Tax Code which provided for the time-limit in question, only applied to the collection of fines (see paragraph 403 ) and that no similar Convention issues arise in respect of the collection of additional taxes and interest payments (see paragraph 404). The Court further notes that Article 113 of the Tax Code provided for a three year time-limit for holding a taxpayer liable and that this period ran from the first day after the end of the relevant tax term. According to the practice directions of the Supreme Commercial [7] Court dated 28 February 2001, the moment at which a taxpayer was held liable within the meaning of Article 113 of the Tax Code was the date of the relevant decision of the tax authority (see paragraph 405 and 406).", "564. On the facts, such a decision in connection with the company’s activities in the year 2000 was adopted on 14 April 2004 (see paragraph 21 ), which was clearly outside the above-mentioned three year time-limit. In response to the argument raised by the applicant company during the court proceedings, the lower courts decided that the rules on a statutory time-bar were inapplicable because the applicant company had been acting in bad faith (see paragraph 49 ). Thereafter the supervisory review instance decided that such an interpretation of the rules on the statutory time-limits had not been in line with the existing legislation and case-law (see paragraph 80 ) and referred the issue to the Presidium of the Supreme Commercial Court, which, in turn, referred it to the Constitutional Court (see paragraph 81 ).", "565. Having initially refused to consider the applicant company’s individual complaint concerning the same issue (see paragraphs 76 and 77), the Constitutional Court accepted the reference from the Presidium of the Supreme Commercial Court and on 14 July 2005 gave a decision in which it disagreed with the lower courts (see paragraphs 82 -88), noting that the rules on the limitation period should apply in any event and that, exceptionally, if a taxpayer impeded the inspections by the tax authorities, and thereby delayed the adoption of the relevant decision, the running of the time-limit could be suspended by the adoption of a tax audit report setting out the circumstances of the tax offence in question and referring to the relevant articles of the Tax Code. Thereafter the case was referred back to the Presidium of the Supreme Commercial Court which applied this interpretation to conclude that the applicant company had been actively impeding the tax inspections (see paragraphs 17 and 90 ). Since the audit report in respect of the year 2000 had been adopted and served on 29 December 2003, the court decided that the Ministry’s claims for 2000 had been brought on time. The Court notes that the Constitutional Court’s decision of 14 July 2005 resulted in a change in the interpretation of the relevant rules on the statutory time-limits of the proceedings. Accordingly, an issue arises as to whether such a change was compatible with the requirement of lawfulness of Article 1 of Protocol No. 1.", "566. In making its assessment the Court will take into account its previous finding that the 2000 Tax Assessment proceedings were criminal in character (see OAO Neftyanaya kompaniya Yukos (dec.), cited above, § 453) and will also bear in mind that the change in question concerned the collection of fines for intentional evasion of tax. In this connection, it would again reiterate that the third rule of this Convention provision explicitly reserves the right of Contracting States to pass “such laws as they may deem necessary to secure the payment of taxes” which means that the States are afforded an exceptionally wide margin of appreciation in this sphere (see Tre Traktörer AB v. Sweden, 7 July 1989, §§ 56-63, Series A no. 159).", "567. The Court reiterates the principle, contained primarily in Article 7 of the Convention but also implicitly in the notion of the rule of law and the requirement of lawfulness of Article 1 of Protocol No. 1, that only law can define a crime and prescribe a penalty. While it prohibits, in particular, extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with appropriate legal assistance, what acts and omissions will make him criminally liable (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, §§ 145-146, ECHR).", "568. Furthermore, the term “law” implies qualitative requirements, including those of accessibility and foreseeability (see, among other authorities, Cantoni v. France, 15 November 1996, § 29, Reports of Judgments and Decisions 1996 ‑ V; and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence in question carries (see Achour v. France [GC], no. 67335/01, § 41, ECHR 2006 ‑ IV). The Court has acknowledged in its case-law that however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, mutatis mutandis, Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30 and Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260 ‑ A). The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (see Cantoni, cited above, § 29).", "569. Thus, the requirement of lawfulness cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (see Kafkaris v. Cyprus [GC], no. 21906/04, § 141, ECHR 2008 ‑ ...).", "570. The Court previously defined limitation as the statutory right of an offender not to be prosecuted or tried after the lapse of a certain period of time since the offence was committed. Limitation periods, which are a common feature of the domestic legal systems of the Contracting States, serve several purposes, which include ensuring legal certainty and finality and preventing infringements of the rights of defendants, which might be impaired if courts were required to decide on the basis of evidence which might have become incomplete because of the passage of time (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 51, Reports 1996 ‑ IV).", "571. Turning to the facts of the case, the Court would note firstly that the rule which, in the present case, underwent changes as a result of the decision of 14 July 2005, was contained in Article 113 of Chapter 15 “General provisions concerning the liability for tax offences” of the Tax Code (see paragraph 403 ) and thus formed a part of the domestic substantive law. Even though the rule in itself did not describe the substantive elements of the offence and the applicable penalty, it nevertheless constituted a sine qua non condition with which the authorities had to comply in order to be able to prosecute the relevant taxpayers in connection with the alleged tax offences. Accordingly, Article 113 of the Tax Code defined a crime for the purposes of the Court’s analysis of lawfulness. It remains to be determined whether in the circumstances the decision of 14 July 2005 could be seen as a gradual clarification of the rules on criminal liability which “[was] consistent with the essence of the offence and could reasonably be foreseen” (see Kafkaris, cited above, § 141).", "572. In this connection the Court may accept that the change in question did not change the substance of the offence. The Constitutional Court interpreted the existing rules on time-limits in relation to taxpayers who acted abusively. At the same time, the Court is not persuaded that the change in question could have been reasonably foreseen.", "573. It observes that the decision of 14 July 2005 had changed the rules applicable at the relevant time by creating an exception from a rule which had had no previous exceptions (see paragraphs 86 and 88). The decision represented a reversal and departure from the well-established practice directions of the Supreme Commercial Court (see, by contrast, Achour, cited above, § 52) and the Court finds no indication in the cases submitted by the parties suggesting a divergent practice or any previous difficulty in connection with the application of Article 113 of the Tax Code at the domestic level (see paragraphs 407-408). Although the previous jurisprudence of the Constitutional Court contained some general references to unfavourable legal consequences which taxpayers acting in bad faith could face in certain situations, these indications, as such, were insufficient to provide a clear guidance to the applicant company in the circumstances of the present case.", "574. Overall, notwithstanding the State’s margin of appreciation in this sphere, the Court finds that there has been a violation of Article 1 of Protocol No. 1 on account of the change in interpretation of the rules on the statutory time-bar resulting from the Constitutional Court’s decision of 14 July 2005 and the effect of this decision on the outcome of the Tax Assessment 2000 proceedings.", "575. Since the applicant company’s conviction under Article 122 of the Tax Code in the 2000 Tax Assessment proceedings laid the basis for finding the applicant company liable for a repeated offence with a 100% increase in the amount of the penalties due in the 2001 Tax Assessment proceedings, the Court also finds that the 2001 Tax Assessment in the part ordering the applicant company to pay the double fines was not in accordance with the law, as required by Article 1 of Protocol No. 1.", "ii. The allegation that the Tax Assessments 2000-2003 had not been based on a reasonable and foreseeable interpretation of the domestic law", "α. The applicant company’s submissions", "576. The applicant company disagreed with the factual conclusions reached by the domestic courts in respect of the trading companies. In its submission on the admissibility of the case, the applicant company argued that it had been the wrong defendant in the tax assessment proceedings, that there had been no links of dependency between the trading companies and itself, and that there were no grounds for making the applicant company, a holding company with, at the material time, only two employees with highly important but small-scale administrative functions, liable for the trading companies’ tax liabilities and creating a previously virtually unknown concept of “bad-faith taxpayer”. In its submissions on the merits of the case, the applicant company argued that “the Yukos Group”, including the trading companies, had operated as a unit and that the authorities had been aware of all the details of this unit’s functioning, including its relations with the trading companies, because all the entities forming the group made regular tax declarations. The company also submitted that the Ministry made regular checks of the whole group, involving the mapping of the entire course of every link in the chain of transactions from the original purchase of oil by the trading companies until its export, and that Yukos officials held monthly meetings with the Ministry’s officials to discuss the company’s functioning and tax returns. Overall, the applicant company considered that its tax arrangement had never been secret.", "577. The applicant company also submitted that Russian law had contained no legal provision allowing for the attribution of tax liabilities as had occurred in its case, that the denial of VAT reductions had been unlawful, that the use of domestic off-shores by the applicant company had been lawful, that the legal theories used by the authorities in its case had been without legal precedent, that the way in which the authorities had assessed taxes had led to double taxation, and that the payment of interest and fines had been domestically unlawful. As regards the attribution of tax liabilities, the applicant company considered that Russian law contained no provisions that permitted piercing of the corporate veil in order to hold one company liable for the actions of another, whether the latter was a subsidiary, an affiliate or a separate entity. The company claimed that the legal theories used by the Ministry in its tax assessment cases had been unprecedented and it referred to legal remedies that could have been used by the Ministry in this situation but had not been employed. In particular, the applicant company argued that the authorities should have applied the anti-transfer pricing mechanism of Articles 20 and 40 of the Tax Code or that the courts should have invalidated individual transactions by the trading companies so as to make either them or the applicant company’s subsidiaries liable for the allegedly underpaid tax. The applicant company considered that in any event, under the applicable domestic law, the authorities could not have held it directly liable for the actions of the trading companies. Furthermore, the company relied on Article 251 (1) 11 of the Tax Code to justify the unilateral transfers of cash from the trading companies to the applicant company’s Fund. It argued that there had been no such notion as “sham entity” in Russian law and that the “bad faith” doctrine had been too vague a legal tool to be used to prosecute it. The applicant company also submitted to the Court an opinion dated 7 September 2003 by the company’s counsel, the law firm “Pepelyev, Goltsblat i Partnery”, confirming the lawfulness of the arrangement whereby “a subsidiary company makes a transfer of its profits to the parent company, which in turn creates a Fund [out of these monies] to return them to the subsidiary companies for use ... or to pay the dividends” and also relied on case no A42-6604/00-15-818/01 to demonstrate that its tax arrangement had been lawful at domestic level. Lastly, the applicant company considered that the Government’s explanations in this connection and in particular its reference to Articles 168, 169 and 170 of the Civil Code could not justify the authorities’ actions in the tax assessment proceedings, since these provisions had not been relied upon by the domestic courts.", "578. The applicant company further argued that the denial of tax benefits to the trading companies and the failure to repay VAT in respect of the export of oil and oil products had been unlawful and unsubstantiated. The applicant argued that the Ministry had known about all of the trading companies’ transactions because of their monthly VAT returns and regular requests for tax refunds, and that since all of the traded oil had been for export and exempt from VAT its use of tax arrangements with the trading companies had not achieved any savings in this connection. Both in its initial application to the Court and in further submissions on the admissibility of the case, the applicant company expressed dissatisfaction with the domestic courts’ refusal to recalculate the amount of the VAT due in the relevant Tax Assessment proceedings, purportedly as a result of the company’s failure to file for VAT refunds in its own name. In its final submissions to the Court at the hearing on 4 March 2010, the company alleged that on 31 August 2004 it had filed the VAT exemption forms in its own name for each of the years 2000 to 2003. In addition, with reference to Article 75 (3) of the Tax Code, the applicant company claimed that it should not have been ordered to pay interest surcharges at all.", "β. The Government’s submissions", "579. In their admissibility observations the Government stated that the tax inspections in respect of the applicant company had been conducted in accordance with the domestic law and that the company had been acting in bad faith throughout the proceedings, in blatant breach of tax legislation, and had merely been mimicking compliance with the law. In respect of the factual conclusions of the domestic courts, they argued that the applicant company had committed blatant tax evasion, as confirmed by the findings of the domestic courts. The evidence to confirm the Ministry’s claims was abundant and it was clear that the whole setup with trading companies was organised solely for the purpose of tax evasion. During the proceedings the applicant company had been unable to explain the economic reasons for the transactions in question. As an example of the sham nature of the arrangement, the Government referred to the fact, established by the domestic courts in the proceedings against the applicant company, that on one occasion a person managing one of the company’s sham entities signed three contracts simultaneously in three different locations, namely Samara, Nefteyugansk and the Tomsk region, situated at great distances from each other. In addition, the Government referred to an “internal” opinion by the audit company PriceWaterhouseCoopers, which specifically mentioned various problems with the applicant company’s “tax optimisation” scheme, including the Fund used by the company for receiving the money generated by the sham entities, and mentioned by the Appeal Court in its decision of 29 June 2004. This was in breach of the Russian legislation, as money could only be transferred from one independent commercial entity to another independent commercial entity in exchange or payment for services or goods (Article 575 of the Civil Code). In addition, the company misled the public in its reports and financial statements. For example, in February 2004 in its report for nine months of the year 2003 under the US Generally Accepted Accounting Principles standards, the company accounted for the difference between the nominal profit tax rate and the actual rate by its use of affiliate companies registered in foreign tax havens. This statement was not true since, as established by the domestic courts, the applicant company used sham entities located in domestic tax havens. The widespread use of promissory notes was also mentioned by the auditor as being non-compliant with the legislation in force. The Government submitted that the company’s management had used this opportunity to present a distorted picture of the company’s performance and thus attract investors.", "580. As regards the lawfulness of the company’s use of domestic tax havens, the Government referred to statements by a senior partner in the law firm “Pepelyaev, Goltsblat i Partnery”, which advised the applicant company and its majority shareholder, Group Menatep. In an interview with the Raschyot magazine of 30 January 2001, he stated that, as time passed, any widely replicated optimisation scheme became known to the tax authorities and they started fighting it. Penalties were being imposed with regard to low quality schemes, but the better quality schemes remained safe. The use of Russian low-tax regions was a crude form: where a company was registered in, for example, Kalmykiya, while the director, office and bank account were in Moscow. In such instances the court would rule that the location of the organisation was Moscow and not Kalmykiya. The scheme would be ruined and the company be forced to pay in Moscow. However, there could be more subtle schemes, where everything was arranged in such a way that the director, accountant and some staff were in Kalmykiya and there was an account in a Kalmyk bank, [and] thus the organisation would appear to have an actual presence there. Certainly, business would be conducted in Moscow but through another company, so that the entire profit went through appropriate contracts to Kalmykiya. Such subtle schemes were left untouched because formally there was nothing to pick on. According to the Government, the applicant company used the schemes described in their crudest form and undoubtedly knew that such schemes were illegal.", "581. In respect of the lawfulness of the domestic authorities’ actions, the Government submitted that the company’s tax liability had been established by the domestic courts on the basis of, among other things, Article 122 of the Tax Code, which penalised the understatement of revenues and corresponding taxes, RF Law no. 2116-1 of 27 December 1991 “On profit tax of enterprises and organisations”, RF Law no. 1759-I of 18 October 1991 “On road funds in the Russian Federation”, RF Law no. 2118-I of 27 December 1991 “On the basics of the tax system”, RF Law no. 2030-I of 13 December 1991 “On property tax of enterprises”, RF Law no. 1992-I of 6 December 1991 “On valued-added tax” and RF Law no. 3297-I of 14 July 1992 “On closed administrative territorial entities”, which were all clear and foreseeable at the relevant time.", "582. In their post-admissibility observations, the Government submitted that the company’s tax arrangement, consisting of the systemic use of dozens of shell entities which were controlled by the applicant company, organised in special low-tax zones within Russia, transfers of profits from the shell entities to the applicant company and multiple layers of trading activities between the company’s production units and the ultimate customer, had been clearly unlawful and had one and only one aim – to avoid payment of taxes. The applicant company tried to hide its involvement in this scheme by renaming the shell entities on a regular basis and by operating through a complex system of promissory notes’ exchanges aimed at hiding the transfers of profits from the shell entities to the company. The whole setup had been managed by the applicant company, although on paper the shell entities had been owned and managed by third parties.", "583. The Government also described instances where the applicant company had actively resisted the authorities by failing to present the necessary tax documents following requests by the Ministry, by attempting to hide its corporate register just prior to its seizure by the bailiffs, by making multiple offers of payment with shares in OAO Sibneft (which in reality had not belonged to the applicant company), by lying about its financial status and by rejecting the Ministry’s tax claims in respect of years 2001 to 2003 instead of cooperating.", "584. As regards the lawfulness of the manner in which the authorities had assessed the applicant company’s liability for additional taxes, the Government relied on the Constitutional Court’s judgment no. 14-P dated 28 October 1999, which had endorsed the ‘substance-over-form’ approach, and to the extensive case-law of the commercial courts in interpreting and applying it. In all of these cases, exactly the same method as that used by the authorities in the applicant company’s case had been used – i.e. the courts had looked behind appearances and taken account of the substance of the transactions in question. As regards the bad-faith theory, the Government relied on two decisions of the Constitutional Court, nos. 138-O and 168-O, dated 25 July 2001 and 8 April 2004 respectively, and the case-law of the commercial courts. They also relied on international experience, quoting rules adopting the substance over form approach in the UK, France, Germany, Italy and the US.", "585. As regards the VAT repayments, the Government insisted that the domestic law clearly adopted an approach whereby the owner of the goods in question should apply for any VAT reductions and relied on judgment no. 12-P of the Constitutional Court, dated 14 July 2003, and the extensive case-law of the commercial courts to substantiate their point. They also referred to rules in the UK and France to show that these countries used essentially the same approach in respect of VAT refunds. More generally, the Government also argued that the refusal to grant VAT repayment was a direct consequence of the company’s own recklessness in operating its tax optimisation plans and that it had failed to make any attempts to comply with the legal requirements for VAT refunds even after the tax fraud had been exposed. The Government submitted that the applicant company had never made any applications for VAT refunds in its own name.", "586. The Government also stated that all of the cases cited in their observations had been available in the legal database Konsultant-Plus. The authorities could not be accused of having tolerated the company’s tax optimisation, as they could not have had any prior knowledge of it on account of its complex and well-masked character. They also argued that the present case had a moral and social dimension, in the sense that the applicant company had been one of the biggest taxpayers in Russia, that many social programmes run by the State had depended on the company’s tax payments, that the company’s resources had been transferred to it during privatisation in exchange for their efficient and honest use, and that the colossal scope of the tax evasion had led to an incorrect redistribution of wealth and the denial of their social responsibility by a small number of the company’s core shareholders. The Government also insisted that the Court take into account the wide margin of appreciation which is mentioned in the Convention and recognised by the Convention case-law in any assessment of the company’s complaints. They disagreed with the applicant company’s argument regarding expropriation, as the Government viewed the events referred to by the applicant company as a mere enforcement of tax laws. In addition, they drew the Court’s attention to the fact that the applicant company had consistently presented incomplete or untrue information in their arguments.", "587. Lastly, they again referred to the statements on tax optimisation techniques made in 2001 by a senior partner in a law firm advising the applicant company and its controlling shareholder, in which, in the Government’s opinion, he had openly conceded that the company’s techniques had been unlawful and that everything depended on whether or not the given arrangements would be discovered by the authorities. In the Government’s view, if this adviser knew this, then his clients, the company’s majority shareholders, could not have failed to be aware of the unlawfulness of the arrangement and any associated risk.", "γ. The Court’s assessment", "588. The Court notes that in this complaint the applicant company challenged the lawfulness of the Tax Assessments 2000-2003 only in the part linked to the payment of reassessed taxes. The examination will therefore be confined to the question of the lawfulness of the additional tax liability. The Court further notes that the company did not seem to dispute that the relevant laws made it clear what taxes were due, at what rate and when. Rather, the company claimed that in 2000, 2001, 2002 and 2003 it used lawful “tax optimisation techniques” which were only subsequently condemned by the domestic courts in 2004, 2005 and 2006. It also complained that any existing legal basis for finding the company liable fell short of the Convention requirements in respect of the quality of the law and that, in any event, the application of the relevant laws contradicted established practice. Accordingly, the Court has to determine whether the relevant tax arrangements were domestically lawful at the time when the relevant transactions took place and whether the legal basis for finding the applicant company liable was sufficiently accessible, precise and foreseeable.", "589. Turning to the first question, the Court would note at the outset that the applicant company disputed the findings of the domestic courts concerning the nature of relations between the applicant company and its trading entities. In view of its conclusion that the tax assessment proceedings in respect of the year 2000 did not comply with the requirements of Article 6 §§ 1 and 3 (b) of the Convention, the Court is required to decide whether the factual assessments made by the domestic courts could be used for the purposes of its legal analysis under Article 1 of Protocol No. 1. In this respect, the Court reiterates that according to its well-established case-law it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them and establish the facts. The Court will not, in principle, intervene, unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable (see, mutatis mutandis, Ravnsborg v. Sweden, 23 March 1994, § 33, Series A no. 283 ‑ B; Bulut v. Austria, 22 February 1996, § 29, Reports of Judgments and Decisions 1996 ‑ II, and Tejedor García v. Spain, 16 December 1997, § 31, Reports 1997 ‑ VIII) or if the court decisions have been issued in “flagrant denial of justice” (compare Stoichkov v. Bulgaria, no. 9808/02, § 54, 24 March 2005).", "590. Having examined the materials of the case and the parties’ submissions and despite its earlier conclusions under Article 6 §§ 1 and 3 (b) of the Convention in respect of the 2000 Tax Assessment (see paragraph 551), the Court has little doubt that the factual conclusions of the domestic courts in the Tax Assessment proceedings 2000-2003 were sound. The factual issues in all of these proceedings were substantially similar and the relevant case files contained abundant witness statements and documentary evidence to support the connections between the applicant company and its trading companies and to prove the sham nature of the latter entities (see paragraphs 14 - 18, 48, 62- 63, 165, 191-193, 212 and 213). The applicant company itself did not give any plausible alternative interpretation of this rather unambiguous evidence, as examined and accepted by the domestic courts.", "591. From the findings of the domestic courts and the parties’ explanations, the Court notes that the company’s “tax optimisation techniques” applied with slight variations throughout 2000-2003 consisted of switching the tax burden from the applicant company and its production and service units to letter-box companies in domestic tax havens in Russia. These companies, with no assets, employees or operations of their own, were nominally owned and managed by third parties, although in reality they were set up and run by the applicant company itself. In essence, the applicant company’s oil-producing subsidiaries sold the extracted oil to the letter-box companies at a fraction of the market price. The letter-box companies, acting in cascade, then sold the oil either abroad, this time at market price or to the applicant company’s refineries and subsequently re-bought it at a reduced price and re-sold it at the market price. Thus, the letter-box companies accumulated most of the applicant company’s profits. Since they were registered in domestic low-tax areas, they enabled the applicant company to pay substantially lower taxes in respect of these profits. Subsequently, the letter-box companies transferred the accumulated profits unilaterally to the applicant company as gifts. The Court observes that substantial tax reductions were only possible through the mixed use and simultaneous application of at least two different techniques. The applicant company used the method of transfer pricing, which consisted of selling the goods from its production division to its marketing companies at intentionally lowered prices and the use of sham entities registered in the domestic regions with low taxation levels and nominally owned and run by third persons (see paragraphs 14 - 18, 48, 62- 63 for a more detailed description).", "592. The domestic courts found that such an arrangement was at face value clearly unlawful domestically, as it involved the fraudulent registration of trading entities by the applicant company in the name of third persons and its corresponding failure to declare to the tax authorities its true relation to these companies (see paragraphs 311, 349-353, 374-380). This being so, the Court cannot accept the applicant company’s argument that the letter-box entities had been entitled to the tax exemptions in questions. For the same reason, the Court dismisses the applicant company’s argument that all the constituent members of the Yukos group had made regular tax declarations and had applied regularly for tax refunds and that the authorities were thus aware of the functioning of the arrangement. The tax authorities may have had access to scattered pieces of information about the functioning of separate parts of the arrangement, located across the country, but, given the scale and fraudulent character of the arrangement, they certainly could not have been aware of the arrangement in its entirety on the sole basis on the tax declarations and requests for tax refunds made by the trading companies, the applicant company and its subsidiaries.", "593. The arrangement was obviously aimed at evading the general requirements of the Tax Code, which expected taxpayers to trade at market prices (see paragraphs 395-399), and by its nature involved certain operations, such as unilateral gifts between the trading companies and the applicant company through its subsidiaries, which were incompatible with the rules governing the relations between independent legal entities (see paragraph 376). In this connection, the Court finds relevant the warning given by the company’s auditor about the implications of the use of the company’s special fund during the year 2002 (see paragraphs 206 - 209 ) and is not persuaded by the applicant company’s reference to case no. A42-6604/00-15-818/01 (see paragraphs 356 - 357 ), the expert opinion of its counsel (see paragraph 577) and its reliance on Article 251 (1) 11 of the Tax Code (see paragraph 376).", "594. By contrast to the Tax Assessments in issue, the respondent entity in case no. A42-6604/00-15-818/01 was not alleged to have been part of a larger tax fraud and the Ministry failed to prove that it had been sham. The courts established that the entity had some assets, employees and a bank account at the place of its registration and dismissed the Ministry’s claims. As regards the expert opinion and the company’s reference to Article 251 (1) 11 of the Tax Code, the Court finds them irrelevant as they refer to the relations of openly associated companies and not, as was the case at issue, to the use of sham entities fraudulently registered in the name of certain third parties. Thus, the Court cannot agree with the applicant company’s allegation that its particular way of “optimising tax” had been previously examined by the domestic courts and upheld as valid or that it had used lawful “tax optimisation techniques” which were only subsequently condemned by the domestic courts. The above considerations are sufficient for the Court to conclude that the findings of the domestic courts that applicant company’s tax arrangements were unlawful at the time when the company had used them, were neither arbitrary nor manifestly unreasonable.", "595. The Court will now turn to the question whether the legal basis for finding the applicant company liable was sufficiently accessible, precise and foreseeable. In this connection, the Court notes that in all the Tax Assessments (see paragraphs 14 - 18, 48, 62- 63, 165, 191-193, 212 and 213) the domestic courts essentially reasoned as follows. The courts established that the trading companies had been sham and had been entirely controlled by the applicant company and accordingly reclassified the transactions conducted by the sham entities as transactions conducted in reality by the applicant company.", "596. The courts first decided that the transactions of the sham entities failed to meet the requirements of Article 39 of the Tax Code defining the notion of a sales operation (see paragraphs 48 and 324) as well as Article 209 of the Civil Code describing essential characteristics of an owner of goods (see paragraph 48 and 381). In view of the above and relying on Article 10 (3) of the Civil Code which established a refutable presumption of good faith and reasonableness of actions of the parties in commercial transactions (see paragraph 48 and 382-383), the courts then changed the characterisation of the sales operations of the sham entities. They decided that these were in reality conducted by the applicant company and that it had been incumbent on the latter to fulfil the corresponding obligation to pay various taxes on these activities. Finally, the courts noted that the setting up and running of the sham arrangement by the applicant company resulted in an understating of the taxable base of its operations and, as a consequence, the intentional non-payment of various taxes, which was punishable as a tax offence under Article 122 of the Tax Code (see paragraph 400).", "597. Having regard to the applicable domestic law, the Court finds that, contrary to the applicant company’s assertions, it is clear that under the then rules contractual arrangements made by the parties in commercial transactions were only valid in so far as the parties were acting in good faith and that the tax authorities had broad powers in verifying the character of the parties’ conduct and contesting the legal characterisation of such arrangements before the courts. This was made clear not only by Article 10 (3) of the Civil Code relied on by the domestic courts in the Tax Assessment proceedings, but also by other relevant and applicable statutory provisions which were available to the applicant company and other taxpayers at the time. Thus, Article 45 (2) 3 of the Tax Code explicitly provided the domestic courts with the power to change the legal characterisation of transactions and also the legal characterisation of the status and activity of the taxpayer, whilst section 7 of the Law on the Tax Authorities of the Russian Federation granted the right to contest such transactions to the tax authorities (see paragraph 393). In addition, the case-law referred to by the Government indicated that the power to re-characterise or to cancel bad faith activities of companies existed and had been used by the domestic courts in diverse contexts and with varying consequences for the parties concerned since as early as 1997 (see paragraphs 382-393 and paragraphs 428-468). Moreover, in a number of its rulings, including decision of 25 July 2001 no. 138-0 specifically relied upon by the domestic courts in the Tax Assessment proceedings against the applicant company (see paragraphs 384-387), the Constitutional Court confirmed the significance of this principle, having mentioned various possible consequences of a taxpayer’s bad faith conduct.", "598. In so far as the applicant company complained that the bad faith doctrine had been too vague, the Court would again reiterate that in any system of law, including criminal law, there is an inevitable element of judicial interpretation and there will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. In order to avoid excessive rigidity, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, among other authorities, Sunday Times, cited above, § 49 and Kokkinakis, cited above, § 40). On the facts, it would be impossible to expect from a statutory provision to describe in detail all possible ways in which a given taxpayer could abuse a legal system and defraud the tax authorities. At the same time, the applicable legal norms made it quite clear that, if uncovered, a taxpayer faced the risk of tax reassessment of its actual economic activity in the light of the relevant findings of the competent authorities. And this is precisely what happened to the applicant company in the case at hand.", "599. Overall, having regard to the margin of appreciation enjoyed by the State in this sphere and the fact that the applicant company was a large business holding which at the relevant time could have been expected to have recourse to professional auditors and consultants (see Špaček, s.r.o., cited above, § 59), the Court finds that there existed a sufficiently clear legal basis for finding the applicant company liable in the Tax Assessments 2000-2003.", "600. Lastly, the Court observes that the applicant company made a number of additional arguments under this head. In particular, it also alleged that there was no basis in law to deny the repayment of VAT in respect of the export of oil and oil products, that the domestic courts had failed to apply Articles 20 and 40 of the Tax Code, that it should have been dispensed from payment of interest surcharges under Article 75 (3) of the Tax Code and that in respect of the year 2000 the company had been subjected to double taxation in respect of the profits of the sham entities.", "601. The Court notes that both Section 5 of Law no. 1992-1 of 6 December 1991 “On Value-Added Tax” governing the relevant sphere until 1 January 2001 as well as Article 165 of the Tax Code applicable to the subsequent period provided unequivocally that a zero rate of value-added tax in respect of exported goods and its refund could by no means be applied automatically, and that the company was required to claim the tax exemptions or refunds under its own name under the procedure set out initially in Letter no. B3-8-05/848, 04-03-08 of the State Tax Service of Russia and the Ministry of Finance and subsequently in Article 176 of the Tax Code to substantiate the requests in order to obtain the impugned refunds (see paragraphs 326-336). In view of the above, the Court finds that the relevant rules made the procedure for VAT refunds sufficiently clear and accessible for the applicant company to able to comply with it.", "602. Having examined the case file materials and the parties’ submissions, including the company’s allegation made at the hearing on 4 March 2010 that it had filed the VAT exemption forms for each of the years 2000 to 2003 on 31 August 2004, the Court finds that the applicant company failed to submit any proof that it had made a properly substantiated filing in accordance with the established procedure, and not simply raised it as one of the arguments in the Tax Assessment proceedings, and that it had then contested any refusal by the tax authorities before the competent domestic courts (see paragraphs 49 and 171, 196, 196 and 216 ). The Court concludes that the applicant company did not receive any adverse treatment in this respect.", "603. As regards the company’s argument that Articles 20 and 40 of the Tax Code should have been applied by the domestic courts in their case and that the Ministry’s claims were inconsistent with the above provisions, the Court notes that the Ministry and the domestic courts never relied on these provisions and there is nothing in the applicable domestic law to suggest that they had been under a legal obligation to apply these provisions to the applicant company’s case. Thus, it cannot be said that the authorities’ failure to rely on these provisions rendered the Tax Assessments 2000-2001 unlawful.", "604. Finally and in so far as the company disagreed with the interpretation of Article 75 (3) of the Tax Code by the domestic courts and also alleged to have been subjected to double taxation, the Court would again reiterate that it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them, establish the facts and to interpret the domestic law. On the facts, the former provision only applied to cases where the taxpayer was unable to pay the tax debt solely due to the seizure of its assets and cash funds (see paragraph 402 ). The domestic courts established that the company had been unable to pay because of the lack of funds and not because of the injunctions and refused to apply Article 75 (3) of the Tax Code in the applicant’s case (see paragraph 216). The Court does not find this conclusion arbitrary or unreasonable. Likewise, the Court finds nothing in the parties’ submissions or the case file materials to cast doubt on the findings of the domestic courts, which specifically established that the Ministry took account of the sham entities’ profits in calculating their claims so as to avoid double taxation (see paragraph 49 ).", "605. Overall, the Court finds that, in so far as the applicant company’s argument about the allegedly unreasonable and unforeseeable interpretation of the domestic law in the Tax Assessments 2000-2003 is concerned, the Tax Assessments 2000-2003 complied with the requirement of lawfulness of Article 1 of Protocol No. 1.", "(b) Whether the Tax Assessments 2000-2003 pursued a legitimate aim and were proportionate", "606. The Court is satisfied that, subject to its findings in respect of the lawfulness of fines for the years 2000 and 2001 made earlier, each of the Tax Assessments 2000-2003 pursued a legitimate aim of securing the payment of taxes and constituted a proportionate measure in pursuance of this aim. The tax rates as such were not particularly high and given the gravity of the applicant company’s actions there is nothing in the case file to suggest that the rates of the fines or interest payments can be viewed as having imposed an individual and disproportionate burden, as such, on the applicant company (see Dukmedjian v. France, no. 60495/00, §§ 55-59, 31 January 2006).", "(c) Conclusion concerning the compliance with Article 1 of Protocol No. 1 as regards the Tax Assessments 2000-2003", "607. Overall, the Court finds that there has been a violation of Article 1 of Protocol No. 1 on account of the 2000-2001 Tax Assessments in the part relating to the imposition and calculation of penalties. Furthermore, the Court finds that there has been no violation of Article 1 of Protocol No. 1 as regards the rest of the 2000-2003 Tax Assessments.", "2. Compliance with Article 14, taken in conjunction with Article 1 of Protocol No. 1", "(a) The applicant company’s submissions", "608. The applicant company argued that the courts’ interpretation of the relevant laws had been selective and unique, since many other Russian companies such as Sibneft and TNK International Ltd. had also used domestic tax havens.", "609. The company also submitted that the authorities had tolerated and even endorsed the tax optimisation techniques used by the applicant company in that they had accepted the applicant company’s and its trading companies’ tax returns and payments on a regular basis, and the company’s rate of tax payment had been comparable to or even higher than that of its competitors. In this connection, the applicant company relied on statistical data contained in a report by the Centre for Development, a report of the Financial Research Institute and reports of the Accounts Chamber of Russia. The company also under this heading argued that the legislative framework had permitted the company to use such techniques and that the interpretation of the domestic law in its case had been unique, selective and unforeseeable.", "(b) The Government’s submissions", "610. The Government responded that the allegations that other taxpayers may have used similar schemes could not be interpreted as justifying the applicant company’s failure to abide by the law. They further contended that the occurrence of illegal tax schemes at a certain stage of Russia’s historical development was not due to failures or drawbacks in the legislation, but rather due to “bad-faith” actions by economic actors and weakened governmental control over compliance with the Russian tax legislation on account of objective criteria, such as the 1998 economic crisis and the difficulties of the transition period.", "611. At present, the Government was constantly combating tax evasion and strengthening its control in this sphere. They also referred to statistical data by AK&M and some other news agencies in 2002, which had reported that OAO LUKOIL and OAO Surgutneftegas, two other large Russian oil producers, had posted sales proceeds of RUB 434.92 billion and RUB 163.652 billion and paid RUB 21.190 billion and RUB 13.885 billion in profit tax respectively, whilst the applicant company had posted sales proceeds of RUB 295.729 billion and paid only RUB 3.193 billion in profit tax. The Government submitted that at least two Russian oil majors, OAO Surgutneftegaz and OAO Rosneft, had never engaged in such practices, whilst some, in particular OAO Lukoil, had ceased using them in 2002.", "(c) The Court’s assessment", "612. The Court will examine this grievance under Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. This former provision reads:", "Article 14 of the Convention", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "613. Before considering the complaints made by the applicant company, the Court would reiterate that Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised by the Convention (see, for example, Lithgow and Others, cited above, § 117). It safeguards persons (including legal persons) who are “placed in analogous situations” against discriminatory differences of treatment; and, for the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, amongst many authorities, Rasmussen v. Denmark, 28 November 1984, §§ 35 and 38, Series A no. 87). Furthermore, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law; the scope of this margin will vary according to the circumstances, the subject-matter and its background ( ibid., § 40).", "614. The Court would reiterate that nothing in the case file suggests that the applicant company’s tax arrangements during the years 2000-2003, taken in their entirety, including the use of fraudulently registered trading companies, were known to the tax authorities or the domestic courts and that they had previously upheld them as lawful (see paragraphs 592-594). It thus cannot be said that the authorities passively tolerated or actively endorsed them.", "615. As regards the applicant company’s allegation that other domestic taxpayers used or continue to use exactly the same or similar tax arrangements as the applicant company and that the applicant company was the only one to have been singled out, the Court finds that the applicant company failed to demonstrate that any other companies were in a relevantly similar position. The Court notes that the applicant company was found to have employed a tax arrangement of considerable complexity, involving, among other things, the fraudulent use of trading companies registered in domestic tax havens. This was not simply the use of domestic tax havens, which, depending on the exact details of an arrangement, may have been legal or may have had some other legal consequences for the companies allegedly using them. The Court notes that the applicant company had failed to submit any specific and reliable evidence concerning such details. It further notes that it cannot be called upon to speculate on the merits of the tax arrangements of third parties on the basis of data contained in non-binding research and information reports and that therefore it cannot be said that the situation of these third parties was relevantly similar to the situation of the applicant company in this respect.", "616. The Court concludes that, in so far as the complaint about discriminatory treatment is concerned, there has been no violation of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1.", "B. The complaints about the enforcement of the debt resulting from the Tax Assessments 2000-2003", "617. The Court now has to determine whether the manner in which the domestic authorities enforced the debt resulting from the 2000-2003 Tax Assessment proceedings on the applicant company complied with the requirements of Article 1 of Protocol No. 1.", "618. The Court reiterates that the enforcement of the debt resulting from the Tax Assessments 2000-2003 involved the seizure of the company’s assets, the imposition of a 7% enforcement fee on the overall amount of the debt and the forced sale of the applicant company’s main production unit OAO Yuganskneftegaz. These measures constituted an interference with the applicant company’s rights under Article 1 of Protocol No. 1 and it remains to be decided whether these measures met the requirement of lawfulness, pursued a legitimate aim and were proportionate to the aim pursued.", "1. The applicant company’s submissions", "619. The applicant company complained that the enforcement proceedings in its case had been unlawful, disproportionate and arbitrary. In particular, it argued that the authorities ought to have allowed the company to settle the debt and that it had been wrong to sell off its main production unit at auction with such speed. The company complained that the courts ought to have intervened and corrected the assessment of this matter by the bailiffs. The authorities should have first considered and accepted its offers of shares in OAO Sibneft, and/or allowed the company to make deferred payments over a prolonged period. As regards such deferred payments, the company submitted that the domestic law and practice gave priority to such a solution and that OAO Rosneft was able to obtain such a deferral in respect of the tax debts of OAO Yuganskneftegaz following the auction of 19 December 2004. The company argued that it could have repaid the debt, entirely or in part, had it not been for the attachment imposed by the court. It further criticised the authorities’ failure to act during the twenty-two months following the auctioning of OAO Yuganskneftegaz, as well as the imposition of an unlawful and disproportionate enforcement fee.", "620. The applicant company contended that the seizure had been disproportionate in that the authorities had ordered the applicant company to pay and, at the same time, had frozen the company’s assets, which were worth considerably more than the company’s then liability. The authorities refused to use the company’s equity in the Sibneft company or other realistic means of settling the debt. According to the applicant company, the domestic authorities should have accepted those other realistic means of settlement (letter of 5 July 2004, letter of 9 August 2004, letter of 4 November 2004, letter of 23 March 2006) because they were required to do so by precedent in the practice of the commercial courts. The period of merely a couple of days granted to the applicant company for payment was absurdly short.", "621. The applicant company was also of the view that the sale of OAO Yuganskneftegaz had been unlawful, disproportionate and had resulted in gross undervaluing by means of a clearly controlled auction with the unlawful participation of a sham bidder, OOO Baykalfinansgrup. It disagreed with the decision to sell OAO Yuganskneftegaz, arguing that under the domestic legislation OAO Yuganskneftegaz should have been the last item to be auctioned, and that the auction had been incapable of generating a reasonably good price because of the limited number of candidates, the widespread perception of the need for political support to acquire the item in question and insufficient time for preparation. The applicant company was also dissatisfied with the decision to sell only the voting shares of OAO Yuganskneftegaz, as opposed to all of the shares. The company argued that even though the authorities put no open obstacles in the path of potential buyers, there had been practical obstacles, such as the need for the buyers to comply with internal corporate procedures and to request anti-competition clearance.", "622. More generally, the applicant company viewed the auction as a sham, because OAO Gazprom, OAO Rosneft (both State-owned companies with considerable involvement of State officials in their day-to-day management), the organisers of the auction and the bailiffs were acting in concert. It also relied on interviews by the then President of Russia and argued that the State banks had financed the acquisition and that the State had failed to apply anti-monopoly laws in connection with the auction. The company argued that its actions in the US bankruptcy court had had no effect on the outcome of the auction of OAO Yuganskneftegaz because neither OAO Rosneft nor OOO Baykalfinansgrup had applied for participation before the company filed for bankruptcy in the U.S.", "623. The applicant company argued that the above circumstances showed that the proceedings against it, taken as a whole, were abusive in that the State clearly wanted to destroy the company and to take control of its assets.", "624. As regards its alleged failure to exhaust domestic remedies, the applicant company considered that exhaustion had been unnecessary in view of the lack of prospects of success. The domestic courts consistently rejected the company’s attempts to contest the actions of the bailiffs, so other attempts would have been futile. In any event, the company had not contested the valuation report in respect of OAO Yuganskneftegaz, since it was not so materially inaccurate as to be realistically challenged in litigation. Furthermore, the company submitted that it did challenge the entire process by which the voting shares in OAO Yuganskneftegaz were sold to a state-owned company, OAO Rosneft.", "2. The Government’s submissions", "625. The Government submitted that the enforcement proceedings in respect of the applicant company had been lawful and proportionate.", "626. It argued that the company had failed properly to exhaust domestic remedies in respect of this part of the application. In particular, its complaints about the seizure of property pending the enforcement proceedings, the alleged failure of the bailiffs to grant the company access to the case in the enforcement proceedings, the alleged inaction of the bailiffs in respect of the Sibneft’s shares, the order to pay a 7% enforcement fee and the circumstances of valuation and sale of OAO Yuganskneftegaz were inadmissible on account of a failure to exhaust domestic remedies.", "627. The Government pointed out that, in the course of the enforcement proceedings, there had been no restrictions on the company’s production cycle or the sale of petroleum and mineral oils and that the applicant company had remained fully operational. In view of the State’s wide margin of appreciation in the fiscal sphere and the applicant company’s abusive conduct, illustrated by its attempts to hinder enforcement action by hiding the register of the shareholders of its three largest subsidiary companies, the Government were of the view that the fair balance between the private and public interests had been struck.", "628. The Government further submitted that the procedure for compulsory recovery of arrears of mandatory tax payments had been used in respect of the applicant company, that such tax payments were recovered by way of charging the company’s cash flows on bank accounts, that in the case of insufficient or non-existent funds, the recovery of tax was carried out using the taxpayer’s assets and that the whole procedure was described in detail in the domestic legislation and had been followed by the authorities. In the circumstances, the measures represented the control of the use of property and were in full compliance with the Convention.", "629. As regards the seizure of property, the Government referred to the Gasus Dosier and AGOSI cases and considered that, having regard to relevant factors, such as the enormous amount of arrears, the bad-faith conduct of the applicant company and the need for an expedient and efficient recovery of tax to the State budget, the measure in question was in compliance with the requirements of Article 1 of Protocol No. 1. The Government submitted that both the seizure and freezing orders were usual practice, both domestically and internationally, and their use was especially appropriate in the present case because of the unprecedented amounts of the tax debts, the unrepentant and defiant attitude of the applicant company, claims that the authorities’ actions were a “malicious tax racket” and the applicant company’s history, namely its management and core shareholders moving corporate assets into new shell entities and sometimes into foreign tax havens. These measures were merely precautionary in character.", "630. In respect of the April injunction, the Government disagreed with the applicant company’s claim that it could have repaid the debt but for the seizure of its assets. The injunction did not cover either cash or cash revenues and the applicant company did subsequently repay a portion of its debt using the cash in the frozen account. The applicant company could have had the injunction lifted had it provided adequate counter-security, which it failed to do, or liquidated some of its foreign assets not covered by the injunction. The Government maintained that instead of selling its foreign assets to meet its tax debts the applicant company simply stripped them away, which in itself proved that the company’s complaint about the injunction was unsubstantiated. As regards the freezing orders, the Government submitted that they had been issued by the bailiffs pursuant to court writs dated 30 June 2004, which froze the company’s accounts in Russian banks as of the date of issue of the respective freezing orders. The company could still dispose of cash added to its frozen accounts after 30 June 2004 and could use its non-seized accounts abroad. The funds in these accounts had been far lower than the company’s then liabilities. The Government further noted that as of 14 July 2004 the applicant company had still to pay 96.5% of its then liability and that the company’s voluntary payment only commenced on 14 July 2004, apparently as a response to the seizure of the shares of OAO Yuganskneftegaz. The very fact that the payments had been made through the frozen accounts demonstrated that the company’s allegations about the effects of the cash freezing orders were untrue.", "631. As regards the proposals for respite and payment spread, the applicant company first made such a request on 16 July 2004 by sending a letter to the Ministry of Finance. The Government pointed out that the Ministry of Finance had not been the proper authority to grant these measures as only a commercial court could and that the law set out clear rules regarding the conditions that should have been satisfied so that the request could be granted, i.e. the request should have been made one to six months before the original payment deadline and on specific grounds only, such as the risk of bankruptcy. In addition, the law did not allow for respite and payment spread if there were pending tax proceedings against the taxpayer at issue. The applicant not only failed to substantiate its request with reference to the criteria set out in law, but it was also clear that such a request was bound to fail because of the pending tax proceedings against the applicant company.", "632. The Government relied on the applicable domestic law and cases to demonstrate that asking a guilty taxpayer to pay within one or two days had been standard and lawful practice followed in all cases. They claimed that this period was sufficient, as taxpayers usually learned about tax claims - with a specific indication of the sums to be paid - in the Ministry’s audit reports, which were usually served from several weeks to a few months in advance. Thus, in the present case the applicant company had first learned of the Ministry’s claims for the years 2000-2003 109, 66, 19 and 18 days in advance. More generally, in such cases the taxpayer usually knew well in advance the sums that had been underpaid (typically during tax evasion), so it cannot claim that it was unprepared. In addition, very similar practices existed internationally.", "633. As to the choice of OAO Yuganskneftegaz as the first item to be auctioned in satisfaction of the company’s liabilities, the Government pointed out that the offers made by the applicant company had been unacceptable. The first three offers, made on 22 April, 2 July and 13-14 July 2004, all involved various portions of shares of OAO Sibneft, allegedly owned by the applicant company. All three offers were rejected, not only because the company’s ownership of these shares had been contested in various unrelated proceedings by third persons, but also because the offers had been made in violation of injunctions issued by the courts in the above-mentioned unrelated proceedings. In fact, the sale of shares that did belong to the applicant company (some 20%) would have been insufficient to cover the company’s then debt, even in part, let alone satisfy the Ministry’s upcoming claims for the years 2001-2003. It was a minority stake of uncertain value and any such value was in any event insufficient to satisfy the company’s tax arrears. As regards the fourth offer, dated 9 August 2004, it involved 20% of OAO Sibneft and a farrago of shares in fifteen companies (some of them subsidiaries, some of them minority stakes and all of uncertain liquidity). In any event, this offer was “too little and too late” for the Government, since preparation for the auctioning of OAO Yuganskneftegaz had been under way. The above-mentioned “shopping list” did not offer any guarantee of a “good chance of fetching a price sufficient to discharge much of [the applicant’s] rapidly increasing tax liabilities” and in addition involved a high risk of third-party claims to the property in question in each case.", "634. The Government maintained that the choice of OAO Yuganskneftegaz was lawful under Russian law, aimed at securing the payment of taxes and had been effected in full compliance with the provisions of the Federal Enforcement Proceedings Act. Under section 54 (2) of the Enforcement Proceedings Act, the sale of the applicant company’s property was made by a specialised organisation pursuant to the terms of commission and the relevant legislation. On 18 November 2004 the bailiffs decided to sell 43 shares (76.8%) of OAO Yuganskneftegaz at auction. The Government noted that OAO Yuganskneftegaz was itself the debtor in mandatory payments to the budget totalling RUB 102.09 billion, so that the above arrears inevitably affected the price of the auctioned shares, as defined by the valuation institution and the results of the auction. The date of the auction and invitation to participate in the open auction were published in the mass media in due time. The auction itself was open, both with regard to its participants and to the form of submissions of price bids. Bids were received between 19 November and 18 December 2004. On 19 December 2004 the open auction took place. The winner of the auction was recognised as OOO Baykalfinancegrup, which offered RUB 260,753,447,303.18 for the shares in question. The auction itself was public. The mass media representatives provided extensive media coverage. The results were published in the mass media and broadcast. With regard to the proportionality of the sale, the sum of 260.5 billion roubles generated as a result of the sale did not, however, cover the arrears of OAO Yukos entirely. The Government also underlined that the subsequent bankruptcy was not caused by the sale of OAO Yuganskneftegaz, but had been initiated by a consortium of foreign banks and that the representatives of the applicant company had allegedly acknowledged that the company had been in good financial condition even despite the sale of OAO Yuganksneftegaz. In sum, the Government considered that there had been no breach of the Convention.", "3. The Court’s assessment", "635. The applicant company submitted a number of grievances about these proceedings. In particular, the applicant company complained that the enforcement of the tax liability had been deliberately orchestrated with a view to preventing the applicant company from repaying its debts. In this connection the company maintained that the seizure of its assets pending litigation had prevented it from repaying the debt. It was furthermore dissatisfied that it had been ordered to pay a 7% enforcement fee in respect of the entirety of its debt, that the time for voluntary compliance with the Tax Assessments 2000-2003 had been too short and that the sale of the company’s main production unit OAO Yuganskneftegaz had been unlawful, arbitrary and generally disproportionate.", "636. Before turning to the substance of these complaints, the Court reiterates that in its decision on admissibility it joined to the merits the question of exhaustion of domestic remedies. Thus, the Court needs to determine whether the applicant complied with the requirement to exhaust domestic remedies in respect of this part of the application, as required by Article 35 § 1 of the Convention, which, in its relevant parts, provides:", "“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”", "637. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see, for example, Aksoy, 18 December 1996, §§ 51-52, Reports 1996–VI; Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996 ‑ IV; and, more recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).", "638. The Court has emphasised that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the particular circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others, cited above, § 69; Aksoy, cited above, §§ 53-54; and Tanrıkulu v. Turkey [GC], no. 23763/94, § 82, ECHR 1999 ‑ IV).", "639. The Court reiterates that at the admissibility stage of the proceedings the Government claimed that the applicant company had failed to exhaust domestic remedies in respect of the attachment and seizure of its assets pending the enforcement proceedings, the alleged failure by the bailiffs to grant the company access to the case in the enforcement proceedings, the bailiffs’ alleged inaction in respect of the Sibneft shares, the orders to pay a 7% enforcement fee and the circumstances of the valuation and sale of OAO Yuganskneftegaz.", "640. Having examined the case file and the parties’ submissions, the Court finds that in the part concerning the attachment and seizure of the assets the applicant company properly exhausted the available domestic remedies by raising its grievances before the competent domestic courts. The attachment order of 15 April 2004 was reviewed and upheld by the Appeal Court on 2 July 2004 (see paragraph 92 ) and was also examined and confirmed by the City Court in its decision of 23 April 2004 in the context of the examination of the company’s request of 22 April 2004 (see paragraphs 96 - 97 ), and by the City Court and the Appeal Court on 23 April and 2 July 2004 respectively in the context of examination of the company’s request for an injunction against the attachment (see paragraphs 101 and 102 ). The seizure order of 1 July 2004 was reviewed at first instance on 17 September 2004 and in cassation on 2 February 2005 (see paragraphs 116 - 120 ). The seizure of OAO Yuganskneftegaz on 14 July 2004 was reviewed by the courts at four instances, on 6, 9 August, 25 October and 17 December 2004 respectively (see paragraphs 137 - 146 ). As regards the seizure orders of 14 July 2004 concerning OAO Tomskneft-VNK and OAO Samaraneftegaz, the City Court upheld them by respective judgments of 13 August and 2 September 2004, whilst the Circuit Court confirmed this conclusion by the respective decisions of 5 November 2004 and 18 January 2005 (see paragraphs 147 - 155 ).", "641. Admittedly, the applicant company did not complain about the attachment order of 15 April 2004 by way of cassation and omitted the appeal procedure when contesting the seizure of its subsidiaries on 1 July 2004 and the seizure order of 14 July 2004 concerning OAO Tomskneft-VNK and OAO Samaraneftegaz. The Court would note, however, that given the circumstances of the applicant company’s tax case, its overall situation at the relevant time, the applicable domestic law and the courts’ responses to the arguments put forward by the applicant company in those proceedings, it is clear that both the attachment order of 15 April 2004 and the subsequent seizure orders of 1 and 14 July 2004 have been properly examined and confirmed by the domestic courts at various levels of jurisdictions and it does not appear that the applicant company’s complaints in this connection had any additional prospects of success, had the company not omitted the above-mentioned judicial instances.", "642. As regards the complaints about a 7% enforcement fee, the Court observes that the applicant company was ordered to pay this fee for the years 2000-2003. The company’s challenge to this fee was examined and dismissed by the courts at three instances only in respect of the year 2000 (see paragraphs 130 - 134 ), whilst its complaints about the payment of the fee for the year 2001 were examined only at first instance and in cassation (see paragraphs 177 - 187 ). Also, it is not entirely clear whether the applicant company brought court proceedings in respect of the entire amount of the fee for the year 2002 (see paragraphs 200 - 204 ) and whether it brought any proceedings against such an order for the year 2003 (see paragraph 221 ). The Court again finds that, given the similarity of the orders for payment of enforcement fees for the years 2000-2003 and in view of other relevant circumstances such as the applicable domestic law and the courts’ answers to the company’s arguments in respect of the fee for the year 2000, there is nothing in the Government’s submissions to suggest that the applicant company’s complaints in this connection would have had any prospects of success had the applicant company appealed against them.", "643. As regards the alleged failure by the bailiffs to grant the company access to the case in the enforcement proceedings and the bailiffs’ alleged inaction in respect of the Sibneft shares, the Court notes that the above-mentioned grievances are entirely subsumed by the complaint concerning the method of enforcement of the tax debt and in particular the choice of OAO Yuganskneftegaz as the first asset to be sold in satisfaction of the tax claims. In this connection, the Court would note that the applicant company clearly exhausted the available domestic remedies as regards the seizure and the subsequent measures leading to the eventual sale of OAO Yuganskneftegaz (see paragraphs 137 - 146 ), and it is also clear that the relevant domestic law specifically disallowed the courts to rearrange or otherwise postpone the repayment of the debt (see paragraphs 471-477) if there were, as in the case at hand, pending tax proceedings against the debtor. Thus, the applicant company could not have been expected to bring separate court proceedings in this connection. Overall, it is clear to the Court that the applicant company used all the remedies that it could reasonably be expected to use in connection with this part of the application.", "644. Thus, the Court finds that the applicant company has complied with the requirement to exhaust domestic remedies in respect of this part of the application and dismisses the Government’s preliminary objection accordingly.", "645. Turning to the substance of the applicant company’s complaints, the Court notes that in April 2004, simultaneously with the Tax Assessment proceedings, the domestic authorities initiated enforcement proceedings aimed at securing their tax claims and later recovering the sums awarded by the courts as a result of the examination of these claims. They attached the company’s assets located in Russia and later partly froze the company’s domestic bank accounts and seized the shares of the applicant company’s Russian subsidiaries. On 20 July 2004 it was decided to auction off the company’s principal production subsidiary OAO Yuganskneftegaz, in satisfaction of the company’s tax liability, which at the time amounted to RUB 106.182 billion (some EUR 3.005 billion). As a result of the proceedings with regard to the Tax Assessments 2001 and 2002, the company’s debt to the tax authorities further increased and by the time the auction of OAO Yuganskneftegaz took place in December 2004 the company already owed the tax authorities some RUB 431.259 billion (some EUR 11.061 billion). In addition to the payments resulting from the Tax Assessments 2000-2003, the company was also required to pay the bailiffs a 7% enforcement fee on the overall amount of the debt.", "646. The Court notes that the authorities used a variety of measures in connection with the enforcement of the debt, such as the attachment and freezing orders, the seizure orders, the orders to pay enforcement fees and the compulsory auction procedure. Though each of these measures could be seen as a separate instance of interference with the applicant company’s rights under Article 1 of Protocol No. 1, their common and ultimate goal was to force the company to meet its tax liabilities. Accordingly, the appropriate way to analyse this part of the application is to examine the enforcement proceedings in their entirety as one continuous event. The Court further notes that the enforcement measures in question fall to be analysed under the third rule of Article 1 of Protocol No. 1, which allows the member States to control the use of property in accordance with the general interest, by enforcing “such laws as [they] deem necessary to secure the payment of taxes or other contributions or penalties”. It follows that the Court’s task is to determine whether the State authorities complied with the Convention requirement of lawfulness and, if so, whether they struck a fair balance between the legitimate state interest in enforcing the tax debt in question and the protection of the applicant company’s rights set forth in Article 1 of Protocol No. 1.", "647. As regards the lawfulness of the measures in question, the Court has no reason to doubt that throughout the proceedings the actions of various authorities had a lawful basis and that the legal provisions in question were sufficiently precise and clear to meet the Convention standards concerning the quality of law. The attachment, freezing and seizure orders were reviewed by the domestic courts and found to have been lawful. Likewise, the 7% enforcement fee was upheld by the domestic courts and cannot be said to have been selective, given the domestic case-law cited by the Government. As regards the decisions leading to the forced sale of OAO Yuganskneftegaz at auction and the auction process itself, the Court notes that they too were reviewed and upheld by the domestic courts as lawful (see paragraphs 263 and 265) and there is nothing in the case file or the parties’ submissions to cast doubt on these conclusions. The only question that remains is whether the enforcement measures were proportionate to the legitimate aim pursued.", "648. In this connection the Court would reiterate that its task is to determine whether a fair balance was struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights. It finds it natural that in the tax sphere the Contracting States should enjoy a wide margin of appreciation in order to implement their policies. Nevertheless, the Court cannot fail to exercise its power of review and must determine whether the requisite balance was maintained in a manner consonant with the applicant company’s right to “the peaceful enjoyment of [its] possessions”, within the meaning of the first sentence of Article 1 of Protocol No. 1.", "649. At the outset the Court notes the background to this case and, in particular, the fact that the applicant company was one of the largest taxpayers in Russia and that it had been suspected and subsequently found guilty of running a tax evasion scheme, committed consecutively in 2000-2003. From the parties’ submissions and the case file it seems clear that the applicant company had no cash funds in its domestic accounts to pay its tax debts immediately, and in view of the nature and scale of the debt it was unlikely that any third party would agree to assist the company with a loan or some form of security. Regard being had to the scale of the tax evasion, the sums involved for the years 2000-2003, the fact under domestic law that they were payable almost at once after the production of the respective execution writ (see paragraph 471), and even taking into account the Court’s previous findings in respect of the fines for the years 2000 and 2001, it was questionable whether at the time when the authorities decided to seize and auction OAO Yuganskneftegaz the company was at all solvent within the meaning of section 3 of the Insolvency (Bankruptcy) Act, which generally expected the solvent debtor to repay its debts “within three months of the date on which compliance should have occurred” (see paragraph 496).", "650. In view of the above considerations, the Court finds that the crux of the applicant company’s case did not lay in the attachment of its assets and cash as such, but rather and essentially in the speed with which the authorities demanded the company to pay, in the decision which had chosen the company’s main production unit, OAO Yuganskneftegaz, as the item to be compulsorily auctioned in the first instance, and in the speed with which the auction had been carried out.", "651. Given the paramount importance of the measures taken by the authorities to the applicant company’s future, and notwithstanding the Government’s wide margin of appreciation in this field, the Court is of the view that the authorities were obliged to take careful and explicit account of all relevant factors in the enforcement process. Such factors were to include, among other things, the character and the amount of the existing debt as well as of the pending and probable claims against the applicant company, the nature of the company’s business and the relative weight of the company in the domestic economy, the company’s current and probable economic situation and the assessment of its capacity to survive the enforcement proceedings. Furthermore, the economic and social implications of various enforcement options on the company and the various categories of stakeholders, the attitude of the company’s management and owners and the actual conduct of the applicant company during the enforcement proceedings, including the merits of the offers that the applicant company may have made in connection with the enforcement were to be properly considered.", "652. The Court notes that the authorities examined and made findings in respect of some of these factors (see, for instance, the findings in respect of the offers of shares in OAO Sibneft in paragraph 124 or the findings in respect of request for payment spread in paragraph 157 ), but it is clear that at no point in the enforcement proceedings did they make an explicit assessment in respect of all of them. In particular, neither the seizure order of 14 July 2004, which set in motion the process of auctioning OAO Yuganskneftegaz (see paragraph 137 ), nor any of the subsequent decisions, including the judicial decisions in the context of the company’s complaints against the actions of the bailiffs (see paragraphs 137 - 158 ), mentioned or discussed in any detail possible alternative methods of enforcement and the consequences that they might have on the future of the company.", "653. The Court finds this aspect of the enforcement proceedings of utmost importance when striking a balance between the interests concerned, given that the sums that were already owed by the company in July 2004 made it rather obvious that the choice of OAO Yuganskneftegaz as the first item to be auctioned in satisfaction of the company’s liability was capable of dealing a fatal blow to its ability to survive the tax claims and to continue its existence.", "654. The Court accepts that the bailiffs were bound to follow the applicable domestic legislation which might limit the variety of options in the enforcement procedure. Nonetheless, the Court is of the view that, notwithstanding these constraints, the bailiffs still had a decisive freedom of choice, the exercise of which could either keep the company afloat or eventually lead to its demise. Although the Court, in principle, does not find the choice of OAO Yuganskneftegaz entirely unreasonable, especially in view of the overall amount of the tax-related debt and the pending as well as probable claims against the company, it is of the view that before definitively selecting for sale the asset that was the company’s only hope of survival, the authorities should have given very serious consideration to other options, especially those that could mitigate the damage to the applicant company’s structure. This was particularly so since all of the company’s domestic assets had been attached by previous court orders (see paragraph 27 ), and were readily available, the company itself did not seem to have objected to their sale (see paragraph 159) and there had been virtually no risk of the company seriously opposing these actions.", "655. The Court further notes one other factor which seriously affected the company’s situation in the enforcement proceedings. The applicant company was subjected to a 7% enforcement fee in connection with the entire amount of its tax-related liability, which constituted an additional hefty sum of over RUB 43 billion (EUR 1.16 billion), the payment of which could not be suspended or rescheduled (see paragraphs 484-486). This was a flat-rate fee which the authorities apparently refused to reduce, and these sums had to be paid even before the company could begin repaying the main body of the debt (see paragraph 484). The fee was by its nature unrelated to the actual amount of the enforcement expenses borne by the bailiffs. Whilst the Court may accept that there is nothing wrong as a matter of principle with requiring a debtor to pay for the expenses relating to the enforcement of a debt or to threaten a debtor with a sanction to incite his or her voluntary compliance with enforcement writs, in the circumstances of the case the resulting sum was completely out of proportion to the amount of the enforcement expenses which could have possibly been expected to be borne or had actually been borne by the bailiffs. Because of its rigid application, instead of inciting voluntary compliance, it contributed very seriously to the applicant company’s demise.", "656. Lastly, the Court would again emphasise that the authorities were unyieldingly inflexible as to the pace of the enforcement proceedings, acting very swiftly and constantly refusing to concede to the applicant company’s demands for additional time. Admittedly, this rigidity may have resulted at least in part from the relevant requirements of the domestic law (see paragraphs 471, 481 and 489). Nevertheless, the Court finds that in the circumstances of the case such lack of flexibility had a negative overall effect on the conduct of the enforcement proceedings against the applicant company.", "657. On the whole, given the pace of the enforcement proceedings, the obligation to pay the full enforcement fee and the authorities’ failure to take proper account of the consequences of their actions, the Court finds that the domestic authorities failed to strike a fair balance between the legitimate aims sought and the measures employed.", "658. To sum up, the Court concludes that there has been a violation of the applicant company’s rights under Article 1 of Protocol No. 1 on account of the State’s failure to strike a fair balance between the aims sought and the measures employed in the enforcement proceedings against the applicant company.", "C. The complaint about the Government’s intentions in the tax and enforcement proceedings against the applicant company", "659. The Court notes that, in addition to various specific grievances about the tax and enforcement proceedings already mentioned above, the applicant company also argued that the overall effect of these proceedings showed that the Government had brought and conducted the proceedings with the intent to destroy the company and to take control of its assets.", "660. The Court will examine this part of the application under Article 18 of the Convention, taken in conjunction with Article 1 of Protocol No. 1.", "Article 18 of the Convention", "“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”", "1. The applicant company’s submissions", "661. The applicant company argued that the circumstances of the tax assessment and enforcement proceedings as well as the allegedly “political” motivation behind the prosecution of Mr M. Khodorkovskiy and other owners and senior officials of the applicant company showed that the proceedings against it, taken as a whole, were abusive in that the State clearly wanted to destroy the company and to take control of its assets.", "2. The Government’s submissions", "662. The Government disagreed, having maintained that tax assessment and subsequent enforcement proceedings had been lawful and regular and that the applicant company’s demise was the direct result of its carrying out over many years a gigantic tax fraud.", "3. The Court’s assessment", "663. The Court reiterates that Article 18 of the Convention does not have an autonomous role. This provision can only be applied in conjunction with the Convention provisions protecting substantive rights. It also follows from the terms of Article 18 that a violation can only arise where the right or freedom concerned is subject to restrictions permitted under the Convention (see, for example, Gusinskiy v. Russia, no. 70276/01, § 73, ECHR 2004 ‑ IV). The Court further notes that in order to hold a member State liable under this provision an applicant should be able to furnish the Court with an incontrovertible and direct proof in support of his or her allegations.", "664. The Court would observe that in its previous analysis under Article 6 of the Convention and Article 1 of Protocol No. 1 it has already addressed the applicant company’s points about the nature of its debt to the authorities, and in particular the merits of the 2000-2003 Tax Assessments proceedings. Despite the fact that it found a violation of Article 6 of the Convention on account of the speed with which the courts had conducted the proceedings in the 2000 Tax Assessment case and a violation of Article 1 of Protocol No. 1 on account of the interference by the Constitutional Court with the outcome of the 2000 Tax Assessment case in the part relating to penalties, the Court rejected the applicant company’s claims that the company’s debt had been recognised as a result of an unforeseeable, unlawful and arbitrary interpretation of the domestic law (see paragraphs 605 and 616). The Court also recognised the right of the State to enforce, as such, the court judgments, but reached conclusions concerning the handling of the enforcement proceedings by the domestic authorities which lead to the finding of a violation of Article 1 of Protocol No. 1. In view of these findings, the Court will proceed on the assumption that the company’s debt in the enforcement proceedings resulted from legitimate actions by the respondent Government to counter the company’s tax evasion and the burden of proof would accordingly rest on the applicant company to substantiate its allegations.", "665. Regard being had to the case file and the parties’ submissions, including the applicant company’s references to the allegedly political motivation behind the prosecution of the applicant company and its owners and officials, the Court finds that it is true that the case attracted massive public attention and that comments of different sorts were made by various bodies and individuals in this connection. The fact remains, however, that those statements were made within their respective context and that as such they are of little evidentiary value for the purposes of Article 18 of the Convention. Apart from the findings already made earlier, the Court finds no indication of any further issues or defects in the proceedings against the applicant company which would enable it conclude that there has been a breach of Article 18 of the Convention on account of the applicant company’s claim that the State had misused those proceedings with a view to destroying the company and taking control of its assets.", "666. To sum up, the Court finds that there has been no violation of Article 18 of the Convention, taken in conjunction with Article 1 of Protocol No. 1, on account of the alleged disguised expropriation of the company’s property and the alleged intentional destruction of the company itself.", "D. Alleged violations of Articles 7 and 13 of the Convention", "667. Regard being had to the particular circumstances of the present case and to the reasoning which led it to find a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the Court finds that there is no cause for a separate examination of the same facts from the standpoint of Article 7 of the Convention and through the prism of the “effective remedies” requirement of Article 13.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "668. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "669. The applicant company claimed a lump sum of over 81 billion euros and a daily interest payment of EUR 29,577,848 in respect of pecuniary damage, “no less than 100,000 euros” in respect of non-pecuniary damage and EUR 171,444.60 in respect of costs and expenses.", "670. The Government disagreed, having contested both the authority of Mr Gardner to make the Article 41 claims on behalf of the applicant company as well as the well-foundedness of the calculations in question.", "671. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the applicant company and the respondent Government (Rule 75 § 1 of the Rules of Court)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. Mr Michel Bendenoun is a French citizen who lives in Zürich and is a dealer in coins.", "On 1 July 1973 he formed a public limited company under French law, ARTSBY 1881, with its head office in Strasbourg, for the purpose of dealing in old coins, objets d ’ art and precious stones. He owned the greater part of its capital (993 out of a total of 1,000 shares) and acted as its chairman and managing director.", "As a result of his activities, three sets of proceedings - customs, tax and criminal proceedings - were brought against him, and they progressed more or less in parallel.", "A. The customs proceedings", "8. Between 3 June and 26 September 1975 the National Head Office of Customs Investigations ( Belfort frontier zone) carried out a check on imports made by ARTSBY 1881; they were acting on information received from an anonymous informer. The main events during the investigation were that Mr Bendenoun was questioned and documents were seized (3-6 June), clients were questioned (6 June), employees and former employees of the company and an expert were interviewed (8-17 September) and Mr Bendenoun himself was arrested in Metz (26 September).", "9. On the basis of the evidence thus gathered the applicant was prosecuted for various customs and exchange-control offences. A composition was reached on 6 January 1978, however, whereby Mr Bendenoun admitted the offences and paid a fine of 300,000 French francs (FRF) and the customs returned the seized items to him.", "10. During the proceedings the applicant had access to all the documents in the customs file, which contained 24 reports and 353 other documents.", "The reports were the following:", "no. 73/1: questioning of Mr Bendenoun (Strasbourg, 3 June 1975);", "no. 73/2: searches of the premises of ARTSBY 1881 and of Mr Bendenoun ’ s home, and interviewing of Mr Bendenoun ( Strasbourg, 3 June);", "no. 73/3: arrest of an employee of ARTSBY 1881 ( Strasbourg, 3 June);", "no. 73/4: arrest of an employee of ARTSBY 1881 ( Strasbourg, 3 June);", "no. 73/5: sealing of a bank strongbox ( Strasbourg, 3 June);", "no. 73/6: arrest of an employee of ARTSBY 1881 ( Strasbourg, 3 June);", "no. 73/7: opening of the bank strongbox ( Strasbourg, 4 June);", "no. 73/8: seizure of old coins, cash and a vehicle ( Strasbourg, 4 June);", "no. 73/9: interviewing of Mr Bendenoun ( Strasbourg, 4 June);", "no. 73/10: interviewing of Mr Bendenoun ( Strasbourg, 6 June);", "no. 73/11: interviewing of Mr Bendenoun ( Strasbourg, 6 June);", "no. 73/12: interviewing of one of ARTSBY 1881 ’ s clients (Pfastatt, 6 June);", "no. 73/13: interviewing of one of ARTSBY 1881 ’ s clients ( Colmar, 6 June);", "no. 73/14: interviewing of an employee of ARTSBY 1881 ( Strasbourg, 8 September);", "no. 73/15: interviewing of one of ARTSBY 1881 ’ s clients ( Strasbourg, 8 September);", "no. 73/16: interviewing of a former employee of ARTSBY 1881 ( Strasbourg, 10 September);", "no. 73/17: interviewing of a former employee of ARTSBY 1881 ( Strasbourg, 10 September);", "no. 73/18: interviewing of a numismatist ( Paris, 15 September);", "no. 73/19: interviewing of a former representative of ARTSBY 1881 ( Strasbourg, 17 September);", "no. 73/20: interviewing of a former chairman of ARTSBY 1881 ( Strasbourg, 24 September);", "no. 73/21: arrest and interviewing of Mr Bendenoun ( Metz, 26 September);", "no. 73/22: interviewing of a representative of ARTSBY 1881 ( Metz, 26 September);", "no. 73/23: interviewing of Mr Bendenoun ( Metz, 26 September);", "no. 73/24: interviewing of a witness ( Metz, 26 September).", "Mr Bendenoun received a copy of eight of them (nos. 73/1, 73/2, 73/8, 73/9, 73/10, 73/11, 73/21 and 73/23).", "The 353 documents comprised a register bearing the title \"Invoice control\" (sealed document no. 1), seized on ARTSBY 1881 ’ s premises on 3 June 1975, and invoices and authentication certificates (sealed documents nos. 2 to 353), seized on the same day at the applicant ’ s home.", "11. At some time - according to the Government - before 31 August 1976 and pursuant to Article 1987 of the General Tax Code (which became Article L 83 of the Code of Tax Procedure on 1 January 1982), the customs sent the file to the Revenue.", "B. The tax proceedings", "1. Before the tax authorities", "12. From 31 August to 28 September 1976 the Head Office of the Bas-Rhin Revenue carried out an inspection of ARTSBY 1881 ’ s accounts.", "13. On 30 November 1976 the inspector sent two supplementary tax assessments to Mr Bendenoun as chairman and managing director of the company. One of them related to corporation tax and the other to value-added tax. They set out in detail the manner in which the inspector had determined what receipts had not been entered in the accounts and he confirmed them on 4 April 1977 after receiving comments from the applicant.", "On the same date he also sent Mr Bendenoun personally a supplementary income-tax assessment, which he confirmed on 11 May 1977.", "Under the supplementary assessment the applicant was required to pay an additional FRF 841,366, including FRF 422,534 in penalties. The company was required to pay additional tax and penalties amounting to FRF 157,752 and FRF 309,738 in respect of the value-added tax and FRF 270,312 and FRF 260,660 in respect of corporation tax.", "14. The inspector then drew up a nineteen-page report, ending with a request that criminal proceedings should be taken against the applicant, and these were instituted on 30 November 1977 (see paragraph 25 below).", "15. On 6 December 1977 ARTSBY 1881, in the person of its chairman and managing director, lodged two appeals with the Regional Commissioner of Revenue in Strasbourg in respect of the corporation tax and the value-added tax. Mr Bendenoun filed a third appeal, in his own name, concerning the income tax.", "The Regional Commissioner refused the first two appeals on 20 April 1978 and the third on 3 April 1979.", "2. In the administrative courts", "(a) The Strasbourg Administrative Court", "16. On 16 June 1978 Mr Bendenoun, acting on behalf of ARTSBY 1881, made two applications to the Strasbourg Administrative Court concerning the corporation tax and the value-added tax.", "On 7 June 1979 he made a further application to the same court, this time in his own name, challenging the supplementary tax assessment on his income.", "17. The Revenue annexed to its two sets of pleadings dated 5 April 1979 four customs reports (nos. 73/9, 73/10, 73/16 and 73/17 - see paragraph 10 above) and two letters from ARTSBY 1881 dated 30 May 1975 and June 1976.", "18. On 29 May 1979 Mr Bendenoun ’ s lawyer sent two identically worded letters to the President of the court. They read as follows:", "\"On 17 April 1979 you kindly forwarded to me the Regional Commissioner of Revenue ’ s pleadings of 5 April 1979.", "These pleadings refer several times to a file opened on Mr Michel Bendenoun, the chairman and managing director of the ARTSBY company, by the customs authorities.", "Six documents from that file are annexed to the Revenue ’ s pleadings.", "It would seem essential for the whole of the file to be sent to the court and the undersigned.", "The scale of the customs investigation was very large indeed and a number of reports, whose existence has not been mentioned by the authorities, are directly relevant to the present dispute.", "...\"", "On 29 June 1979 the President of the court wrote to the Strasbourg public prosecutor to this end:", "\"For the purposes of preparing for trial a case concerning tax files relating to the ARTSBY company, I should be obliged if you would kindly produce to the Administrative Court the file on Mr Bendenoun, the chairman and managing director of the company. A number of reports are directly relevant to the case, and the National Head Office of Customs Investigations has informed me that the file in question was sent to you on 15 April 1978...\"", "In a letter of 11 July 1979 the public prosecutor replied as follows:", "\"... I am unable to send you the file opened on Michel Bendenoun in connection with the criminal investigation on charges of tax evasion.", "I would point out that the Revenue is a civil party to the criminal proceedings and therefore may, since it has access to the case file, apply for a copy of it if it sees fit.", "...\"", "19. On 19 July 1979 counsel for the applicant wrote again to the President of the court:", "\"...", "... [my] request was not for production of the tax-evasion file but of a customs file which has not been the subject of any judicial investigation involving the Strasbourg public prosecutor ’ s office as a composition was reached between Mr Bendenoun and the customs authorities.", "...", "I would add that production is being sought at my request and not at that of the Revenue, since it is precisely the Revenue that is relying on documents from the customs investigation, and unless he has been able to inspect the customs file in its entirety Mr Bendenoun cannot make any sensible comments.\"", "20. On 9 December 1980 Mr Bendenoun ’ s lawyer sent another letter to the President of the court:", "\"...", "To date, I have ... not been able to study the customs file.", "The Revenue, however, relies on certain reports taken from a large mass of reports.", "I should therefore be obliged if you would let me know how I am to be able to study the whole customs file.", "I should also be glad if you would kindly extend the time allowed me for submitting comments until the customs file has been made available to me, as requested as early as 1979.\"", "The President of the Administrative Court sent the public prosecutor a letter dated 30 December 1980 in which he said:", "\"For the purposes of preparing for trial a case concerning tax files on the ARTSBY company, I should be obliged if you would kindly produce to the Administrative Court the documents relating to the customs file on the criminal investigation into Mr Bendenoun, the chairman and managing director of the company.", "This customs file is directly relevant to the tax case, which is before the Administrative Court also.\"", "The request went unanswered.", "21. On 30 November 1981 the Administrative Court delivered three judgments in which it dismissed ARTSBY 1881 ’ s and Mr Bendenoun ’ s applications.", "It did not mention the decisions given in the case by the criminal courts (see paragraphs 28 and 30 below).", "(b) The Conseil d ’ État", "22. On 1 March 1982 Mr Bendenoun, acting on his own behalf and on behalf of ARTSBY 1881, appealed to the Conseil d ’ État against the three Administrative Court judgments.", "23. In supplementary pleadings filed on 1 July 1982 he set out the following ground of appeal:", "\"Although the tax authorities made ample use of items in the customs file which in their view showed that the supplementary assessments in issue were justified, while ignoring those which clearly would have provided grounds for setting them aside, they deliberately decided not to meet the appellant ’ s requests to inspect that customs file in its entirety.", "...", "Compliance with the adversary principle precludes accepting an argument which the opposing side cannot be aware of and which thus cannot be sensibly challenged by them.\"", "24. The Conseil d ’ État dismissed the appeals in three judgments on 28 May 1986.", "The reasons given for the one concerning value-added tax for the period from 1 July 1973 to 31 December 1975 (no. 40482) were worded as follows:", "\"The lawfulness of the judgment appealed against", "It appears from the pre-trial preparations that the applicant company was put in a position to inspect all the documents in the file that were likely to have a bearing on the resolution of the dispute, including the customs reports establishing the existence of concealed receipts. That being so, the ground of appeal alleging that the judgment at first instance was unlawful because the ‘ ARTSBY 1881 ’ company was unable, during the course of the proceedings at first instance, to inspect all the documents in the customs file must be rejected.", "The lawfulness of the assessment procedure and the burden of proof", "It appears from the pre-trial preparations that in June 1975 the customs seized invoices for a total of FRF 1,676,710 at the home of Mr Bendenoun, the chairman and managing director of the public limited company ‘ ARTSBY 1881 ’, which trades in old coins and nearly all of whose capital was owned by Mr Bendenoun from 1974 onwards. It appears from the findings of fact made by the Colmar Court of Appeal in a judgment that was given in criminal proceedings on 13 May 1981 and has become final (findings which are binding erga omnes) that Mr Bendenoun, ‘ who did not have sufficient financial resources personally to carry out ’ the transactions recorded in the invoices seized at his home, ‘ deliberately decided, with the aim of evading tax on part of the company ’ s receipts, to conceal about 25% of the company ’ s turnover by not entering it in the company ’ s books and taking care to keep the copies of the relevant invoices at home... ’. These findings establish that the bookkeeping of the ‘ ARTSBY 1881 ’ company was not reliable. That being so, the Revenue was legally entitled to rectify of its own motion the figure of the company ’ s turnover for the period from 1 July 1973 to 31 December 1974. It is consequently for the company to show that the basis taken by the Revenue for making the disputed assessments was too high.", "The amount of the assessments", "...", "The penalties", "The applicant company intended, by means of a systematic process of concealment, to evade payment of value-added tax on transactions made in 1974 and 1975. The authorities were therefore entitled to regard it as having been guilty of deception and subsequently to increase the tax due by 200% as provided in Articles 1729 and 1731 of the General Tax Code taken together.\"", "The same reasoning was adopted in the other two judgments (nos. 40480 and 40481).", "C. The criminal proceedings", "1. The judicial investigation", "25. By means of two applications made on 30 November 1977 the Head Office of the Bas-Rhin Revenue lodged a complaint against Mr Bendenoun with the Strasbourg public prosecutor ’ s office. The applications were accompanied by a series of supporting documents.", "26. On 3 March 1978 the investigating judge instructed the police to obtain the customs file. This was received on 19 April 1978 and contained copies of the 24 reports, sealed document no. 1 drawn up by officials of the National Head Office of Customs Investigations and the 352 other sealed documents in a hardback file. The whole customs file remained at the court throughout the judicial investigation and counsel for the accused had access to it on each occasion that his client was questioned (12 January 1978, 8 February 1978 and 12 February 1980) and again before the trial.", "27. On 21 May 1980 the public prosecutor applied for Mr Bendenoun to be committed for trial.", "2. The trial and the appeals", "(a) The Strasbourg Criminal Court", "28. On 21 November 1980 the Strasbourg Criminal Court delivered two judgments (nos. 6776/80 and 6780a/80) concerning the accused, the first in his capacity as chairman and managing director of ARTSBY 1881 (corporation tax and value-added tax), the second in his personal capacity (income tax). In each judgment he was given a suspended sentence of fifteen months ’ imprisonment for tax evasion, both sentences to run concurrently, and was ordered to be imprisoned for one year in the event of non-payment of the sums owed.", "(b) The Colmar Court of Appeal", "29. Mr Bendenoun appealed against these judgments to the Colmar Court of Appeal. In his submissions he complained that the documents relating to the customs proceedings were no longer in the file.", "30. In two judgments on 13 May 1981 (nos. 615/81 and 616/81) the Criminal Division of the Court of Appeal upheld the decisions of the trial court and also sentenced Mr Bendenoun to a fine of FRF 30,000.", "In the first judgment it dismissed the ground of appeal based on the fact that documents were missing from the file:", "\"...", "(d) knowledge of [the documents in the customs file] is in no way necessary or even helpful for the discovery of the truth, since the statements lawfully obtained from the accused during the present proceedings and the documents that he himself submitted at the trial provided ample evidence in respect of the sole difficulty on which his guilt depends; and", "(e) the rights of the defence have thus not been prejudiced in any way.\"", "(c) The Court of Cassation", "31. Mr Bendenoun appealed on points of law against the two judgments. In particular, he alleged that the rights of the defence had been infringed in that the customs file had not been put before the Court of Appeal.", "32. The Court of Cassation dismissed his appeals in two judgments on 24 May 1982. It rejected the ground of appeal just referred to in the following terms, identical in both judgments:", "\"...", "In finding Bendenoun guilty of fraudulently evading assessment or payment of taxes, the Court of Appeal stated that the defendant did not ‘ dispute the existence of the invoices discovered ’; that it was thus ‘ unnecessary to be acquainted with all the documents in the customs proceedings ’; that it was apparent from the facts established in the judicial investigation that Bendenoun had evaded the payment of corporation tax by the ARTSBY 1881 company by concealing taxable sums exceeding the statutory allowances; and that the defendant ’ s explanation that the transactions in question had been effected in the course of a private, unregistered business as a dealer in coins were unacceptable owing to the circumstances set out and analysed by the court below.", "Given these findings and statements, which adequately and consistently show that all the ingredients of tax evasion - as regards both the actus reus and the mens rea - have been made out against Bendenoun, and seeing also that it is apparent from this that the court below based its decision solely on evidence which was put before it during the trial and was the subject of adversarial argument before it in accordance with the provisions of Article 427 of the Code of Criminal Procedure and did not in any way infringe the rights of the defence, the grounds of appeal, which merely attempt to call in question the unfettered discretion of the courts below to assess this evidence, must fail.\"" ]

[ "II. RELEVANT DOMESTIC LAW", "33. Chapter II of the General Tax Code is entitled \"Penalties\". Section I of it (\"Common Provisions\") deals with \"tax penalties\" and \"criminal penalties\".", "A. Tax penalties", "1. The system applicable at the material time", "34. The system of tax penalties established in the Law of 27 December 1963, which was applied in the instant case, contained a large number of rates, which varied according to the tax concerned, the nature and seriousness of the offence and the procedure adopted for revising the initial assessment.", "Only three provisions of the General Tax Code need be cited here:", "Article 1728", "\"Where a natural or legal person or an association under an obligation to make a tax return or sign some other document indicating the amounts or other information needed for the calculation of the base or for the assessment or payment of one of the taxes, duties, charges, dues or other sums established or collected by the Department of Revenue declares or causes to appear a taxable amount or tax information that is insufficient, inaccurate or incomplete or makes insufficient payment, the amount of tax evaded shall be increased either by the compensation for late payment provided for in Article 1727, in the case of the payments, taxes or charges listed in that Article, or by interest for late payment calculated in the manner laid down in Article 1734.", "...\"", "Article 1729 para. 1", "\"... where it cannot be accepted that the tax debtor acted in good faith, the taxes corresponding to the offences defined in Article 1728 shall be increased by:", "30% if the amount of tax evaded does not exceed half the amount of tax actually payable;", "50% if the amount of tax evaded is greater than half the tax actually payable; and", "100%, irrespective of the amount of the tax evaded, if the tax debtor has been guilty of deception.\"", "Article 1731", "\"As regards turnover and similar taxes, registration fees, stamp duty, land registry fees and taxes similar to those fees and that duty, wages tax, apprenticeship tax, employers ’ contributions to the financing of in-service vocational training and income-tax deductions, the shortcomings, inaccuracies or omissions referred to in Article 1728 shall entail, where it cannot be accepted that the tax debtor acted in good faith, a tax fine equal to double the amount of the surcharges provided for in Article 1729 and, like those surcharges, determined according to the amount of tax evaded.", "The amount of that tax shall be assessed, where turnover and similar taxes are concerned, by treating separately each of the periods taken into account for the basis of income-tax assessment and, where appropriate, the inspected part of the current financial year.\"", "35. Imprisonment may be ordered in the event of non-payment. Article 1845 bis of the General Tax Code - which became Article L 271 of the Code of Tax Procedure on 1 January 1982 - provides:", "\"Failure to pay the taxes referred to in Article 1844 bis may, notwithstanding any legal challenges or non-contentious applications for remission or reduction, entail imprisonment for default as laid down in Part VI of Book V of the Code of Criminal Procedure. The President of the tribunal de grande instance shall decide, where necessary, to order such imprisonment and shall determine its length. Imprisonment for default shall be enforceable immediately.", "...\"", "2. The current system", "36. Law no. 87-502 of 8 July 1987, of later date than the facts of the case, set up a new system which applies to offences common to all taxes and combines two features: interest for late payment at the single rate of 0.75% per month, payable irrespective of any penalty; and specific increases designed to punish the main offences relating to the tax base or the collection of tax.", "Article 1729 para. 1 of the General Tax Code now reads as follows:", "\"Where the tax return or other document shows a tax base or information used for the assessment of tax that is insufficient, inaccurate or incomplete, the amount of tax due from the taxpayer shall be increased by the interest for late payment ... and by 40% if the taxpayer ’ s bad faith has been established or by 80% if he has been guilty of deception or abuse of process ...\"", "Article 1731 now provides:", "\"1. Any delay in the payment of taxes, duties, charges, dues or any other sums payable to the Department of Revenue or late payment to the Treasury (comptables directs du Trésor) of sums due in respect of the wages tax referred to in Article 1679 or in respect of the deduction at source referred to in Article 1671 B shall entail payment of the interest provided for in Article 1727 and a surcharge of 5% of the amount whose payment has been delayed.", "2. Such interest shall be reckoned from the first day of the month following the filing of the return or of the document in which the taxpayer acknowledged his debt or, failing those, receipt of the tax demand issued by the accounting officer.", "3. The surcharge provided for in paragraph 1 above shall not apply where the return or other document referred to in Article 1728 that is filed late is accompanied by payment of the sums due.", "4. For all sums payable without any prior return being made, interest shall be reckoned from the first day of the month following the one in which the sum should have been paid until the last day of the month of payment.\"", "B. Criminal penalties", "1. The system applicable at the material time", "37. The applicant was prosecuted under two provisions of the General Tax Code, as worded before 1 July 1978:", "Article 1741", "\"... anyone who fraudulently evades assessment or payment in whole or in part of the taxes with which this Code is concerned, or attempts to do so, whether by deliberately omitting to make his return within the prescribed time, or by deliberately concealing part of the sums liable to tax, or by arranging his insolvency or obstructing the collection of tax by other subterfuges, or by acting in any other fraudulent manner, shall be liable, independently of the applicable tax penalties, to a fine of between FRF 5,000 and FRF 30,000 and to imprisonment for a term of between one and five years or to only one of those two penalties ...", "...\"", "Article 1743", "\"The penalties provided for in Article 1741 shall also apply to:", "1. Anyone who knowingly fails to make entries or cause entries to be made or who makes inaccurate or false entries or causes such entries to be made in the daybook and the balance-sheet book, ... or in the documents which take their place.", "...\"", "2. The current system", "38. Article 1741 has been amended only in that the maximum amount of the fine has been raised to FRF 500,000.", "Article 1743 remains unchanged.", "PROCEEDINGS BEFORE THE COMMISSION", "39. Mr Bendenoun applied to the Commission on 9 September 1986. Relying on his right to a fair trial (Article 6 para. 1 of the Convention) (art. 6-1) in the criminal and administrative courts, he complained that he had not had access to the whole of the customs file, whereas the Revenue had sent to the administrative courts certain evidence against him. He alleged also that there had been a breach of his right to the peaceful enjoyment of his possessions (Article 1 of Protocol No. 1) (P1-1) in that, as a result of the various national decisions, he had had to pay substantial sums to the French State.", "40. On 6 July 1990 the Commission declared the complaint relating to the proceedings in the criminal courts inadmissible and the remainder of the application (no. 12547/86) admissible. In its report of 10 December 1992 (made under Article 31) (art. 31), it expressed the opinion by ten votes to two that there had been a breach of Article 6 para. 1 (art. 6-1) and, unanimously, that it was unnecessary to consider the case also under Article 1 of Protocol No. 1 (P1-1). The full text of the Commission ’ s opinion and of the partly dissenting opinion contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS TO THE COURT", "41. In their memorial the Government requested the Court to hold", "\"that the provisions of Article 6 (art. 6) of the European Convention ... do not apply to this case;", "in the alternative, that France has not infringed the principle of equality of arms on account of the facts which gave rise to Mr Bendenoun ’ s application\".", "42. Counsel for the applicant asked the Court to", "\"(a) hold that there has been a violation of Article 6 para. 1 (art. 6-1) of the Convention in the instant case;", "(b) hold that the applicant did not have a fair trial;", "(c) hold, under Article 50 (art. 50) of the Convention and by way of just satisfaction, that the French Government should not seek to recover the tax (tax due and penalties) set out in the Revenue ’ s letter of 23 October 1984 ... and hold that the French Government should repay to the applicant all the sums that he has paid, directly or indirectly, to the French Treasury on the basis of the aforementioned assessments; and", "(d) hold that, by way of just satisfaction under the head of non-pecuniary damage, the French Government should pay the applicant a sum of FRF 100,000 and, in costs and expenses, a sum of FRF 141,500\".", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION", "43. Mr Bendenoun complained that he had not had a fair trial in the administrative courts in respect of the tax surcharges that had been imposed on him. He relied on Article 6 para. 1 (art. 6-1) of the Convention, which provides:", "\"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...\"", "A. Applicability of Article 6 para. 1 (art. 6-1)", "44. The applicant and the Commission were agreed in considering that Article 6 para. 1 (art. 6-1) was applicable in the instant case.", "45. The Government maintained the opposite. In their submission, the proceedings in issue did not relate to a \"criminal charge\" as the tax surcharges imposed on Mr Bendenoun bore all the hallmarks of an administrative penalty within the meaning of the Court ’ s case-law (see the Engel and Others v. the Netherlands judgment of 8 June 1976 and the Öztürk v. Germany judgment of 21 February 1984, Series A nos. 22 and 73).", "This observation applied, firstly, to the classification in French law. The General Tax Code classed the increases in question with the \"tax penalties\" and not with the \"criminal penalties\" (see paragraphs 33 and 34 above). The same was true of the nature of the offence. The conduct of which the applicant stood accused was defined as \"deception\" (\"manoeuvres frauduleuses\") and not as \"evasion\" (\"soustraction frauduleuse\"); the Conseil d ’ État regarded the former offence as a tax offence and the latter as a criminal offence. The nature and degree of severity of the penalty were not such as to suggest a different conclusion. The surcharges were imposed by the Revenue, under the supervision of the administrative courts, and not by a criminal court; they were calculated on the basis of the supplementary tax assessment and were therefore directly proportional to the tax originally evaded; they were not an alternative to a custodial penalty and never entailed any loss of rights; they remained payable by the heirs in the event of the taxpayer ’ s death; and they were not covered by the rules on reoffending, aiding and abetting, consecutive and concurrent sentences or the making of entries in the criminal records.", "46. As regards the general aspects of the French system of tax surcharges where the taxpayer has not acted in good faith, the Court considers that, having regard to the large number of offences of the kind referred to in Article 1729 para. 1 of the General Tax Code (see paragraph 34 above), Contracting States must be free to empower the Revenue to prosecute and punish them, even if the surcharges imposed as a penalty are large ones. Such a system is not incompatible with Article 6 (art. 6) of the Convention so long as the taxpayer can bring any such decision affecting him before a court that affords the safeguards of that provision.", "47. In the instant case the Court does not underestimate the importance of several of the points raised by the Government. In the light of its case-law, and in particular of the previously cited Öztürk judgment, it notes, however, that four factors point in the opposite direction.", "In the first place, the offences with which Mr Bendenoun was charged came under Article 1729 para. 1 of the General Tax Code (see paragraph 34 above). That provision covers all citizens in their capacity as taxpayers, and not a given group with a particular status. It lays down certain requirements, to which it attaches penalties in the event of non-compliance.", "Secondly, the tax surcharges are intended not as pecuniary compensation for damage but essentially as a punishment to deter reoffending.", "Thirdly, they are imposed under a general rule, whose purpose is both deterrent and punitive.", "Lastly, in the instant case the surcharges were very substantial, amounting to FRF 422,534 in respect of Mr Bendenoun personally and FRF 570,398 in respect of his company (see paragraph 13 above); and if he failed to pay, he was liable to be committed to prison by the criminal courts (see paragraph 35 above).", "Having weighed the various aspects of the case, the Court notes the predominance of those which have a criminal connotation. None of them is decisive on its own, but taken together and cumulatively they made the \"charge\" in issue a \"criminal\" one within the meaning of Article 6 para. 1 (art. 6-1), which was therefore applicable.", "48. This conclusion makes it unnecessary for the Court to have regard to the supplementary tax assessments (see paragraphs 13 and 34 above), on which moreover those who appeared before the Court placed very little emphasis.", "B. Compliance with Article 6 para. 1 (art. 6-1)", "49. The applicant complained of an infringement of the adversarial principle. While the Revenue had carefully chosen, unilaterally, the incriminating documents and produced them to the administrative courts, he himself had not had access to the whole of the file compiled by the customs, which included not only the reports but also the information on which they were based. The failure to hand over a copy, which had repeatedly been sought from the Revenue and the Strasbourg Administrative Court (see paragraphs 18-20 above), had prevented him from identifying exculpating facts and, in particular, from having the anonymous informer who had given rise to the proceedings called as a witness and examined.", "50. The Commission reached the same conclusion. Admittedly, it did not ascertain whether the documents in the customs file were such as to prove or disprove Mr Bendenoun ’ s \"guilt\" and declined to speculate as to what might have been the outcome of the proceedings complained of if the whole of that file had been available to the applicant. It nevertheless made one finding, namely that the applicant could plausibly argue that the documents in question contained information to support his case and, in particular, to contradict the statements made in the reports produced by the Revenue. It also noted that the President of the Administrative Court twice made an unsuccessful request to the Strasbourg public prosecutor to produce the customs file (see paragraphs 18 and 20 above).", "51. The Government submitted that, on the contrary, neither at first instance nor on appeal did Mr Bendenoun find himself at a disadvantage vis-à-vis the Revenue.", "The Strasbourg Administrative Court had ruled on the merits of the case in the light of the parties ’ observations and of the documents in its possession. Being of the view that sufficient information was available to it, it had not made any interlocutory order that the customs file should be produced. The President ’ s approaches to the public prosecutor ’ s office could not take the place of such an order, especially as they did not issue from the trial bench and ultimately amounted to forwarding the requests of counsel for the applicant.", "The Revenue had annexed to its pleadings in the Administrative Court proceedings four reports of interviews by customs officers - two with Mr Bendenoun and two with former employees of ARTSBY 1881 responsible for invoicing - and the applicant had been able to challenge them. On the other hand, the Revenue had refrained from adducing ten reports containing incriminating evidence, not to mention seven others which provided no useful information on tax matters. The Revenue could not, therefore, be accused of having made a selection to the prejudice of the applicant and of the rights of the defence. As to the concealed invoices that had been seized at his home, Mr Bendenoun had made them out himself and was therefore apprised of their existence and content; furthermore, he had had access to them in the criminal proceedings and had acknowledged that they corresponded to the Revenue ’ s description of them as relating to sales of coins.", "The Conseil d ’ État had held the proceedings at first instance to have been lawful, and it too had considered it unnecessary to order production of the customs file. It had found the available information to be sufficient, corroborated as it was by the findings of fact made in the criminal proceedings by the Colmar Court of Appeal in its judgments of 13 May 1981 (see paragraph 30 above) - findings that were binding erga omnes.", "52. The Court points out, firstly, that the applicant ’ s allegations are relevant only in so far as the proceedings in the administrative courts related to the merits of the accusation of tax evasion which gave rise to the tax surcharges. The Court ’ s task is therefore limited to ascertaining whether there was a failure to respect equality of arms or, more generally, the rights of the defence in so far as the determination of Mr Bendenoun ’ s guilt was concerned.", "It must be noted further that the documents whose production the applicant complained he had sought in vain were not among those relied on by the tax authorities. In order to establish Mr Bendenoun ’ s guilt, they made use only of four reports (see paragraph 17 above) - mentioned by the Government - in which the applicant acknowledged his customs offences. The complaint therefore relates to documents that were not in the file produced to the administrative courts and were not ones on which the applicant ’ s adversary relied (see, mutatis mutandis, the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 18, para. 52).", "The Court does not rule out that in such circumstances the concept of a fair trial may nevertheless entail an obligation on the Revenue to agree to supply the litigant with certain documents from the file on him or even with the file in its entirety. However, it is necessary, at the very least, that the person concerned should have given, even if only briefly, specific reasons for his request.", "Mr Bendenoun sought production in full of a fairly bulky file. The evidence before the Court does not show that he ever put forward any precise argument to support his contention that, notwithstanding his admission of the customs offences and his admissions during the criminal investigation, he could not counter the charge of tax evasion without having a copy of that file. This omission is all the more detrimental to his case as he was aware of the existence and content of most of the documents and he and his counsel had had access to the complete file, at any rate during the criminal investigation (see paragraph 26 above).", "53. In conclusion, it does not appear from the information available to the Court that the failure to produce documents infringed the rights of the defence or the principle of equality of arms. There has therefore not been a breach of Article 6 para. 1 (art. 6-1).", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)", "54. In the proceedings before the Commission the applicant also relied on Article 1 of Protocol No. 1 (P1-1).", "He made no further reference to this in the proceedings before the Court, which does not consider that it must deal with the issue of its own motion." ]

[ "I. circumstances of the case", "A. Background to the case", "7. The applicants are all Swiss nationals who live in the Canton of Zurich. They are the widow and sons of the late Mr P., who died on 28 February 1984.", "Mr P. had been the sole shareholder of a construction company, and the applicants were Mr P.’s only heirs. The company’s business was carried on by Mr P.’s sons.", "8. An inventory of Mr P.’s estate was drawn up by the municipal authorities on 8 May 1984. A copy of that document in the Commission’s file is dated 17 May 1984.", "9. The three-month period within which the applicants could have renounced the inheritance (Articles 566 § 1 and 567 § 1 of the Swiss Civil Code – see paragraph 24 below) apparently expired on 28 May 1984.", "10. Between 1 and 3 October 1985 the tax authorities examined the books kept by the company. Their inspection showed that over a period of several years Mr P. had appropriated certain back payments due to the company and failed to declare them as income, thus evading both cantonal and federal taxes.", "11. The cantonal and federal tax authorities each initiated proceedings against the applicants for recovery of the unpaid taxes and at the same time imposed fines for tax evasion.", "12. It appears that the applicants cooperated with the tax authorities by providing them with the information needed to calculate the correct assessments. However, they resisted the imposition of the fines and appealed to the appropriate tribunals, maintaining that they were innocent of the tax offence committed by Mr P.", "13. The cantonal proceedings ended on 2 November 1989 with a judgment of the Canton of Zurich Administrative Court. The Administrative Court considered that it was a principle of criminal law in a State based on the rule of law that the innocent should not be punished, and – departing from its earlier case-law – held that the imposition of fines on the heirs for tax evasion by the deceased was accordingly illegal.", "B. The federal proceedings", "14. On 16 January 1990 the Direct Federal Tax Department of the Zurich Cantonal Tax Office, deciding on an objection lodged by the applicants, issued an assessment of the direct federal tax unlawfully withheld by Mr P. over 1981/82 and 1983/84 and imposed fines on the applicants. The fines came to 3,875.85 Swiss francs (CHF) for 1981/82 and CHF 2,882.90 for 1983/84. Its reasoning included the following:", "“By incorrectly declaring his income, the taxpayer withheld taxes from the State and thus became guilty of tax evasion. Pursuant to Articles 130 § 1 and 129 § 1, respectively, of the Ordinance on Direct Federal Tax his heirs must therefore pay a fine of up to four times the amount in addition to the tax withheld. For the tax period 1981/82, when more than 5/10 was evaded, the fine amounts to 1.5 times the amount, and for the tax period 1983/84, when more than 3/10 was evaded, it amounts to 1.3 times the amount of the taxes withheld. However, as it can be observed that the heirs have done everything possible to clarify the incorrect declaration of taxes, the fine is reduced to 1/4.”", "The Cantonal Tax Office declined to follow the precedent set by the judgment of the Zurich Administrative Court on 2 November 1989 (see paragraph 13 above) on the ground that it could not deviate from clear provisions of federal law as long as the unconstitutional nature of those provisions had not been clearly established.", "15. The applicants lodged an appeal against this decision with the Federal Tax Appeals Board of the Canton of Zurich, relying inter alia on Article 6 § 2 of the Convention.", "16. The Federal Tax Appeals Board gave its decision on 19 September 1990.", "The assessment for 1981–82 was quashed on the ground that it had not been lawfully communicated to the applicants within the five-year limitation period (Article 134 of the Ordinance on Direct Federal Tax).", "The assessment for 1983–84 was upheld. In this context, the Federal Tax Appeals Board held that Article 6 § 2 could be relied on directly only in so far as it provided guarantees additional to those under the Federal Constitution – which it did not.", "In an obiter dictum the Federal Tax Appeals Board made a distinction between the presumption of innocence and the principle that only the guilty should be punished. The heirs’ liability to pay fines incurred by the taxpayer, which did not offend against the latter principle — as construed in domestic law and applied to the deceased — did not necessarily offend against the former presumption either.", "17. The applicants lodged an administrative-law appeal with the Federal Court on 21 December 1990.", "In addition to reiterating their complaints concerning the fines, they argued that they were entitled, under Article 6 §§ 1 and 3 of the Convention, to a public hearing and to the rights of the defence.", "18. The Zurich Federal Tax Appeals Board and the federal tax authorities, which had been invited to submit written comments pursuant to section 110 of the Federal Judicature Act (see paragraph 28 below), expressed the opinion that the appeal should be dismissed. The Direct Federal Tax Department of the Zurich Cantonal Tax Office, which had also been invited to submit comments, declined to do so.", "19. The Federal Court dismissed the appeal without a hearing (section 109 of the Federal Judicature Act (see paragraph 29 below) in a judgment delivered on 5 July 1991 and served on the applicants on 16 October. Its reasoning included the following:", "“Unlike back tax, the fine for tax evasion (save in so far as it may comprise interest intended to compensate for delay) pursuant to Article 129 of the Ordinance on Direct Federal Tax is penal in character ... Moreover, the definition of tax evasion requires that the taxpayer should be guilty, whether by commission or by omission, of a breach of duty resulting in his being underassessed for tax.", "However, according to the principle that heirs inherit tax liabilities ... the latter are liable, under Article 130 § 1 of the Ordinance on Direct Federal Tax, up to the amount of their share in the estate, and irrespective of any personal guilt, for the deceased person’s evaded taxes and the fines. The provision in question of the Ordinance on Direct Federal Tax thus expressly contemplates that the heirs enter into the position of the deceased even in respect of the penal tax without being personally guilty. It follows that as regards the liability of heirs, the applicants cannot derive any argument from the presumption of innocence enshrined in Article 6 of the Convention, which only applies to persons charged with a criminal offence ... Nor can the general principles of the criminal law prayed in aid by the applicants avail them in the circumstances.”", "The Federal Court did not rule on the applicants’ claims under Article 6 §§ 1 and 3." ]

[ "II. Relevant domestic law", "A. The Ordinance on Direct Federal Tax", "20. At the relevant time, tax evasion was punishable by a fine of up to four times the amount evaded, the fine being payable in addition to the amount due (Article 129 § 1 of the Ordinance on Direct Federal Tax).", "21. Article 130 § 1 provided, inter alia :", "“If the evasion is discovered only after the death of the taxpayer, proceedings shall be brought against his heirs. Irrespective of personal guilt, the heirs shall be jointly liable for the deceased person’s evaded taxes and the fine incurred by him up to an amount not exceeding their share in the estate.”", "B. The Swiss Civil Code", "22. According to Article 537 § 1 of the Swiss Civil Code, an inheritance passes upon the death of the deceased.", "23. The relevant parts of Article 560 of the Swiss Civil Code provide:", "“1. The heirs shall automatically acquire the entire estate as soon as it passes.", "2. Subject to the statutory exceptions, all claims and actions, property rights and other rights in rem and possessions of the deceased shall automatically pass to them, and they shall become personally liable for the deceased’s debts.”", "24. Under Article 566 § 1 of the Swiss Civil Code, the heirs have the right to renounce the inheritance which has devolved to them. The time-limit for so doing is three months (Article 567 § 1).", "C. Procedure", "25. It was open to the taxpayer to lodge an objection against an assessment of direct federal tax to the authority which had made it (Article 105 of the Ordinance on Direct Federal Tax).", "26. An appeal against the decision given in the objection proceedings lay to the Cantonal Tax Appeals Board (Article 106). The Direct Federal Tax Department of the canton and the federal tax authorities could also bring such an appeal (Article 107).", "27. An administrative-law appeal lies to the Federal Court against the decision of the Federal Tax Appeals Board (section 98 (e) of the Federal Judicature Act). Such an appeal may be lodged by both the tax debtor and the federal tax authorities (Article 112 of the Ordinance on Direct Federal Tax).", "28. If the Federal Court orders an exchange of written pleadings, it asks the authority which gave the decision to forward the case file (section 110 (2) of the Federal Judicature Act), at the same time inviting it to submit its comments in writing (section 110 (1)).", "The cantonal authority which gave the last decision at cantonal level is also invited to comment (section 110 (3)), as is the federal authority which would itself have been entitled to lodge an appeal (section 110 (1)).", "29. At the material time, section 109 (1) of the Federal Judicature Act made it possible for a three-judge Chamber of the Federal Court to dismiss an administrative-law appeal as manifestly ill-founded without a hearing, provided that its decision was unanimous.", "D. The Swiss Criminal Code", "30. Under Article 333 § 1 of the Swiss Criminal Code, the general provisions of the Code apply to offences created by other federal laws unless the latter provide otherwise.", "31. Article 48 § 3 of the Criminal Code provides that a fine lapses if the convicted person dies.", "However, pursuant to Article 333 § 1 of the Criminal Code, Article 130 § 1 of the Ordinance on Direct Federal Tax (see paragraph 21 above) derogates from this principle as a lex specialis.", "E. Subsequent developments", "32. Section 179 (1) of the Federal Direct Taxation Act of 14 December 1990, in force since 1 January 1995, provides for the liability of heirs, inter alia, for any fines determined with legal force. According to section 179 (2), the heirs shall not be so liable if the tax-evasion proceedings are concluded after the death of the taxpayer, provided that the heirs themselves are guiltless and do what they can to enable the tax authorities to make a correct assessment.", "PROCEEDINGS BEFORE THE COMMISSION", "33. Mrs A.P., Mr M.P. and Mr T.P. applied to the Commission on 13 March 1992. They relied on Article 6 §§ 1 and 2 of the Convention, complaining that, irrespective of any personal guilt, they had been convicted of an offence allegedly committed by Mr P. and that they had not had a fair and public hearing by an independent and impartial tribunal established by law.", "34. The Commission declared the application (no. 19958/92) admissible on 16 October 1995. In its report of 18 April 1996 (Article 31), it expressed the opinion that there had been a violation of Article 6 § 1 of the Convention on account of the failure to hold a public hearing (twenty votes to eight) but not of Article 6 § 2 (seventeen votes to eleven). The full text of the Commission’s opinion and of the eight separate opinions contained in the report is reproduced as an annex to this judgment [5].", "FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT", "35. The Agent of the Government, speaking at the Court’s hearing, asked the Court to find that there had not been a breach of the requirements of Article 6.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION", "36. The applicants alleged that, irrespective of any personal guilt, they had been convicted of an offence allegedly committed by someone else, contrary to Article 6 § 2 of the Convention, which provides:", "“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”", "Neither the Government nor the Commission shared this view.", "A. Applicability of Article 6", "37. In the Government’s view, which the Commission shared in substance, Article 6 was not applicable to the case, since no “criminal charge” had been brought against the applicants.", "They pointed to the fact that in cases such as the present one there was no question of personal guilt on the part of the heirs. For that reason, no entry had been made in the criminal record of any of the heirs.", "Rather, it was the guilt of the deceased which had to be demonstrated. The fact that proceedings had been brought against the heirs was explained by the fact that in Swiss law the estate as such had no legal personality, so that the deceased’s assets and liabilities fell directly to the heirs.", "Moreover, the heirs themselves were liable for the evaded taxes and fines only up to an amount not exceeding their share in the estate, and they could escape liability altogether by declining to accept their inheritance.", "38. The applicants contended that the main feature of the case was that the tax evasion committed by the deceased was the basis of a fine imposed on them. If the deceased had been alive when the evasion was discovered, the fine would have been imposed on him as a penal measure.", "The fact that no entry was made in the criminal records of the heirs was irrelevant, since in some cases (for example, for petty offences) no such entry was made even concerning those responsible.", "The possibility of renouncing the inheritance could not be taken into consideration either, since the period during which this was possible had expired long before the tax evasion by the deceased was discovered. Escaping the fine in this way had accordingly never been an option open to the applicants.", "39. The Court reiterates that the concept of “criminal charge” within the meaning of Article 6 is an autonomous one. In earlier case-law the Court has established that there are three criteria to be taken into account when it is being decided whether a person was “charged with a criminal offence” for the purposes of Article 6. These are the classification of the offence under national law, the nature of the offence and the nature and degree of severity of the penalty that the person concerned risked incurring (see, among other authorities, the Öztürk v. Germany judgment of 21 February 1984, Series A no. 73, p. 18, § 50).", "40. As regards the nature and severity of the penalty risked, the fines were, in the Court’s opinion, not inconsiderable: they amounted to CHF 3,875.85 for the fiscal year 1981/82 and CHF 2,882.90 for 1983/84 (see paragraph 14 above). Moreover, in setting these figures, the authorities took the applicants’ cooperative attitude into account; the fines might in fact have been four times as large (see paragraph 14 above).", "41. As regards the nature of the offence, it is noted that tax legislation lays down certain requirements, to which it attaches penalties in the event of non-compliance. The penalties, which in the present case take the form of fines, are not intended as pecuniary compensation for damage but are essentially punitive and deterrent in nature (see, mutatis mutandis, the Bendenoun v. France judgment of 24 February 1994, Series A no. 284, p. 20, § 47).", "42. As regards the classification of the proceedings under national law, the Court attaches weight to the finding of the highest court in the land, the Federal Court, in its judgment in the present case, that the fine in question was “penal” in character and depended on the “guilt” of the offending taxpayer (see paragraph 19 above).", "43. Having regard to the above features, the Court considers that Article 6 is applicable under its criminal head.", "Accordingly, the question arises whether Article 6 § 2 was complied with.", "B. Compliance with Article 6 § 2", "44. The applicants contended that they had been compelled by a legal presumption to assume criminal liability for tax evasion allegedly committed by the deceased Mr P.", "If, as in the present case, the applicants did their utmost to enable the authorities to make a correct assessment of back tax, the fine would be reduced but would nevertheless be imposed. Thus, although they were themselves blameless, they could not avoid being fined for Mr P.’s offence.", "Moreover, the imposition of the fine on them presupposed a tacit conviction of the deceased without any form of judicial review.", "45. The Government, with whom the Commission concurred in substance, considered that the guilt of the deceased had been lawfully established by the judgment of the Zurich Federal Tax Appeals Board of 19 September 1990 (see paragraphs 15 and 16 above).", "There was no question of punishing the applicants for criminal acts committed by the deceased. Rather, the liability of the person who had evaded taxes was imposed on his estate. This was clear from the fact that the applicants would not have been liable to pay the fine if they had renounced the inheritance, and that in any event they were not liable for more than their share in the estate.", "46. The Court observes that no issue could be, nor was, taken with the recovery from the applicants of unpaid taxes. Indeed, the Court finds it normal that tax debts, like other debts incurred by the deceased, should be paid out of the estate.", "Imposing criminal sanctions on the living in respect of acts apparently committed by a deceased person is, however, a different matter. Such a situation calls for careful scrutiny by the Court.", "47. In this case the Court does not find it necessary to decide whether the guilt of the deceased was lawfully established.", "Pursuant to Article 130 § 1 of the Ordinance on Direct Federal Tax the proceedings were brought against the applicants themselves and the fine was imposed on them (see paragraphs 11 and 21 above).", "It must therefore be accepted that, whether or not the late Mr P. was actually guilty, the applicants were subjected to a penal sanction for tax evasion allegedly committed by him.", "48. It is a fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act. This is in fact recognised by the general criminal law of Switzerland, particularly by Article 48 § 3 of the Swiss Criminal Code, under which a fine lapses if the convicted person dies (see paragraph 31 above).", "In the Court’s opinion, such a rule is also required by the presumption of innocence enshrined in Article 6 § 2 of the Convention. Inheritance of the guilt of the dead is not compatible with the standards of criminal justice in a society governed by the rule of law. There has accordingly been a violation of Article 6 § 2.", "II. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION", "49. The applicants further alleged that they had not had an oral hearing before an independent and impartial tribunal, and that they had not had the opportunity to exercise the rights of the defence, contrary to Article 6 §§ 1 and 3, the relevant parts of which provide:", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...", "...", "3. Everyone charged with a criminal offence has the following minimum rights:", "...", "(c) to defend himself in person or through legal assistance of his own choosing ...", "...”", "50. In view of its conclusion that the imposition of a criminal sanction on the applicants amounted to a breach of Article 6 § 2, the Court does not consider it necessary to address these issues.", "III. APPLICATION OF ARTICLE 50 OF THE CONVENTION", "51. Article 50 of the Convention provides:", "“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”", "The applicants made no claims in respect of damage or of costs and expenses incurred in the domestic proceedings.", "A. Costs and expenses", "52. In respect of costs and expenses incurred in the proceedings before the Strasbourg institutions, the applicants claimed 7,000 Swiss francs (CHF).", "53. The Government considered CHF 3,000 in respect of the Strasbourg proceedings to be reasonable.", "The Delegate of the Commission did not comment.", "54. The Court is satisfied that the costs stated were necessarily incurred, and considers that the sum claimed is reasonable as to quantum. It therefore allows the claim in full.", "B. Default interest", "55. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum." ]

[ "I. THE particular circumstances of the case", "7. The applicant is a freelance tax consultant.", "8. On 14 December 1989 the Inspector of Direct Taxes sent the applicant an assessment of supplementary income tax ( naheffingsaanslag ) for the year 1984. In accordance with the applicable provisions (see paragraph 17 below) a fiscal penalty was additionally imposed to an amount equal to that of the assessment. The penalty came to 38,656 Netherlands guilders (NLG).", "9. On 20 December 1989 the applicant lodged an appeal against this assessment with the Taxation Division of the Leeuwarden Court of Appeal ( gerechtshof ). By letter of 21 December the registrar of that court asked the applicant to pay a court registration fee of NLG 75 pursuant to section 5 of the Taxation Disputes (Administrative Jurisdiction) Act ( Wet administratieve rechtspraak belastingzaken ).", "10. The applicant’s appeal was declared inadmissible by the President of the Taxation Division on 23 March 1990 on the ground that the court registration fee had not been paid.", "11. On the same day the applicant lodged an objection ( verzet ) against this decision with the Taxation Division. He submitted that he had sent an order to his bank for the payment by bank transfer of the court registration fee, but that that order had not been carried out. In his view this error on the part of the bank could not be held against him.", "12. Having held a hearing on 19 September 1990, the Taxation Division of the Court of Appeal declared the applicant’s objection unfounded on 26 October. It held that, as the applicant had himself chosen to make use of the services of a bank, it had been up to him to see to it that his order was correctly carried out.", "13. The applicant lodged an appeal on points of law with the Supreme Court ( Hoge Raad ) on 20 November 1990. He submitted that the Court of Appeal had erred in law by holding him responsible for a mistake made by his bank in carrying out his transfer order. In the alternative, he submitted that the imposition of a fiscal penalty amounted to a penal sanction, and that it was inappropriate to levy a court registration fee in any case concerning the determination of a “criminal charge”.", "The Deputy Minister of Finance ( Staatssecretaris van Financiën ) filed a written statement of defence ( vertoogschrift ).", "14. One of the advocates-general to the Supreme Court submitted an advisory opinion on 19 November 1991. He did not address the applicant’s primary submission, apart from expressing the view that the decision of the Court of Appeal had been correct, but gave extensive reasons why the alternative submission should be rejected.", "15. The applicant did not receive a copy of the advisory opinion until the Supreme Court delivered its judgment.", "16. The Supreme Court dismissed the applicant’s appeal on 17 June 1992.", "It held that a failure on the part of a bank to carry out an order for the transfer of a court registration fee could not be held against the person who had given such an order if the latter saw to it that the payment was made as soon as possible after he could reasonably be expected to be aware of such failure. Nevertheless, it appeared that the applicant had not paid the court registration fee at all and his primary submission had therefore to be rejected.", "It further held that the court registration fee in question was not such as to constitute any real impediment to a taxpayer’s right of access to a court, and that in appropriate cases a reduction of the fee in question could be granted. The applicant’s alternative submission was therefore also rejected." ]

[ "II. Relevant domestic law and practice", "A. The General Act on State Taxes", "17. Pursuant to section 20(1) of the General Act on State Taxes ( Algemene wet inzake rijksbelastingen ) a demand for supplementary tax is made if a tax for which the taxpayer is under an obligation to file a declaration ( die op aangifte behoort te worden voldaan of afgedragen ) is not paid in its entirety or not paid at all.", "In such cases a fiscal penalty is additionally imposed to an amount equal to the amount due in tax (section 21(1)).", "18. It is open to a taxpayer to submit an administrative objection ( bezwaarschrift ) to the competent tax inspector (section 23).", "An appeal against the latter’s decision lies to the Taxation Division of the Court of Appeal (section 26).", "19. It is, however, also open to the taxpayer to lodge an appeal directly to the Taxation Division of the Court of Appeal without first submitting an administrative objection to the tax inspector (section 26(2)). This was the course followed by the applicant in the present case.", "B. The Taxation Disputes (Administrative Jurisdiction) Act", "20. A taxpayer who lodges an appeal with the Taxation Division of the Court of Appeal is required to pay a court registration fee, which at the relevant time amounted to NLG 75 (section 5(1) of the Taxation Disputes (Administrative Jurisdiction) Act). This fee is reduced by NLG 35 if the financial interest is very small (section 5(3)), or if the taxpayer is indigent (section 5(4)).", "The entire fee is paid back to the taxpayer if his appeal is upheld in whole or in part (section 5(7)).", "21. An appeal on points of law against the decision of the Taxation Division of the Court of Appeal lies to the Supreme Court (section 19). Such an appeal may be lodged by the competent tax inspector or other tax authority as well as by the taxpayer.", "22. The defendant party – tax authority or taxpayer, as the case may be – may submit a written statement of defence (section 22(2)).", "23. The Supreme Court does not hold an oral hearing unless it is asked to do so by one of the parties. Such a request may be made in either the statement of points of appeal or the statement of defence, or after the filing of those statements, by the party which has lodged the appeal on points of law; in the latter case the time-limit for so doing is fourteen days after the statement of defence was sent to the party concerned (section 23(1)).", "24. If the Procurator-General expresses the wish to be heard, the case file is sent to him after the hearing, or after the filing of the written statements if no hearing is held (section 24(1)). He must submit his advisory opinion in writing (section 24(2)).", "It is not provided that the taxpayer must be supplied with a copy of the advisory opinion before the delivery of the judgment of the Supreme Court.", "25. The Supreme Court deliberates in camera. Although there is no legal provision prohibiting the Procurator-General from attending the Supreme Court’s deliberations, in practice he never attends.", "26. The Supreme Court may quash the decision appealed against on the grounds adduced or on other grounds (section 25). In that event it decides on the merits of the case, substituting for the decision of the Taxation Division of the Court of Appeal the decision on the merits which the latter ought to have given. Only if the decision on the merits depends on important facts which have not been established at an earlier stage of the proceedings does the Supreme Court refer the case back to the Court of Appeal which gave the decision appealed against or one of the other courts of appeal (ibid.).", "C. The Judiciary (Organisation) Act", "27. The duties and position of the Procurator-General’s department ( openbaar ministerie ) are defined in the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie ).", "28. The Procurator-General’s department consists of the Procurator-General and advocates-general of the Supreme Court, the procurators-general and advocates-general of the courts of appeal and the public prosecutors of the regional and district courts (section 3(1) of the Judiciary (Organisation) Act). The advocates-general of the Supreme Court act as deputies of the Procurator-General of that court and are subordinate to him (sections 3(2), 5a and 6(1)).", "29. The Procurator-General’s department must be heard by the courts in so far as the law so prescribes (section 4). The advisory opinion of the Procurator-General or an advocate-general to the Supreme Court takes the form of a learned treatise containing references to relevant case-law and legal literature and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.", "PROCEEDINGS BEFORE THE COMMISSION", "30. In his application to the Commission of 12 November 1992, the applicant alleged violations of Article 6 § 1 of the Convention in that the levying of a court registration fee had infringed his right of access to a court and in that he had not been able to reply to the advisory opinion submitted to the Supreme Court by the advocate-general.", "31. On 16 October 1995 the Commission declared the application (no. 21351/93) admissible in so far as it concerned the failure to allow the applicant an opportunity to reply to the advocate-general’s advisory opinion and inadmissible for the remainder. In its report of 15 October 1996 (Article 31), it expressed the opinion that there had been a violation of Article 6 § 1 of the Convention (by twenty-six votes to four). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [4].", "FINAL SUBMISSIONS TO THE COURT", "32. The Government concluded their memorial by expressing the view that Article 6 was not applicable to the present case.", "The applicant claimed that Article 6 § 1 was applicable and had been violated.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "33. The applicant claimed that he had been a victim of a violation of Article 6 § 1 of the Convention in that he had not been able to reply to the advisory opinion submitted to the Supreme Court by the advocate-general.", "Article 6 § 1, in so far as relevant, provides as follows:", "“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal…”", "The Commission agreed with the applicant that that provision had been violated. The Government disputed its applicability.", "A. Applicability of Article 6 § 1", "34. In the Government’s view, the Supreme Court had not determined a “criminal charge” against the applicant. Article 6 § 1 was therefore not applicable. They based their argument on the premise that the proceedings in issue related to nothing more than the requirement to pay a court registration fee. They referred to the criteria developed by the Court in its case-law, starting with the Court’s judgments in the cases of Engel and Others v. the Netherlands (judgment of 8 June 1976, Series A no. 22, p. 35, § 82) and Öztürk v. Germany (judgment of 21 February 1984, Series A no. 73, p. 18, § 50), namely whether or not the text defining the offence in issue belonged, according to the legal system of the respondent State, to criminal law, the nature of the offence charged and the nature and degree of severity of the penalty which the person concerned risked incurring.", "As to the first criterion, they noted that as a matter of Netherlands law the levying of court registration fees fell outside the realm of criminal law.", "As to the second, they stated that court registration fees were not punitive in nature but served the purpose of ensuring the proper administration of justice. This they did by covering part of the expenses of the administration of justice and discouraging appeals which had no prospect of success. Since they were procedural rules and not criminal sanctions, the present case was more akin to that of Ravnsborg v. Sweden (judgment of 23 March 1994, Series A no. 283-B), where the Court had held a fine for disorderly conduct in court to “derive from the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings” (loc. cit., p. 30, § 34), and to that of Putz v. Austria (judgment of 22 February 1996, Reports of Judgments and Decisions 1996-I).", "The third criterion, the nature and degree of severity of the penalty, was clearly not relevant.", "35. The applicant stated that the case before the Court concerned the imposition of a fiscal penalty, which had to be equated with a criminal sanction.", "36. The Commission expressed the opinion that although the proceedings before the Supreme Court had been limited to a procedural issue, namely whether the Court of Appeal had been right to declare the applicant’s appeal inadmissible for failure to comply with a procedural requirement, the case had nonetheless concerned the determination of a “criminal charge”. Had the Supreme Court come to the conclusion that the Court of Appeal had erred in so doing, it would have recovered full jurisdiction to rule on the merits of the case (section 25 of the Taxation Disputes (Administrative Jurisdiction) Act – see paragraph 26 above).", "The Commission’s Delegate, in his written observations (see paragraph 4 above), added that the Supreme Court in its decision had addressed the applicant’s argument that the levying of court registration fees was not permissible in cases concerning a “criminal charge”; in so doing it had ruled on the important question of access to court in criminal cases. This implied that, as a matter of national law also, the proceedings in question belonged to the criminal sphere.", "37. The Court observes that none of those taking part in the proceedings before it have denied that the fiscal penalty imposed on the applicant (see paragraph 8 above) was a “criminal sanction”. The Court finds no reason to consider that it was not (see, as a recent authority, the A.P., M.P. and T.P. v. Switzerland judgment of 29 August 1997, Reports 1997-V, p. 1488, §§ 39 ‑ 43). Article 6 accordingly entitled the applicant to a procedure before a court. Netherlands law in fact provides for such a procedure in the form of an appeal to the Taxation Division of the Court of Appeal (see paragraphs 18 and 19 above).", "38. The President of the Taxation Division on 23 March 1990 declared the applicant’s appeal inadmissible on the sole ground that the court registration fee had not been paid (see paragraph 10 above). After the applicant had lodged an objection, this decision was upheld on 23 April 1990 by the Taxation Division (see paragraph 11 above). The applicant’s grounds of appeal on points of law to the Supreme Court were thus limited to the question whether or not the Court of Appeal ought to have declared the applicant’s appeal admissible – which the Supreme Court answered in the negative (see paragraphs 13 and 16 above).", "39. The Supreme Court had jurisdiction to quash the decision of the Court of Appeal on the grounds adduced or ex officio on other grounds. Had it done so, it would have had full jurisdiction to substitute its own decision on the merits for that of the Court of Appeal, ruling on the basis of the case file before it, or else to refer the case back to the Court of Appeal which had given the decision appealed against or one of the other courts of appeal for a complete rehearing if necessary (section 25 of the Taxation Disputes (Administrative Jurisdiction) Act – see paragraph 26 above). However, it did not, for reasons which it is not for the European Court to enter into (see paragraphs 16 and 32–33 above). The effect of the decision of the Supreme Court was to ratify the imposition of the fiscal penalty on the applicant. It was thus decisive for the determination of the “criminal charge” leading to the imposition on him of the penalty.", "40. That being so, the fact that the applicant’s appeal on points of law to the Supreme Court and the latter’s decision were limited to a preliminary question of a procedural nature cannot suffice to find that Article 6 § 1 is inapplicable.", "The Court must accordingly rule on the question whether the criminal proceedings against the applicant complied with that provision.", "B. Compliance with Article 6 § 1", "41. The applicant and the Commission concurred in considering that Article 6 § 1 had been violated by the fact that the applicant had not had the opportunity to respond to the advocate-general’s advisory opinion to the Supreme Court.", "The Government, for their part, conceded that if the Court were to hold that Article 6 § 1 was applicable then a violation would have to be found.", "42. The Court notes that for the present purposes the essential features of the procedure of the Netherlands Supreme Court and that of the Belgian Court of Cassation are similar. Firstly, the purpose of the advocate-general’s advisory opinion is to assist the Supreme Court and to help ensure that its case-law is consistent. Secondly, it is the duty of the Procurator-General’s department at the Supreme Court to act with the strictest objectivity (see inter alia and mutatis mutandis, the Vermeulen v. Belgium judgment of 20 February 1996, Reports 1996-I, p. 233, §§ 29 and 30, and Van Orshoven v. Belgium judgment of 25 June 1997, Reports 1997-III, pp. 1050 ‑ 51, §§ 37 and 38).", "As in the Belgian cases referred to, the Court considers, however, that great importance must be attached to the part played in the proceedings before the Supreme Court by the member of the Procurator-General’s department, and more particularly to the content and effects of his submissions. These contain an opinion which derives its authority from that of the Procurator-General’s department itself. Although it is objective and reasoned in law, the opinion is nevertheless intended to advise and accordingly influence the Supreme Court (see the above-mentioned Vermeulen judgment, p. 233, § 31, and Van Orshoven judgment, p. 1051, § 39).", "43. The Court has already found that the outcome of the proceedings before the Supreme Court determined a “criminal charge” against the applicant (see paragraphs 39–40 above). Regard being had, therefore, to what was at stake for the applicant in the proceedings and to the nature of the advisory opinion of the advocate-general, the fact that it was impossible for the applicant to reply to it before the Supreme Court took its decision infringed his right to adversarial proceedings. That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (see the above-mentioned Vermeulen judgment, p. 234, § 33, and the Van Orshoven judgment, p. 1051, § 41).", "There has accordingly been a violation of Article 6 § 1 of the Convention.", "II. application of article 50 of the convention", "44. Article 50 of the Convention provides as follows:", "“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”", "45. The applicant did not claim damages.", "A. Costs and expenses", "46. The applicant claimed the following sums:", "(a) Court registration fee for the Supreme Court proceedings: 300 Netherlands guilders (NLG);", "(b) Travel expenses incurred in order to attend the hearing of the Taxation Division of the Leeuwarden Court of Appeal: NLG 180;", "(c) Working time spent in connection with the proceedings before the Leeuwarden Court of Appeal and the Supreme Court: NLG 4,050;", "(d) Office expenses: NLG 100.", "His claims thus came to a total of NLG 4,630.", "47. The Government argued that these sums were for the most part connected with the proceedings before the domestic courts. The violation, if violation there had been, had occurred at the very end of the domestic proceedings, after these expenses had allegedly been incurred. The applicant was accordingly entitled only to reimbursement of expenses not explicitly related to the domestic proceedings, which as appeared from his claim could not amount to more than NLG 100.", "48. The Commission’s Delegate considered that the applicant should be awarded compensation for all costs and expenses referable to the Supreme Court proceedings. A fair estimate of these was in his view NLG 1,500.", "49. The Court notes that the violation found relates solely to the failure to offer the applicant the opportunity to respond to the advocate-general’s advisory opinion to the Supreme Court. Deciding on an equitable basis, the Court awards the applicant NLG 1,000.", "B. Default interest", "50. According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of the adoption of the present judgment is 6% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant, a Swiss national born in 1914, is a retired ski instructor and mountain guide living in X, Switzerland.", "A. Administrative proceedings instituted against the applicant", "9. In 1987 the Federal Tax Administration ( Eidgenössische Steuerverwaltung ) consulted the case file of the financial manager, P. It was noted that between 1979 and 1985 the applicant had made investments with P. and his companies. However, these amounts had not been declared in the taxation periods between 1981/82 and 1987/88.", "10. In view of this, on 11 December 1987 the X District Tax Commission ( Bezirkssteuerkommission ) instituted tax-evasion proceedings ( Steuerhinterziehungsverfahren ) in respect of the applicant’s federal taxes. He was requested to submit all the documents which he had concerning these companies.", "11. On 22 December 1987 the applicant admitted that he had “in fact made investments with P. and his companies from 1979 to 1985 and that he had not properly declared the income in his personal tax return”. However, the applicant did not submit the requested documents.", "12. On 24 June 1988 the applicant was again asked to declare the source of the income, amounting to 238,000 Swiss francs (CHF), which he had invested with P. The applicant did not reply.", "13. On 2 September 1988 the District Tax Commission decided to issue an assessment to supplementary tax ( Nachsteuer ) on the interest derived from the income which the applicant had invested with P. in the years 1979 to 1985. In letters dated 29 September and 11 October 1988, the applicant was informed of the assessment of his taxes ( Steuerveranlagung ) and of the supplementary tax due.", "14. Following an intervention of the Federal Tax Inspector, the President of the District Tax Commission withdrew the supplementary tax decision in two letters dated 7 and 20 October 1988. At the same time the President again requested the applicant to explain the source of the invested income. A further such request was served on the applicant on 19 January 1989.", "15. The applicant not having reacted to any of these requests, the Cantonal Administration for Direct Federal Taxes ( kantonale Verwaltung für die direkte Bundessteuer ) imposed on the applicant on 28 February 1989 a disciplinary fine ( Ordnungsbusse ) of CHF 1,000. It relied on Article 131 § 1 of the decree of the Federal Council on the imposition of a direct federal tax ( Bundesratsbeschluss über die Erhebung einer direkten Bundessteuer ). The applicant duly paid the fine.", "16. On 7 April 1989 and on 19 June, 17 July and 16 August 1990 the District Tax Commission again admonished the applicant as he still had not submitted the required information.", "17. On 3 August and 5 September 1990 the applicant replied that, in his view, the decision to impose supplementary taxes on him had acquired legal force ( Rechtskraft ) on 29 September and 11 October 1988, so that he was not obliged to provide further information.", "18. Thereupon, on 29 November 1990 the Cantonal Administration for Direct Federal Taxes imposed a second disciplinary fine, of CHF 2,000, on the applicant in respect of federal taxes, based on Article 131 § 1 of the decree of the Federal Council.", "19. On 4 December 1990 and 22 January 1991 the Cantonal Tax Administration imposed a third disciplinary fine, of CHF 2,000, in respect of cantonal taxes.", "20. The applicant’s appeal against the second disciplinary fine, imposed on 29 November 1990, was dismissed by the Tax Appeals Commission ( Steuerrekurskommission ) of the Canton of Valais on 18 December 1992.", "21. In its decision, the Tax Appeals Commission found that the applicant had intentionally not complied with the order of the tax authorities to provide information. However, according to Article 131 § 1 of the decree of the Federal Council, persons liable to pay taxes were obliged to cooperate with the tax authorities, in particular to submit accounts, documents and other receipts in their possession which could be of relevance when determining the taxes. Moreover, the decision to impose supplementary taxes on the applicant had not acquired legal force as it had been withdrawn on 7 and 20 October 1988 by the President of the District Tax Commission.", "B. Proceedings before the Federal Court", "22. The applicant filed an administrative-law appeal with the Federal Court in which he complained, inter alia, under Article 6 of the Convention that as an accused he should not be obliged to incriminate himself.", "23. Meanwhile, the applicant also filed an objection against the third disciplinary fine, imposed on 4 December 1990 and 22 January 1991, although the proceedings before the competent district court ( Bezirksgericht ) were suspended pending the outcome of the proceedings before the Federal Court.", "24. On 7 July 1995 the Federal Court dismissed the applicant’s administrative-law appeal, the decision being served on the applicant on 12 December 1995.", "25. In its decision, the Federal Court considered it undisputed that the applicant had made investments with P. and his companies which he, the applicant, had not declared. The tax authorities had not been in a position to assume that the means invested stemmed from income and assets which had already been taxed. They had therefore quite correctly asked the applicant to demonstrate the source of these moneys.", "26. The Federal Court then recapitulated the relevant case-law. Tax-evasion proceedings constituted true criminal proceedings in respect of which the procedural guarantees, including those of Article 6 of the Convention, applied. Thus, the offence of tax evasion led to a fine which had to be paid in addition to the taxes evaded. The fine constituted a sanction which had both preventive and repressive functions; its amount was up to four times the amount of the taxes evaded and it had the same effect for the person concerned as a criminal conviction.", "27. On the other hand, in the Federal Court’s opinion the obligation to pay a supplementary tax did not amount to a criminal sanction. The supplementary tax was not separate in nature from the original tax debt; rather, it was an additional tax resulting from an examination of the tax assessment of the person concerned and serving to bring in outstanding taxes. As such, it had no punitive function. The judgment continued:", "“even though the supplementary tax is not a criminal sanction within the meaning of Article 129 of the federal decree, the tax will be determined in tax-evasion proceedings in respect of which the guarantees of criminal procedure will apply. The question thus arises whether the person who has to pay taxes may be obliged, in the tax-evasion proceedings and with a view to the determination of the supplementary tax, to supply information on his financial circumstances.”", "28. The Federal Court then reiterated the principle of tax proceedings, according to which the burden of proof fell on the tax authorities to demonstrate that a person had not declared certain taxable income. It could not be said that the person concerned was obliged to incriminate himself. Rather, the person had merely to provide information as to the source of untaxed income which the tax authorities already knew existed. If in such a situation the person concerned had the right to remain silent, the entire tax system would be called into question. The regular tax-assessment proceedings would then have to be conducted according to the principles of criminal proceedings. The right to remain silent would complicate control, or even render it impossible. This could not be the purpose of Article 6 of the Convention.", "29. According to the Federal Court, there were a number of provisions in criminal law obliging a person to act in a particular way so as to enable the authorities to obtain his conviction. Reference was made in particular to lorries which had to be equipped with a tachograph recording speed and driving hours. If there was an accident, the lorry driver was obliged to hand over the device. Similarly, a motorist might be obliged to submit to a blood or a urine test, and he would be punished if he refused to do so.", "30. The Federal Court noted an essential difference from Funke v. France (judgment of 25 February 1993, Series A no. 256-A), namely, that in that case the tax authorities believed that certain documents existed although they were not certain of the fact. In the present case, the authorities were aware of the income which the applicant had invested. The purpose of their intervention was to ascertain whether this income itself stemmed from income or assets which had been duly taxed. All the applicant had to do was to explain the source of this income. In fact, he should have done so during the regular tax-assessment proceedings.", "31. Finally, the Federal Court referred to Salabiaku v. France, according to which presumptions of fact and law were compatible with Article 6 § 2 of the Convention as long as they were confined within reasonable limits and the rights of the defence were maintained (judgment of 7 October 1988, Series A no. 141-A, pp. 15-16, § 28).", "32. The Federal Court concluded that there was no breach of the applicant’s right to the presumption of innocence or of his right not to incriminate himself.", "C. Subsequent developments", "33. On 5 June 1996 the cantonal authorities imposed a fourth fine, of CHF 5,000, on the applicant, although this fine never acquired legal force.", "34. Following the Federal Court’s decision of 7 July 1995, an agreement was reached between the applicant and the cantonal tax authorities on 28 November 1996 which closed all tax and criminal tax proceedings for the years 1981/82 until 1995/96. On the one hand, the agreement fixed the amount to be paid by the applicant, namely a total sum of CHF 81,878.95, including a fine amounting, after reduction by one-third, to CHF 21,625.95. On the other hand, it was agreed that all pending proceedings were cancelled, including the proceedings concerning disciplinary fines; and that the fine already paid was to be deducted from the total amount of taxes and criminal penalties. Finally, the agreement stated :", "“... the proceedings which are already pending before the Strasbourg organs of the European Convention on Human Rights against the decision of the Federal Court on account of a disciplinary fine will not be affected by this agreement.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Supplementary-tax proceedings and tax-evasion proceedings", "35. Supplementary-tax proceedings ( Nachsteuerverfahren ) serve the purpose of imposing a supplementary tax ( Nachsteuer ) where certain taxes have not been duly paid. Tax-evasion proceedings ( Steuerhinterziehungsverfahren ) may lead, in addition to the supplementary tax, to a fine the amount of which will depend on the amount of the tax evaded.", "B. Decree of the Federal Council on the imposition of a direct federal tax", "36. The Federal Council’s decree of 1940 on the imposition of a direct federal tax in force at the relevant time referred in its Part 9 to “contraventions” ( Widerhandlungen ).", "37. Articles 129 and 130 in Part 9 concerned “tax evasion” and provided for liability to a fine. For instance, Article 129 § 1 concerned persons who evaded taxes by not filling in the tax return correctly. Article 130 bis concerned “tax and inventory fraud” ( Steuer- und Inventarbetrug ) and provided for liability to a fine or to imprisonment.", "38. Article 131 § 1 of the decree stated:", "“A person ... liable to pay taxes or to give information who contravenes, intentionally or negligently, the official decisions and orders made pursuant to this Decree, in particular as to:", "– handing in a tax return;", "– submitting or presenting accounts, preparing or submitting vouchers and other receipts;", "– complying with a summons or a prohibition to act;", "– giving information; or", "– making payments and furnishing securities;", "will be fined between CHF 5 and 10,000. The same punishment will be incurred if the obligation under Article 90 §§ 5, 6 and 8 to provide information is not complied with.”", "39. Article 90 §§ 5, 6 and 8 of the federal decree concerned the obligation, inter alia, of third parties to provide information. Article 89 stated that the taxpayer should provide truthful information and that he could be requested to submit documents etc. which might be relevant for the assessment of taxes. Article 132 regulated the procedure in case of tax evasion and provided that the cantonal tax administration would undertake any necessary investigations.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "40. The applicant alleged that the proceedings in which he was involved were unfair in that he was obliged to submit documents which could have incriminated him. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ...”", "41. The Government contested that submission.", "A. Applicability of Article 6 § 1", "1. The parties’ submissions", "(a) The applicant", "42. The applicant submitted that the proceedings at issue concerned both the imposition of a supplementary tax and tax-evasion proceedings leading to a fine. The former matter did not fall within the scope of the Convention whereas, according to the case-law of both the Court and the Federal Court, the tax-evasion proceedings amounted to criminal proceedings within the meaning of Article 6 § 1 of the Convention, requiring the necessary guarantees. Reference was made in particular to A.P., M.P. and T.P. and E.L., R.L. and J.O.-L. v. Switzerland (judgments of 29 August 1997, Reports of Judgments and Decisions 1997 ‑ V, pp. 1487-88 and pp. 1519-20 respectively). The amount of the fine for tax evasion was determined on the basis of the amount of supplementary tax. In his case, the fine of CHF 21,625.95 imposed on him had the same effect as a criminal conviction.", "(b) The Government", "43. In the Government’s opinion, the proceedings at issue were sui generis, although they bore a closer resemblance to administrative proceedings than to criminal proceedings. The Federal Court had accepted that Article 6 of the Convention applied to such proceedings, without stating that they determined a “criminal charge”. In the Government’s view, when deciding on the applicability of this provision, it had to be considered which type of “criminal charge” was at issue. In such proceedings, both a person’s taxes and any tax evasion were examined in one and the same, mixed procedure. To the extent that the proceedings concerned the determination of a supplementary tax, they involved no criminal element. On the other hand, to the extent that a fine could be imposed for tax evasion, the proceedings were of a criminal nature within the meaning of Article 6 § 1 of the Convention. In the present case, Article 6 § 1 of the Convention was not applicable to the proceedings at issue. The Government referred in particular to M.-T.P. v. France ((dec.), no. 41545/98, 7 March 2000, unreported) in which, as in the present case, that applicant was not prosecuted for tax evasion. In that case, moreover, the Court had considered that the tax measures imposed on the applicant were not criminal as they did not attain the necessary level of prejudice.", "2. The Court’s assessment", "44. The Court reiterates that the concept of “criminal charge” within the meaning of Article 6 is an autonomous one. In its earlier case-law the Court has established that there are three criteria to be taken into account when it is being decided whether a person was “charged with a criminal offence” for the purposes of Article 6. These are the classification of the offence under national law, the nature of the offence and the nature and degree of severity of the penalty that the person concerned risked incurring (see, among other authorities, Öztürk v. Germany, judgment of 21 February 1984, Series A no. 73, p. 18, § 50). In A.P., M.P. and T.P. v. Switzerland (cited above), the Court moreover found that proceedings leading to the imposition of a fine on account of the criminal offence of tax evasion fell in principle to be examined under Article 6 § 1 of the Convention.", "45. In the present case it was not in dispute between the parties that any tax-evasion proceedings instituted against the applicant, inasmuch as they determined a “criminal charge” within the meaning of Article 6 of the Convention, would fall to be examined under this provision.", "46. The Government, however, contended that the proceedings in the present case were of a sui generis nature and outside the scope of Article 6 of the Convention. The Federal Court, on the other hand, considered in its judgment of 7 July 1995 that Article 6 of the Convention applied to the proceedings in question.", "47. The Court observes that, in the present case, the proceedings served the various purposes of establishing the taxes due by the applicant and, if the conditions therefor were met, of imposing on him a supplementary tax and a fine for tax evasion. Nevertheless, the proceedings were not expressly classified as constituting either supplementary-tax proceedings or tax-evasion proceedings.", "48. The Court furthermore considers, and this was not in dispute between the parties, that from the beginning and throughout the proceedings the tax authorities could have imposed a fine on the applicant on account of the criminal offence of tax evasion. According to the settlement reached on 28 November 1996, the applicant did indeed incur such a fine amounting to CHF 21,625.95. The penalty was not, however, intended as pecuniary compensation; rather, it was essentially punitive and deterrent in nature. Moreover, the amount of the fine incurred was not inconsiderable. Finally, there can be no doubt that the fine was “penal” in character (see A.P., M.P. and T.P. v. Switzerland, cited above).", "49. In the Court’s opinion, whatever other purposes served by the proceedings, by allowing the imposition of such a fine on the applicant, the proceedings amounted in the light of the Court’s case-law to the determination of a criminal charge.", "50. As a result, the Court finds that Article 6 is applicable under its criminal head.", "51. Accordingly, the question arises as to whether Article 6 § 1 of the Convention was complied with.", "B. Compliance with Article 6 § 1", "1. The parties’ submissions", "(a) The applicant", "52. The applicant contended that the right to remain silent in criminal proceedings guaranteed by Article 6 § 1 of the Convention was breached as he had been punished for remaining silent. A procedure in which the fine determined for tax evasion depended on the amount of supplementary tax, and in which both proceedings were decided by the same authorities, could not be considered fair.", "53. In the applicant’s opinion, it was clear that in his case the authorities suspected the existence of further items of income and assets which they could not prove, for which reason they requested information on all bank documents. The applicant queried why the authorities, if they already knew everything about his investments, asked for the documents in question. The fines served as a substitute for the tools normally at the disposal of criminal investigating authorities, and were disproportionate. They were particularly high when compared with the amounts imposed in Funke (cited above, p. 22, § 44). The applicant submitted that he had not been in a position to submit the documents at issue as they either had already been destroyed or were deposited with third parties, in particular with banks which were not obliged to hand over the documents.", "54. The applicant considered that requiring the information amounted to “fishing expeditions” on the part of the authorities. When the applicant refused to supply the information, he was punished with a fine, contrary to Article 6 § 1 of the Convention. It was up to the authorities to prove any criminal conduct on his part, and he was entitled to remain silent. In fact, the authorities had originally promised the applicant that they would not undertake further investigations if he admitted the amounts, and it was unfair to then request further documents in the hope of finding additional taxable income and assets.", "55. The applicant was aware that he would be fined for tax evasion. However, as the amount of the fine depended on the amount of the supplementary tax rather than the applicant’s culpability, the authorities sought to establish further tax debts as this would have enabled them to impose a higher fine. In the applicant’s view it was unclear why in tax-evasion proceedings, in which fines of millions of Swiss francs were imposed, other principles should apply than those in regular criminal proceedings. In fact, the new Tax Act of the Canton of Berne separated these two proceedings if the taxpayer did not agree to combine them. This separation was not considered impracticable.", "56. Finally, in respect of the agreement reached between the applicant and the tax authorities after the Federal Court’s decision of 7 July 1995, the applicant pointed out that the fines imposed for refusing to submit information had not been included. In view of the enormous sum involved in the settlement – over CHF 80,000 – it could not be said that the agreement amounted to an acquittal of the applicant.", "(b) The Government", "57. The Government contended that the guarantees of Article 6 § 1 had been complied with. Thus, there was no difference between proceedings concerning taxation and those concerning tax evasion. The obligation to submit further information applied equally to both proceedings and served the purpose of determining the tax debt, in particular the amount of taxable items which the person concerned had not declared. A breach of the obligation to submit information led to a fine under Article 131 § 1 of the decree of the Federal Council. This fine, which could be imposed in either kind of proceedings, had to be distinguished from the fine resulting from tax evasion. In the present case, the proceedings originally instituted against the applicant concerned tax evasion in view of the fact that the applicant had declared neither certain investments with P. nor the resulting income. When the applicant failed to submit the requested information, a disciplinary fine was imposed on him in accordance with Article 131 § 1 of the decree of the Federal Council.", "58. The Government submitted that in 1987, when the tax-evasion proceedings were instituted against the applicant, the tax authorities were aware of the investments made with P. as well as the resulting income for the years 1979-85. The applicant himself had referred to these amounts on 22 December 1987. It was clear that the applicant’s fortune could not have been obtained in any other manner than by means of undeclared income. From the beginning, the tax authorities could have imposed a fine on the applicant for tax evasion, even without punishing him for not submitting the necessary information in accordance with Article 131 § 1 of the decree of the Federal Council. The subsequent requests by the tax authorities concerned information of which they were already aware. The requests had as their only purpose the clarification of the source of the amounts invested with P., which would have permitted the determination of the amount of back-payment of taxes. The documents requested from the applicant would have served to confirm this knowledge rather than to obtain the applicant’s conviction.", "59. The Government considered that in such cases, as a matter of political choice, the tax authorities had no powers of investigation, so as not to penalise the person concerned. They could not search a person’s premises, confiscate objects, hear witnesses or order detention. Bank secrecy remained intangible. To compensate for these shortcomings, the authorities could oblige a person to furnish relevant documents. The fine provided for in Article 131 of the federal decree was the only coercive measure left to the authorities. In this respect, the Government distinguished the present case from Funke (cited above) and Bendenoun v. France (judgment of 24 February 1994, Series A no. 284), where the French authorities imposed more severe fines and had far-reaching powers, such as that of searching premises and confiscating documents.", "60. The Government submitted that a separation of the proceedings as practised, for instance, in Germany – regular tax proceedings, on the one hand, and criminal tax-evasion proceedings, on the other – would be impractical as the administration would have to conduct two different sets of proceedings, and the taxpayer would have to defend himself twice. The additional problem arose as to whether or not information gathered in the regular tax proceedings could be used in the criminal proceedings. Indeed, if a breach of Article 6 of the Convention were to be found in the present case, the legislative changes would be disproportionate and would not serve the cause of human rights, since the tax authorities would be obliged to resort to all the means normally reserved for the criminal investigation organs.", "61. In the Government’s view, it could not be said that the authorities went out on a “fishing expedition”. To the extent that the applicant had himself admitted the amounts which he had not declared, without having been obliged to do so, the tax authorities could not be reproached with having breached his right to remain silent and not to incriminate himself. In this respect also the present case differed from Funke (cited above, p. 22, § 44). While it could not be excluded that the information provided by the applicant on 22 December 1987 was incomplete, the authorities did not automatically presume such an offence. With reference, mutatis mutandis, to Condron v. the United Kingdom (no. 35718/97, § 55, ECHR 2000-V), the Government concluded that the requests for information did not breach the requirements of a fair trial.", "62. Finally, the Government drew attention to the settlement reached between the applicant and the tax authorities after the Federal Court’s decision of 7 July 1995. The back-payments of taxes mentioned therein in respect of the years 1981 to 1988 were known to the authorities from the beginning of the proceedings, and the fine imposed on the applicant amounted to two-thirds of the back-payments of taxes. On the other hand, the tax authorities had not taxed the undeclared amounts which the applicant had invested with P.", "2. The Court’s assessment", "63. The Court recalls at the outset that in proceedings originating in an individual application it has to confine itself, as far as possible, to an examination of the concrete case before it (see Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, p. 17, § 35). Accordingly, what is at stake in the present case is not the fairness of the proceedings as such which were instituted against the applicant. Rather, the Court is called upon to examine whether or not the imposition of a fine on the applicant for having failed to provide certain information complied with the requirements of the Convention. It follows that the Court is not deciding in the present case the issue whether a State can oblige a taxpayer to give information for the sole purpose of securing a correct tax assessment.", "64. Although not specifically mentioned in Article 6 of the Convention, the right to remain silent and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 § 1. The right not to incriminate oneself in particular presupposes that the authorities seek to prove their case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the “person charged”. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and securing the aims of Article 6 (see Funke, cited above; John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, p. 49, § 45; Saunders v. the United Kingdom, judgment of 17 December 1996, Reports 1996-VI, pp. 2064-65, §§ 68-69; and Serves v. France, judgment of 20 October 1997, Reports 1997 ‑ VI, pp. 2173-74, § 46).", "65. In the present case, when on 11 December 1987 the X District Office instituted tax-evasion proceedings against the applicant, he was requested to submit all documents concerning the companies in which he had invested money. When the applicant failed to do so, he was requested on three further occasions to declare the source of the income invested. The applicant not having reacted to these requests, a disciplinary fine of CHF 1,000 was imposed on him on 28 February 1989. After four additional admonitions, a second disciplinary fine, of CHF 2,000, was imposed on the applicant. The latter fine he eventually contested unsuccessfully before the Federal Court. Subsequently he received two further disciplinary fines.", "66. Thus, it appears that the authorities were attempting to compel the applicant to submit documents which would have provided information as to his income with a view to the assessment of his taxes. Indeed, according to the Federal Court’s judgment of 7 July 1995, it was in particular important for the authorities to know whether or not the applicant had obtained any income which had not been taxed. While it is not for the Court to speculate as to what the nature of such information would have been, the applicant could not exclude that, if it transpired from these documents that he had received additional income which had not been taxed, he might be charged with the offence of tax evasion.", "67. It is true that the applicant and the authorities reached an agreement on 28 November 1996 which closed various tax and criminal tax proceedings, including proceedings concerning disciplinary fines. However, the agreement expressly excluded the present application before the European Court which is directed against the judgment of the Federal Court of 7 July 1995 concerning the disciplinary fine imposed on the applicant on 29 November 1990.", "68. The Court notes that in its judgment of 7 July 1995 the Federal Court referred to various provisions in criminal law obliging a person to act in a particular way so as to enable the authorities to obtain his conviction, for instance the obligation to install a tachograph in lorries, or to submit to a blood or a urine test. In the Court’s opinion, however, the present case does not involve material of this nature which, like that considered in Saunders, has an existence independent of the person concerned and is not, therefore, obtained by means of coercion and in defiance of the will of that person (see Saunders, cited above, pp. 2064-65, § 69).", "69. The Government have further submitted that the applicant had not been obliged to incriminate himself, since the authorities were in fact already aware of the information in question and he had admitted the amounts concerned. The Court remains unconvinced by this argument in view of the persistence with which the domestic tax authorities attempted to achieve their aim. Thus, between 1987 and 1990 the authorities found it necessary to request the applicant on eight separate occasions to submit the information concerned and, when he refused to do so, they successively imposed altogether four disciplinary fines on him.", "70. Finally, the Government have submitted that a separation of proceedings – regular tax proceedings, on the one hand, and criminal tax-evasion proceedings, on the other – would be impractical. The Court recalls that its task is to determine whether the Contracting States have achieved the result called for by the Convention, not to indicate which means a State should utilise in order to perform its obligations under the Convention (see De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, p. 20, § 35).", "71. As a result, and against the above background, the Court considers that there has been a violation of the right under Article 6 § 1 of the Convention not to incriminate oneself.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "72. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "73. The applicant claimed 4,000 Swiss francs (CHF) for the two disciplinary fines incurred of CHF 2,000 each. The Government accepted reimbursement of the first fine but not the second, concerning cantonal and communal taxes, since only the first fine had been contested before the Federal Court.", "74. The Court agrees with the Government and awards the applicant CHF 2,000 under this head.", "B. Costs and expenses", "75. Under this head, the applicant claimed a total of CHF 33,909.80, namely, CHF 409.80 for costs in the proceedings before the Tax Appeals Commission; CHF 2,000 for costs in the proceedings before the Federal Court; and CHF 31,500 for the cost of legal representation before the Federal Court and in the Strasbourg proceedings.", "76. The Government submitted that the agreement reached by the applicant and the authorities brought to an end all pending tax proceedings, with the exception of the proceedings before the European Court of Human Rights. This agreement covered in particular costs in the proceedings before the Tax Appeals Commission and the Federal Court. For the same reason, and with reference to The Sunday Times v. the United Kingdom (no. 1) (Article 50), the Government considered that the cost of legal representation before the Federal Court could not be taken into account (see the judgment of 6 November 1980, Series A no. 38, pp. 12-13, § 22). The Government moreover recalled that in its admissibility decision of 6 April 2000 the Court declared inadmissible the applicant’s complaint under Article 4 of Protocol No. 7 to the Convention. As a result, the Government considered the sum of CHF 5,000 to be adequate for the expenses incurred by the applicant.", "77. In accordance with its case-law, the Court will consider whether the costs and expenses claimed were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, for instance, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII).", "78. The Court considers, on the one hand, that the costs of CHF 2,409.80 incurred in the proceedings before the Tax Appeals Commission and the Federal Court were necessary in so far as the applicant had to raise his complaints before these instances in order to comply with the requirements of Article 35 of the Convention. Neither these costs nor the costs of legal representation before the Federal Court were identified as such in the settlement reached on 28 November 1996, which concerned the applicant’s taxes and fines for tax evasion, but excluded the present application directed against the Federal Court proceedings. On the other hand, as regards the costs of legal representation in Strasbourg, the Court agrees with the Government that the award of costs and expenses should take into account the fact that part of the applicant’s complaints was declared inadmissible. Making an assessment on an equitable basis, the Court awards him CHF 8,000 in respect of costs of legal representation.", "79. As a result, the Court awards the applicant a total of CHF 10,409.80 under the head of costs and expenses.", "C. Default interest", "80. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum." ]

[ "THE CIRCUMSTANCES OF THE CASE", "9. The applicant is an Italian citizen, born in 1947 and living in Oristano (Italy).", "10. The applicant and another person transferred land, property and a sum of money to a limited liability company, A., which the applicant had just formed and of which he owned – directly and indirectly – almost the entire share capital and was the representative. The company, whose object was organising farm holidays for tourists ( agriturismo ), applied to the tax authorities for a reduction in the applicable rate of certain taxes payable on the above-mentioned transfer of property, in accordance with a statute which it deemed applicable, and paid the sum it considered due.", "11. The present case concerns three sets of proceedings. The first concerned in particular the payment of capital-gains tax ( INVIM, imposta sull’incremento di valore immobiliare ) and the two others the applicable rate of stamp duty, mortgage-registry tax and capital-transfer tax ( imposta di registro, ipotecaria e voltura ), and the application of a reduction in the rate.", "12. In the first set of proceedings, the tax authorities served a supplementary tax assessment on the applicant on 31 August 1987 on the ground that the property transferred to the company had been incorrectly valued. They requested payment of an aggregate sum of 43,624,700 Italian lire comprising the tax due and penalties. On 14 January 1988 the applicant applied to the Oristano District Tax Commission for the supplementary tax assessment to be set aside.", "In a letter of 7 February 1998 the District Tax Commission informed the applicant that a hearing had been listed for 21 March 1998. In the meantime, on 23 February 1998, the tax authorities informed the commission that they accepted the applicant’s comments and requested the case to be struck out of the list.", "In a decision of 21 March 1998, the text of which was deposited on 4 April 1998, the District Tax Commission struck the case out of the list.", "13. In the other two sets of proceedings, the tax authorities served two supplementary tax assessments on A. on 16 November 1987 on the ground that the company was ineligible for the reduced rate of tax to which it had referred. The tax authorities’ note stated that the company would be liable to an administrative penalty of 20% of the amounts requested if payment was not made within sixty days.", "On 15 January 1988 the applicant, acting in his own right, although the matter concerned the company A., lodged two applications with the Oristano District Tax Commission for the above-mentioned supplementary tax assessments to be set aside.", "In two letters of 20 March 1998 the District Tax Commission informed the applicant, in his capacity as representative of A., that a hearing had been listed for 9 May 1998 in the two other cases. In two orders of that date the District Tax Commission adjourned the cases sine die and gave the applicant thirty days in which to appoint a lawyer. Subsequently, a hearing was listed for 24 April 1999.", "In two decisions of 22 May 1999, the text of which was deposited at the registry on 16 July 1999, the District Tax Commission dismissed A.’s applications on the ground that the transferred property, which included, among other things, a swimming pool and a tennis court, could not be regarded as the normal assets of an agricultural company.", "On 27 October 2000 A. lodged an appeal with the Regional Tax Commission." ]

[ "THE LAW", "I. THE COMPLAINT UNDER ARTICLE 6 § 1 OF THE CONVENTION", "14. The applicant alleged that the length of the proceedings had exceeded a “reasonable time” contrary to Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "15. In respect of the first set of proceedings, the period to be considered began on 14 January 1988 and ended on 4 April 1998. It therefore lasted more than ten years and two months for a single level of jurisdiction.", "In respect of the other sets of proceedings, the period to be considered began on 15 January 1988 and, since the proceedings were still pending as at 27 October 2000, has therefore lasted more than twelve years and nine months for two levels of jurisdiction.", "A. Admissibility of the complaint based on Article 6 § 1", "16. The Government submitted that this complaint should be declared inadmissible within the meaning of Article 35 § 3 of the Convention because Article 6 § 1 did not apply to disputes relating to tax proceedings. In their submission, the proceedings in question did not relate to “a criminal charge”. They pointed out that in Italy enforcement of the tax courts’ judgments was effected according to the procedure used to enforce civil obligations. The amount payable by the applicant could not be converted into a custodial sentence. Only enforcement measures, such as the seizure and possible sale of the debtor’s assets, were available. In respect of the “civil” aspect, the Government pointed out that, in accordance with the established case-law of the Convention institutions, taxation matters concerned only public law.", "17. The applicant, for his part, agreed with the Government that the proceedings in question were not criminal. He emphasised, however, the financial aspect of the proceedings, which accordingly concerned a “civil right”.", "18. The Court notes that both parties acknowledged that Article 6 did not apply under its criminal head. In respect of the civil head, and despite the existence of the established case-law referred to by the Government, the Court considers that the complaint raises questions of law which are sufficiently complex not to be susceptible of being resolved at the admissibility stage. Accordingly, the determination of this complaint, including the question, raised by the Government, of the applicability of Article 6 § 1 of the Convention, depends on an examination of the merits.", "19. That being so, this complaint cannot be declared inadmissible on the ground that it is incompatible ratione materiae with the provisions of the Convention. The Court notes further that no other ground for declaring it inadmissible has been established and that it must therefore be declared admissible.", "B. Applicability of Article 6 § 1", "20. The parties having agreed that a “criminal charge” was not in issue, and the Court, for its part, not perceiving any “criminal connotation” in the instant case (see, a contrario, Bendenoun v. France, judgment of 24 February 1994, Series A no. 284, p. 20, § 47), it remains to be examined whether the proceedings in question did or did not concern the “determination of civil rights and obligations”.", "21. The Government argued that Article 6 was inapplicable to the proceedings in question, considering that they did not concern a “civil right”. The existence of an individual’s tax obligation vis-à-vis the State belonged, in their submission, exclusively to the realm of public law. That obligation was part of the civic duties imposed in a democratic society and the purpose of the specific provisions of public law was to support national economic policy.", "22. The applicant, for his part, stressed the pecuniary aspect of his claims and contended that the proceedings accordingly concerned “civil rights and obligations”.", "23. As it is common ground that there was a “dispute” ( contestation ), the Court’s task is confined to determining whether it was over “civil rights and obligations”.", "24. According to the Court’s case-law, the concept of “civil rights and obligations” cannot be interpreted solely by reference to the domestic law of the respondent State. The Court has on several occasions affirmed the principle that this concept is “autonomous”, within the meaning of Article 6 § 1 of the Convention (see, among other authorities, König v. Germany, judgment of 28 June 1978, Series A no. 27, pp. 29-30, §§ 88-89, and Baraona v. Portugal, judgment of 8 July 1987, Series A no. 122, pp. 17-18, § 42). The Court confirms this case-law in the instant case. It considers that any other solution is liable to lead to results that are incompatible with the object and purpose of the Convention (see, mutatis mutandis, König, cited above, pp. 29-30, § 88, and Maaouia v. France [GC], no. 39652/98, § 34, ECHR 2000-X).", "25. Pecuniary interests are clearly at stake in tax proceedings, but merely showing that a dispute is “pecuniary” in nature is not in itself sufficient to attract the applicability of Article 6 § 1 under its “civil” head (see Pierre-Bloch v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI, p. 2223, § 51, and Pellegrin v. France [GC], no. 28541/95, § 60, ECHR 1999-VIII; cf. Editions Périscope v. France, judgment of 26 March 1992, Series A no. 234-B, p. 66, § 40). In particular, according to the traditional case-law of the Convention institutions,", "“There may exist ‘pecuniary’ obligations vis-à-vis the State or its subordinate authorities which, for the purpose of Article 6 § 1, are to be considered as belonging exclusively to the realm of public law and are accordingly not covered by the notion of ‘civil rights and obligations’. Apart from fines imposed by way of ‘criminal sanction’, this will be the case, in particular, where an obligation which is pecuniary in nature derives from tax legislation or is otherwise part of normal civic duties in a democratic society”. (See, among other authorities, Schouten and Meldrum v. the Netherlands, judgment of 9 December 1994, Series A no. 304, p. 21, § 50; Company S. and T. v. Sweden, no. 11189/84, Commission decision of 11 December 1986, Decisions and Reports (DR) 50, p. 121, at p. 140; and Kustannus oy Vapaa Ajattelija AB, Vapaa-Ajattelijain Liitto – Fritänkarnas Förbund r.y. and Kimmo Sundström v. Finland, no. 20471/92, Commission decision of 15 April 1996, DR 85-A, p. 29, at p. 46)", "26. The Convention is, however, a living instrument to be interpreted in the light of present-day conditions (see, among other authorities, Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, pp. 24-25, § 53), and it is incumbent on the Court to review whether, in the light of changed attitudes in society as to the legal protection that falls to be accorded to individuals in their relations with the State, the scope of Article 6 § 1 should not be extended to cover disputes between citizens and public authorities as to the lawfulness under domestic law of the tax authorities’ decisions.", "27. Relations between the individual and the State have clearly evolved in many spheres during the fifty years which have elapsed since the Convention was adopted, with State regulation increasingly intervening in private-law relations. This has led the Court to find that procedures classified under national law as being part of “public law” could come within the purview of Article 6 under its “civil” head if the outcome was decisive for private rights and obligations, in regard to such matters as, to give some examples, the sale of land, the running of a private clinic, property interests, the granting of administrative authorisations relating to the conditions of professional practice or of a licence to serve alcoholic beverages (see, among other authorities, Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 39, § 94; König, cited above, p. 32, §§ 94-95; Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 29, § 79; Allan Jacobsson v. Sweden (no. 1), judgment of 25 October 1989, Series A no. 163, pp. 20-21, § 73; Benthem v. the Netherlands, judgment of 23 October 1985, Series A no. 97, p. 16, § 36; and Tre Traktörer AB v. Sweden, judgment of 7 July 1989, Series A no. 159, p. 19, § 43). Moreover, the State’s increasing intervention in the individual’s day-to-day life, in terms of welfare protection for example, has required the Court to evaluate features of public law and private law before concluding that the asserted right could be classified as “civil” (see, among other authorities, Feldbrugge v. the Netherlands, judgment of 29 May 1986, Series A no. 99, p. 16, § 40; Deumeland v. Germany, judgment of 29 May 1986, Series A no. 100, p. 25, § 74; Salesi v. Italy, judgment of 26 February 1993, Series A no. 257-E, pp. 59-60, § 19; and Schouten and Meldrum, cited above, p. 24, § 60).", "28. However, rights and obligations existing for an individual are not necessarily civil in nature. Thus, political rights and obligations, such as the right to stand for election to the National Assembly (see Pierre-Bloch, cited above, p. 2223, § 50), even though in those proceedings the applicant’s pecuniary interests were at stake (ibid., § 51), are not civil in nature, with the consequence that Article 6 § 1 does not apply. Neither does that provision apply to disputes between administrative authorities and those of their employees who occupy posts involving participation in the exercise of powers conferred by public law (see Pellegrin, cited above, §§ 66-67). Similarly, the expulsion of aliens does not give rise to disputes ( contestations ) over civil rights for the purposes of Article 6 § 1 of the Convention, which accordingly does not apply (see Maaouia, cited above, §§ 37-38).", "29. In the tax field, developments which might have occurred in democratic societies do not, however, affect the fundamental nature of the obligation on individuals or companies to pay tax. In comparison with the position when the Convention was adopted, those developments have not entailed a further intervention by the State into the “civil” sphere of the individual’s life. The Court considers that tax matters still form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the community remaining predominant. Bearing in mind that the Convention and its Protocols must be interpreted as a whole, the Court also observes that Article 1 of Protocol No. 1, which concerns the protection of property, reserves the right of States to enact such laws as they deem necessary for the purpose of securing the payment of taxes (see, mutatis mutandis, Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, judgment of 23 February 1995, Series A no. 306-B, pp. 48-49, § 60). Although the Court does not attach decisive importance to that factor, it does take it into account. It considers that tax disputes fall outside the scope of civil rights and obligations, despite the pecuniary effects which they necessarily produce for the taxpayer.", "30. The principle according to which the autonomous concepts contained in the Convention must be interpreted in the light of present-day conditions in democratic societies does not give the Court power to interpret Article 6 § 1 as though the adjective “civil” (with the restriction that that adjective necessarily places on the category of “rights and obligations” to which that Article applies) were not present in the text.", "31. Accordingly, Article 6 § 1 of the Convention does not apply in the instant case.", "II. THE COMPLAINT UNDER ARTICLE 14 OF THE CONVENTION", "Admissibility", "32. The applicant also complained that he had been “persecuted by the Italian courts” and relied on Article 14 of the Convention, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "33. The Court reiterates that discrimination is not forbidden by the Convention unless different measures are taken in respect of persons in comparable situations (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium”, judgment of 23 July 1968, Series A no. 6, pp. 33-34, §§ 9-10).", "34. The applicant has not explained how there has been an infringement of that provision. Accordingly, since this complaint has not been substantiated, the Court considers that there is no appearance of a violation of that provision and that the complaint must therefore be dismissed as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1949 and lives in Tampere, Finland.", "9. On 22 May 1998 the Häme Tax Office ( verotoimisto, skattebyrån ) requested the applicant, who ran a car- repair workshop, to submit his observations regarding some alleged errors in his value- added tax (VAT) declarations ( arvonlisävero, mervärdesskatt ) for fiscal years 1994 and 1995.", "10. On 9 July 1998 the Tax Office found that there were deficiencies in the applicant ’ s book - keeping in that, for instance, receipts and invoices were inadequate. The Tax Office made a reassessment of the VAT payable basing itself on the applicant ’ s estimated income, which was higher than the income he had declared. It ordered him to pay, inter alia, tax surcharges ( veronkorotus, skatteförhöjning ) amounting to 10% of the reassessed tax liability (the additional tax surcharges levied on the applicant totalled 1,836 Finnish Marks, corresponding to 308.80 euros ).", "11. The applicant appealed to the Uusimaa County Administrative Court ( lääninoikeus, länsrätten ) (which later became the Helsinki Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ) ). He requested an oral hearing and that the tax inspector as well as an expert appointed by the applicant be heard as witnesses. On 1 February 2000 the Administrative Court took an interim decision inviting written observations from the tax inspector and after that an expert statement from an expert chosen by the applicant. The tax inspector submitted her statement of 13 February 2000 to the Administrative Court. The statement was further submitted to the applicant for his observations. On 25 April 2000 the applicant submitted his own observations on the tax inspector ’ s statement. The statement of the expert chosen by him was dated and submitted to the court on the same day.", "12. On 13 June 2000 the Administrative Court held that an oral hearing was manifestly unnecessary in the matter because both parties had submitted all the necessary information in writing. It also rejected the applicant ’ s claims.", "13. On 7 August 2000 the applicant requested leave to appeal, renewing at the same time his request for an oral hearing. On 13 March 2 001 the Supreme Administrative Court refused him leave to appeal." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Assessment and imposition of tax surcharges", "14. Section 177 ( 1 ) of the Value-Added Tax Act ( arvonlisäverolaki, mervärdesskattelagen; Law no. 1501/1993) provides that if a person liable to pay taxes has failed to pay the taxes or clearly paid an insufficient amount of taxes or failed to give required information to the tax authorities, the Regional Tax Office ( verovirasto, skatteverket ) must assess the amount of unpaid taxes.", "15. Section 179 provides that a tax assessment may be conducted where a person has failed to make the required declarations or has given false information to the tax authorities. The taxpayer may be ordered to pay unpaid taxes or taxes that have been wrongly refunded to the person.", "16. Section 182 provides, inter alia, that a maximum tax surcharge of 20 % of the tax liability may be imposed if the person has without a justifiable reason failed to give a tax declaration or other document in due time or given essentially incomplete information. The tax surcharge may amount at most to twice the amount of the tax liability, if the person has without any justifiable reason failed to fulfil his or her duties fully or partially even after being expressly asked to provide information.", "17. In, for example, the Finnish judicial reference book, Encyclopædia Iuridica Fennica, a tax surcharge is defined as an administrative sanction of a punitive nature imposed on the taxpayer for conduct contrary to tax law.", "18. Under Finnish practice, the imposition of a tax surcharge does not prevent the bringing of criminal charges for the same conduct.", "B. Oral hearings", "19. Section 38 ( 1 ) of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki, förvaltningsprocesslagen; Law no. 586/1996) provides that an oral hearing must be held if requested by a private party. An oral hearing may however be dispensed with if a party ’ s request is ruled inadmissible or immediately dismissed, or if an oral hearing would be clearly unnecessary owing to the nature of the case or other circumstances.", "20. The explanatory part of the Government Bill ( no. 217/1995) for the enactment of the Administrative Judicial Procedure Act considers the right to an oral hearing as provided by Article 6 and the possibility in administrative matters to dispense with the hearing when it would be clearly unnecessary, as stated in section 38 ( 1 ) of the said Act. There it is noted that an oral hearing contributes to a focused and immediate procedure but, since it does not always bring any added value, it must be ensured that the flexibility and cost effectiveness of the administrative procedure is not undermined. An oral hearing is to be held when it is necessary for the clarification of the issues and the hearing can be considered beneficial for the case as a whole.", "21. During the period 2000 to 2006, the Supreme Administrative Court did not hold any oral hearings in tax matters. As to the eight administrative courts, appellants requested an oral hearing in a total of 603 cases. The courts held an oral hearing in 129 cases. There is no information as to how many of these taxation cases concerned the imposition of a tax surcharge. According to the Government ’ s written submission of 12 July 2006, the administrative courts had thus far in 2006 held a total of 20 oral hearings in tax matters. As regards the Helsinki Administrative Court in particular, in 2005 it examined a total of 10,669 cases of which 4,232 were tax matters. Out of the last- mentioned group of cases, 505 concerned VAT. During that year the Administrative Court held a total of 153 oral hearings of which three concerned VAT.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "22. The applicant complained that the tax - surcharge proceedings were unfair as the courts did not hold an oral hearing in his case. The Court has examined this complaint under Article 6 of the Convention, the relevant part of which provides :", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ... ”", "A. The parties ’ submissions", "1. The applicant", "23. The applicant contested the Government ’ s submissions as giving misleading, erroneous interpretations of domestic and Convention law. According to the applicant his case required, both under the domestic legislation and under Article 6 of the Convention, a mandatory oral hearing owing to his need for legal protection and the fact that the credibility of witness statements played a significant role in the determination of the case. According to the applicant the matter did not concern only 308.80 euros (EUR), but altogether a financial liability of EUR 7,374.92. The applicant maintained that the lack of an oral hearing de facto placed the burden of proof on him. He also emphasised the importance of the threat of the punishment and the impact on his business from having to pay unjustified taxes with no legal basis.", "24. In his oral submissions, the applicant pointed out that he had not “opted for” the liability to pay VAT. On the contrary, as the annual turnover exceeded the threshold laid down by the Value- Added Tax Act, it was compulsory to file a VAT return.", "2. The Government", "25. The Government noted the fundamental nature of the obligation on individuals and companies to pay tax. Tax matters formed part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the tax authorities remaining predominant. An extension of the ambit of Article 6 § 1 under its criminal head to cover taxes could have far-reaching consequences for the State ’ s ability to collect taxes.", "26. The Government noted that, under the Finnish legal system, tax surcharges belonged to administrative law. They were not imposed under criminal- law provisions but in accordance with various tax laws. Moreover, they were determined by the tax authorities and the administrative courts, and they were in all respects treated differently from court-imposed sanctions. The surcharge in issue in this case was targeted at a given group with a particular status, namely citizens under the obligation to pay VAT and registered as subject to VAT. It was not therefore imposed under a general rule. The main purpose of the surcharges was to protect the fiscal interests of the State and to exert pressure on taxpayers to comply with their legal obligations, to sanction breaches of those obligations, and to prevent re-offending. However this aspect was not decisive. They emphasised that the penalty imposed did not reach the substantial level identified in Bendenoun v. France ( 24 February 1994, Series A no. 284 ). The tax surcharges could not be converted into a prison sentence and the amount of the tax surcharge in the present case was low, 10%, which amounted to the equivalent of EUR 308.80, with an overall maximum surcharge possible of 20 %.", "27. Assuming Article 6 was applicable, the Government maintained that the obligation under Article 6 § 1 to hold a public hearing was not an absolute one. A hearing might not be necessary owing to the exceptional circumstances of the case, for example when it raised no questions of fact or law which could not be adequately resolved on the basis of the case file and parties ’ written observations. Besides the publicity requirement there were other considerations, including the right to a trial within a reasonable time and the related need for an expeditious handling of the courts ’ caseload, which had to be taken into account in determining the necessity of public hearings in proceedings subsequent to the trial at first-instance level.", "28. The Government maintained that in the present case the purpose of the applicant ’ s request for an oral hearing was to challenge the reliability and accuracy of the report on the tax inspection by cross-examining the tax inspector and the expert. They noted that the Administrative Court took the measure of inviting written observations from the tax inspector and after that a statement from an expert chosen by the applicant. An oral hearing was manifestly unnecessary as the information provided by the applicant himself formed a sufficient factual basis for the consideration of the case. The issue at hand was rather technical, being based on the report of the tax inspector. Such a dispute could be better dealt with in writing than in oral argument. There was nothing to indicate that questions of fact or law would have emerged which could not have been adequately resolved on the basis of the case file and the written observations of the applicant, the tax inspector and the expert. No additional information could have been gathered by hearing, as required by the applicant, the tax inspector or the expert in person. Furthermore, the applicant was given the possibility of putting forward any views in writing which in his opinion would be decisive for the outcome of the proceedings. He also had the possibility to comment on all the information provided by the tax authorities throughout the proceedings. Further, he was able to appeal to the County Administrative Court and Supreme Administrative Court, both of which had full jurisdiction on questions of fact and law and could quash the decisions of the tax authorities. The Government concluded that there were circumstances which justified dispensing with a hearing in the applicant ’ s case.", "B. The Court ’ s assessment", "1. Applicability of Article 6", "29. The present case concerns proceedings in which the applicant was found, following errors in his tax returns, liable to pay VAT and an additional 10% surcharge. The assessment of tax and the imposition of surcharges fall outside the scope of Article 6 under its civil head ( see Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001- VII ). The issue therefore arises in this case whether the proceedings were “ criminal ” within the autonomous meaning of Article 6 and thus attracted the guarantees of Article 6 under that head.", "30. The Court ’ s established case-law sets out three criteria to be considered in the assessment of the applicability of the criminal aspect. These criteria, sometimes referred to as the “ Engel criteria”, were most recently affirmed by the Grand Chamber in Ezeh and Connors v. the United Kingdom ( [GC] nos. 39665/98 and 40086/98, § 82, ECHR 2003 ‑ X ).", "“... [I]t is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.", "The very nature of the offence is a factor of greater import. ...", "However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. ... ”", "31. The second and third criteria are alternative and not necessarily cumulative. It is enough that the offence in question is by its nature to be regarded as criminal or that the offence renders the person liable to a penalty which by its nature and degree of severity belongs in the general criminal sphere ( see Ezeh and Connors, cited above, § 86). The relative lack of seriousness of the penalty cannot divest an offence of its inherently criminal character ( see Öztürk v. Germany, 21 February 1984, § 54, Series A no. 73; see also Lutz v. Germany, 25 August 1987, § 55, Series A no. 123 ). This does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge ( see Ezeh and Connors, cited above, § 86, citing, inter alia, Bendenoun, cited above, § 47 ).", "32. The Court has considered whether its case-law supports a different approach in fiscal or tax cases. It observes that in Bendenoun, which concerned the imposition of tax penalties or a surcharge for evasion of tax (VAT and corporation tax in respect of the applicant ’ s company and his personal income tax liability), the Court did not refer expressly to Engel and Others v. the Netherlands (8 June 1976, Series A no. 22) and listed four elements as being relevant to the applicability of Article 6 in that case: that the law setting out the penalties covered all citizens in their capacity as taxpayers; that the surcharge was not intended as pecuniary compensation for damage but essentially as a punishment to deter re-offending; that it was imposed under a general rule whose purpose is both deterrent and punitive; and that the surcharge was substantial (422,534 French francs (FRF) in respect of the applicant and FRF 570,398 in respect of his company, corresponding to EUR 64,415 and EUR 86,957 respectively ). These factors may be regarded however in context as relevant in assessing the application of the second and third Engel criteria to the facts of the case, there being no indication that the Court was intending to deviate from previous case-law or to establish separate principles in the tax sphere. It must further be emphasised that the Court in Bendenoun did not consider any of the four elements as being in themselves decisive and took a cumulative approach in finding Article 6 applicable under its criminal head.", "33. In Janosevic v. Sweden ( no. 34619/97, ECHR 2002 ‑ VII ), the Court made no reference to Bendenoun or its particular approach but proceeded squarely on the basis of the Engel criteria identified above. While reference was made to the severity of the actual and potential penalty (a surcharge amounting to 161,261 Swedish kronor (approximately EUR 17,284 ) was involved and there was no upper limit on the surcharges in this case), this was as a separate and additional ground for the criminal characterisation of the offence which had already been established on examination of the nature of the offence ( see Janosevic, §§ 68-69; see also Västberga Taxi Aktiebolag and Vulic v. Sweden, no. 36985/97, 23 July 2002, decided on a similar basis at the same time ).", "34. In the subsequent case of Morel v. France ( ( dec. ), no. 54559/00, ECHR 2003- IX ), however, Article 6 was found not to apply in respect of a 10% tax surcharge (FRF 4,450, corresponding to EUR 678), which was “not particularly high” and was therefore “a long way from the ‘ very substantial ’ level” needed for it to be classified as criminal. The decision, which applied the Bendenoun rather than the Engel criteria, attaches paramount importance to the severity of the penalty to the detriment of the other Bendenoun criteria, in particular that concerning the nature of the offence (and the purpose of the penalty) and makes no reference to the recent Janosevic case. As such, it seems more in keeping with the Commission ’ s approach in Bendenoun v. France ( no. 12547/86, Commission ’ s report of 10 December 1992, unreported ), in which the Commission based the applicability of Article 6 chiefly on the degree of severity of the penalty, unlike the Court in the same case, which weighed up all the aspects of the case in a strictly cumulative approach. Morel is an exception among the reported cases in that it relies on the lack of severity of the penalty as removing the case from the ambit of Article 6, although the other criteria (general rule, not compensatory in nature, deterrent and punitive purpose) had clearly been fulfilled.", "35. The Grand Chamber agrees with the approach adopted in Janosevic, which gives a detailed analysis of the issues in a judgment on the merits after the benefit of hearing argument from the parties ( compare Morel which was a decision on inadmissibility). No established or authoritative basis has therefore emerged in the case-law for holding that the minor nature of the penalty, in taxation proceedings or otherwise, may be decisive in removing an offence, otherwise criminal by nature, from the scope of Article 6.", "36. Furthermore, the Court is not persuaded that the nature of tax- surcharge proceedings is such that they fall, or should fall, outside the protection of Article 6. Arguments to that effect have also failed in the context of prison disciplinary and minor traffic offences (see, among others, Ezeh and Connors and Öztürk, both cited above). While there is no doubt as to the importance of tax to the effective functioning of the State, the Court is not convinced that removing procedural safeguards in the imposition of punitive penalties in that sphere is necessary to maintain the efficacy of the fiscal system or indeed can be regarded as consonant with the spirit and purpose of the Convention. In this case the Court will therefore apply the Engel criteria as identified above.", "37. Turning to the first criterion, it is apparent that the tax surcharges in this case were not classified as criminal but as part of the fiscal regime. This is however not decisive.", "38. The second criterion, the nature of the offence, is the more important. The Court observes that, as in the Janosevic and Bendenoun cases, it may be said that the tax surcharges were imposed by general legal provisions applying to taxpayers generally. It is not persuaded by the Government ’ s argument that VAT applies to only a limited group with a special status: as in the previously-mentioned cases, the applicant was liable in his capacity as a taxpayer. The fact that he opted for VAT registration for business purposes does not detract from this position. Further, as acknowledged by the Government, the tax surcharges were not intended as pecuniary compensation for damage but as a punishment to deter re-offending. It may therefore be concluded that the surcharges were imposed by a rule whose purpose was deterrent and punitive. The Court considers that this establishes the criminal nature of the offence. The minor nature of the penalty renders this case different from Janosevic and Bendenoun as regards the third Engel criterion but does not remove the matter from the scope of Article 6. Hence, Article 6 applies under its criminal head notwithstanding the minor nature of the tax surcharge.", "39. The Court must therefore consider whether the tax- surcharge proceedings complied with the requirements of Article 6, having due regard to the facts of the individual case, including any relevant features flowing from the taxation context.", "2. Compliance with Article 6", "40. An oral, and public, hearing constitutes a fundamental principle enshrined in Article 6 § 1. This principle is particularly important in the criminal context, where generally there must be at first instance a tribunal which fully meets the requirements of Article 6 ( see Findlay v. the United Kingdom, 25 February 1997, § 79, Reports of Judgments and Decisions 1997 - I ), and where an applicant has an entitlement to have his case “ heard ”, with the opportunity, inter alia, to give evidence in his own defence, hear the evidence against him, and examine and cross-examine the witnesses.", "41. That said, the obligation to hold a hearing is not absolute ( see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A ). There may be proceedings in which an oral hearing may not be required: for example where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties ’ submissions and other written materials (see, for example, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002, and Pursiheimo v. Finland ( dec. ), no. 57795/00, 25 November 20 03; compare Lundevall v. Sweden, no. 3862 9 /97, § 39, 12 November 2002, and Salomonsson v. Sweden, no. 38 978 /97, § 39, 12 November 2002; and see also Göç v. Turkey [GC], no. 36 590 / 97, § 51, ECHR 2002-V, where the applicant should have been heard on elements of personal suffering relevant to levels of compensation ).", "42. The Court has further acknowledged that the national authorities may have regard to the demands of efficiency and economy and found, for example, that the systematic holding of hearings could be an obstacle to the particular diligence required in social security cases and ultimately prevent compliance with the reasonable - time requirement of Article 6 § 1 ( see Schuler- Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263 and the cases cited therein). Although the earlier cases emphasised that a hearing must be held before a court of first and only instance unless there were exceptional circumstances that justified dispensing with one (see, for instance, Håkansson and Sturesson, cited above, § 64; Fredin v. Sweden (no. 2), 23 February 1994, §§ 21-22, Series A no. 283-A; and Allan Jacobsson v. Sweden (no. 2), 19 February 1998, § 46, Reports 1998-I ), the Court has clarified that the character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. It does not mean that refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden, no. 55853/00, § 29, 8 February 2005). The overarching principle of fairness embodied in Article 6 is, as always, the key consideration (see, mutatis mutandis, Pélissier and Sassi v. France [GC], no. 25444/94, § 52, ECHR 1999- II, and Sejdovic v. Italy [GC], no. 56581/00, § 90, ECHR 2006- II ).", "43. While it may be noted that the above-mentioned cases in which an oral hearing was not considered necessary concerned proceedings falling under the civil head of Article 6 § 1 and that the requirements of a fair hearing are the most strict in the sphere of criminal law, the Court would not exclude that in the criminal sphere the nature of the issues to be dealt with before the tribunal or court may not require an oral hearing. Notwithstanding the consideration that a certain gravity attaches to criminal proceedings, which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction, it is self-evident that there are criminal cases which do not carry any significant degree of stigma. There are clearly “criminal charges” of differing weight. What is more, the autonomous interpretation adopted by the Convention institutions of the notion of a “criminal charge” by applying the Engel criteria have underpinned a gradual broadening of the criminal head to cases not strictly belonging to the traditional categories of the criminal law, for example administrative penalties ( Öztürk, cited above ), prison disciplinary proceedings ( Campbell and Fell v. the United Kingdom, 28 June 1984, Series A no. 80), customs law ( Salabiaku v. France, 7 October 1988, Series A no. 141-A), competition law ( Société Stenuit v. France, 27 February 1992, Series A no. 232-A), and penalties imposed by a court with jurisdiction in financial matters ( Guisset v. France, no. 33933/96, ECHR 2000-IX). Tax surcharges differ from the hard core of criminal law; consequently, the criminal-head guarantees will not necessarily apply with their full stringency (see Bendenoun and Janosevic, § 46 and § 81 respectively, where it was found compatible with Article 6 § 1 for criminal penalties to be imposed, in the first instance, by an administrative or non-judicial body, and, a contrario, Findlay, cited above).", "44. It must also be said that the fact that proceedings are of considerable personal significance to the applicant, as in certain social insurance or benefit cases, is not decisive for the necessity of a hearing (see Pirinen v. Finland ( dec. ), no. 32447/02, 16 May 2006 ).", "45. While the Court has found that Article 6 § 1 of the Convention extends to tax- surcharge proceedings, that provision does not apply to a dispute over the tax itself ( see Ferrazzini, cited above). It is, however, not uncommon for procedures to combine the varying elements and it may not be possible to separate those parts of the proceedings which determine a “ criminal charge ” from those parts which do not. The Court must accordingly consider the proceedings in issue to the extent to which they determined a “criminal charge” against the applicant, although that consideration will necessarily involve the “pure” tax assessment to a certain extent (see Georgiou v. the United Kingdom ( dec. ), no. 40042/98, 16 May 2000, and Sträg Datatjänster AB v. Sweden ( dec. ), no. 50664/99, 21 June 2005).", "46. In the present case, the applicant ’ s purpose in requesting a hearing was to challenge the reliability and accuracy of the report on the tax inspection by cross-examining the tax inspector and obtaining supporting testimony from his own expert since, in his view, the tax inspector had misinterpreted the requirements laid down by the relevant legislation and given an inaccurate account of his financial state. His reasons for requesting a hearing therefore concerned in large part the validity of the tax assessment, which as such fell outside the scope of Article 6, although there was the additional question of whether the applicant ’ s book - keeping had been so deficient as to justify a surcharge. The Administrative Court, which took the measure of inviting written observations from the tax inspector and after that a statement from an expert chosen by the applicant, found in the circumstances that an oral hearing was manifestly unnecessary as the information provided by the applicant himself formed a sufficient factual basis for the consideration of the case.", "47. The Court does not doubt that checking and ensuring that the taxpayer has given an accurate account of his or her affairs and that supporting documents have been properly produced may often be more efficiently dealt with in writing than in oral argument. Nor is it persuaded by the applicant that in this particular case any issues of credibility arose in the proceedings which required oral presentation of evidence or cross-examination of witnesses and it finds force in the Government ’ s argument that any issues of fact and law could be adequately addressed in, and decided on the basis of, written submissions.", "48. The Court further observes that the applicant was not denied the possibility of requesting an oral hearing, although it was for the courts to decide whether a hearing was necessary (see, mutatis mutandis, Martinie v. France [GC], no. 58675/00, § 44, ECHR 2006-VI ). The Administrative Court gave such consideration with reasons. The Court also notes the minor sum of money at stake. Since the applicant was given ample opportunity to put forward his case in writing and to comment on the submissions of the tax authorities, the Court finds that the requirements of fairness were complied with and did not, in the particular circumstances of this case, necessitate an oral hearing.", "49. There has, accordingly, been no violation of Article 6 § 1 of the Convention." ]

[ "2. The applicant was born in 1965 and lives in Seville. The applicant was represented by Mr E. Mora Figueroa Rivero, a lawyer practising in Seville.", "3. The Government were represented by their Agent, Mr A. Brezmes Martínez de Villarreal, State Attorney.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. Following an inspection of the applicant’s personal income tax returns for the years 1991, 1992 and 1993, the Spanish Tax Management Agency (“the tax authorities”) claimed 180,021.94 euros (EUR) from the applicant in respect of taxes for 1991, EUR 0 for 1992 and EUR 228.90 for 1993.", "6. The applicant appealed before the Economic Administrative Court of Andalusia (“the TEARA”) and, by a decision of 27 May 1999, the court allowed the appeal, declaring all tax claims null and void.", "7. The tax authorities appealed against the TEARA’s decision before the Central Economic Administrative Court (“the TEAC”). By a decision of 16 November 2001, the TEAC allowed the appeal in part, revoking the annulment of the tax claims in respect of the years 1991 and 1992.", "8. The subsequent appeals lodged by the applicant with the domestic courts (the Audiencia Nacional and the Supreme Court) were dismissed by decisions of 26 July 2004 and 6 October 2005 respectively.", "9. On 28 March 2005 the tax authorities commenced the enforcement of the debt against the applicant. They issued a tax assessment for EUR 296,031.01, which included, in addition to the main debt, EUR 36,004.39 in respect of a surcharge for late payment and EUR 84,181.79 in respect of default interest. The tax assessment considered other items and previous payments, which is the reason why the total was lower than the sum of the main amount, the surcharge and the interest. The applicant paid these amounts, by means of a seizure of assets by the tax authorities.", "10. Once the payment had been made, within the framework of the tax enforcement proceedings, the applicant lodged two separate applications for undue payment against the tax authorities’ assessment, one in respect of the main debt and the other in respect of the surcharge for late payment and default interest. In both applications he relied on section 110 of the Royal Decree 391/1996 (see below) and argued that, after the TEARA’s decision of 27 May 1999 had declared the initial tax claims null and void (see paragraph 6 above), the tax claim for 1991 has lost its effect and the underlying title should have been reactivated before enforcing the debt. Therefore, he considered that the enforcement initiated by the tax authorities on 28 March 2005 had not been based on a valid title.", "11. The TEARA initially dismissed the application in respect of the main debt on 25 October 2012. However, on 8 September 2016, the TEAC allowed an appeal by the applicant and declared the payment of the main debt null and void. It agreed with the applicant’s arguments that the initial tax claim for year 1991 had lost its effect after the TEARA’s decision of 27 May 1999 and that the title had never been reactivated. It therefore considered that, in accordance with section 110 of the Royal Decree 391/1996, the enforcement title relied on by the tax authorities had not been valid; in view of this, the payment for the main debt was not due.", "12. In parallel proceedings, the TEARA also dismissed the application in respect of the surcharge for late payment and default interest on 25 October 2012, as did the TEAC on 28 January 2016, upon an appeal by the applicant. In these decisions, the TEARA and the TEAC considered that the tax claim for year 1991 had not lost its effect because the applicant had never requested the provisional enforcement of the TEARA’s decision of 27 May 1999; and the TEAC’s decision of 16 November 2001 (see paragraph 7 above) had revoked the annulment of tax claim for year 1991.", "13. On 3 May 2016 the applicant lodged an appeal against the TEAC’s decision with the Audiencia Nacional. He submitted his pleadings on 2 February 2017. In them, he alleged, among other things, that the main debt had been annulled by the TEAC’s decision of 8 September 2016 and that, as the surcharge and interest were ancillary to the main debt, they should equally be declared null and void.", "14. By a judgment of 19 June 2017, the Audiencia Nacional dismissed the applicant’s appeal in line with the reasoning of the TEARA and the TEAC. Concerning the applicant’s allegation that the surcharge and interest should be declared null and void as a result of the annulment of the main debt, the Audiencia Nacional did not expressly address that issue and stated only that “the allegations made at this time should have been made at the time when the tax was demanded or when the payment was requested, that is, once the tax assessments had become final”.", "15. By contrast, on 28 September 2017 the Audiencia Nacional, composed of the same judges but with a different judge acting as rapporteur, passed judgment in the cases of two of the applicant’s siblings, who until that moment had been subject to similar and parallel tax claims by the tax authorities, had followed the same route of appeal and had raised the same legal issues as the applicant. They had lodged their appeals with the Audiencia Nacional on the same day as the applicant, on 3 May 2016. In their cases, the Audiencia Nacional allowed their appeals and declared their respective surcharges and interest to be null and void, on the basis that, as they were ancillary to the main debt, which had been annulled by the TEAC on 8 September 2016, they should equally be annulled.", "16. The applicant lodged an appeal on points of law against the Audiencia Nacional judgment with the Supreme Court, which on 18 January 2018 was declared inadmissible owing to the lack of objective interest for the development of case-law.", "17. Subsequently, the applicant lodged an application for annulment with the Audiencia Nacional against the judgment of 19 June 2017. He complained that his right to equality before the law had been breached on account of the opposite outcome in his siblings’ cases, and that his right to a fair trial had also been breached on account of the Audiencia Nacional ’s failure to respond to his submission concerning the ancillary nature of the surcharge and interest.", "18. On 3 April 2018 the Audiencia Nacional dismissed the application for annulment. Firstly, it stated that, as the judgments in the cases of the applicant’s siblings were given after the judgment in the applicant’s case, the court was not bound by the criteria applied in the siblings’ cases. Secondly, without addressing the particular issue of whether the previous judgment had responded to the applicant’s submission that the surcharge and interest were ancillary to the main debt, it considered that the judgment of 19 June 2017 had duly stated the reasons for dismissing his appeal.", "19. The applicant lodged an amparo appeal with the Constitutional Court. In it he relied on Article 24 of the Spanish Constitution, concerning the right to a fair trial. He complained under that article that the Audiencia Nacional, in its judgment of 19 June 2017, had failed to respond to his submission concerning the ancillary nature of the surcharge and interest, and that, in its decision of 3 April 2018, it had again avoided responding to the applicant’s argument that his previous submission remained unresolved. He further relied on Article 14 of the Constitution, concerning the right to equality before the law, under which he invoked the opposite outcome in his siblings’ cases.", "20. On 26 September 2018 the Constitutional Court declared the amparo appeal inadmissible owing to the lack of special constitutional significance." ]

[ "RELEVANT LEGAL FRAMEWORK", "21. Under Spanish legislation, the definition of ancillary tax obligations, the default interest, the surcharge for late payment and the application for undue payment are regulated under the General Tax Act. These sections read as follows:", "Section 25. Ancillary tax obligations", "“1. Ancillary tax obligations are the obligations other than those included in this section that consist of monetary payments to be made to the Tax Administration and whose payment is ordered in connection with another tax obligation.", "Obligations to settle default interest, and surcharges for late declaration and those relating to the enforcement period as well as others imposed by law, shall have the nature of ancillary tax obligations.", "2. Tax penalties are not considered ancillary obligations.”", "Section 26. Default interest", "“1. Default interest is an ancillary obligation that will be required of taxpayers and tax defaulters as a result of making a payment after the deadline or submitting a self-assessment tax return or declaration resulting in an amount being payable once the term established for this purpose in the tax regulations has expired, after the collection of an undue refund or in other cases provided for in the tax regulations.", "The requirement for default interest on tax does not need prior notification from the Administration or the existence of a culpable delay on the part of the obligor.", "2. Default interest shall be required, inter alia, in the following cases:", "a) When the period established for voluntary payment of a debt resulting from a settlement made by the Administration or a penalty ends, without the payment having been made.", "b) When the term established for the submission of a self-assessment tax return or declaration ends without it having been submitted or with it having been incorrectly submitted ...", "...", "3. Default interest shall be calculated on the amount which has not been paid in time or on the amount of the refund unduly collected, and shall be payable during the time for which the obligor’s delay extends ...", "...", "6. Default interest shall be the legal interest rate in force throughout the period in which it is payable, increased by 25 per cent, unless the General State Budget Act establishes a different rate.", "...”", "Section 28. Surcharges for the enforcement period", "“1. Surcharges for the enforcement period are incurred at the start of the enforcement period ...", "There are three types of surcharges for the enforcement period: the enforcement surcharge, the reduced surcharge for the summary enforcement procedure, and the ordinary surcharge for the summary enforcement procedure.", "These surcharges are mutually incompatible and are calculated on the total debt which is unpaid in the voluntary period.", "...", "4. The ordinary surcharge for the summary enforcement procedure will be 20 per cent ...", "5. The ordinary surcharge for the summary enforcement procedure is compatible with default interest ...”", "Section 221. Procedure for the refund of an undue payment", "“1. The procedure for the recognition of the right to the refund of an undue payment shall be initiated automatically or at the request of the interested party, in the following cases:", "a) When there has been a duplication in the payment of tax debts or penalties.", "b) When the amount paid was greater than the amount to be paid as a result of an administrative measure or a self-assessment tax return.", "c) When amounts corresponding to tax debts or penalties have been paid after the expiry of the time-limits ...", "d) When tax regulations so establish.", "...”", "22. Section 110 of the Royal Decree 391/1996 on the rules of procedure for economic-administrative claims, which is no longer in force, read as follows:", "Section 110. Ordinary timing and effects", "“1. Once the proof of notification of the decisions rendered in a single instance has been incorporated into the case-file, the Registry of the Regional and Local Courts and the Members of the Central Court shall return all the management documents, with a certified copy of the decision, to the unit from which they originate, which shall acknowledge receipt of it.", "2. If, as a consequence of the decision, any unit, body or agency should rectify the administrative measure that was the object of the claim, it shall do so within a period of fifteen days.", "3. The same procedure shall be followed after the receipt of the notification of the decisions rendered in first instance has been incorporated into the case-file, when these decisions are final; however, if they are the object of appeal, the proceedings shall be sent to the competent body to examine the appeal lodged.", "4. If as a result of the claim being upheld the amounts unduly paid are to be refunded, the interested party shall be entitled to the legal interest from the date of payment.", "...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "23. The applicant complained that his right to a fair trial, as provided in Article 6 § 1 of the Convention, had been breached on account of the Audiencia Nacional ’s failure, in its judgment of 19 June 2017 and decision of 3 April 2018, to provide a reply to the applicant’s submission concerning the ancillary nature of the surcharge and interest, which proved decisive in the judgments concerning his siblings. The relevant part of Article 6 § 1 reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "Admissibility", "24. Although the parties did not raise the issue of applicability ratione materiae of Article 6, the Court reiterates that, as regards the civil limb of Article 6, it is not applicable to the assessment of tax and the imposition of surcharges (see Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001 ‑ VII).", "25. However, concerning the applicability of the criminal limb of Article 6 § 1 of the Convention, the “ Engel criteria” are to be considered ( Engel and Others v. the Netherlands, 8 June 1976, §§ 82-83, Series A no. 22). As regards the surcharge for late payment, under the domestic law it was not classified as criminal but as part of the fiscal regime. Nevertheless, it was not intended as pecuniary compensation for damage but as a punishment to deter reoffending, which means that, in nature, its purpose was deterrent and punitive (see Jussila v. Finland [GC], no. 73053/01, § 38, ECHR 2006 ‑ XIV). Although that element alone suffices to establish the criminal character of the offence, the criminal character is further evidenced by the severity of the penalty (see Janosevic v. Sweden, no. 34619/97, § 69, ECHR 2002 ‑ VII); it amounted to 20 per cent of the tax payable as provided by section 28 of the General Tax Act, which totalled in the applicant’s case 36,004.39 euros (EUR). The Court thus concludes that the criminal limb of Article 6 § 1 is applicable.", "26. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "27. The applicant submitted that, after the TEAC’s decision of 8 September 2016 had declared the payment of the main debt null and void, he had alleged before the Audiencia Nacional that, as the surcharge for late payment and default interest were ancillary to the main debt, they should equally be annulled. The judgement of the Audiencia Nacional of 19 June 2017 had dismissed his appeal without providing any reasoning with respect to his submission concerning the ancillary nature of the surcharge and interest. Moreover, when the Audiencia Nacional had been given the opportunity to amend its error by means of the application for annulment, the Audiencia Nacional, in its decision of 3 April 2018, had again failed to respond to the applicant’s argument that his submission concerning the ancillary nature of the surcharge and interest remained unresolved. The applicant argued that that submission was decisive to the outcome of the case, as proven by the fact that the appeals of his siblings had been allowed on the basis of precisely that argument. Consequently, he contended that the proceedings before the Audiencia Nacional had been unfair and contrary to Article 6 § 1 of the Convention. Additionally, he submitted that the dismissal of his appeal by the judgment of 19 June 2017, while his siblings in the same circumstances had had their appeals allowed in two judgments of 28 September 2017, had implied a breach of legal certainty, which had also amounted to a violation of Article 6 § 1.", "28. The Government submitted that the judgment of the Audiencia Nacional of 19 June 2017 had been fully and thoroughly reasoned, in compliance with the requirements of Article 6 § 1 of the Convention. The Audiencia Nacional, in its decision of 3 April 2018, had duly examined all the applicant’s submissions, concluding that its previous judgment had been adequately reasoned. The Government admitted that the applicant’s siblings had received the opposite outcome in a similar situation in the judgments in their cases. However, the Government denied any breach of legal certainty, because the applicant’s case had been decided before his siblings’ cases and there had thus been no legal precedent to be followed in his case.", "The Court’s assessment", "(a) General principles", "(i) On divergent case-law of domestic courts", "29. The Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. It is not in principle the Court’s function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts. The criteria which guide the Court in its assessment of the circumstances in which contradictory decisions by different domestic courts ruling at final instance entail a violation of the right to a fair hearing, enshrined in Article 6 § 1 of the Convention, consist in establishing, firstly, whether “profound and long-standing differences” exist in the case-law of the domestic courts; secondly, whether the domestic law provides for a mechanism for overcoming these inconsistencies; and, thirdly, whether that mechanism has been applied and, if appropriate, to what effect (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016).", "30. On the other hand, the Court has also stated that one of the fundamental aspects of the rule of law is the principle of legal certainty, a principle which is implied in the Convention. Conflicting decisions in similar cases stemming from the same court which, in addition, is the court of last resort in the matter, may breach that principle and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law. In this connection, the Court has held, in cases involving one and the same applicant, that different decisions by domestic courts based on identical facts were susceptible of running contrary to the principle of legal certainty and could even amount to denial of justice (see Vusić v. Croatia, no. 48101/07, §§ 44-45, 1 July 2010, and Santos Pinto v. Portugal, no. 39005/04, §§ 40-45, 20 May 2008).", "(ii) On the reasoning of court decisions", "31. According to the Court’s established case‑law, reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings (see Orlen Lietuva Ltd. v. Lithuania, no. 45849/13, § 82, 29 January 2019).", "(b) Application of the general principles to the present case", "32. The Court considers that the applicant raised two issues that require a separate examination: (i) the breach of legal certainty on account of the disparity between his judgment of 19 June 2017 and his siblings’ judgments of 28 September 2017, and (ii) the lack of reasoning by the Audiencia Nacional with respect to his submission concerning the ancillary nature of the surcharge and interest. The Court will analyse those issues consecutively.", "(i) On divergent judgments in his case and his siblings’ cases", "33. The Court notes that the parties did not dispute the fact that the applicant’s siblings, despite being in identical or similar situations to the applicant, obtained favourable judgments from the Audiencia Nacional, in contrast to the outcome in the applicant’s case. The two judgments in the applicant’s siblings’ cases were delivered within a short period of time after the judgment in the applicant’s case.", "34. While that divergence is a matter of concern for those involved, as already noted above, the possibility of conflicting court decisions is an inherent trait of any judicial system and cannot in itself be considered in breach of the Convention (see Svilengaćanin and Others v. Serbia, nos. 50104/10 and 9 others, § 80, 12 January 2021).", "35. In the present case, the Court observes that the alleged divergence affected the applicant’s appeal as compared to the ones lodged by his siblings. The judgment on the applicant’s appeal had been adopted two months earlier than the judgment on his siblings’ appeals. The applicant did not submit that the divergence on that specific issue went against a well-established case-law on which he could have reasonably relied to expect a specific outcome of his appeal and even less that such divergence extended over any longer period than between the judgment in his case and the judgments in his siblings’ cases, and he did not provide any further examples of judgments in which such a divergence might have taken place, either before the judgment in his case of 19 June 2017 or after. In sum, the only element that could raise the issue of legal certainty is the divergent outcomes in the interpretation of a specific point of law in parallel proceedings of the applicant’s siblings, who had been subject to similar tax claims (compare to Borg v. Malta, no. 37537/13, §§ 110-11, 12 January 2016).", "36. Given these circumstances, and bearing in mind that it is not its function to compare different decisions delivered by national courts, the Court concludes that there were no “profound and long-standing differences” in the relevant case-law and no breach of the principle of legal certainty to an extent incompatible with the guarantees of Article 6 § 1.", "37. Accordingly, there has been no violation of Article 6 § 1 of the Convention on this account.", "(ii) On the reasoning of the Audiencia Nacional", "38. In respect of the reasoning of the Audiencia Nacional in the applicant’s case, the Court observes that, on 8 September 2016, the TEAC declared the applicant’s payment of the main debt null and void. On the basis of that decision, the applicant submitted his pleadings before the Audiencia Nacional on 2 February 2017, arguing, among other things that, as the surcharge and interest were ancillary to the main debt, they should equally be declared null and void.", "39. The Audiencia Nacional, in its judgment of 19 June 2017, addressed the same issues the administrative bodies had dealt with previously, but did not provide any reasoning concerning the applicant’s new argument that derived from the annulment of the main debt. In this respect, the judgment included the phrase “the allegations made at this time should have been made at the time when the tax was demanded ... ”. However, the Audiencia Nacional failed to explain why despite the fact that the surcharge and interest were considered ancillary under section 25 of the General Tax Act, the enforcement proceedings concerning the surcharge and interest could be pursued even in the absence of a valid enforcement title for the main debt, as declared in the TEAC’s decision of 8 September 2016 (see paragraph 11 above).", "40. The Court further observes that, when the applicant lodged the application for annulment with the Audiencia Nacional, he complained of the lack of a reply to his submission concerning the ancillary nature of the surcharge and interest in the judgment of 19 June 2017. The Audiencia Nacional, in its decision of 3 April 2018, did not expressly respond to that particular submission made by the applicant.", "41. As stated above, the obligation to give reasons does not require a detailed answer to every argument advanced by the complainant, but only a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings. In the present case, the applicant’s argument concerning the ancillary nature of the surcharge and interest was potentially decisive for the outcome of the case, as shown by the judgments of 28 September 2017 in the applicant’s siblings’ cases, which allowed their appeals precisely on the basis of that specific argument.", "42. It is not the Court’s task to determine whether the applicant’s claims should have been allowed or not. It is not even its task to examine whether his submissions were well‑founded. However, it is not necessary for the Court to conduct such an examination in order to conclude that the applicant’s submission concerning the ancillary nature of the surcharge and interest was in any event relevant and, as noted above, potentially decisive for the outcome of the case. It therefore required a specific and express reply, which the domestic courts did not provide. In such circumstances, it is impossible to ascertain whether the Audiencia Nacional failed to examine the applicant’s submission at all, or whether it assessed and dismissed it and, if so, what were the reasons for so deciding (see, mutatis mutandis, Farzaliyev v. Azerbaijan, no. 29620/07, § 39, 28 May 2020).", "43. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s right to a reasoned judgment has been breached.", "44. There has accordingly been a violation of Article 6 § 1 of the Convention on this account.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "45. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "46. The applicant submitted no claim in respect of pecuniary or non-pecuniary damage.", "47. The Court therefore does not award any sum under this head.", "48. On the other hand, the Court has consistently held that where, as in the instant case, an individual has been the victim of proceedings that have entailed breaches of the requirements of Article 6 of the Convention, the most appropriate form of redress would, in principle, be a retrial or the reopening of the case, at the request of the interested person (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). In this connection, it notes that paragraph 2 of section 102 of the Spanish Administrative Procedure Act, as amended by Organic Law no. 7/2015 of 21 July 2015, provides for the possibility of revision of a final decision where it has been determined in a ruling of the Court that there has been a violation of the Convention or one of the Protocols thereto.", "Costs and expenses", "49. The applicant generally claimed the reimbursement of the costs and expenses incurred before the national authorities and before the Court, without specifying any amount.", "50. The Government submitted that the applicant had failed to provide any proof in support of his claim for costs and expenses.", "51. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Merabishvili v. Georgia [GC], no. 72508/13, § 370, 28 November 2017). In the present case, the Court notes that the applicant did not submit any supporting document for his claim. Consequently, the Court dismisses the applicant’s claim in this regard." ]

[ "A. The circumstances of the case", "4. In their capacity as a lawyer and a law firm, the applicants had been retained by Clinique Les Roches Claires, a public limited company ( société anonyme ), to assist and represent it during audit operations conducted into its affairs for the period 1 January 1997 to 31 December 2000 as a result of an audit notice of 10 July 2000.", "5. On 12 June 2001, pursuant to the provisions of Article L. 16 B of the Code of Tax Procedure, the tax authorities applied to the President of the Marseilles tribunal de grande instance to authorise a search and seizure operation to be carried out in the context of the audit of Clinique Les Roches Claires, with a view to obtaining accounting, legal and corporate documents supporting certain declarations, on account of suspected fraudulent activities (price mark-ups and uninvoiced or fictitious transactions).", "6. By a warrant of the same date the President authorised the tax inspectors, assisted by senior police officers, to carry out the searches and seizures required in order to discover evidence of the alleged activities at certain sites where documents or data carriers connected with the suspected fraud might be found, in particular at the applicants ’ place of business, since they had been retained to assist and represent Clinique Les Roches Claires and were therefore assumed to be in possession of documents evidencing the suspected fraud on the part of their client.", "7. The judge authorised only one search, setting 20 June 2001 as the time limit for the search and 30 June 2001 as the time - limit for the submission of a report on the operations.", "8. On 13 June 2001, simultaneous searches were conducted at the locations indicated in the warrant issued by the President of the Marseilles tribunal de grande instance. The operations carried out at the applicants ’ place of business by four tax inspectors took place between 7.30 a.m. and 1.10 p.m., in the presence of the first applicant, the chairman of the Marseilles Bar Association and a senior police officer. On that occasion, the first applicant was given a copy of the warrant of 12 June 2001.", "9. A record of the search and seizure operations and an inventory were drawn up and signed by those present. Sixty-six documents were seized. They included handwritten notes and a document with a comment in the first applicant ’ s handwriting, in respect of which the chairman of the Bar Association expressly pointed out that these were the lawyer ’ s personal documents and were accordingly protected by the rule of absolute professional secrecy and could not be seized. The first applicant protested at the way in which the search had been carried out and made a number of observations which were logged in the record. He was given a copy of the record and the documents seized.", "10. The applicants appealed on points of law within the statutory time - limit of five days. In their pleadings in support of the appeal, they raised two grounds alleging that the searches and seizures had been unlawful. They stated in particular, relying on professional secrecy and the rights of the defence, that documents sent by a client to that client ’ s lawyer and correspondence between them could not be seized where the search was not aimed at establishing proof that the lawyer in question had been involved in the offence. They also complained that the search warrant issued by the President of the tribunal de grande instance had failed to mention specifically that the presence of the chairman of the Bar Association or his or her representative was compulsory during the operations.", "11. In a judgment of 11 December 2002 the Court of Cassation dismissed the applicants ’ appeal. As to the failure to refer specifically to the presence of the chairman of the Bar Association, the court stated that the search warrant did not have to determine the measures required for professional secrecy to be observed, any breaches thereof being examined in the context of the review of the lawfulness of the operations and not the review of the lawfulness of the warrant. As regards the seizure of the documents at issue, the Court of Cassation considered that the professional secrecy of lawyers did not constitute an obstacle to searches of their premises and seizure of any documents in their possession being authorised, in so far as the judge had found that the information provided by the applicant authority contained sufficient evidence for the suspicion mentioned in the warrant.", "B. Relevant domestic law and practice", "1. The Code of Tax Procedure", "12. The relevant provisions of the Code of Tax Procedure, as applicable at the material time, read as follows :", "Article L16 B", "“I. If the judicial authority, on an application by the tax authority, considers that presumptions exist that a taxpayer is avoiding the calculation or payment of taxes on revenue or profits or of value added tax by making purchases or sales without invoices, by using or issuing invoices or documents that do not correspond to genuine transactions or by knowingly omitting to make accounting entries or to cause accounting entries to be made or by knowingly making inaccurate or false entries or causing inaccurate or false entries to be made in the accounting records that are required to be kept by the General Tax Code, it may, in accordance with the conditions set out in II, authorise tax officials of at least inspector rank and holding authority from the Director-General of the Revenue to that end to seek proof of such acts by carrying out searches of all premises, including private premises, where evidence and documents relating thereto may be kept and to seize such evidence and documents.", "II. All searches must be authorised by an order of the liberties and detention judge of the tribunal de grande instance for the jurisdiction in which the premises to be searched are located.", "The judge shall verify whether there is concrete evidence that the application for authorisation which has been made to him or her is well-founded. The application must contain all the information in the possession of the authority that may serve to justify a search.", "The order shall include:", "( i ) where appropriate, a statement that the president of the tribunal de grande instance has delegated the requisite power;", "(ii) the address of the premises to be searched;", "(iii) the name and capacity of the accredited civil servant who has sought and obtained authorisation to carry out the search.", "The judge shall give reasons for his or her decision by indicating the elements of fact and law on which he or she relies and which raise a presumption in the case before him or her of the existence of the fraudulent acts for which evidence is sought.", "If during the course of the search the accredited officials discover the existence of a safe-deposit box in a financial institution in the name of the person occupying the premises searched in which items of evidence and documents relating to the acts referred to in I are likely to be found, they may, with the permission – which may be given in any form – of the judge who made the order, immediately search the safe-deposit box. A reference to such permission shall be entered in the record referred to in IV.", "The search and seizure of documents shall be carried out under the authority and supervision of the judge who authorised them. To that end, he or she shall give all instructions to the officials engaged in the operations.", "He or she shall appoint a senior police officer to assist with the operations and to keep him or her informed of their progress.", "The judge may, if he or she considers it appropriate, attend the premises while the operations are under way.", "He or she may at any time decide to suspend or halt the search.", "The occupier of the premises or his or her representative shall be orally informed of the order on site when the search is carried out and shall receive a full copy of it, for which he or she shall either sign a receipt or initial the record referred to in IV. In the absence of the occupier of the premises or his or her representative, the order shall be served by registered letter with recorded delivery after the search has been performed. Service shall be deemed to have been effected at the date of receipt entered on the delivery form.", "If delivery of the order is not taken, it shall be served personally in accordance with the provisions of Articles 550 et seq. of the Code of Criminal Procedure.", "The time - limit and procedure for appealing shall be set out in the documents accompanying postal or personal service.", "The only remedy against the order referred to in the first sub-paragraph shall be an appeal on points of law in accordance with the rules set out in the Code of Criminal Procedure. Such appeals shall have no suspensive effect. For the purposes of an appeal on points of law, time shall start to run from the date of postal or personal service of the order.", "III. Searches, which may not be started before 6 a.m. or after 9 p.m., shall be conducted in the presence of the occupier of the premises or of his or her representative. If that is not possible, the senior police officer shall appoint two witnesses who shall not be from his or her department or the tax authority.", "The tax - authority officials referred to in I may be assisted by other tax - authority officials who have been accredited in the same conditions as the inspectors.", "The accredited tax officials, the occupier of the premises or his or her representative and the senior police officer are the only persons authorised to see the evidence and documents before their seizure.", "The senior police officer shall ensure that there is no breach of professional confidence and that the rights of the defence are complied with in accordance with the provisions of the third paragraph of Article 56 of the Code of Criminal Procedure. Article 58 of that Code shall be applicable.", "IV. A record stating how the operation was organised and how it proceeded and logging any findings shall be compiled forthwith by the tax - authority officials. An inventory of the evidence and documents seized shall be appended to it, where necessary. The record and the inventory shall be signed by the tax - authority officials, a senior police officer and the persons mentioned in the first sub-paragraph of III. Any refusal to sign them shall be noted in the record.", "Should it prove impractical to take an inventory on site, the evidence and documents seized shall be placed under seal. The occupier of the premises or his or her representative shall be informed that he or she may be present when the seals are broken in the presence of the senior police officer. The inventory shall be taken at that time.", "V. The originals of the record and the inventory shall be sent to the judge who issued the search warrant as soon as they have been compiled. A copy of those documents shall be provided to the occupier of the premises or his or her representative.", "The evidence and documents seized shall be returned to the occupier of the premises within six months of the search; however, when criminal proceedings are brought, their return must be authorised by the competent court.", "VI. The tax authorities may not use any information obtained against the taxpayer until the seized items and documents have been returned or reproduced and until the review measures referred to in the first and second sub-paragraphs of Article L. 47 have been implemented.”", "2. The Code of Criminal Procedure", "13. The relevant provisions of the Code of Criminal Procedure, as applicable at the material time, read as follows:", "Article 56, paragraph 3", "“However, [the senior police officer] must first take all measures necessary to ensure that professional confidentiality and the rights of the defence are respected .”", "Article 56-1", "“ A search of a lawyer ’ s chambers or home may only be made by a judge and in the presence of the chairman of the Bar Association or a person delegated by him or her. Only the judge and the chairman of the Bar Association or the person delegated by him or her are entitled to inspect documents discovered during a search with a view to their possible seizure.", "The chairman of the Bar Association or the person delegated by him or her may object to the seizure of a document which the judge intends to carry out if he or she considers that it would be unlawful. The document must then be placed under official seal. These steps shall be noted in an official record indicating the objections of the chairman of the Bar Association or the person delegated by him or her, which shall not be added to the case file. Where other documents have been seized during the search without any objection, the official record shall be separate from that required by Article 57. The official record and the document placed under official seal shall be transmitted to the liberties and detention judge, along with the original or a copy of the case file.", "Within five days of receipt of the documents, the liberties and detention judge shall give a reasoned ruling on the objection, which shall not be open to appeal.", "To this end, he or she shall interview the judge who carried out the search and, where necessary, the public prosecutor and also the lawyer whose chambers or home has been searched and the chairman of the Bar Association or the person delegated by him or her. He or she may open the seal in the presence of these persons.", "Where he or she considers that it is not necessary to seize the document, the liberties and detention judge shall order its immediate return and the destruction of the official record of the operations and, where necessary, the deletion of any reference to that document or its contents in the official case file.", "Otherwise, he or she shall order the inclusion of the document and the official record in the case file. His or her decision shall not prevent the parties from subsequently applying to, the trial court or the investigation division, as appropriate, for the seizure to be declared null and void. ”", "3. Law no. 71-1130 of 31 December 1971 concerning the reform of certain judicial and legal professions", "14. Section 66-5 of Law no. 71 -1130 of 31 December 1971 ( amended by Law no. 2004-130 of 11 February 2004 ) provides :", "“ In all matters, whether with regard to advice or defence, written opinions sent by a lawyer to his or her client or intended for the latter, correspondence between a client and a lawyer, between a lawyer and other lawyers, with the exception, in the latter case, of correspondence marked ‘ official ’, meeting notes and, more generally, all documents in a case file shall be covered by professional secrecy. ”", "4. Case - law of the Court of Cassation", "15. The Court of Cassation has held that the seizure of correspondence between a person under investigation and that person ’ s lawyer may only be ordered and pursued if the documents seized are capable of establishing proof of the lawyer ’ s participation in an offence (see in particular Court of Cassation ( Criminal Division), 12 March 1992, Bulletin criminel no. 112; 20 January 1993, Bulletin criminel no. 29; Court of Cassation (Commercial Division), 5 May 1998, Bulletin IV, no. 147; Court of Cassation (Criminal Division), 5 Oct. 1999, Bulletin criminel no. 206; 27 June 2001, Bulletin criminel no. 163). Observance of the principle of the confidentiality of exchanges between a lawyer and his or her client is not limited to seizures, but extends to other measures that might affect it ( for example, a measure such as the tapping of a lawyer ’ s private and/or personal telephone line must be preceded by a specific finding that credible evidence exists of the lawyer ’ s participation in an offence : Court of Cassation (Criminal Division), 15 January 1997, Bulletin criminel no. 14; 8 November 2000, Bulletin criminel no. 335; Court of Cassation (Criminal Division), 18 January 2006, appeal no. 05-86.447).", "5. Community law", "( a) Case of AM & S Europe Limited v. Commission of the European Communities (155/79), judgment of 18 May 1982 of the Court of Justice of the European Communities ( CJEC )", "“ 18. Community law, which derives from not only the economic but also the legal interpenetration of the Member States, must take into account the principles and concepts common to the laws of those States concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client. That confidentiality serves the requirements, the importance of which is recognised in all of the Member States, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it.", "19. As far as the protection of written communications between lawyer and client is concerned, it is apparent from the legal systems of the Member States that, although the principle of such protection is generally recognised, its scope and the criteria for applying it vary ...", "21. Apart from these differences, however, there are to be found in the national laws of the Member States common criteria inasmuch as those laws protect, in similar circumstances, the confidentiality of written communications between lawyer and client provided that, on the one hand, such communications are made for the purpose and in the interests of the client ’ s rights of defence and, on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment ...", "23. As far as the first of those two conditions is concerned, in Regulation ... care is taken to ensure that the rights of the defence may be exercised to the full, and the protection of the confidentiality of written communications between lawyer and client is an essential corollary to those rights.", "24. As regards the second condition, it should be stated that the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer ’ s role as collaborating in the administration of justice by the courts and as being required to provide, in full independence, and in the over-riding interests of that cause, such legal assistance as the client needs. The counterpart of that protection lies in the rules of professional ethics and discipline ... Such a conception reflects the legal traditions common to the Member States and is also to be found in legal order of the Community ... ”", "( b) Case of Wouters (C-309-99), judgment of 19 February 2002 of the CJEC", "16. In this case the CJEC recognised the specific nature of the profession of lawyer. In his submissions presented on 10 July 2001, the Advocate -General Philippe Léger considered, in particular, as follows :", "“ 182. Professional secrecy forms the basis of the relationship of trust between lawyer and client. It requires the lawyer not to divulge any information imparted by the client and extends ratione temporis to the period after the lawyer has ceased to act for the client and ratione personae to third parties. Professional secrecy also constitutes an ‘ essential guarantee of the freedom of the individual and of the proper working of justice ’, so that in most Member States it is a matter of public policy. ”", "( c ) Directive 91/308/ EEC on prevention of the use of the financial system for the purpose of money laundering", "17. Directive 91/308/ EEC states that lawyers are obliged to inform the competent authorities of any fact which could be an indication of money laundering. The particular protection to be afforded to lawyers and the possible exceptions thereto are the subject of debate in the context of a dispute before the CJEC, in relation to Directive 91/308/EEC and the obligation on lawyers to inform and co-operate with the authorities responsible for the fight against money laundering.", "18. In its judgment of 26 June 2007 ( Ordre des barreaux francophones et germanophones, Ordre français des avocats du barreau de Bruxelles, Ordre des barreaux flamands, Ordre néerlandais des avocats du barreau de Bruxelles against Conseil des ministres, Case C-305/05), the ECJ ruled that the obligations of information and cooperation with the authorities responsible for combating money laundering did not infringe Article 6 § 1 of the Convention for the following reasons :", "– these obligations “ apply to lawyers only insofar as they advise their client in the preparation or execution of certain transactions, essentially those of a financial nature or concerning real estate”, that is, in a context with no link to judicial proceedings;", "– furthermore, again in the context of these transactions, as soon as the lawyer is called upon for assistance in defending the client or in representing him before the courts, or for advice as to the manner of instituting or avoiding proceedings, that lawyer is exempt from the obligations of information and cooperation ( regardless of when the information was received).", "6. Recommendation No. R (2000) 21 of the Committee of Ministers of the Council of Europe to Member States on the freedom of exercise of the profession of lawyer (adopted on 25 October 2000)", "19. The relevant provisions of Recommendation No. R (2000) 21 read as follows :", "“ ... Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the Rule of Law, in which lawyers take part, in particular in the role of defending individual freedoms;", "Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction, influence, inducement, pressure, threats or interference, direct or indirect, from any quarter of for any reason;", "...", "Principle I – General principles on the freedom of exercise of the profession of lawyer", "1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights. ...", "6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the Rule of Law. ”", "7. United Nations", "20. The relevant provisions of the “Basic Principles on the Role of Lawyers” (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana from 27 August to 7 September 1990) state:", "“ 16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.", "...", "22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential. ”" ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 ( c), ARTICLE 8 AND ARTICLE 13 OF THE CONVENTION", "21. The applicants complained that the procedure for the search and seizure of documents at their place of business had breached professional confidentiality and infringed their defence rights. They also complained, regardless of the nature of the Court of Cassation ’ s supervision in France, that an appeal on points of law was not an effective remedy by which to complain of interferences with the right to respect for one ’ s home. They relied on Article 6 §§ 1 and 3 ( c) and Articles 8 and 13 of the Convention, the relevant provisions of which read as follows :", "Article 6 §§ 1 and 3 ( c)", "“ 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [ a ] tribunal ...", "3. Everyone charged with a criminal offence has the following minimum rights:", "...", "( c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ... ”", "Article 8", "“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties ’ submissions", "1. The Government", "22. The Government submitted that the complaints under Article 6 of the Convention should be dismissed as being incompatible ratione materiae with the provisions of the Convention, since tax disputes did not fall within the scope of Article 6 under its civil head ( they cited Ferrazzini v. Italy [GC], no. 44759/98, ECHR 2001-VII) and since the criminal head was unconnected to the facts of the case.", "23. As to the merits, the Government pointed out that the procedure at issue had been authorised by a judge who, together with the Court of Cassation, had also supervised it. They further noted that the record of the search showed that the liberties and detention judge had been contacted at the time of the search of the premises. They also stated that the Court of Cassation ’ s judgment did not constitute a “shift” in the case-law, but on the contrary confirmed a position that was already established and had subsequently been maintained. The Government submitted that there had been no infringement of the rights of the defence or any breach of professional secrecy; on the contrary, the Court of Cassation ’ s judgment of 11 December 2002 had struck a fair balance between the principle of individual liberty and the requirements of combating tax fraud. They lastly stated that the judge had observed that the applicants had been retained to assist and represent Clinique Les Roches Claires and had acted in that capacity on various occasions during the tax proceedings involving their client.", "24. With regard to Article 8 of the Convention, the Government submitted that the applicants had not exhausted domestic remedies since, in addition to an appeal on points of law, which they had lodged, two other remedies had been available to them: the first under Article 9 of the Civil Code, which guaranteed the right to respect for one ’ s private life, and the second by means of an action for damages against the State, through which they could have established, for example, that public officials had exceeded their authority and committed an error.", "25. As to the merits, the Government did not dispute that there had been interference with the applicants ’ right to respect for their home, but contended that the interference had been in accordance with the law, namely Article L. 16 B of the Code of Tax Procedure, and had pursued legitimate aims by seeking to protect the economic well-being of the country and the prevention of crime. Lastly, they submitted that the interference had been necessary in a democratic society ( citing Keslassy v. France ( dec. ), no. 51578/99, ECHR 2002-I). The warrant authorising the search had fully satisfied the requirements laid down by domestic legislation and European case - law, with special procedural guarantees.", "26. Finally, as regards the complaint under Article 13 of the Convention, the Government referred to their arguments in relation to the complaint under Article 8 and their references to domestic law and concluded that this complaint was manifestly ill-founded, all the more so because the Convention did not require a right of appeal, the existence of an appeal on points of law in itself being in conformity with the provisions of Article 13. They also pointed out that the Court had held that an appeal on points of law was a remedy that had to be attempted ( citing Civet v. France [GC], no. 29340/95, ECHR 1999-VI); the applicants had therefore used the remedy available to them which had enabled them to argue that there had been errors of law that could have affected the authorisation for the search of their premises and irregularities capable of rendering it void.", "2. The applicants", "27. The applicants submitted that the objections raised by the Government warranted no comment on their part, and reiterated the contents of their initial application.", "28. As to the merits, they argued that the Court of Cassation had shifted from its earlier case - law, since it had referred to “ sufficient evidence of a suspicion of tax fraud” without indicating who was suspected, whereas the earlier case - law of its Criminal Division had required the lawyer to have taken part in the fraud. They contended that such a position undermined the protection of the rights of the defence, and consequently the professional secrecy of lawyers, which should be applicable as regards any matter coming under the Convention.", "29. The applicants complained that it was possible to carry out searches of a lawyer ’ s premises where there was no suspicion that the lawyer had been involved in fraud. The first applicant stated in addition that he was merely his client ’ s lawyer – and, moreover, purely for matters of litigation and not legal advice – which meant that a number of documents covered by professional secrecy and required for the company ’ s defence were to be found at his practice.", "30. The applicants also complained of the lack of an effective remedy, contending that an appeal on points of law – the only remedy available against orders made on the basis of Article L. 16 B of the Code of Tax Procedure – did not constitute an effective remedy on account of the content and scope of the review conducted by the Court of Cassation.", "B. The Court ’ s assessment", "1. Admissibility", "31. As regards both the plea of inadmissibility ratione materiae raised by the Government and their argument that domestic remedies had not been exhausted, the Court observes that it has already found that Article 6 § 1 was applicable and dismissed pleas of inadmissibility in a similar case ( see Ravon v. France, no. 18497/03, §§ 24 - 26 and 35, 21 February 2008). The pleas raised in this case must therefore also be dismissed.", "32. Considering, further, that the application is not manifestly unfounded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds, the Court declares the application admissible.", "2. Merits", "( a) Complaint under Articles 6 and 13 of the Convention on account of the lack of effective judicial review", "33. Where, as is the case here, Article 6 § 1 applies, it constitutes a lex specialis in relation to Article 13: the safeguards of Article 6 § 1 implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, for example, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 41, Reports of Judgments and Decisions 1997-VIII, and Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI). It is therefore appropriate to examine this complaint under Article 6 § 1 alone, and hence to ascertain whether the applicants had access to a “ tribunal” in order to receive a decision on their “dispute”, following proceedings meeting the requirements of this provision.", "34. On this point, the Court observes that it has already ruled that the procedure provided for and outlined in Article L. 1 6 B of the Code of Tax Procedure does not meet the requirements of Article 6 § 1 of the Convention ( see Ravon, cited above, §§ 28 - 35). It sees no reason to depart from that finding in the instant case.", "35. Accordingly, there has been a violation of Article 6 § 1 of the Convention.", "( b) Complaint alleging a breach of professional secrecy", "36. The Court reiterates, firstly, that the term “ home ” appearing in Article 8 may extend to the offices of a member of a profession, for instance a lawyer ( see Niemietz v. Germany, 16 December 1992, § 30, Series A no. 251-B, and Roemen and Schmit v. Luxembourg, no. 51772/99, § 64, ECHR 2003-IV).", "37. Consequently, it considers that the search of the applicants ’ practice and the seizures carried out amount to interference with the exercise of their rights under paragraph 1 of Article 8 of the Convention.", "38. It considers that such interference was “ in accordance with the law ”. Article L. 16 B of the Code of Tax Procedure sets out the conditions that must be met in the event of a search, and the provisions of Articles 56 and 56-1 of the Code of Criminal Procedure, taken together, make express provision for observance of professional secrecy and the professional premises or private home of a lawyer. Furthermore, the applicants did not complain that the measures taken had lacked a legal basis, but that they were disproportionate and unnecessary in the circumstances of the case.", "39. The Court finds furthermore that the interference pursued a “legitimate aim”, that is, the prevention of public disorder and crime.", "40. As to whether the interference was “necessary”, the Court reiterates that “ the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly and the need for them in a given case must be convincingly established” ( see Crémieux v. France, 25 February 1993, § 38, Series A no. 256-B, and Roemen and Schmit, cited above, § 68 ).", "41. The Court considers that searches and seizures at the premises of a lawyer undoubtedly breach professional secrecy, which is the basis of the relationship of trust existing between a lawyer and his client. Furthermore, the safeguarding of professional secrecy is in particular the corollary of the right of a lawyer ’ s client not to incriminate himself, which presupposes that the authorities seek to prove their case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the “person charged” ( see J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; see also, among other authorities, Funke v. France, 25 February 1993, § 44, Series A no. 256-A ).", "42. Accordingly, although domestic law may make provision for searches of the practices of lawyers, it is essential that such searches are accompanied by particular safeguards. Likewise, the Convention does not prohibit the imposition on lawyers of certain obligations likely to concern their relationships with their clients. This is the case in particular where credible evidence is found of the participation of a lawyer in an offence (paragraph 15 above), or in connection with efforts to combat certain practices (paragraphs 17 - 18 above). On that account, however, it is vital to provide a strict framework for such measures, since lawyers occupy a vital position in the administration of justice and can, by virtue of their role as intermediary between litigants and the courts, be described as officers of the law.", "43. In the instant case, the Court notes that the search was accompanied by special procedural safeguards, since it was carried out in the presence of the chairman of the Bar Association of which the applicants were members. Furthermore, the presence of the chairman of the Bar Association and the observations concerning the safeguarding of professional secrecy, which the latter felt obliged to make with regard to the documents to be seized, were mentioned in the report on the operations.", "44. On the other hand, besides the fact that the judge who had authorised the search was not present, the presence of the chairman of the Bar Association and his specific objections were insufficient to prevent the actual inspection of all the documents at the practice, or their seizure. As regards in particular the seizure of the first applicant ’ s handwritten notes, the Court notes that it is not disputed that these were the lawyer ’ s personal documents and subject to professional secrecy, as maintained by the chairman of the Bar Association.", "45. Furthermore, the Court notes that the search warrant was drawn up in broad terms, the decision being limited to ordering the searches and seizures required to disclose evidence of misconduct at certain places at which documents and data carriers relating to the suspected fraud might be found, in particular at the applicants ’ place of business. Accordingly, the inspectors and police officers were given extensive powers.", "46. Lastly, and most importantly, the Court notes that the purpose of the search at issue was to discover at the premises of the applicants, purely in their capacity as the lawyers of the company suspected of fraud, documents which could establish the existence of such fraud on the company ’ s part and to use such documents in evidence against it. At no time were the applicants accused or suspected of having committed an offence or being involved in any fraud committed by their client.", "47. The Court therefore notes that in the present case, in the context of a tax inspection into the affairs of a company that was the applicants ’ client, the authorities targeted the applicants solely because of the difficulties encountered both in carrying out the necessary tax inspections and in finding “accounting, legal and corporate documents” confirming the suspicion that the client company was involved in fraud.", "48. In the light of the foregoing, the Court finds that, in the circumstances of the case, the search and seizures carried out at the applicants ’ premises were disproportionate to the aim pursued.", "49. There has therefore been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "50. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ”", "A. Damage", "51. The applicants sought payment of 30, 000 euros (EUR) in respect of non-pecuniary damage.", "52. The Government submitted that a finding by the Court of a violation would in itself constitute sufficient redress for any non-pecuniary damage sustained by the applicants, any financial compensation being merely symbolic.", "53. The Court shares the Government ’ s view as regards the applicant company. However, it considers that the finding of a violation is not sufficient to afford redress for the non-pecuniary damage sustained by Mr André. Ruling on an equitable basis as required by Article 41, it awards him EUR 5, 000 under this head.", "B. Costs and expenses", "54. The applicants sought reimbursement of the costs they had incurred in presenting their case. They produced a bill for EUR 14, 352 ( comprising EUR 12, 000 in fees and EUR 2, 352 in VAT) issued by their representative in respect of the proceedings before the Court of Cassation and the Court.", "55. The Government submitted that any amount awarded should not exceed EUR 2 000.", "56. According to the Court ’ s case - law, an applicant can only seek reimbursement of costs and expenses in so far as they have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, where the Court finds that there has been a violation of the Convention, it awards the applicant only those costs and expenses that have been incurred before the national courts for the prevention or redress of the violation. Having regard to the information available to it and the aforementioned criteria, the Court, ruling on an equitable basis as required by Article 41, awards them jointly EUR 10, 000 under this head.", "C. Default interest", "57. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. B.L.H., a holding company, Kver and I.O.R. (together with two further companies) had their business address at Hopsnesveien 127, Bergen (Western Norway), at premises owned by Kver. The companies used a common server and e-mail server (hereinafter referred to as “the server”) for their respective information technology systems. The server was owned by Kver. It contained the applicant companies’ electronic archives and private information (including private e-mail correspondence) of employees and other persons working for the companies, which did not have their own administration. They received administrative support from a small number of persons working in Bergen Underwater Services AS operating at the same address.", "6. B.L.H.’s data were stored on the server in the user areas dedicated to three persons: Mr S., who was B.L.H.’s Managing Director, and two other persons. They were employed by Bergen Underwater Service AS – a subsidiary company of B.L.H. – which carried out management services for several companies, including B.L.H. The data in question were accessed by entering those persons’ user areas, through their respective user names and passwords.", "A. Accountancy audit", "7. In January 2003 the Bergen tax office ( ligningskontor ) warned B.L.H. that the company’s accounts for the tax year 2001 would be audited. On 9 March 2004 a meeting was held between representatives of B.L.H., on the one hand, and the Bergen tax office and Hordaland County tax office ( fylkesskattekontor ), on the other. The meeting took place at B.L.H.’s offices in Bergen. During the meeting the tax authorities presented B.L.H. with a list of questions and demanded that B.L.H. allow the auditors to make a copy of all the data on the server, which contained, inter alia, information on B.L.H.’s accounts.", "8. The representatives of B.L.H. complied with the request to grant access to the server, including offering the tax authorities the necessary passwords. They refused, however, to comply with the tax authorities’ further demand to supply a mirror copy of the (entire) server.", "9. The Managing Director, Mr S., argued, inter alia, that B.L.H. did not own the server but only rented server capacity and that also other companies made use of the server. The Managing Director of Kver, the company owning the server, was called but he too refused to allow the tax authorities to take a mirror copy of the server.", "10. Information and documents stored on the server were in part linked to other companies (with the necessary access control), in part to employees working for the different companies. Access to the home directorates and e-mails (including the map \"private files and pictures\") belonging to the different employees were protected by passwords.", "11. Thus the server contained information belonging to the applicant companies and also information belonging to other companies and persons.", "12. Following the refusal by B.L.H. and Kver to supply a mirror copy of the server, alternatives to a complete copy of the server were discussed. The discussion related first and foremost to whether the tax authorities would have to limit themselves to demanding copies of the part of the server administered by B.L.H. or persons working for B.L.H. The Managing Director of B.L.H., Mr S., explained to the tax authorities how they could obtain (all and only) the documents belonging to B.L.H.", "13. When Kver, as a co-user and the owner of the server, opposed the tax authorities’ demand to seize the entire server, the tax authorities responded by issuing a notice that Kver would also be subject to a tax audit. They further ordered Kver to “hand over all electronically stored information”.", "14. After further discussions, the parties compromised and agreed that the previous months’ backup tape would be handed over to the tax authorities and sealed pending a decision on their complaint. The backup tape contained 112,316 files in 5,560 folders, totalling 41 gigabytes. In the applicant companies’ submission, which the Government did not dispute, only a minor part of that information was relevant for the tax audit of B.L.H.", "15. Both Kver and B.L.H. immediately lodged a complaint with the Directorate of Taxation, a central tax authority under the Ministry of Finance, and requested the speedy return of the backup tape.", "16. On 25 March 2004 Kver informed the Bergen tax office that three other companies, including I.O.R. (the third applicant company), also used the server and had therefore been affected by the seizure of 9 March 2004. On 26 March 2004 the tax office notified those companies that they would also be audited.", "17. On 1 April 2004 I.O.R. lodged a complaint with the Directorate of Taxation.", "B. Directorate of Taxation’s decisions of 1 June 2004", "18. The Directorate gave a decision on each of the applicant companies’ complaints on 1 June 2004.", "19. As regards Kver and I.O.R., the Directorate withdrew the tax office’s notice that an audit would be carried out and its demand that those companies hand over data. The Directorate observed that the tax audit concerned B.L.H. and that section 4-10 of the Tax Assessment Act ( ligningsloven ) did not authorise the measures at issue where the purpose of the audit was to collect information about third parties.", "20. The Directorate confirmed the tax office’s demand that B.L.H. hand over or give access to the server. Its decision further stated that a representative of this company would have the opportunity to be present during the review of the server by the tax office. The tax office’s access to each area of the server was to be limited to those areas that were (also) used by B.L.H.", "21. In reaching the above conclusion, the Directorate noted that the Ministry of Finance had observed, in its letter to the Directorate of 20 May 1997, that the term “document” in sections 4-8 and 4-10 of the Tax Assessment Act was not limited to information appearing on paper, plastic cards and so on, but also covered texts and figures stored electronically on a computer. Furthermore, the duty to hand over documents also applied to electronically stored documents. The tax authorities could choose whether to ask for paper printouts, electronically readable media, or for the documents to be forwarded to their own computers.", "22. In the Directorate’s view, the question at issue concerned the delimitation of the tax authorities’ access to the “company’s archives” under section 4-10 (1) (b) of the Act (see paragraph 68 below). In instances where the documents were stored on a server, the server was to be considered as an archive for the purposes of that provision. In the present instance, the tax office had “seized” (“ tatt beslag i ”) the server and the question was to what extent the tax office could inspect it. Whether an obligation could be imposed under section 4-10 to hand over each document in the archive required consideration in the specific circumstances.", "23. The Directorate moreover noted that a tax subject was not under a duty to produce documents which exclusively concerned the rights and business relationships of other tax subjects. A further limitation was that the documents in question should be relevant to the tax subject’s tax assessment. Accordingly, documents of exclusively private character fell outside that definition. That distinction was important in ascertaining the extent to which the tax authorities could themselves go through the server (the archive) or whether it was for the tax subject to decide which areas of the server should be handed over.", "24. Section 4-10 (1) (b) had been added to give the tax authorities an opportunity to act with assertiveness (“ gå offensivt til verks” ) when inspecting archives in order to find documents of importance to the activity concerned. It was thus clear that the authority to audit did not just amount to the passive reception of information handed out by the person subjected to the audit.", "25. Moreover, the Directorate noted, section 4-10 of the Act applied to the tax audit of a specific tax subject. The handing over of documents relating to other tax subjects ought to be based on Chapter 6 of the Act. In instances where the archives were physically separated (into different parts of the server), section 4-10 did not authorise the imposition of access to the archives of other companies. In the present instance, Chapter 6 did not apply.", "26. To the extent that a joint archive was not physically divided but was mixed, the tax subject could not refuse the tax authorities access to the archive. In discussions on the draft legislation, it had been emphasised that the purpose of an audit should not be undermined by the tax subject withholding documents. In the Directorate’s view, this ought also to apply in relation to access to the tax subject’s archives. The tax subject could thus not refuse the tax authorities access to its archives on the ground that they contained documents concerning other tax subjects. The duty to hand over all documents contained in the archives should, however, be limited to documents of importance to the tax subject’s tax assessment, see section 4 ‑ 10 (1) and (2).", "27. In practice, in order to solve the problem of the tax subject avoiding the inspection of documents in the archives (the server) that were insignificant for its tax assessment, the tax subject would be allowed to be present during the review of the archive (see section 4-10 (3)). Accordingly, the Directorate stated, a representative of B.L.H. was to be present during the tax authorities’ review.", "C. Appeals to the City Court and the High Court", "28. Under section 11-1 of the Tax Assessment Act, the applicant companies instituted proceedings before the Oslo City Court, asking it to quash the Directorate of Taxation’s decision of 1 June 2004 in respect of B.L.H. and to order the return of the backup tape to Kver. On 10 June 2005 the City Court found in favour of the State and rejected the applicant companies’ appeal.", "29. In its judgment, the City Court found that the measure imposed by the tax authorities could comprise the copying of data for subsequent inspection at the tax office to the same extent as on-site access to data on the server could be imposed. It also found that the server in the present instance should be considered in the same way as mixed paper archives.", "30. The applicant companies appealed to the Borgarting High Court, which by a judgment of 30 April 2007 upheld the City Court’s decision on essentially the same grounds. The High Court noted inter alia that the case concerned an inspection by the tax authorities of a taxpayer in connection with a notified tax audit, an area in which the principle of legality ( legalitetsprinsippet ) applied, as did other legal safeguards, including the prohibition of self-incrimination derived from Article 8 of the Convention.", "D. Appeal to the Supreme Court", "31. On 2 June 2007 the applicant companies appealed to the Supreme Court, disputing in the main the High Court’s application of the law. It had failed to appreciate that the relevant provisions of section 4-10 (1) laid down clear limits for the manner of conduct of a tax inspection, which could be carried out only of the archives of the tax-subject in question, and a demand to hand over documents should be limited to pertinent material contained therein. These limits had been transgressed in the present case.", "32. The threshold for accepting access beyond the relevant company’s own archives ought to be high, not least because, by reviewing the server, the right to inspect B.L.H. had been extended to other tax subjects that were not being audited, and to any private and confidential information stored on the server. They referred to Article 8 of the Convention, according to which interference with “home” and “correspondence” was not permitted unless it was “in accordance with the law” and “necessary in a democratic society”. They submitted that, according to the European Court’s judgment in Société Colas Est and Others v. France (no. 37971/97, ECHR 2002 ‑ III), Article 8 also protected companies.", "33. By empowering the authorities to demand copies of the server this would also give them full access to personal data belonging to employees working for different companies as well as any private correspondence that they might have stored on the server or received on their respective e-mail addresses. This aspect of the case also appeared to breach Article 8 of the Convention, as well as laws and regulations on the processing of personal data.", "34. Since the imposition of an inspection of the archives of entities others than B.L.H. lacked a basis in section 4-10 (1) (b) of the Tax Assessment Act and Article 8 of the Convention, the tax authorities had acted contrary to the national legal provisions relied on.", "35. The application of the mixed-archive doctrine to their case had no legal basis, nor did it follow from clear and established practice. The tax authorities had not documented that there was a mixed archive in the instant case or made any attempt to carry out a prior on-site review in order to determine whether it would be possible to separate B.L.H.’s archives from those of the other companies. It ought to be a condition for a company accepting the seizure of its archives that adequate attempts be made to restrict the seizure to those areas that concerned the activity at issue. Where a partial inspection on the spot revealed that one or more documents had no corroborative significance, the tax authorities could not, according to the Supreme Court’s case-law, seize the archives for further investigation. The same would also follow from Article 8 of the Convention.", "36. There had been no legal basis for the authorities to take a full backup copy of the server. The Tax Assessment Act had come into force at a time when archives had been paper based. In the absence of the tax subject’s consent and any prior review, the tax authorities were not entitled to take away an entire paper archive in order to go through all the material at the tax office. The same ought to apply in relation to electronically stored documents, the only difference being that they had to be printed out rather than being photocopied. In this manner the intents and purposes of the Act would be fully taken into account. The copying of the server in order to subsequently review the entire archives constituted an interference that could not be justified as proportionate and necessary for the purposes of Article 8 of the Convention.", "37. In additional written pleadings to the Supreme Court dated 6 July 2007, the applicant companies stated, inter alia :", "“In this context, it is noted that the references to Article 8 of the Convention in the notice of appeal do not constitute a new submission. As the Attorney General also indicates, reference to the Convention was made during the oral proceedings in the lower courts. In the High Court the respondent made reference to a decision of the Icelandic Supreme Court which considered the relationship between Article 8 of the Convention and the country’s competition law. The decision is enclosed in the joint case documents before the High Court, on page 109 et seq.”", "E. The Supreme Court’s judgment", "38. In its judgment of 20 November 2007 ( Norsk Retstidende 2007 p. 1612) the Supreme Court upheld the High Court’s judgment by four votes to one and held that no award should be made for costs.", "1. Opinion of the majority", "39. Mrs Justice Stabel, whose opinion was endorsed in the main by the other members of the majority, observed that the case raised three questions, all related to section 4-10 (1) (b) of the Tax Assessment Act concerning the inspection of records located on a computer server: First, whether the tax authorities could demand access to all the records, regardless of content; secondly, whether this also applied in cases where the records included material belonging to other taxpayers; and, thirdly, whether the tax authorities could demand access in order to copy material for subsequent inspection at the tax office.", "40. Section 4-10 (1) (a) of the Tax Assessment Act empowered the tax authorities to order a tax subject to hand over specific documents of significance for a tax assessment. Sub-paragraph (b) provided, in addition to the on-site visit and review of the taxpayer’s assets, a legal basis for the imposition of a review of the company’s archives. With the exception of the rule on review of archives (“ arkivgjennomsyn ”) in sub-paragraph (b), those provisions were essentially a continuation of the earlier ones of the Taxation Act on the duty to provide information and allow special inspections. Since the rule on review of archives had been added during the consideration of the Bill by the Parliamentary Committee on Financial Matters’, the preparatory work had been rather sparse. On the other hand, the Committee had pointed out that an order to produce a document pursuant to sub ‑ paragraph (a) presupposed knowledge about the existence of the document, and that the refusal to allow access to review archives constituted a hindrance to effective inspection.", "41. From the context, it transpired that the purpose of the provision in section 4-10 (1) (b) was to provide a basis for the tax authorities to assess whether a tax subject possessed documents which he or she could be ordered to produce under sub-paragraph (a). The duty to produce documents was not limited to accountancy documents. What was decisive was whether the documents were significant for the taxpayer’s tax assessment and the authorities’ review of the latter. It was clear that also electronic documents were covered by sub-paragraph (a).", "42. Sub-paragraph (b) should naturally be interpreted in the light of its purpose. The aim of an inspection was to find out whether an archive contained documents that could be significant for tax assessment purposes. Access should therefore comprise all archives which the tax authorities had reason to assume contained information of significance for the tax assessment, not just those archives or parts of archives that included accountancy material. In the interests of efficiency of the tax audit, access at that stage should be relatively wide. Therefore, the companies’ argument that it should be up to each tax subject to give binding indications as to which parts of the archive contained documents of significance for the tax assessment or the audit had to be rejected.", "43. Access to archives could not be compared to search and seizure, as argued by the applicant companies. Measures taken under Chapter 4 of the Tax Assessment Act formed part of ordinary administrative procedures with a view to ensuring that a correct tax assessment was made. An accountancy audit could be initiated independently of any suspicion of the commission of a criminal offence. An order imposed pursuant to section 4-10 also involved compulsion of a different character than enforcement measures (“ tvangsmidler ”) in the context of criminal proceedings, where the prosecution executed the measure by way of enforcement (“ tvangsgjennomføring ”). The principle of the duty to submit tax returns, supplemented by the tax subject’s duty to provide information under section 4-2, presupposed that it should be possible to verify and depart from the information provided by the tax subject. The consequences of a tax subject’s refusal to cooperate were exclusively administrative (discretionary tax assessment).", "44. As to the applicants’ argument that the server contained archives belonging to several companies, Mrs Justice Stabel observed that where several companies shared an archive and the areas belonging to the different users were clearly separated, the authorisation to access the archives was limited to the tax subject concerned. The problem arose where it was not possible, at least in advance, to ascertain whether the respective parts were clearly separated, typically where the data were stored electronically on a common server. On this point she agreed with and cited the Directorate of Taxation’s distinction between separate and common (mixed) archives in its decision of 1 June 2004:", "\"When several tax subjects share an archive, one must, in the opinion of the Directorate, distinguish between cases in which the archives are clearly physically separated and cases in which there is a common (mixed) archive. Whether or not an area will be considered as clearly separate must be assessed in the specific case. The Directorate emphasises that, at present, there is insufficient information in this case to make that assessment.\"", "45. Mrs Justice Stabel further agreed with the High Court that, as a starting point, where full access was not given to the tax authorities, it should be possible to impose full access if the archive was organised in a manner making the tax authorities dependent on indications by the tax subject in order to identify relevant information. It would be up to the companies whether they wished to organise clearly separate archives or to maintain mixed archives which, in practice, would lead to an extension of the tax authorities’ powers.", "46. In the present case, the companies had disputed that there had been a mixed archive of the type described. They had argued that B.L.H.’s representative should be able to identify which users had been working on matters pertaining to them and which files had been relevant to their activities. However, it followed from the facts established by the High Court that B.L.H. did not have its own administration but was serviced by a small number of persons in Bergen Underwater Services AS located at the same address, as was the situation of the other companies using the server in question which was owned and run by Kver. B.L.H. did not have its own user area, but the persons who provided services to the company stored the company’s documents under their own user names and passwords.", "47. It would have been impossible for the tax authorities to identify immediately the areas of the server where the relevant information was stored. The archive was not organised with clear separations between the different companies, and the distinction between each service person’s user area was not such as to enable the tax authorities to identify information of significance for the tax assessment. In this situation, the High Court had correctly considered that the tax authorities could not depend on B.L.H. indicating the files that might be relevant for the tax assessment of the company. Therefore, the authorities ought to be vested with powers to review all the data on the server. Like the High Court, she also attached some weight to the fact that it had been fully possible to organise the cooperation regarding the use of the server differently, for example by applying consistently own user names.", "48. As to the third question, the manner in which the review of the relevant data should take place, Mrs Justice Stabel took note of the fact that the backup tape containing all the information on the server had been prepared, sealed and taken to the tax office, pending a final judgment in the case. A backup tape contained all the files stored in the archive but, unlike a mirror copy, not the computer programmes and deleted material, as the tax authorities had initially wanted.", "49. The question was whether the imposition of a duty to allow access with a view to take copies for subsequent inspection at the tax office could be deduced from the right to demand access to the company’s archives. The answer did not follow directly from section 4-10 (1) (b) of the Tax Assessment Act. Unlike sub-paragraph (a), which expressly stated different alternatives for access to documents, sub-paragraph (b) made no mention of how the review should take place. That provision was supplemented by section 4-10 (3), which authorised the tax authorities to demand the presence of a representative of the tax subject in order to provide the necessary guidance, assistance and access to the company’s premises.", "50. The question of copying was twofold: did the tax authorities have a right to require a copy and, if so, could the tape then be inspected at the tax office?", "51. Very little preparatory work had been carried out on that provision and that particular point had not been dealt with. Since archives had been almost exclusively paper based at the time when the provision had been enacted, the question of copying a whole archive had been unlikely to arise. In view of its purpose, there was no reason to interpret the provision to the effect that it hindered the imposition of a requirement to take a copy where the review of a copy was desirable. The central question was whether the measure imposed by the tax authorities could also include the taking of material to the tax office.", "52. The rationale behind sub-paragraph (b) – namely to remove obstacles to an effective audit occasioned by the requirement on the tax authorities to show that the archives contained documents that were significant for tax assessment purposes – militated strongly in favour of an interpretation adapted to the current situation. According to the Directorate of Taxation, an on-site inspection would be particularly time-consuming, and if the authorities were unable to take copies for inspection at the tax office, they would face difficulties in implementing the audit.", "53. It could be questioned whether access would entail such an additional burden for the tax subject that the above interpretation would be incompatible with the principle of legality ( legalitetsprinsippet ). In the view of Mrs Justice Stabel, it was difficult to see that this could be the case. Indeed, the inspection as such would be less burdensome in that the tax subject would at no time be deprived of access to the archive. The requisite safeguards were preserved as the tax subject had a right, under section 3 ‑ 5 (1) of the Tax Assessment Act, to be notified about and to be present during the authorities’ review of the tape. If the measure was the subject of a complaint, the material had to be sealed pending examination of the complaint (section 3-6 (4)). In most instances, there was reason to believe that it would also be in the tax subject’s interest that the review took place at the tax office. In any event, there was little reason to oppose that.", "54. Mrs Justice Stabel agreed, however, that the protection of privacy (“ personvernhensyn ”) had to be taken into consideration, because the review of the archive was not limited to accountancy documents but included other documents in the archives which the tax authorities had reason to believe might be of relevance for the tax assessment. However, the tax authorities could also access such sensitive information even if the review were carried out on the tax subject’s premises. Even though, theoretically, there would always be a danger of abuse, which might be somewhat greater if the copied material were taken to the tax office, that risk was hardly so great as to be decisive.", "55. It had not been alleged that the backup copy contained more data than what would have been accessible had the review been carried out on-site. The legal safeguards described above would be observed during the review. It was further understood that once the review had been completed, the copy would be destroyed and all traces of the contents would be deleted from the tax authorities’ computers and storage devices. In addition, the review was to provide a basis for orders pursuant to section 4-10 (1) (a). The tax authorities would not be authorised to withhold documents from among the material that had been taken away unless the tax subject accepted the measure.", "2. Dissenting opinion", "56. The dissenting member of the Supreme Court, Mr Justice Skoghøy, agreed with the view held by the majority that the tax authorities could require B.L.H. to give access in order to enable them to carry out an inspection of the server used jointly by the applicant companies.", "57. As to the further issue of whether the tax authorities could demand a copy of the server on which the archive was stored with a view to subsequent review at the tax office, Mr Justice Skoghøy observed as follows. In his view, section 4-10 (1) (b) could not reasonably be understood to mean that it authorised the tax authorities to demand a copy of the archive. The provision was limited to “review”. To demand a copy was something else and much more far-reaching.", "58. The reason why the majority in Parliament in 1980 had been in favour of conferring on the tax authorities a power to search and seize material was that they had believed that the authorities should be able to ensure that important documents had not been “hidden or destroyed (notably burned)”. If the tax authorities were allowed to demand a copy of the archive, they would in reality be empowered to seize, a power which the majority in Parliament in 1984 had not wished to give them when removing a provision to that effect before the entry into force of the relevant part of the Tax Assessment Act.", "59. He agreed with the majority that the right to review archives under section 4-10 (1) (b) comprised not only archives containing accountancy material but all archives that potentially contained documents of significance for the tax assessment. This meant that the archived material which the tax authorities could demand to review included a great quantity of sensitive personal data. If the tax authorities were to be empowered to demand the copying of archives, the risk of dissemination and abuse of sensitive personal data would increase considerably beyond what followed from a review on the taxpayer’s premises. This applied especially to the copying of electronic archives. The search facilities for an electronic archive were different from those used for a traditional paper-based archive. Even if electronically stored data were deleted, they could be reconstructed. Also, electronically stored data might be disseminated far more easily and effectively than information on paper. The right of the tax subject to be present when the tax authorities opened and reviewed the archive did not constitute a guarantee against abuse. There was no way of ensuring that that right had been respected. Therefore, weighty considerations of legal security and protection of privacy militated against conferring on the tax authorities a right to demand a copy of the archive. As the majority in Parliament had pointed out in the context of the legislative amendment in 1984, the requirements of legal security and protection of privacy were an overriding political aim in a democratic society. In particular, since the parliamentary majority had voted strongly against search and seizure, and since copying for subsequent review at the tax office was in reality a form of seizure, Mr Justice Skogøy found that the tax authorities clearly should not be empowered to require a copy without the question being first considered by the legislator and a clear statutory power given for copying.", "60. On that ground, Mr Justice Skoghøy voted for quashing the Directorate of Taxation’s decision of 1 June 2004 in respect of B.L.H. authorising the copying of the server.", "F. Process for review of the backup tape", "61. On 28 January 2008 the Tax Administration ( skatteetaten, Skatt Vest ) notified the applicant companies of their intention to open the tape with a view to ordering the production of documents. It notified them of the dates, time and place of the review, its object, certain preparatory processing not involving searching or opening of documents, and the identity of the companies concerned. It also invited them to appoint a common representative to attend the said preparations, and the opening and review of the tape.", "62. In a letter to the applicant companies dated 30 April 2008, the Tax Administration responded, inter alia, to certain complaints made by the applicant companies in their letter of 22 February 2008.", "63. In response to the applicant companies’ complaint that the backup tape had been secretly copied, the Tax Administration reiterated that they had already informed the applicant companies in a letter of 19 June 2007 that after their meeting on 5 June 2007, the contents of the tape had been copied to hard disk. This had been necessary in order to be able to open and read the files, and the data would be carefully secured pending further proceedings. Except for in the limited context of the criminal investigation described in paragraph 65 below, the files had not been opened and read.", "64. As regards the applicant companies’ demand that either the two hard disks in question be handed over to B.L.H., or the copied material be deleted, the Tax Administration replied that they could not see that the Supreme Court’s judgment of 20 November 2007 would prevent them from copying the contents of the backup tape to hard disk, or that the actual review could be carried out on this instead of the backup tape. They referred to the Supreme Court’s reasoning summarised in paragraph 49 above. The copying of the data onto an independent, free and unused hard disk was necessary in order to be able to carry out an appropriate review of the contents of the backup tape. In that connection, the tax office took note of the Supreme Court’s understanding that, once it had been reviewed, the copy would either be returned or destroyed, and all traces of the contents would be deleted from the tax authorities’ computers and storage devices. The Supreme Court’s reasoning thus appeared to be based on the presumption that the contents of the server could be copied temporarily as described. The tax office would not hand over the hard disks or delete information from the backup tape stored on them until completion of the review.", "65. In reply to a request by the applicant companies for the names of personnel who had dealt with the case, including those who had viewed documents on the backup tape, the tax office stated that the correspondence, faxes and e-mails that the tax authorities had produced in connection with the case indicated sender’s identity. Moreover, representatives of the tax office had presented themselves by name during meetings and telephone conversations that had taken place. Furthermore, in the context of a separate tax investigation of the applicant companies and other companies within the same ownership sphere that were linked to a certain Mr X and criminal proceedings against the latter, the regional tax office had filed a complaint against him to the police alleging that he had committed aggravated tax fraud. During the criminal investigations the police had obtained a judicial order authorising the seizure of the backup tape. The tax office accepted to assist the police, in accordance with relevant agreements and instructions. The assistance had consisted of the reviewing of the backup tape, during the period between January and March 2006, by certain named expert accountants and a tax lawyer. After completion of the work, the police had demanded that the Office delete all documents stored electronically and shred all paper copies taken. That had been done immediately. In the proceedings before the High Court in the present case, the parties agreed to distinguish these from the afore-mentioned criminal proceedings.", "66. The Tax Administration agreed with the applicant companies that it would be problematic with respect to the duty of confidentiality if the representative(s) of all taxpayers present were to be given the opportunity to view the computer screen during the review of documents. For that reason – and because it would have made working conditions difficult if the officer had the said representative(s) just behind his back while working on the backup tape – it had been decided that the representative(s) would not have access to the screen or to read printed documents continuously during the inspection (section 3-13 (1), first sentence, and section 3-5 (1), second sentence, of the Tax Assessment Act). The representative(s) would therefore be directed to another part of the premises where they could observe the processing but not the documents being reviewed.", "As the officers identified documents that the taxpayer would be ordered to produce, the documents would be printed out and listed. After completion of the review, the printed and listed documents would be sorted for each taxpayer in the case complex. The representative of the individual taxpayer would then be given access to the document which concerned him and would, in so far as desirable, be able to comment.", "III. THE COUNCIL OF EUROPE DATA PROTECTION CONVENTION", "76. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). Article 5, which deals with quality of data, provides:", "“Personal data undergoing automatic processing shall be:", "a. obtained and processed fairly and lawfully;", "b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes;", "c. adequate, relevant and not excessive in relation to the purposes for which they are stored;", "...", "e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.”", "77. Article 7 on “Data security” states:", "“Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.”", "78. Article 8, providing for “Additional safeguards for the data subject”, reads:", "“Any person shall be enabled:", "a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;", "b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;", "c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this convention;", "d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.”", "79. Article 9, setting out the conditions for “Exceptions and restrictions”, provides:", "“1. No exception to the provisions of Articles 5, 6 and 8 of this convention shall be allowed except within the limits defined in this article.", "2. Derogation from the provisions of Articles 5, 6 and 8 of this convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of:", "a. protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences;", "b. protecting the data subject or the rights and freedoms of others.", "3. Restrictions on the exercise of the rights specified in Article 8, paragraphs b, c and d, may be provided by law with respect to automated personal data files used for statistics or for scientific research purposes when there is obviously no risk of an infringement of the privacy of the data subjects.”" ]

[ "II. RELEVANT DOMESTIC LAW", "67. Pursuant to section 4-1 of the Tax Assessment Act ( ligningsloven ) of 13 June 1980 the tax subject had a general duty to provide relevant information to the tax authorities carefully and loyally and ought to contribute to his or her tax liability being clarified in due time and being complied with. He or she ought to draw the attention of the authority concerned of errors in the assessment and payment of the taxes.", "68. The disputed measures in the present case had been taken pursuant to section 4-10 (1), which – supplementing the duty of information above – authorised the tax authorities to order a taxpayer:", "\"(a) To present, hand out or dispatch its books of account, vouchers, contracts, correspondence, governing board minutes, accountancy minutes and other documents of significance with respect to the tax assessment of the taxpayer and the audit thereof. ...", "(b) To grant access for on-site inspection, survey, review of the companies’ archives, estimation etc. of property, constructions, devices with accessories, counting of livestock, stock of goods and raw materials, etc.\"", "Under section 4-10 (3), when required by the tax authorities, the taxpayer had a duty to attend an investigation as described in section 4-10 (1), to provide necessary guidance and assistance and to give access to office and business premises.", "69. Section 3-5 (1) of the Tax Assessment Act gave the taxpayer the right to be present during the review of the archive:", "\"The taxpayer or the party who has an obligation to disclose information shall be given reasonable notification and have the right to be present and express views during the investigation that takes place pursuant to section 4-10 (1) (b), or section 6 ‑ 15. This applies only in so far as it may be implemented without risking the objective of the investigation.\"", "Pursuant to section 3-5 (2), when an investigation had been carried out according inter alia to section 4-10, a report or protocol was to be drawn up describing the factual information collected, in so far as it pertained to the relevant tax subject.", "70. A duty of confidentiality of tax information was set out in section 3 ‑ 1 (1):", "“Everyone who assumes or has assumed a task, post or commission linked to the tax administration shall prevent that persons who are not concerned obtain access to or knowledge of what he in the performance of his work has learned about a person’s assets or income or other financial-, business- or personal matters. Upon taking up such task, post or commission he shall give a written declaration on whether he is aware of and will comply with the duty of confidentiality.”", "71. Section 3-6 laid down a right to complain in cases where the taxpayer had been ordered to give access to archives pursuant to section 4 ‑ 10 (1) (b):", "Section 3-6 (1)", "\"A person ordered to provide information or to cooperate with an inspection pursuant to Chapter 4 or 6, may lodge a complaint if he considers that he has no duty to comply, or is prohibited by law from doing so. ...\"", "Section 3-6 (4)", "\"The order shall be complied with even if the complaint has not been decided, unless the person who has issued the instruction grants a stay of implementation of the measure. Such a stay shall be granted where the person who has given the order finds that the complaint raises reasonable doubt as to the legality of the order. A stay shall be granted where the order concerns the presentation of documents which are sealed and deposited according to regulations issued by the Ministry.\"", "72. Various provisions supplementing the Tax Assessment Act may be found in the Regulations on Accountancy Audit of 23 December 1983 no. 1839. Pursuant to Article 3, the tax subject ought to be informed about his or her duty to provide information and his right to complain about an order to assist in the audit.", "73. Article 4 of the Regulations provided that in the event of a complaint about an order to produce documents the documents in question ought to be placed in a sealed envelope. The person conducting the review could, where appropriate, decide that the envelope should be deposited with him or her until the complaint has been decided. If the complaint was upheld, the envelope ought to be returned. If not, the complainant ought to be informed accordingly. Unless it would lead to considerable delay, the tax subject ought to be given an opportunity to be present when the seal is broken.", "74. Article 5 required – in conformity with section 3-5(2) of the Act – the person conducting the review to draw up a report setting out in detail the information that should be included in the report. Under Article 6 a copy was to be sent to the tax subject.", "75. According to Article 7, documents provided to the tax authorities pursuant to section 4-10 of the Act ought to be returned as soon as possible, possibly after copies had been taken of specific documents deemed to be of significance for the tax assessment or the tax audit.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "80. The applicant companies complained that their right to respect for privacy, home and correspondence under Article 8 of the Convention had been infringed as a result of the Supreme Court’s judgment of 20 November 2007 upholding the Directorate of Taxation’s decision of 1 June 2004. This Article reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "81. The Supreme Court’s judgment had upheld the local tax authorities’ order of 9 March 2004 that B.L.H. make a copy of the contents of the server located at Hopsnesveien 127 available for review in the tax authorities’ offices. The applicant companies disputed that the interference was “in accordance with the law”. They argued that it had exceeded the wording of the relevant statutory provisions and that the law in question failed to fulfil the quality requirements in the Court’s case-law. Moreover, the reasons relied on by the Supreme Court, although partly relevant, had not been sufficient to establish convincingly that the “seizure” of the backup tape had been necessary in a democratic society. There had been no effective safeguards against abuse. In any event, the interference could not be considered strictly proportionate to the legitimate aims pursued. A significant proportion of the seized backup tape had contained information that was irrelevant for tax audit purposes and had included private material pertaining to employees and other persons working for the applicant companies. The Supreme Court’s majority had underestimated the seriousness of the interference arising from the risk of spreading and misuse of sensitive personal data.", "82. The Government disputed the applicant companies’ complaint.", "A. Admissibility", "1. Requirement of exhaustion of domestic remedies", "(a) The Government’s submissions", "83. The Government maintained that the applicant companies had failed to exhaust domestic remedies. Although the applicant companies had referred to Article 8 of the Convention in their appeal to the Supreme Court, they had not argued that there had been a violation of that provision. They had merely maintained that section 4-10 of the Tax Assessment Act had to be interpreted in the light of Article 8. In this connection, the Government referred to certain passages in the applicant companies’ additional pleadings to the Supreme Court dated 3 October 2007 (apparently referring to those of 6 July 2007, quoted at paragraph 37 above).", "84. The fact that the Convention had merely been relied upon as a general argument in the interpretation of provisions of domestic law, and that no violation – explicitly or in substance – had been alleged was further confirmed by the fact that the Supreme Court had not ruled on whether Article 8 of the Convention had been violated. More importantly, in its judgment the Supreme Court had made no reference to Article 8, either in its own reasoning or in its rendering of the parties’ final submissions at the hearing before it. The applicant companies’ pleadings had merely related to the measures taken by the tax authorities in requesting access to the server, notably concerning how to examine the server and whether a backup copy of the server could be requested for subsequent inspection at the tax office (see paragraph 39 above).", "85. The substance of the complaints pursued by the applicant companies before the national courts could not be said to have raised issues that the Supreme Court had had any reason to examine under Article 8 of the Convention.", "(b) The applicant companies’ submissions", "86. The applicant companies, disputing the Government’s contention, maintained that the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention had been fulfilled. The core issue in the domestic proceedings had been whether the tax authorities had had the necessary statutory authority to carry out the contested measures thereby coercing them to surrender the relevant backup tape for inspection at the tax office. That issue was now the subject of their complaint to the Court. Referring to their written pleadings before the Supreme Court (see paragraphs 31-37 above) and also to certain parts of the High Court’s reasoning (see paragraph 30 above), they stressed that they had clearly raised before the national courts the matter they were now pursuing under the Convention. As could be seen from their domestic pleadings, the applicant companies had expressly invoked Article 8 of the Convention and had clearly argued the substance of their complaint before the national courts, which thus had had the opportunity, both in fact and in law, to assess the matter under this Article.", "(c) The Court’s assessment", "87. The Court cannot but note that in their written pleading to the Supreme Court the applicant companies challenged in the main the High Court’s findings with regard to the lawfulness of the inspection of archives other than those pertaining to B.L.H. and of the copying of all the data on the server. In this connection they argued inter alia that contrary to Article 8 of the Convention the inspection lacked a legal basis in national law and that the copying could not be justified as proportionate or “necessary” for the purposes of this provision (see paragraphs 32-36 above). In their additional written pleadings the applicant companies further clarified that their arguments drawn from Article 8 of the Convention were not new but had been raised previously (see paragraph 37 above). In the absence of any express indication to the contrary in the Supreme Court’s judgment or otherwise, the Court finds no reason to assume that the Article 8 plea was subsequently withdrawn or not pursued before the Supreme Court. Thus, the Court is satisfied that the applicant companies’ grievances were sufficiently raised, expressly or in substance, to enable the Supreme Court to consider the matters now complained of under the Convention. Indeed, the Supreme Court did take the opportunity, albeit without reference to Article 8 of the Convention, to assess the applicable safeguards of various interests, including those in place for the protection of privacy ( personvernhensyn ). Accordingly, the applicants must be considered to have fulfilled the requirement of exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention. The Government’s submission to the contrary must therefore be dismissed.", "2. The “victim” requirement", "88. The Government further argued that, whilst the applicant companies had maintained that the backup copy of the server had contained e-mails to and from different people working for the applicant companies and that an inspection of the tape would interfere with their “legitimate right for privacy at work”, no one working for them had applied before the Court. The matters which the applicant companies were pursuing under the Convention concerned natural persons working for them, not the companies themselves. Thus the applicant companies could not be regarded as “victims” within the meaning of Article 34. The Government invited the Court to declare this part of the application inadmissible as being incompatible ratione personae.", "89. The applicant companies did not dispute that employees, contracting parties, lawyers and other affected third parties must exhaust national remedies before they could enjoy an independent right to submit a complaint before the Court. However, this did not mean that the Court was prevented from considering the interests in question in its assessment of the applicant companies’ protection under Article 8 of the Convention.", "90. The Court notes that the applicant companies’ interest in protecting the privacy of their employees and other persons working for them did not constitute a separate complaint but only an aspect of their wider complaint under Article 8 of the Convention. The fact that no such individual person was a party to the domestic proceedings nor brought an application under the Convention should not prevent the Court from taking into account such interests in its wider assessment of the merits of the application.", "3. Conclusion", "91. Accordingly, the Court rejects the Government’s requests to declare the application inadmissible on grounds of failure to exhaust domestic remedies. It also dismisses their invitation to declare part of the application inadmissible as being incompatible ratione personae. The Court further considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Whether there was an interference with an Article 8 right pertaining to the applicant companies", "(a) The applicant companies’ submissions", "92. The applicant companies pointed out that the essential object and purpose of Article 8 was to protect the individual against arbitrary interference by the public authorities (see Niemietz v. Germany, 16 December 1992, § 31, Series A no. 251 ‑ B), and extended to companies and legal persons. The instant case concerned a “seizure” (according to the applicants’ terminology) that had not only been very comprehensive (see paragraph 14 above) but had also taken place in a manner that bore witness to arbitrariness and abuse of power. The interference had also involved a number of interests beyond those of the companies in running their business without arbitrary and unlawful interference by the authorities. The “seizure” of 9 March 2004 had, moreover, had a distinct coercive character, as illustrated by the fact that the authorities had brought in computer experts to execute the order and by their stance on the matter in the ensuing judicial proceedings. A failure to comply with a section 4-10 (1) (b) order was punishable by imprisonment of up to two years.", "93. In the case of B.L.H., particular reference was made to the fact that, at a meeting on 9 March 2004 held at B.L.H.’s office, the tax authorities had demanded a mirror copy of the server with the assistance of third parties, without prior notice and with reference to legislation authorising penal sanctions. That demand had in itself entailed a violation of B.L.H.’s right to respect for its “home”, as had in any event the manner in which the tax authorities – de facto – had obtained the backup tape. At the material time, the tax authorities had been of the opinion that the order could be enforced.", "94. In a similar way, Kver’s and I.O.R.’s right to respect for their “home” had been violated, notably as a result of the fact that the tax authorities had “seized” the backup copy of the server on which the companies had been renting capacity, located in the same building as the companies’ offices (see Buck v. Germany, no. 41604/98, § 31, ECHR 2005 ‑ IV).", "95. Moreover, the “seizure” had amounted to an interference with the applicant companies’ “right to respect for ... correspondence”, which implied a legitimate expectation as regards the privacy of letters, e-mails and phone calls (see Copland v. the United Kingdom, no. 62617/00, § 42, ECHR 2007 ‑ I) and a right to uninterrupted and uncensored communication with others. The applicant companies relied on Wieser and Bicos Beteiligungen GmbH v. Austria (no. 74336/01, § 45, ECHR 2007 ‑ IV), where the search and seizure of electronic data in relation to a legal person had been found to constitute an interference with the applicant’s right to respect for correspondence. In so far as the impugned “seizure” concerned documents covered by statutory confidentiality, they also prayed in aid Niemietz (cited above, § 37).", "96. The “seizure” of the backup tape had also entailed an interference with the applicant companies’ right to respect for “private life” within the meaning of Article 8, which in essence acknowledged that one could expect protection from arbitrary interference within a certain sphere. The “seizure” had concerned purely private material belonging to the employees as well as professional material related to the companies as such and to the professional activities of individual employees. The Court had already accepted that the concept of “private life” could also encompass \"professional activities\" in a strict sense (ibid., § 29).", "97. The protection afforded to a private company under Article 8 should not be viewed as limited to legal persons but should apply also to a group of individuals striving to achieve common goals. Thus, the protection of people working for a company – as a group – against arbitrary interference in their common effort, ought to be considered as inherent in the same protection afforded to a company. This had clearly not been the situation in respect of employees of and people working for the applicant companies, whose family pictures, private and professional correspondence as well as numerous work-related documents that were not relevant to the tax audit had been “seized” by the domestic authorities and thus exposed to them. Apart from the strong interest in protecting the privacy of their employees, contracting parties and other third parties, the applicant companies also had a legal obligation to protect personal data. Accordingly, a comprehensive “seizure” would affect significant societal interests, which deserved consideration when assessing the scope of the protection of Article 8. It could not be a condition for such protection that all affected parties must initiate legal proceedings.", "(b) The Government’s submissions", "98. In the Government’s opinion, the Court’s jurisprudence in relation to Article 8 of the Convention clearly indicated that only natural persons could be considered to have a “private life” (see Gillan and Quinton v. the United Kingdom, no. 4158/05, § 61, ECHR 2010 (extracts)). The Court had not confirmed that “private life” also pertained to legal persons such as the applicant companies, and there was no need to establish new Convention ground in the present case.", "99. In so far as the applicant companies relied on the right to respect for “correspondence” under Article 8, the Government maintained that this was closely linked to the right to respect for private life and thus disputed the applicability of this aspect of the Article to the applicant companies. Whilst any private correspondence on the backup tape of the server pertained to natural persons working for the applicant companies, none of them had presented themselves as applicants before the Court.", "100. Moreover, the content of business or professional correspondence of legal persons such as the applicant companies could not reasonably be said to relate only to the interests of individuals that were safeguarded by the right to respect for “private life”, such as a person’s physical and psychological integrity, their innate need for personal development and their interaction with others. Bearing in mind the rationale for Convention protection of “correspondence”, as seen in the Court’s case-law, there was no need to extend the right to such protection to the correspondence of legal persons such as the applicant companies.", "101. Furthermore, since the correspondence of legal persons such as the applicant companies could only be of a professional nature, the argument for extending the Article 8 protection to such correspondence found no support in Niemietz (cited above). The present case ought to be distinguished from the latter because it did not touch upon the legal professional privilege of lawyers, where the Court had been concerned that “an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6” (ibid., § 37).", "102. The Government further disputed that the applicant companies could claim a right to respect for their “home” under Article 8. It followed from Société Colas Est and Others (cited above) that that right applied only to legal persons “in certain circumstances” that did not exist in the instant case. Unlike the former case, the present case did not concern searches or seizures, nor had the measure under scrutiny been carried out in a similar context. It concerned an administrative order to allow the inspection of records as part of a tax audit, not an order that had formed part of an investigation into unlawful practices, as in the French case. Suspicion that a criminal offence had been committed was not a prerequisite for issuing an order pursuant to section 4-10 (1) (b) of the Tax Assessment Act.", "103. The fact that the tax authorities had not entered the premises of the applicant companies’ offices without their consent should be of particular consequence for the Court’s assessment of whether any “interference” had occurred. The order to allow the inspection had been issued during a meeting held between the tax authorities and the first applicant, B.L.H. The fact that the latter had consented to a backup copy of the server being taken proved that no “interference” had occurred in this case.", "(c) The Court’s assessment", "104. The Court first reiterates that, as interpreted in its case-law, the word “home”, appearing in the English text of Article 8, – the word “ domicile ” in the French text has a broader connotation – covers residential premises and may extend also to certain professional or business premises (see Niemietz, cited above, § 30). It includes not only the registered office of a company owned and run by a private individual (see Buck, cited above, § 32) but also that of a legal person and its branches and other business premises (see Sallinen and Others v. Finland, no. 50882/99, § 70, 27 September 2005). Such an interpretation would not unduly hamper the Contracting States, for they would retain their entitlement to \"interfere\" to the extent permitted by paragraph 2 of Article 8; that entitlement might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case (see Niemietz, cited above, § 31).", "105. The Court further reiterates that in certain previous cases concerning complaints under Article 8 related to the search of business premises and the search and seizure of electronic data, the Court found an interference with “the right to respect for home” (ibid., § 71) and “correspondence” (ibid., § 71, and Wieser and Bicos Beteiligungen GmbH, cited above, § 45). On the other hand, it did not find it necessary to examine whether there had also been an interference with the right to respect for “private life” (ibid.).", "106. Turning to the particular circumstances of the present case, the Court observes that during a meeting between representatives of the tax authorities and the first applicant company, B.L.H., on its premises on 9 March 2004, the former ordered the latter, pursuant to section 4-10 (1) (b) of the Tax Assessment Act, to provide access to and enable the tax auditors to take a copy of all data on a server used by all three applicant companies. Both B.L.H. and I.O.R., respectively the first and third applicant companies, rented space on the server, which was owned by Kver, the second applicant company. All three companies’ offices were in the same building. Although the disputed measure was not equivalent to a seizure imposed in criminal proceedings or enforceable on pain of criminal sanctions (see paragraph 43 above), the applicant companies were nonetheless under a legal obligation to comply with the order to enable such access. The imposition of that obligation on the applicant companies constituted an interference with their “home” and undoubtedly concerned their “correspondence” and material that could properly be regarded as such for the purposes of Article 8. In the absence of any argument to the contrary, the Court has found no basis for differentiating between the applicant companies in this respect.", "107. A further question is whether there was also an interference with the applicant companies’ right to respect for private life. The Court notes that, according to them, the backup copy of the server included copies of personal e-mails and correspondence of employees and other persons working for the companies. However, no such individual had complained of an interference with his or her private life, either before the national courts or before the European Court. In the absence of such a complaint, the Court does not find it necessary to determine whether there has been an interference with “private life” in the instant case. This said, the applicant companies had legitimate interests in ensuring the protection of the privacy of individuals working for them and such interests should be taken into account in the assessment of whether the conditions in Article 8 § 2 were fulfilled in the instant case.", "2. Whether the interference was justified", "(a) In accordance with the law", "(i) The applicant companies’ arguments", "108. The applicant companies maintained that the wording of section 4 ‑ 10 (1) of the Tax Assessment Act indicated that the tax authorities were empowered to demand access to a company’s business premises for tax audit purposes and to review the company’s archives on site. However, their order to hand over a backup tape on which all or most of the companies’ documents were kept had greatly exceeded the wording of that provision, from which no such power could be deduced. Nor could any support to that effect be found in case-law, the preparatory work on the legislation, legal doctrine or the tax authorities’ own guidelines. As had been pointed out by the minority of the Supreme Court, the provision was limited to “review”; to demand copies was far more interfering. When Parliament had authorised search and seizure in 1980, it had done so in order to ensure that important documents would not be hidden or deleted. If the authorities were to be empowered to copy the archive in question, it would mean conferring on them an authority over and above the intentions of Parliament in 1984 (see paragraph 58 above). The majority of the Supreme Court had ignored that fact in supporting the argument that the tax authorities should be permitted to “seize” electronic documents. The majority had interpreted section 4-10 (1) incorrectly.", "109. In any event, it had not been foreseeable that section 4-10 (1) (b) would be invoked as a legal ground for “seizure” of the entire backup tape. The present case did not concern any “grey areas at the fringes of the definition” (see Cantoni v. France, 15 November 1996, § 32, Reports of Judgments and Decisions 1996 ‑ V) but a far-reaching interference clearly outside the wording of the law and what could reasonably be deduced from the relevant legal sources. A number of factors indicated that the law was not sufficiently clear and precise. The tax authorities could easily have adhered to existing requirements by conducting the search on-site, limiting it to what was relevant for tax assessment purposes, and requiring the production of any documents necessary for those purposes. The fact that the “seizure” of the backup tape related to large amounts of data, including personal e-mails and lawyer-client correspondence, and affected the important interests of a wide group of persons, suggested a strict requirement of precision. The “seizure” had been planned and executed as a “dawn raid” and had been coercive in nature owing to the pressure that had been brought to bear on the applicant companies to surrender the backup tape. Since the danger of abuse had been as great as in criminal proceedings, the requirement of precision should not have been any less in the present instance. The need to keep pace with general technological and social developments could not of itself provide the requisite legal ground for the interference at issue.", "110. The interference was even less foreseeable to Kver and I.O.R., who had merely been co-users of the server and had not been informed that a tax audit would take place. The so-called mixed-archive doctrine had been invoked only later, on 1 June 2004.", "111. Also, despite the fact that B.L.H.’s and Kver’s representatives had offered to identify the relevant parts of the server, the authorities had persisted in their demand to copy the whole server.", "112. Against that background, the scope of the tax audit, as asserted by the tax authorities and later upheld by the Supreme Court, involving access to the whole backup tape unrestrained by the applicant companies’ instructions, had been incompatible with the requirement of lawfulness in Article 8 of the Convention.", "(ii) The Government’s arguments", "113. By way of general argument, the Government maintained that the domestic authorities’ latitude in assessing compliance with the three sets of requirements in Article 8 § 2 should be wide when the business activities of legal persons were at issue (see Niemietz, cited above, § 31).", "114. The interference complained of had a legal basis in Norwegian law. As held by the Supreme Court, the tax authorities’ demand for a backup copy of the entire server for review at the tax office had a sufficient legal basis in section 4-10 (1) (b) of the Tax assessment Act.", "115. Also, the quality requirement that the law be accessible had been complied with. This was undisputed by the applicant companies.", "116. As to the requirement of foreseeability, while certainty was highly desirable, excessive rigidity should be avoided so that the law can keep pace with changing circumstances (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30).", "117. In the view of the Government, the requirement for precision ought to be less rigorous in relation to orders to allow the inspection of records as part of a tax audit, than, for instance, in relation to penal provisions or coercive measures associated with criminal procedures (see Sallinen and Others, cited above, § 90). Orders pursuant to section 4-10 (1) of the Tax Assessment Act did not require any suspicion of criminal offences, and the tax authorities were not empowered to enforce an order against the will of the taxpayer. The requirement of precision should be construed less strictly in relation to the procedural aspects of a section 4 ‑ 10 (1) measure than in relation to the conditions for its application.", "118. The Government contended that the second and third applicants had been able to foresee – if need be with appropriate advice – that by not keeping their electronic records clearly separated from those of other companies, they had run the risk of having them examined in connection with a tax audit of one of the other companies. The purpose behind the provision in section 4-10 (1) (b) of the Tax Assessment Act, as clearly indicated by the relevant preparatory discussions on the legislation, had been introduced because the tax authorities should not be dependent on indications by the taxpayer for identifying the files relevant to the audit.", "119. The Tax Assessment Act had been drafted before the advent of electronic records. At the time, it was natural to assume that an examination of records would be conducted on the taxpayers’ premises, since that was where the records were located. In contrast, the development of technologies for copying servers meant that it would often be more practical for all parties involved to make copies of electronic records for subsequent inspection at the tax office. Owing to the large amounts of data contained on many computer servers, on-site inspection would be very time-consuming. The tax authorities would have difficulty in carrying out effective audits if they were denied the possibility of copying electronic records.", "120. The wording of section 4-10 (1) (b) interpreted in the light of the purpose of an effective tax audit and having regard to the changed circumstances as a result of technological innovation, was sufficiently precise to enable the applicant companies to foresee – with appropriate advice – that the tax authorities could demand that a backup copy be taken of the electronic records.", "121. As legal persons carrying out a professional activity and used to having to proceed with a high degree of caution (see Cantoni, cited above, § 35), the applicant companies could be expected to have taken special care in assessing the risks that such an activity entailed. At the time, the tax authorities would frequently demand that copies be made of electronic records in connection with tax audits. It must be assumed that tax advisors would have been familiar with that practice. The applicant companies’ contention that the tax authorities had made similar demands to other companies on a number of previous occasions supported the assumption that the applicant companies, at the material time, could have foreseen that an order to allow the inspection of records could have included the taking of a backup copy of any electronic records.", "122. In any event, with the benefit of appropriate legal advice, the applicant companies should have appreciated at the material time that there was a risk that an order to allow the inspection of records would include a demand to take a backup copy of their electronic records.", "(iii) The Court’s assessment", "123. The Court reiterates that, according to its well-established case-law, the words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see, among other authorities, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008, with further references). In The Sunday Times (cited above, § 49), the Court held – in relation to Article 10 – that a citizen", "“must be able ... to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”", "124. Moreover, in Gillan and Quinton (cited above), the Court held:", "“77. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 4, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; see also, amongst other examples, Silver and Others v. the United Kingdom, 25 March 1983, §§ 88-90, Series A no. 61; Funke v. France, §§ 56-57, judgment of 25 February 1993, Series A no. 256-A; Al-Nashif v. Bulgaria, no. 50963/99, § 119, 20 June 2002; Ramazanova and Others v. Azerbaijan, no. 44363/02, § 62, 1 February 2007; Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, no. 14134/02, § 46, ECHR 2007 ‑ XI (extracts); Vlasov v. Russia, no. 78146/01, § 125, 12 June 2008; and Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, § 81, 17 June 2008). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 ‑ VIII; S. and Marper, cited above, § 96).”", "125. Also on the issue of foreseeability, it may be reiterated that in Cantoni (cited above), the Court stated (in examining a matter under Article 7):", "“35. The Court recalls that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed (see the Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series A no. 173, p. 26, para. 68). A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, p. 71, para. 37). This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails.”", "126. Turning to the present case, the Court will first consider whether the interference had a sufficient legal basis in domestic law. It notes that section 4-10 (1) (a) of the Tax Assessment Act specified the nature of documents which the tax authorities were empowered to order the taxpayer to “present, hand out or dispatch” – namely those “of significance with respect to the tax assessment of the taxpayer and the inspection thereof”. Under sub-paragraph (b), the same authorities could order the taxpayer “[t]o grant access for on-site inspection, survey, or review of the companies’ archives ...”. For the reasons expounded by the Supreme Court in its judgment (see paragraphs 40-42 above), the Court sees no reason to question its interpretation that, having regard to the purpose of those provisions, electronically stored documents were also covered by sub-paragraph (a) (see similarly Wieser and Bicos Beteiligungen GmbH, cited above, §§ 53-54).", "127. The Court also notes that access pursuant to sub-paragraph (b) extended to all archives potentially containing information of importance for the tax assessment. Had the archive been organised with clear dividing lines between the different companies, the tax authorities could have identified the areas on the server where relevant information could have been found. To allow the authorities to access the entire server would therefore have been consistent with the above-mentioned purpose (see paragraphs 41-48 above). So would, in the view of the Supreme Court majority, a requirement enabling the authorities to obtain copies of documents where a review of those copies appeared expedient. Nothing in the relevant rules prevented either such copying (see paragraphs 51 above) or the taking of a backup copy of the server to the tax authorities’ premises for review there (see paragraphs 51-55 above). Although the minority in the Supreme Court had considered the latter points differently (see paragraphs 57-60 above), the Court is prepared to accept that the impugned interference had a legal basis in national law.", "128. As regards the other requirements derived from the notion “in accordance with the law”, it was undisputed that the law in question was accessible and the Court sees no reason to hold otherwise. On the other hand, the parties disagreed as to whether it had been foreseeable.", "129. The main issue in the instant case relates to the fact that by taking a backup copy containing all the existing documents on the server, the tax authorities had obtained the means of accessing great quantities of data which did not contain information of significance for tax assessment purposes and which thus fell outside the remit of section 4-10 (1). That included private documents and correspondence of employees and other persons working for the companies, and confidential commercial information pertaining to the companies themselves and other companies; in other words, documents which affected the rights and interests of individuals and companies that were protected by Article 8 of the Convention.", "130. The Court first observes that the purpose of a measure taken under sub-paragraph (b) was, as explained by the Supreme Court, to give the tax authorities a basis for assessing whether the tax subject possessed documents which they could require the latter to furnish pursuant to sub-paragraph (a). It was not limited to accountancy documents but extended to all documents that might be relevant to the tax assessment (see paragraph 41 above). Considerations of efficiency of the tax audit suggested that the tax authorities’ possibilities to act should be relatively wide at the preparatory stage (see paragraph 42 above). The tax authorities could therefore not be bound by the tax subject’s indications as to which documents were relevant, even where the archive in question comprised documents belonging to other tax subjects. However, although the scope of a section 4-10 (1) order was potentially very wide, it did not confer on the tax authorities an unfettered discretion, as the object of such an order was clearly defined in statute.", "131. Thus the authorities could not require access to archives belonging entirely to other tax subjects. Where the archive belonged to the tax subject concerned, access could not be demanded to documents belonging to other tax subjects in order to obtain information about them, unless the documents contained information relevant to the tax assessment of the tax subject in question.", "132. Furthermore, where several businesses shared archives and their respective parts of the archives were clearly separated, access should be limited to the area of the tax subject concerned. The Court sees no reason for disagreeing with the Supreme Court’s finding that the archives at issue were not clearly separated but were so-called “mixed” archives. It could therefore reasonably have been foreseen that the tax authorities should not have had to rely on the tax subjects’ own indications of where to find relevant material, but should have been able to access all data on the server in order to appraise the matter for themselves.", "133. In the light of the above, the Court considers that the national administrative authorities’ and the courts’ interpretation and application of section 4-10 (1) as a provision authorising the taking of a backup copy of the server with a view to inspection at the tax authorities’ premises were reasonably foreseeable by the applicant companies in the circumstances. Any measures taken to that end ought to adhere to the above-mentioned limitations, as they transpired from the Supreme Court’s reasoning.", "134. Against that background, the Court is satisfied that the law in question was accessible and also sufficiently precise and foreseeable to meet the quality requirement in accordance with the autonomous notion of “lawfulness” under paragraph 2 of Article 8.", "(b) Legitimate aim", "135. The Government submitted that the measures at issue had been taken in the interest of the economic well-being of the country and thus pursued a legitimate aim for the purposes of Article 8 § 2 of the Convention. Their submission was not disputed by the applicant companies.", "136. The Court sees no reason for arriving at a different conclusion in this regard.", "(c) Necessary in a democratic society", "(i) The applicant companies’ arguments", "137. In the applicant companies’ submission, the reasons relied on by the Supreme Court were only partly relevant and certainly not sufficient to convincingly establish that the “seizure” of the backup tape in their case was necessary in a democratic society.", "138. The Supreme Court’s majority had failed to sufficiently emphasise the broadness of the measure as described above, and the fact that a significant part of the information had been irrelevant for tax audit purposes. The minority had rightly pointed to considerations pertaining to “sensitive personal information” and to the fact that the “seizure” (in the applicants’ submission) of a backup tape, as opposed to paper archives, entailed a risk of abuse through the use of advanced search tools and rapid copying and spreading of sensitive information. In so far as Kver and B.L.H. had been forced by the tax authority to “consent” to handing over the backup tape, the measure could even be regarded as an affront to the privilege against self ‑ incrimination.", "139. The Supreme Court’s majority had also wrongfully distinguished between the administrative investigations at issue in the present case and criminal investigations. The applicant companies would in fact have enjoyed far more extensive procedural guaranties had the “seizure” in their case been carried out pursuant to the Code of Criminal Procedure, including a hearing before an impartial tribunal considering the proportionality of the measure in concreto.", "140. Whilst the Supreme Court had emphasised that the tax authorities’ decision to “seize” the backup tape could not be enforced, it had disregarded the coercive nature of a section 4-10 (1) (b) order and the Government’s shifting position on the matter during the domestic proceedings. Indeed, until the proceedings before the Supreme Court, the Government’s position had been that such an order was enforceable.", "141. Sections 3-5 and 3-6 (4) of the Tax Assessment Act did not provide effective safeguards against abuse. The affected companies had had no means of controlling the access and review of the backup tape in general. A minimum requirement should therefore be that the backup tape, when not subject to review, should be deposited with an independent third party.", "142. The alleged safeguards provided to B.L.H., and particularly to the other two applicant companies, had been full of loopholes and had fallen foul of the requirements in Article 8.", "143. The Supreme Court had not been in a position to properly assess the alleged difficulties with respect to on-site reviews and the purported need to obtain a backup copy of the server. It had had no sources of information other than the assertions made by the tax authorities themselves. Whilst in most cases it would probably be more convenient for the tax authorities to carry out a review on their own premises, their affirmation that an on-site review had been difficult was open to question. Since the introduction of computers and electronic archives, the use of search software must surely have facilitated the task of the tax authorities compared with the review of traditional paper archives. It should also be noted that pursuant to section 4-10 (3) of the Tax Assessment Act, the taxpayer was obliged to assist the tax authorities in their review.", "144. It was unclear to the applicant companies whether it was through necessity or convenience that less than ten percent of on-site tax audits and archival reviews resulted in “seizures” of electronic documents, and that in the remaining ninety percent of cases, the tax authorities found it sufficient to review the archives on-site. The risk of abuse and arbitrariness appeared obvious.", "145. The Supreme Court’s ruling had meant that a section 4-10 (1) (b) order was acceptable also where the affected company (namely the company whose archive was “seized”) was not the subject of a tax audit or similar inspection. By invoking the mixed-archive doctrine, that is, the argument that the different archives were not distinguishable, the tax authorities in effect had the discretion to demand a copy of an entire server containing several different archives.", "146. The Supreme Court’s ruling had also left room for considerable legal uncertainty with respect to the scope of the powers conferred on the tax authorities. As illustrated by the tax authorities’ demand that Kver provide copies of “all electronically stored information” (see paragraph 13 above), considerations of efficiency and control would have to be strongly invoked in order to justify a very wide interpretation of the concept of “company archive” in section 4-10 (1) (b).", "147. Despite the fact that the imposition of a section 4-10 (1) (b) order was not subject to any conditions or qualifications – not even the existence of suspicion that an offence or wrongdoing had been committed – the tax authorities were empowered to demand the “seizure” of an entire server backup tape. This state of affairs of itself rendered the measure disproportionate and incompatible with Article 8 of the Convention.", "148. Moreover, unlike decisions by public authorities generally (see section 25 of the Public Administration Act – “ forvaltningsloven ”), the tax authorities were under no obligation to give reasons for their decision to impose a section 4-10 (1) (b) order (section 1-2 of the Tax Assessment Act).", "149. A prior judicial authorisation was not a prerequisite for issuing a section 4-10 (1) (b) order and had not been issued in the applicant companies’ case. Nor had they been afforded an effective complaints procedure or legal remedies, the procedure under section 3-6 of the Tax Assessment Act being illusory. The Supreme Court’s judgment of 20 November 2007 had left very little room for complaints. In essence, it had implied that there had been no need for the tax authorities to give any particular reason as to why the “seizure” was taking place. In cases where several companies shared the same server, the tax authorities could invoke the \"mixed-archive doctrine\" at their own discretion. The judgment apparently left no scope for effective judicial review of the proportionality and necessity of a “seizure” in a specific case.", "(ii) The Government’s arguments", "150. In the Government’s opinion, the reasons adduced to justify the measure in the present case were relevant and sufficient. Orders pursuant to section 4-10 (1) (b) of the Tax Assessment Act were issued in order to ensure an effective tax audit.", "151. Furthermore, sections 3-5 and 3-6 of the Tax Assessment Act afforded adequate and effective safeguards against abuse in relation to section 4-10 orders. According to section 3-5 (1), the taxpayer was to be given reasonable notice and have the right to be present and express his or her views at an inspection of the records. Section 3-5 (2) required a written report to be drawn up describing the factual information that had been collected. If the person concerned by the order believed that he or she was not required or legally permitted to comply with the order, a complaint could be lodged against the order (section 3-6 (1)). In the event of a complaint, section 3-6 (4) provided that an extension would be granted if the documents were sealed and deposited. Lastly, the lawfulness of the order could be challenged before the national courts.", "152. Contrary to the assertions of the applicant companies, the fact that an order to allow the inspection of records could be issued without prior judicial authorisation did not mean that the above-mentioned safeguards were ineffective. Since a section 4-10 (1) (b) order could not be legally enforced, a requirement of prior judicial authorisation would be unreasonable. Bearing in mind that the tax authorities were not empowered to carry out an inspection if the taxpayer refused to cooperate with the order, there could be no need for prior judicial authorisation, which moreover was not an absolute requirement according to the Court’s case-law (see Smirnov v. Russia, no. 71362/01, § 45, 7 June 2007, and Mastepan v. Russia, no. 3708/03, § 43, 14 January 2010).", "153. The Government disputed that a taxpayer might be liable to punishment if he or she refused to cooperate with a section 4-10 (1) (b) order; such a possibility was only theoretical. There were no examples to the contrary nor had such measures been contemplated here.", "154. They also disagreed that the risk of misuse of sensitive personal data would increase if backup copies were taken to the tax office rather than inspected on the taxpayer’s premises. Again, they emphasised that no individuals working for the applicant companies had presented themselves as applicants before the Court; thus, any matters pertaining to their interests fell outside the scope of the case.", "155. The measure in question was also strictly proportionate to the aim pursued. In no way could the tax authorities’ decision to issue the section 4 ‑ 10 (1) (b) order be viewed as arbitrary. BLH had been selected for tax audit because the tax authorities had had reason to believe that there had been a commonality of interest between B.L.H. and I.O.R. On several occasions they had asked B.L.H. to provide information concerning the transactions and the relationship between the two companies, but B.L.H. and I.O.R. had both failed to provide such information. The order to allow the inspection of records had been issued more than a year after the tax audit had been started and after the tax payer had repeatedly been asked to produce the documentation necessary to verify the information provided in the tax return. In those circumstances, it had been apparent that an on-site inspection would have been far less effective than a subsequent inspection at the tax office.", "156. In the instant case, sections 3-5 and 3-6 of the Tax Assessment Act, together with the right to judicial review, had provided the applicant companies with adequate and effective safeguards. Indeed, after they had complained about the section 4-10 (1) (b) order, the backup copy of the server had been sealed and the applicant companies had been granted an extension pursuant to section 3-6 (4) of the Tax Assessment Act. They had been granted a further extension pending a final and enforceable judgment and, subsequent to the Supreme Court judgment, yet a further extension in connection with legal proceedings on interim relief. Thus, whilst in most cases a backup tape would within a short time be reviewed in accordance with the section 4-10 (1) (b) order, in the present case the tax authorities had been in the possession of the backup tape for almost six years and had repeatedly agreed to defer their review of the tape.", "157. In sum, the impugned measure had been “necessary in a democratic society”.", "(iii) The Court’s assessment", "158. In determining whether the impugned measure was \"necessary in a democratic society\", the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient, and whether it was proportionate to the legitimate aim pursued. In so doing, the Court will take into account that the national authorities are accorded a certain margin of appreciation, the scope of which will depend on such factors as the nature and seriousness of the interests at stake and the gravity of the interference (see, for instance, Z v. Finland, 25 February 1997, §§ 94 and 99, Reports of Judgments and Decisions 1997 ‑ I, and Leander v. Sweden, 26 March 1987, § 58, Series A no. 116).", "159. One factor that militates in favour of strict scrutiny in the present case is that the backup copy comprised all existing documents on the server, regardless of their relevance for tax assessment purposes (see Miailhe v. France (no. 1), 25 February 1993, § 39, Series A no. 256 ‑ C, and Niemietz, cited above, § 32). On the other hand, the fact that the measure was aimed at legal persons meant that a wider margin of appreciation could be applied than would have been the case had it concerned an individual (see, mutatis mutandis, Niemietz, cited above, § 31).", "160. The Court notes that a tax audit pursuant to section 4-10 (1) of the Tax Assessment Act complemented the duty of the tax subject to provide accurate information to the tax authorities to enable them to make a correct tax assessment (see paragraph 67 above).", "161. The purpose of measures taken under sub-paragraph (b) of section 4-10 (1) was to enable the tax authorities to assess whether the tax subject possessed documents the production of which could be imposed under sub ‑ paragraph (a). There is no reason to call into doubt the view held by the Norwegian Parliament when adopting those provisions that the review of archives was a necessary means of ensuring efficiency in the checking of information which tax subjects submitted to the tax authorities, as well as greater accuracy in the information so provided and in the latter’s tax assessment (see paragraphs 41 and 42 above). Nor is there any reason to assume that the impugned application of section 4-10 (1) was based on any other considerations in the instant case. On the contrary, the tax authorities’ justification for obtaining access to the server and a backup copy with a view to carrying out a review of its contents on their premises was supported by reasons that were both relevant and sufficient for the purposes of the necessity test under Article 8 § 2.", "162. It remains to consider whether the interference complained of was proportionate to the legitimate aim pursued.", "163. As stated above (see paragraph 159), the interference was particularly far-reaching in that the backup tape contained copies of all existing documents on the server, including, as was undisputed, large quantities of material that was not relevant for tax assessment purposes, inter alia, private correspondence and other documents belonging to employees and persons working for the companies (see paragraphs 10, 14, 19-20, 54 and 59 above). An important consideration in the present case, therefore, is whether the procedure relating to the authorities’ obtaining access to a backup copy of the server with a view to inspecting it in the tax office was accompanied by effective safeguards against abuse.", "164. The Court recalls the various limitations highlighted in paragraphs 122 to 129 above to the effect that that section 4-10 (1) did not confer on the tax authorities an unfettered discretion, notably with regard to such matters as the nature of the documents that they were entitled to inspect, the object of requiring access to archives and of authorising the taking of a backup tape. Furthermore, it is to be noted that B.H.L. had been notified of the tax authorities’ intention to carry out a tax audit a year in advance, and both its representatives and those of Kver were present and able to express their views when the tax authorities made their on-site visit on 9 March 2004 (section 3-5 (1) of the Tax Assessment Act).", "165. In particular, the Court observes that, not only was a right to complain available under section 3-6 (1), as soon as the first and second applicants complained about the section 4-10 (1) measure in their case – which they apparently did immediately – the backup copy was placed in a sealed envelope that was deposited at the tax office pending a decision on the complaint (section 3-6 (4) of the Act and Article 4 of the 1983 Regulations on Accountancy Audits; see paragraphs 71 and 73 above).", "166. The Court has further taken account of the other safeguards set out in the above-mentioned regulation, notably the right of the tax subject to be present when the seal is broken, except where that would cause considerable delay (Article 4); the duty of those responsible for the audit to draw up a report (section 3-5 (2) of the Act, Article 5 of the Regulation); the right of the tax subject to receive a copy of the report (Article 6); and the duty of the authorities to return irrelevant documents as soon as possible (Article 7) (see paragraphs 71 to 75 above).", "167. The applicant companies apparently did not complain that the tax authorities had reviewed the backup copy during the period between January and March 2006 in order to assist the police in the investigation of the criminal case involving Mr X (see paragraph 65 above). After completion of the review, all electronically stored documents were deleted and all paper documents were shredded with immediate effect. The Court sees no need for it to pronounce any view on the matter.", "168. On the other hand, the applicant companies were concerned that the authorities had copied the contents of the backup tape to hard disk. The Court observes that from the material submitted, it transpires that this was done after 5 June 2007, the applicant companies were informed thereof on 19 June 2007 and it had been necessary in order to make it possible to open and read the files (see paragraph 63 above). Material so copied would be secured pending the further proceedings, by which time the tax authorities at two levels and both the City Court and the High Court had upheld the impugned measures as being lawful.", "169. It was only later, after the delivery of a final judgment by the Supreme Court, that the tax authorities decided to review the material in question and thus, on 28 January 2008, notified the applicant companies of their intention to open the sealed envelope containing the tape with a view to ordering the production of documents. They informed them of the dates, time and place of the review, its object, certain preparatory processing not involving searching or opening of documents, and the identity of the companies concerned. The tax authorities also invited them to appoint a common representative to attend the preparations and the opening and review of the tape.", "170. The Court has taken note of certain criticism expressed by the applicant companies regarding the practical measures envisaged for the viewing of the files in their representative’s presence, notably their inability to watch the computer screen. However, it does not find that this gives rise to any serious cause for concern. As can be seen from the Tax Administration’s letter to the applicant companies of 30 April 2008, the constraints in this respect essentially stemmed from the mixed character of the archives and were designed to accommodate the applicant companies’ own wishes to respect confidentiality. Any documents selected would be listed, printed out and sorted according to company and be made accessible to the company in question for comment (see paragraph 65 above).", "171. Furthermore, as observed by the Supreme Court, after the review had been completed, the copy would either be deleted or destroyed and all traces of the contents would be deleted from the tax authorities’ computers and storage devices. The authorities would not be authorised to withhold documents from the material that had been taken away unless the tax subject accepted the measure. There is no reason to doubt that the tax authorities would follow that procedure in the applicant companies’ case (see paragraph 64 above).", "172. In the light of the above, while it is true that no requirement of prior judicial authorisation applied in the instant case (compare Funke v. France, 25 February 1993, § 57, Series A no. 256 ‑ A; Crémieux v. France, 25 February 1993, § 40, Series A no. 256 ‑ B; and Miailhe, cited above, § 38), the Court is satisfied that the interference with the applicant companies’ rights to respect for correspondence and home which the contested section 4-10 (1) order entailed was subject to important limitations and was accompanied by effective and adequate safeguards against abuse (see, mutatis mutandis, Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28; Leander, cited above, § 60; and Z, cited above, § 103).", "173. It should also be observed that the nature of the interference complained of was not of the same seriousness and degree as is ordinarily the case of search and seizure carried out under criminal law, the type of measures considered by the Court in a number of previous cases (see, for instance, the following cases cited above: Funke; Crémieux; Miailhe; Niemietz; Société Colas Est and Others; Buck; Sallinen and Others; Wieser and Bicos Beteiligungen GmbH; and also Robathin v. Austria, no. 30457/06, 3 July 2012). As pointed out by the Supreme Court, the consequences of a tax subject’s refusal to cooperate were exclusively administrative (see in particular paragraph 43 and also paragraphs 106 and 153 above). Moreover, the disputed measure had in part been made necessary by the applicant companies’ own choice to opt for “mixed archives” on a shared server, making the task of separation of user areas and identification of documents more difficult for the tax authorities (see paragraphs 46-47 above).", "174. Having regard to the circumstances of the case as a whole, the Court finds that the impugned section 4-10 (1) measure in the instant case was supported by relevant and sufficient reasons. It also sees no reason to doubt that the tax authorities of the respondent State, acting within their margin of appreciation, struck a fair balance between the applicant companies’ right to respect for “home” and “correspondence” and their interest in protecting the privacy of persons working for them, on the one hand, and the public interest in ensuring efficiency in the inspection of information provided by the applicant companies for tax assessment purposes, on the other hand.", "175. Accordingly, there has been no violation of Article 8 of the Convention in the present case." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1960 and lives in Miami.", "A. Origin of the complaints against UBS SA", "7. The facts of the case as submitted by the parties can be summarised as follows.", "8. In 2008 the US tax authorities ( the Internal Revenue Service [IRS] in Washington) discovered – primarily from a complaint lodged by a former employee of the UBS SA bank in Geneva responsible for asset management for the bank ’ s private North American customers – that thousands of US taxpayers held UBS bank accounts which had not been declared to their national authorities or else held economic rights in respect of such accounts.", "Owing to the role which it had apparently played in that connection, the bank faced a risk of criminal prosecution.", "9. On 18 February 2009 a deferred prosecution agreement (DPA) was concluded between UBS SA and the US Department of Justice (DOJ). In this document the bank acknowledged that it had, in particular, allowed US taxpayers to use off-shore accounts to conceal their assets and income from the US tax authorities and had met with and provided on-the-spot advice, in the United States, to customers who had not declared their accounts to the IRS. It was agreed that proceedings could be dropped in return for a settlement amount of 780 million US dollars (USD).", "10. On 19 February 2009 the IRS brought a civil action ( a so- called “ John Doe summons ” [ JDS ]) requesting a formal order to UBS SA to reveal the identities of its 52, 000 American customers and to communicate data on their bank accounts.", "11. Switzerland was concerned that the dispute between the US authorities and UBS SA might give rise to a conflict between Swiss and US law should the IRS obtain that information, and the civil proceedings were therefore suspended pending extra-judicial reconciliation.", "12. On 19 August 2009, with a view to identifying the taxpayers in question, the Federal Council (Government) of the Swiss Confederation and the United States of America (“the United States”) concluded an “Agreement concerning the request by the Internal Revenue Service of the United States relating to the Swiss company UBS SA ” (“Agreement 09”) ...", "Under the first Article of Agreement 09 Switzerland undertook to deal with the US request for mutual assistance concerning UBS SA ’ s American customers in accordance with the criteria laid down in the Appendix to that Agreement and, moreover, in conformity with the Convention of 2 October 1996 between Switzerland and the United States on double taxation (CDI-US 96 ) ...", "Drawing on those criteria, the parties to Agreement 09 considered that the request for mutual assistance concerned “ some 4, 450 open or closed accounts”.", "Switzerland further undertook to set up a “special task force” enabling the Swiss Federal Tax Authority (AFC) to reach its final decisions in the framework of the mutual assistance request within a specific timescale.", "In return, the Agreement provided that the United States and UBS SA would submit to the US District Court for the Southern District of Florida a joint request for the discontinuance of the request for enforcement of the “ John Doe Summons ” ( see Article 3 of Agreement 09 ) ...", "13. On 31 August 2009 the IRS submitted a mutual assistance request to the AFC with a view to obtaining information on US taxpayers who, between 1 January 2001 and 31 December 2008, had had “authority to sign or other access rights to” bank accounts “held, supervised or maintained by a section of UBS SA or by one of its branches or subsidiaries in Switzerland”.", "14. On 1 September 2009 the AFC ordered UBS SA to provide information for the purposes of the 15 June 1998 Order concerning the US-Swiss Convention of 2 October 1996 on double taxation (CDI-US 96 ) ... The AFC decided to instigate a mutual assistance procedure and requested that UBS SA provide, in particular, complete files on the customers mentioned in the Appendix to Agreement 09.", "15. By judgment of 21 January 2010 (A-7789/2009) the Federal Administrative Court (TAF) accepted an appeal against a decision taken by the AFC which concerned, in the framework of the Appendix to Agreement 09, a challenge falling within the category defined in paragraph 2/A/b. In its reasoning, the TAF held that :", "– Agreement 09 was a mutual agreement which should remain within the framework set out by the convention on which it depended, CDI-US 96;", "– under the terms of the aforementioned convention, mutual assistance was granted in cases of tax fraud, but not in cases of tax evasion ( that is to say the mere failure to declare a bank account to the tax authorities; regarding this distinction under Swiss tax law ...;", "– accordingly CDI-US 96 only facilitated exchange of information in cases of “ fraud or a similar offence ” for the purposes of Swiss law, that is to say tax swindle ( tax evasion by dint of “ creative accountancy” ) or document forgery;", "– having regard to the obligations which it imposed on Switzerland, that agreement should have taken the form of an international treaty ratified by the Swiss Federal Parliament and been put to an “ optional referendum”;", "– accordingly, the form of a mere friendly agreement concluded by the Federal Council on its own had been insufficient.", "Consequently, the Federal Administrative Court voided the decisions given by the AFC on the basis of Agreement 09.", "16. The entry into force of that TAF judgment of 21 January 2010 called into question the application of Agreement 09.", "Indeed, out of the approximately 4, 450 individual cases covered by that agreement some 4, 200 concerned situations of long-term tax evasion of enormous proportions. The Swiss Government considered that an inability to provide mutual aid in such cases could create major difficulties for Switzerland in its bilateral relations with the United States. The Federal Council deemed likely that the United States would impose compensatory measures, and that the minimum they could expect was that the US would reactivate the enforcement procedure in respect of the UBS customers through mutual assistance channels. The Federal Council were concerned that an American court might then order UBS SA to provide the IRS with the data in question and force the judgment through by dint of extremely high coercive fines.", "On 31 March 2010, in order to prevent such a development, after fresh negotiations with the United States, the Federal Council concluded a “ Protocol amending the Agreement between Switzerland and the United States concerning the IRS ’ s request for information on the Swiss company UBS SA, signed in Washington on 19 August 2009 ”, referred to as “ Protocol 10 ”.", "The provisions of that protocol were incorporated into Agreement 09. They became provisionally applicable on the date of its signature by the parties.", "17. By Federal Decree of 17 June 2010 “ approving the Agreement between Switzerland and the United States concerning the request for information regarding UBS SA, as well as the Protocol amending that Agreement ”, the Federal Assembly ( the Swiss Parliament ) approved Agreement 09 and Protocol 10, and gave the Federal Council leave to ratify them.", "The consolidated version of Agreement 09 as amended under Protocol 10 is sometimes referred to as “ Convention 10 ” ...", "The aforementioned Federal Decree stated that the optional referendum mentioned in Article 141 of the Federal Constitution in respect of certain international treaties concluded by Switzerland ... was not available in the present case.", "18. On 15 July 2010 the Federal Administrative Court delivered judgment in a pilot case (A-4013/2010) concerning the validity of Convention 10. In that judgment the TAF ruled that :", "– Convention 10 was fully binding on it within the meaning of Article 190 of the Constitution ...;", "– there was no substantive hierarchy in international law ( apart from the pre-eminence of jus cogens ); accordingly, Convention 10 held the same status as CDI-US 96;", "– as CDI-US 96, like the Convention (for the Protection of Human Rights and Fundamental Freedoms) and the International Covenant on Civils and Political Rights ( “ UN Covenant II ” ), had been adopted prior to Convention 10, its provisions were only applicable insofar as they were compatible with the rules of the latter 96, because Convention 10 took precedence by virtue of its posteriority.", "B. Proceedings concerning the applicant", "1. Origin of the case", "19. UBS SA transmitted the applicant ’ s file to the AFC on 19 January 2010.", "In its final decision of 7 June 2010, the AFC ruled that all the conditions had been met for granting mutual assistance to the IRS and ordering the communication to it of the documents published by UBS SA.", "20. On 7 July 2010 the applicant appealed to the Federal Administrative Court against that decision.", "By judgment of 21 September 2010, without assessing the actual lawfulness of the decision of 7 June 2010, the court set it aside, noting that the applicant ’ s right to a hearing had been flouted. Consequently, it referred the case back to the AFC, inviting it to allow the applicant to submit his observations and to give a fresh decision on affording the US authorities mutual assistance in his case.", "21. By letter of 28 September 2010 the AFC notified a deadline of 29 October 2010 for the applicant to forward any observations before the issuing of a fresh decision.", "On 13 October 2010 the applicant submitted a statement of his position on the matter.", "In its final decision of 4 November 2010 the AFC once again held that all the requisite conditions were fulfilled for granting the IRS mutual assistance and ordering UBS SA to communicate the requested documents to the US authorities.", "22. On 8 December 2010 the applicant appealed to the Federal Administrative Court against the decision of 4 November 2010. He complained, in substance, of a lack of any legal basis for the decisions of 1 September 2009 and 4 November 2010, as well as of the violation of the Convention and other international treaties, owing, in particular, to non ‑ compliance with the prohibition of the retroactivity of laws and non-respect for his right to respect for his private life, the presumption of innocence, the principle of equality and non-discrimination, and his right to remain silent.", "2. Judgment of the Federal Administrative Court (TAF) of 2 March 2011", "23. Determining as the final domestic instance, the Federal Administrative Court delivered judgment on 2 March 2011.", "It first of all held, in substance, that Convention 10 was binding on the Swiss authorities, considering that they did not have to verify its conformity with Federal law and previous conventions.", "Secondly, with reference to the pilot case A-4013/2010 of 15 July 2010 ( see paragraph 18 above ), the Federal Administrative Court set out the following reasoning :", "“ 3.2. The AFC ’ s decision of 1 September 2009 concerning UBS SA does not relate to the grant of mutual assistance. It is merely a decision whereby the lower-level authority requested information from UBS SA for the purposes of Article 20c ( 3 ) of CDI-US 96. Therefore, it may be accepted that Agreement 09, in relation with the aforementioned provision, constituted a sufficient legal basis for the AFC to take a decision against UBS SA, requiring, in particular, the handover of the complete files of customers covered by the Appendix to Agreement 09. That being the case, the appellant ’ s complaint is ill- founded.", "4.1.1. In the pilot case A-4013/2010 of 15 July 2010 this court found that Convention 10 was binding on the Swiss authorities. No derogation to it was possible under domestic law or in the authorities ’ domestic practice. It was stated that Article 190 [ of the Constitution] required the authorities to apply international law, which includes Convention 10, and that – in any event – the conformity of international law with the Federal Constitution and Federal legislation could not be assessed where the international law in question was more recent. The Federal Administrative Court thus accepted that Convention 10 should be applied, even if it was contrary to the Federal Constitution or Federal legislation (see Federal Administrative Court judgment A ‑ 4013/2010 of 15 July 2010, point 3 and the references therein; see also Federal Administrative Court judgments A-7014/2010 of 3 February 2011, point 4.1.1 and the references therein, A-4835/2010 of 11 January 2011, point 5.1.1, and A ‑ 6053/2010 of 10 January 2011, point 2.1).", "4.1.2 With particular regard to the relationship between the different conventions (Convention 10, CDI-US 96 [in particular Article 26 thereof], the ECHR [in particular Article 8 thereof] and UN Covenant II [in particular Article 17 thereof]), the court pointed out that that relationship was established pursuant solely to the rules set out in Article 30 of the Vienna Convention on the Law of Treaties of 23 May 1969 (VCLT) and that there was no substantive hierarchy in international law (apart from the pre-eminence of jus cogens ). This court therefore considered that the rules of Convention 10 took precedence over the other provisions of international law, including Article 8 ECHR and Article 17 UN Covenant II, as the latter two provisions did not comprise jus cogens. It did, however, find that even if Article 8 ( 1 ) ECHR were applicable, the conditions set out in Article 8 ( 2 ) ECHR, which permits restrictions on the right to respect for private and family life, were fulfilled. Convention 10 was indeed a sufficient legal basis under the case-law of the European Court of Human Rights. Furthermore, Switzerland ’ s major interests and the interest of being able to honour the country ’ s international commitments took precedence over the individual interests of the persons concerned by the mutual assistance agreement to keep their pecuniary situation secret ...", "4.1.3 This court also stated, in judgment A-4013/2010 cited above, that Article 7 ( 1 ) ECHR ( no punishment without law ) was not relevant to mutual assistance procedures. That provision was, exceptionally, applicable in the framework of Swiss mutual assistance procedure if the person concerned by the assistance was threatened, in the requesting State, with proceedings in breach of Article 7 ECHR ... That was not the situation in the present case ...", "4.1.5 This court has also held that the parties to an international agreement are free to provide expressly or implicitly for the retroactive application of such agreement ... Moreover, procedural rules could be applied retroactively to previous events, because the prohibition of non- retroactivity only applied to substantive criminal law, not to procedural law, which included provisions on mutual assistance ... Furthermore, the parties to Convention 10 had wished to characterise differently the facts which had occurred prior to the signature of Agreement 09, which was commonly referred to as ‘ retroactive effect ’. That wish to apply Agreement 09 – which had become Convention 10 – with retroactive effect transpired clearly from the criteria for granting mutual assistance as set out in the Appendix to Convention 10. Even though the parties had specified, in Article 8 of Convention 10, that that instrument would come into force on the date of its signature, they had wished that retroactive effect to prevail ...", "4.1.7. In the present case it should be noted, in the light of the aforementioned judgments, that the following objections as to the validity and applicability of Convention 10 can be discarded without further ado: incompatibility with the ECHR and other international treaties, violation of the principle of the prohibition of the retroactivity of laws (see Article 7 ECHR and Article 15 UN Covenant II), and violation of the right to respect for private life (see Article 8 ECHR). Furthermore, contrary to the appellant ’ s opinion, Convention 10 is in fact a sufficient legal basis for granting mutual assistance, notwithstanding the failure to put it to a referendum ( which is optional ). Finally, even though Switzerland was unable – in this specific case – to obtain the same information under its own legislation, it is still bound by its international commitments and must grant mutual assistance where the requisite conditions have been met.", "4.2. The appellant further submitted that Convention 10 breached the principles of equality and non-discrimination by solely penalising one specific category of persons, that is to say UBS SA customers. He claimed that Convention 10 only applied to UBS SA customers and not to those of other banks. The appellant relied on Article 8 of the Constitution, Article 14 ECHR, Article 2 paragraph 2 of the International Covenant of 16 December 1966 on Economic, Social and Cultural Rights (UN Covenant I; RS 0.103.1) and Article 2 paragraphs 1 and 26 of UN Covenant II.", "As stated above, this court cannot verify the conformity of Convention 10 with the Federal Constitution and Federal legislation. That legislation, moreover, overrides any previous international agreements to the contrary ( see point 4.1.2 above ). Therefore, Convention 10 must be applied even if it establishes different legal regulations for UBS SA customers as compared with the customers of other banks ( see Federal Administrative Court judgment A-7156/2010 of 17 January 2011, paragraph 5.2.1).", "... ”", "24. On those grounds, the Federal Administrative Court dismissed the applicant ’ s appeal.", "3. Subsequent developments", "25. On 24 March 2011 the applicant lodged a public -law appeal with the Federal Court, submitting that the considerations set out in the judgment challenged solely concerned mutual assistance in criminal matters and were not relevant to administrative mutual assistance.", "By judgment of 11 April 2011 that court declared the appeal inadmissible, mainly with reference to a judgment of 20 December 2010 (ATF 137 II 128), which had found that appeals against AFC decisions given pursuant to the Convention on Double Taxation and subsequent agreements concluded with the United States fell within the scope of administrative mutual assistance.", "26. On 14 December 2012 the banking data concerning the applicant were transmitted to the US tax authorities.", "27. By letter of 14 June 2013, the Court invited the applicant to inform it of the subsequent developments in the case, and, in particular, to give a brief summary of any consequences or any criminal penalties imposed personally and effectively on him in the United States following the disclosure of his banking data as ordered by the Swiss Federal Tax Authority ( AFC).", "28. By letter of 7 August 2013 the applicant stated that he was not currently in a position to respond to the Court ’ s request.", "By letter of 30 June 2014 the applicant pointed out that the US authorities were still conducting their tax inspection and that he had not yet been charged with any criminal offence.", "..." ]

[ "THE LAW", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "44. The applicant complained that his banking data had been disclosed in breach of his right to respect for privacy as provided in Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "45. The Government contested that argument.", "...", "B. Merits", "1. Existence of an interference", "48. The applicant submitted that the decision of the Swiss Federal Tax Authority ( AFC) ordering UBS SA to transmit to it all the files meeting the criteria set out in the Appendix and the decision to accede to the request submitted by the IRS ( US Internal Revenue Service) amounted to interferences in his private life and correspondence.", "49. The Government did not dispute that the impugned measure constituted an interference in the applicant ’ s right to respect for his private life within the meaning of Article 8.", "50. The Court sees no reason to doubt the opinions expressed by the parties. Accordingly, it should be accepted that the applicant sustained an interference in his right to respect for his private life at the latest on 14 December 2012, when his banking data were actually transmitted to the US tax authorities (see paragraph 26 above).", "51. Nor is there any doubt that the information relating to the bank accounts are to be considered as personal data protected by Article 8 of the Convention (see M.N. and Others v. San Marino, no. 28005/12, § 51, 7 July 2015, with the references contained therein).", "2. Justification of the interference", "52. Such an interference breaches Article 8, unless it meets the requirements of the second paragraph of that article. It therefore remains to be seen whether the interference was “ in accordance with the law ”, based on one or more of the legitimate aims set out in the same paragraph, and “necessary in a democratic society” to attain those aims.", "a) “ In accordance with the law ”", "i. The parties ’ submissions", "α) The applicant", "53. As regards the legal basis for the interference, the applicant set out three lines of reasoning.", "Firstly, he pointed out that Agreement 09 and Protocol 10 had not been put to an “optional referendum” as provided in Swiss law for treaties containing important legislative provisions, which he considered had been the situation in the present case.", "The applicant did not agree with the Federal Administrative Court (TAF) that because Switzerland was bound by the agreement at the international level, the Swiss authorities were obliged to apply it pursuant to Article 190 of the Federal Constitution ( see above ), irrespective of any infringement of the formalities applicable to its adoption.", "54. Secondly, the applicant submitted that the foreseeability criterion had not been met, arguing that Agreement 09 and Protocol 10 were applicable retroactively.", "The applicant took the view that the requirement of a legal basis for any interference with private life was founded on the “ certainty of the law ” imperative, which was one of the fundamental elements of the rule of law.", "He explained that from 2001 to 2008 international mutual assistance between Switzerland and the United States in tax matters had been governed by CDI-US 96, which precluded information exchange in straightforward cases of tax “evasion”. The applicant therefore considered that at that time US taxpayers who had held an undeclared account with USB SA might have expected Switzerland to refuse any request from the United States for administrative mutual assistance. The fact of extending Agreement 09 to cover straightforward cases of tax evasion under Protocol 10 had, in the applicant ’ s view, radically transformed the criteria for granting international administrative mutual assistance.", "55. Thirdly, the applicant submitted that on the date of the AFC ’ s decision against UBS SA concerning the handover of customers ’ files fulfilling the criteria of Agreement 09, that is to say 1 September 2009, that instrument had not yet been approved by the Federal Parliament.", "56. From all the foregoing considerations the applicant concluded that the impugned measures had not had a sufficient legal basis.", "β) The Government", "57. As regards the first point raised by the applicant, the Gouvernement submitted that contrary to his affirmations, Agreement 09 had not fallen within the scope of the “ optional referendum ”. Under the terms of Article 141 ( d) ( 3) of the Federal Constitution ... the right to request a referendum on an international treaty only concerned those treaties which contained important legislative provisions or whose implementation required the enactment of federal legislation.", "Since the concept of “ important legislative provisions” had never been defined, the Government considered, in the first place, that Parliament had a certain margin of appreciation in applying that provision.", "58. In support of that option, the Government emphasised that the Federal Council had expressed the view, which was shared by the Federal Parliament, that Agreement 09 and Protocol 10, as a whole, contained no important legislative provisions within the meaning of Article 141 of the Federal Constitution and therefore was not exposed to the possibility of a referendum on request.", "59. The Government affirmed that a further argument in support of the existence of a sufficient legal basis was to be found in the 1969 Vienna Convention on the Law of Treaties. Under the terms of Article 46 of that convention, a State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was “ manifest ” (that is to say – according to paragraph 2 of the same article - objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith) and concerned a rule of its internal law of fundamental importance.", "In the present case, with reference to the foregoing considerations, the Government considered that it could not be claimed that the failure to put Agreement 09 and Protocol 10 to an optional referendum had amounted to an “ objectively evident” violation of Article 141 of the Federal Constitution.", "60. As regards the second point raised by the applicant – the allegation that Agreement 09 did not fulfil the foreseeability criterion owing to its retroactive application – the Government reiterated (citing the example of the case of Brualla Gómez de la Torre v. Spain, 19 December 1997, § 35, Reports of Judgments and Decisions 1997-VIII) that it was a generally recognised principle that, save where expressly provided to the contrary, procedural rules applied immediately to proceedings that were under way.", "61. The Government added that in Article 28 of the Vienna Convention cited above, the statement of the principle that the provisions of a treaty did not bind a party in relation to any act or fact which had taken place or any situation which had ceased to exist before the date of the entry into force of the treaty with respect to that party, was accompanied by the phrase “ unless a different intention appears from the treaty or is otherwise established ” ... They therefore deduced that the parties to an international treaty were free to decide on the retroactive application of its provisions.", "62. The Government also submitted that according to established Swiss case-law, provisions on administrative and criminal mutual assistance applied, in principle, to all live and forthcoming proceedings, including proceedings which related to tax years preceding their adoption (see Federal Court (ATF) judgments 2A.551.20001, 12 April 2002, cons. 2; 2A.250/2001, 6 February 2002, cons. 3 ... Consequently, they took the view that there was nothing unusual about the fact that Agreement 09, which had been concluded on 19 August 2009, had been used to provide administrative mutual assistance in recovering tax on assets held between 2001 and 2008: given that administrative mutual assistance came under procedural law according to the relevant case-law, the prohibition of retroactivity had been inapplicable.", "63. The Government set out several reasons which they considered as justifying the retroactive application of the agreement in question.", "They explained, first of all, that the legal consequences facing the applicant following the transmission of data on his accounts with UBS SA were a matter for US substantive law in force at the material time, that is to say the period from 2001 to 2008.", "Secondly, with reference to the cases of Cantoni v. France (15 November 1996, § 35, Reports 1996 ‑ V) and Khodorkovskiy and Lebedev v. Russia (nos. 11082/06 and 13772/05, § 784, 25 July 2013), the Government submitted that like all taxpayers, particularly business operators such as himself, the applicant should have been aware of his tax obligations and of the risks involved in evading them.", "64. The Government took the view that the applicant could not reasonably exclude, by seeking wide-ranging legal advice, the eventual application of the principle of the “ retroactivity ” of the procedural rules to the provisions on administrative mutual assistance in tax matters between Switzerland and the United States of America; especially since it was common knowledge that the US and the Organisation on Economic Cooperation and Development (OECD) had long been exerting pressure to that end.", "65. The Government also reiterated the aim of the prohibition of retroactivity : they considered that that principle was intended to enable those concerned to foresee the potential substantive-law consequences of any breach, rather than to protect actions deliberately geared to circumventing substantive law by means of subterfuges based on the applicable procedural law.", "66. Finally, as regards the third point raised by the applicant – the fact that the Agreement had not yet been approved by parliament when the AFC had given its decision on 1 September 2009 – the Government objected that that decision had not concerned the grant of administrative mutual assistance but had been the result of a prior examination of the request submitted by the AFC, designed to enable the latter to consider whether the preconditions for granting mutual assistance had been fulfilled.", "At any event, the Government argued that the provisional application of the Agreement before approval by parliament had been ratified by the latter on the occasion of the approval of Agreement 09 and Protocol 10.", "67. Having regard to the foregoing considerations, the Government were convinced that Agreement 09, in conjunction with CDI-US, provided a legal basis for the impugned measure in accordance with Article 8 § 2.", "ii. The Court ’ s assessment", "α) The relevant principles", "68. The Court reiterates its well-established case-law to the effect that the phrase “ in accordance with the law ” means that the impugned measure must have a basis in domestic law and be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in the subject-matter and aim of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct. If it is to be deemed consonant with those requirements, the law must indicate the scope of any powers conferred on the competent authorities and the manner of their exercise with sufficient clarity to give the individual adequate protection against arbitrary interference ( see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; and Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000-II).", "69. The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed ( see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI, and references therein ).", "70. Furthermore, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law ( see Kopp v. Switzerland, 25 March 1998, Reports 1998-II, § 59, and Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A).", "β) Application of the above - mentioned principles", "71. The applicant essentially complained about two aspects : firstly, the formal shortcomings of the legal basis for the impugned measure; and secondly, the non-foreseeability of the measure owing to the retroactive application of the instruments in question.", "– Absence of an “ optional referendum ” and lack of prior parliamentary approval in respect of the legal basis of the measure", "72. As regards the first aspect, the Court notes that the parties ’ opinions diverge considerably on whether, from the constitutional point of view, those instruments should have been put to a possible “ optional referendum ”.", "However, the Court holds that it is not incumbent on it to decide that matter given that, as it transpires from its case-law reiterated above, it largely disregards the kind of procedure leading to the enactment of a specific law relined on in support of an interference with a right secured under the Convention, the only limit being arbitrariness.", "73. In that regard the Court reiterates that Agreement 09 and Protocol 10 were negotiated and concluded by the Federal Council, approved by the Federal Parliament and then ratified by the Government, in accordance with the procedure for the conclusion of treaties set out in constitutional law. Even supposing that Agreement 09 and Protocol 10 had been put to an “ optional referendum ”, on which question the parties disagree, the legal bases for the impugned measure would nonetheless have remained extant.", "74. Finally, inasmuch as the applicant submitted that the decision given by the AFC on 1 September 2009 had also lacked a legal basis owing to the fact that Parliament had not yet approved Agreement 09 on that date, the Court agrees with the Government that that decision did not concern the grant of administrative mutual assistance but had merely been designed to enable the AFC to consider whether the preconditions for granting mutual assistance had been fulfilled. In any event the immediate application of Agreement 09 on a provisional basis had been upheld by the Government on approving it, and that of Protocol 10 was confirmed by the Federal Parliament on 17 June 2010.", "– Alleged non- foreseeability arising from the retroactive application of the treaties at issue", "75. The Court reiterates that its task is to verify the quality of the legal basis for the interference, and in particular its accessibility and the adequate foreseeability of its application. In the present case the applicant did not submit that the two instruments in question had been inaccessible to him. On the other hand, he complained that their implementation had not been foreseeable.", "76. As regards the foreseeability of the impugned measure, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 1969, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights ( see, for example, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131, ECHR 2010, with the references therein ).", "In the present case the Court does not consider nugatory the argument put forward by the Federal Court and the Government to the effect that Article 28 of the Vienne Convention itself grants the parties to an international treaty the option of departing from the principle of non ‑ retroactivity and deciding to take account of an act or fact which occurred before the parties adhered to that treaty.", "Nevertheless, as regards the convention of greatest interest to the Court, namely the Convention for the Protection of Human Rights and Fundamental Freedoms, which instrument has immediate legal effect vis-à-vis individuals, the possible retroactive application of another international treaty must be assessed with regard to the requirements of its own provisions, that is to say, in the present case, Article 8.", "77. The Court reiterates that in its judgment Brualla Gómez de la Torre (cited above, § 35), cited by the Government, it accepted the “generally recognised principle” that, save where expressly provided to the contrary, procedural rules apply immediately to proceedings that are under way ( see also Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 148, ECHR 2000-VII). However, as the Government emphasised, no express exception of that nature was present in the instant case. The Court observes that the applicant also did not contest the fact that administrative mutual assistance in tax matters comes under procedural law.", "78. In the present case the Federal Court has constant case-law to the effect that the provisions on administrative and criminal mutual assistance requiring third parties to provide specific types of information are of a procedural nature and therefore apply, in principle, to all proceedings that are under way or are forthcoming, even where they concern tax years preceding their enactment ...", "The applicant, who was duly represented by a lawyer before the domestic authorities, could not realistically have been unaware of that judicial practice. Consequently, he cannot argue before the Court that the interference took place in a manner which was unforeseeable to him.", "79. Nor can it be claimed that the formerly restrictive practice of the Swiss authorities in matters of administrative mutual assistance in the tax field might have prompted the applicant to expect to be able to continue to invest his assets in Switzerland shielded from scrutiny by the competent US authorities, or even merely from the possibility of retroactive scrutiny (see, conversely, Bigaeva v. Greece, no. 26713/05, § 32, 28 May 2009).", "80. Having regard to all the foregoing considerations, the impugned measure must be deemed to have been “ in accordance with the law ” within the meaning of Article 8 § 2 of the Convention.", "b) Legitimate aim", "i. The parties ’ submissions", "81. The applicant submitted that the impugned measures had no legitimate aim within the meaning of Article 8 § 2.", "He took the view that the “economic well-being of the country ” argument was invalid in the present case : Agreement 09 and Protocol 10, as well as the decisions taken on the basis of those instruments, had solely served the interests of UBS SA rather than those of Switzerland.", "Furthermore, the applicant also considered the “prevention of crime” plea irrelevant on the grounds that under Swiss law tax evasion was a minor offence rather than a crime.", "82. The Government argued that the applicant ’ s bank details had been transmitted to the IRS in the framework of administrative mutual assistance in the tax field, which had therefore helped to prevent disorder and certain criminal offences.", "Moreover, the Government considered that there was a specific context to the present case. They submitted that the issue at stake was to reconcile three different concerns : to settle the conflict which had emerged when the IRS brought proceedings in the United States of America; to ensure that those concerned benefited from a procedure consistent with the requirements of the rule of law; and to prevent major economic risks not only for UBS SA but for Switzerland as a whole. They explained that those aims could not have been achieved through full implementation of the provisions of Agreement 09.", "The Government added that the impugned measures had also helped maintain national security and the economic well-being of the country.", "ii. The Court ’ s assessment", "83. Given that the banking sector is an economic branch of great importance to Switzerland, the Court considers that the impugned measure, which formed part of an all-out effort by the Swiss Government to settle the conflict between the bank UBS and the US tax authorities. The measure might validly be considered as conducive to protecting the country ’ s economic well-being. The Court accepted the Government ’ s argument that the US tax authorities ’ allegations against Swiss banks were liable to jeopardise the very survival of UBS SA, a major player in the Swiss economy employing a large number of persons, which explained Switzerland ’ s interest in finding an effective legal solution in cooperation with the USA.", "84. Having regard to the foregoing consideration, the Court finds that the impugned measure pursued a legitimate aim within the meaning of Article 8 § 2.", "c) “ Necessary in a democratic society ”", "i. The parties ’ submissions", "85. The applicant made no pleas in that regard. He generally submitted that the impugned decisions and the texts underpinning them did not protect the ideals and values of a democratic society but rather infringed and undermined them.", "86. The Government observed that when Agreement 09 had been concluded, Switzerland had been facing a difficult situation of a conflict of law and of sovereignty with the United States of America. In that specific context, if Switzerland had not implemented the provisions of the agreement the proceedings commenced in the US would probably have been reactivated, with all the attendant consequences. The Government mentioned in that regard the message issued by the Federal Council concerning the approval of Agreement 09 and Protocol 10, stating that in view of the systemic importance of UBS SA, its collapse would have caused considerable damage to the rest of the Swiss banking sector and to the national economy as a whole ...", "87. In that context the Government added that one of the main objectives of Agreement 09 and the mutual assistance procedures implemented had been to incorporate those procedures into the legal framework of CDI-US 96. Otherwise the American authorities would most likely have done their utmost to obtain the data in question by acting directly against the bank. Therefore, according to the Government, Agreement 09 had afforded to the persons concerned – including the applicant – guarantees on a normal administrative mutual assistance procedure to which appeals lay.", "As regards the applicant, given the practices recognised by UBS SA in the framework of its settlement agreement with the prosecuting authorities ( the DPA), the Government argued that there was every reason to suppose that he had taken advantage of the specific services offered by the bank to conceal certain assets from the US tax authorities.", "Even if that were not the case, the Government noted that the applicant ’ s only interest in opposing the transmission to the United States of America of his banking data was to circumvent a tax procedure concerning the assets in question, that is to say quite simply to evade his fiscal obligations under American law.", "88. Having regard to all the foregoing considerations, the Government concluded that the measure had been necessary in a democratic society.", "ii. The Court ’ s assessment", "α) The applicable principles", "89. The organs of the Convention have had occasion to establish certain principles governing the disclosure of sensitive data, including medical information ( see Z. v. Finland, 25 February 1997, Reports of Judgments and Decisions 1997 ‑ I, and M.S. v. Sweden, 27 August 1997, Report of Judgments and Decisions 1997 ‑ IV ), data concerning a politician ’ s financial situation ( see Wypych v. Poland (dec.), no. 2428/05, 25 October 2005) and tax data ( see Lundvall v. Sweden, no. 10473/83, Commission decision of 1 December 1985, Decisions and Reports (DR) 45, p. 121).", "90. Pursuant to the principles arising from those cases, the Court has regard, in this sphere, to the essential role played by personal data protection in safeguarding the right to respect for private life as guaranteed by Article 8. Domestic law must therefore afford appropriate guarantees to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8. Moreover, the Court accepts that the protection of the confidentiality of certain types of personal data may be outweighed by the interest in the investigation and prosecution of crime and in the publicity of court proceedings. Finally, the Court recognises that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the interest of the publicity of court proceedings, on the one hand, and the interests of a party or of a third person in maintaining the confidentiality of such data, on the other hand ( see, inter alia, Z. v. Finland, cited above, §§ 94, 95 and 97-99).", "91. Those principles concerning the disclosure of certain types of information have been extensively confirmed and developed by the Court in cases concerning the storage of personal information ( see, in particular, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008; and Khelili v. Switzerland, no. 16188/07, §§ 61 et seq ., 18 October 2011). That is the framework in which the Court will assess the impugned interference with the applicant ’ s right to respect for his private life.", "β) Application of the above- mentioned principles", "92. The Court first of all notes that the applicant has advanced no substantiated arguments in support of the disproportionality of the impugned measure, merely stating that that measure had not pursued a legitimate aim.", "On the other hand, it observes that the Federal Administrative Court held that the conditions set out in Article 8 § 2 of the Convention for any interference with private or family life were met in the instant case, considering that the important economic interests at stake for the country and Switzerland ’ s interest in being able to honour its international commitments outweighed the individual interest of the persons concerned by the mutual assistance in keeping their financial situation secret (paragraph 4.1.2 of the judgment: see paragraph 23 above). The Government broadly followed that line of reasoning in their observations before the Court.", "93. As regards the applicant ’ s private interests, it transpires from the aforementioned case-law that the protection afforded to personal data depends on a number of factors, including the nature of the relevant Convention right, its importance to the person in question, and the nature and purpose of the interference. According to the S. and Marper judgment ( cited above, § 102), a State ’ s margin of appreciation will tend to be narrower where the right at stake is crucial to the individual ’ s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will be restricted.", "As regards the applicant ’ s situation, it should be noted that the impugned disclosure only concerned his bank data, that is to say purely financial information; it therefore in no way involved the transmission of intimate details or data closely linked to his identity, which would have merited enhanced protection. It follows that Switzerland had a broad margin of appreciation in his case.", "94. With reference to its observations on the pursuit of a legitimate aim ( see paragraphs 83 and 84 above ), the Court accepts that Switzerland had an important interest in acceding to the American request for administrative mutual assistance so that the US could track down any assets concealed in Switzerland. By concluding Agreement 09 and Protocol 10, it succeeded in averting a major conflict with the United States of America.", "95. As regards the effect of the impugned measure on the applicant, the Court once again observes that the measure was implemented in the framework of a mutual assistance procedure, not as part of any criminal proceedings conducted in the USA, which were, and still are, purely hypothetical, and that that procedure represents at most a mere preliminary phase to criminal proceedings.", "In other words, the bank details in question were transmitted to the competent US authorities to enable them to assess, using their standard procedures, whether the applicant had indeed honoured his tax obligations, and if not, to take the requisite legal action.", "96. The Court also observes that the applicant benefited from certain procedural safeguards against the transfer of his data to the US tax authorities (see, conversely, M.N. and Others v. San Marino, cited above, §§ 82 et seq.). Firstly, he was able to appeal to the Federal Administrative Court against the AFC ’ s decision of 7 June 2010 ( see paragraph 20 above ). That court subsequently set aside the said decision owing to a breach of the applicant ’ s right to a hearing. The AFC consequently invited the applicant to transmit any observations he might have within a specified time-limit. The applicant availed himself of that right. On 4 November 2010 the AFC gave a fresh decision, which was properly reasoned, reaching the conclusion that all the preconditions were present for affording administrative mutual assistance. Subsequently, the applicant lodged a second appeal with the Federal Administrative Court, which dismissed that appeal by judgment of 2 March 2011 ( see paragraphs 21 and 22 above ). It follows that the applicant had several effective and real procedural safeguards at his disposal to challenge the surrender of his bank details, thereby protecting him against arbitrary implementation of the agreements concluded by Switzerland and the United States of America.", "97. Having regard to all the circumstances of the case, and particularly in the light of the non-personal nature of the data disclosed, it was not unreasonable for Switzerland to prioritise the general interest of an effective and satisfactory settlement with the United States of America over the private interest of the applicant. That being the case, Switzerland did not overstep its margin of appreciation.", "98. It follows that there was no violation of Article 8 of the Convention.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants, Mr K.S. and his wife Mrs M.S., were born in 1939 and 1942 respectively and live in Lauf.", "A. The background to the case", "6. In 2006 the German secret service ( Bundesnachrichtendienst ) bought a data carrier from a certain K. for a considerable amount of money. The data carrier contained financial data from the Liechtenstein L. Bank relating to 800 people. K., who had formerly been an employee of the L. Bank, had illegally copied the data. The data carrier was submitted to the German tax investigation authorities, which subsequently instigated proceedings against, inter alia, the applicants, in relation to tax evasion crimes.", "B. The search warrant and house search", "7. On 10 April 2008 the Bochum District Court (“the District Court”), following an application from the Bochum prosecutor ’ s office, issued a search warrant in respect of the home of the applicants, who were suspected of having committed tax evasion between 2002 and 2006. The search warrant allowed the seizure of papers and other documents concerning the applicants ’ capital, both inside and outside Germany, especially documents concerning information on foundations and any documents that could help to determine the true tax liability of the applicants since 2002.", "8. The search warrant indicated that, in the course of investigations against another suspect, the prosecution had obtained information that the applicants had established the “K. Foundation” on 17 January 2000 and the “T.U. S.A.” on 14 June 2000. The applicants were suspected of having made financial investments via these two associations with the L. Bank in Liechtenstein, for which they were liable for tax in Germany. According to the search warrant, the applicants had failed to declare about 50,000 euros (EUR) of the yearly interest accrued from the capital of both the K. Foundation and T.U. S.A. in their tax returns for the years 2002 to 2006. It indicated that the applicants had evaded tax payments of EUR 16,360 in 2002, EUR 24,270 in 2003, EUR 22,500 in 2004, EUR 18,512 in 2005 and EUR 18,000 in 2006. The search warrant stated that the house search was urgently needed in order to find further evidence and that, weighing the seriousness of the alleged crimes against the constitutional rights of the applicants, the house search was proportionate.", "9. On 23 September 2008 the applicants ’ flat was searched and one envelope containing L. Bank documents and five computer files were seized.", "C. Proceedings before the Bochum District Court", "10. The applicants appealed against the search warrant. They argued that the warrant had not been granted in accordance with the law. It had been based on material which had been acquired in breach of international law, especially the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990, because the data had been stolen from the L. Bank and had been bought by the secret service. The acquisition of the data had also violated domestic law, as the secret service had no authorisation to obtain tax data. In fact, such an act was a criminal offence under German law, as it infringed section 17(1) and section 17(2)(2) of the Unfair Competition Act (“divulgence of official secrets” ( Geheimnisverrat )). Furthermore, the secret service was not authorised to forward tax data to the financial authorities and the prosecution, as this infringed the German legal principle of separation of the secret service and the police/prosecution ( Trennungsprinzip ).", "11. On 8 April 2009 the Bochum District Court dismissed the appeal. It was of the view that the house search had been legal as it had been based on a lawful search warrant. The court had no doubt that it had been lawful to base the search warrant on the information contained in the Liechtenstein data carrier, as, in its view, the data had neither been seized in direct violation of international law nor by circumventing international treaties.", "12. The District Court was also of the view that the search warrant in question could be issued on the basis of the information in the data carrier, as the secret service had only played a passive role in acquiring it. According to the court, there was no indication that the secret service had incited a third person to steal the data, and it had merely accepted the data from a third person when this person had offered it. The fact that the secret service might have remunerated the seller did not, in the court ’ s view, change the fact that the secret service had only played a passive role. In the court ’ s opinion, it was within the secret service ’ s remit to acquire the data carrier in the prescribed way and hand the data over to the prosecution, as the data carrier contained 9,600 sets of data concerning international cash flows.", "D. Proceedings before the Bochum Regional Court", "13. On 7 August 2009 the Bochum Regional Court dismissed the applicants ’ appeal. It held that the search warrant had been lawful, even if it was true that the German authorities had infringed domestic criminal law in obtaining the evidence. Even assuming that the German authorities might have committed the criminal offences of acting as an “accessory to a criminal offence” ( Begünstigung, Article 257 § 1 of the German Criminal Code) and an “accessory to the divulgence of official secrets” ( Beihilfe zum Geheimnisverrat, section 17(1) and section 17(2)(2) of the Unfair Competition Act, in conjunction with Article 27 of the German Criminal Code) in buying the Liechtenstein data from K., and that K. might have committed the offence of “industrial espionage” ( Betriebsspionage, section 17(2)(1) of the Unfair Competition Act), it considered the search warrant to have been lawful. With regard to the applicants ’ allegation that the data had been acquired in breach of international law, the Regional Court doubted any such breach.", "14. As regards the question whether illegally obtained evidence could be used in criminal proceedings, the Regional Court referred to a decision of the same court of 22 April 2008, where it had held in a similar case and with regard to the same data carrier that the interest in prosecuting the suspects outweighed the possible infringements of criminal law, as the principal criminal act of “data theft” had been committed by a third party and not by the German authorities. According to the well-established case-law of the Federal Court of Justice, evidence that had been illegally acquired by a third party could generally be used in criminal proceedings, unless it had been acquired through coercion or force. It also had to be considered that the use of the “stolen” data had not infringed the core of the applicants ’ private sphere, but their business affairs. Furthermore, the “data theft” had not primarily infringed the rights of the applicants, but the data-protection rights of the bank from which it had been “stolen”. Thus, the Liechtenstein data was not excluded as evidence and the search order could be based on it. As to the presumed breach of international law, the court added that such a breach would not lead to the unlawfulness of the search warrant, firstly because international law did not grant the applicants any personal rights and secondly because the use of the evidence did not in itself constitute a breach of international law.", "E. Proceedings before the Federal Constitutional Court", "15. On 11 September 2009 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They were of the view that the Regional Court and the District Court should have decided that the search warrant had not been in accordance with the law, as the use of the Liechtenstein data as a basis for a search warrant had violated international treaties and the sovereignty of Liechtenstein, which had protested against the use of the data.", "16. Furthermore, they argued that their right to respect for their home under Article 13 of the Basic Law had been infringed, as the search warrant had been based on evidence that had been acquired by the secret service and passed on to the prosecution in violation of domestic law. The data purchase from K. had constituted a criminal act. Moreover, the secret service had no authority under German law to purchase such data. Furthermore, the transfer of the Liechtenstein data from the secret service to the financial authorities and the prosecution had violated the principle of the separation of the secret service and the prosecution in Germany. The infringement of domestic law had been so severe that the criminal courts should have come to the conclusion that the Liechtenstein data could not have formed the basis of a search warrant. They would thus have been obliged to declare the search warrant illegal.", "17. On 9 November 2010 the Federal Constitutional Court dismissed the constitutional complaint as manifestly ill-founded. It found that the fact that the search warrant had been based on the Liechtenstein data did not infringe Article 13 of the Basic Law.", "18. The Federal Constitutional Court reiterated that there was no absolute rule that evidence which had been acquired in violation of procedural rules could never be used in criminal proceedings (compare paragraph 2 8 below). The court further pointed out that it had to be borne in mind that the case at hand did not concern the question of whether evidence could be admitted in a criminal trial, but only concerned the preliminary question of whether evidence that might have been acquired in breach of procedural rules could form the basis of a search warrant in criminal investigation proceedings. Even if evidence was considered inadmissible in criminal proceedings, this did not automatically mean that the same was true for all stages of criminal investigations.", "19. Furthermore, the court reiterated that it was not its role to substitute itself for the authorities in the interpretation and application of domestic law, but to review, in the light of the Basic Law, the decisions taken by the authorities in the exercise of their margin of appreciation.", "20. In applying these general principles to the case at hand, the Federal Constitutional Court ruled, at the outset, that it was not necessary to decide upon the question whether the acquisition of the data had been in breach of national or international law or violated the principle of the separation of the secret service and the prosecution in Germany, as the Regional Court had departed in its decision from the applicants ’ allegation that the evidence might in fact have been acquired in breach of domestic and international law, including criminal law.", "21. The Federal Constitutional Court found that the fact that the Regional Court based its legal assessment on the assumption that the acquisition of the data had been in breach of domestic and/or international law was not arbitrary and hence could not be found to be in violation of Article 13 of the Basic Law. Its finding that the applicants could not invoke international law in their favour only showed a different legal opinion without disregarding the applicants ’ basic rights. Furthermore, the Federal Constitutional Court considered reasonable the District and Regional Court ’ s legal assessment that the principle of separation of the secret service and the prosecution had not been infringed, as the facts of the case did not show that the secret service had either ordered or coordinated the “data theft”, but had been offered the data on K. ’ s own initiative. Acquiring data in such a way and passing it on to the prosecution could not violate the principle of separation, and hence could not render a search warrant unconstitutional.", "22. With regard to the Regional Court ’ s finding that the search order could be based on the Liechtenstein data the Federal Constitutional Court found that the Regional Court ’ s legal assessment sufficiently took into account the applicants ’ basic rights as the Regional Court had departed from the applicants ’ allegation that the evidence had been obtained in breach of domestic law and thus based its decision on, what was, for the applicants, the best possible assumption.", "23. The Federal Constitutional Court further considered that the Regional Court had struck a fair balance between the different interests at stake. The alleged breach of national and/or international law did not entail an imperative prohibition to use the evidence in the proceedings at issue. Furthermore, the Regional Court had rightly pointed out that the data did not relate to the core area of the applicants ’ private life, but to their business activities. It had recognized the decisive interest at stake, namely the applicants ’ right to inviolability of their home, and took it sufficiently into account, as nothing showed that German authorities purposely and systematically breached international or domestic law in obtaining the data carrier.", "F. Criminal proceedings before the Nuremberg District Court", "24. On 2 August 2012 the Nuremberg District Court acquitted the applicants of the charges of tax evasion, finding that it had not been proven beyond reasonable doubt that the capital of the foundation in question had been invested in an interest-bearing way." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Provisions of the German Constitution (“the Basic Law ”)", "25. Article 13 of the Basic Law guarantees the inviolability of a person ’ s home. The relevant part reads:", "Article 13 of the Basic Law", "“(1) The home is inviolable.", "(2) Searches may be authorised only by a judge or, when time is of the essence, by other authorities designated by the laws, and may be carried out only in the manner therein prescribed. ... ”", "B. Provisions of the Code of Criminal Procedure", "26. The rules and safeguards relating to the search of a person ’ s home and the seizure of objects found during the search are regulated by Articles 102 to 108 of the Code of Criminal Procedure, the relevant parts of which read:", "Article 102", "“A body search, a search of the property or of the private or other premises of a person who, as a perpetrator or as an instigator or accessory before the fact, is suspected of committing a criminal offence, or is suspected of being an accessory after the fact or of obstructing justice or of handling stolen goods, may be made for the purpose of his arrest, as well as in cases where it can be presumed that the search will lead to the discovery of evidence.”", "Article 105", "“(1) Searches may be ordered only by a judge or, in exigent circumstances, also by the public prosecutor ’ s office and the officials assisting it. ... ”", "C. Rules and practice on the admissibility of evidence", "27. The German Code of Criminal Procedure does not contain general rules about the admissibility of evidence, apart from Article 136a, which provides that confessions obtained by torture, inhuman or degrading treatment or unlawful coercion must not be used as evidence against the defendant.", "28. However, according to the well-established case-law of the Federal Constitutional Court (see, inter alia, file nos. 2 BvR 2017/94 and 2 BvR 2039/94 of 1 March 2000, and no. 2 BvR 784/08 of 28 July 2008) and the Federal Court of Justice (see, inter alia, no. 5 StR 190/91 of 27 February 1992), other than the prohibition contained in Article 136a, there is no absolute rule that evidence which has been acquired in violation of procedural rules cannot be used in criminal proceedings ( Beweisverwertungsverbot ). Generally, the courts have to consider all available evidence in order to ascertain objectively whether a defendant is guilty or not, as a State cannot function if it does not guarantee that perpetrators will be prosecuted and convicted (see Federal Constitutional Court, no. 2 BvL 7/71 of 19 July 1972). The prohibition on the use of evidence therefore has to remain an exception (see Federal Court of Justice, no. 3 StR 181/98 of 11 November 1998). Such a prohibition is, however, imperative in the case of a serious, deliberate or arbitrary breach of procedural rules which has systematically ignored constitutional safeguards. Such a prohibition is also imperative where evidence has been obtained in violation of constitutional rights which affect the core of private life (see, inter alia, Federal Constitutional Court, no. 2 BvR 1027/02 of 12 April 2005 ). Whether there is a prohibition on the use of evidence cannot be decided in a general way, but has to be determined on a case-by-case basis.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "29. The applicants complained that the search of their residential premises had violated Article 8 of the Convention, as the search warrant had been based on evidence which had been obtained in breach of international and domestic law. Article 8 of the Convention reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "30. The Government contested that argument.", "A. Admissibility", "31. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Whether there was an interference", "32. It is common ground between the parties that the search complained of amounted to an interference with the applicants ’ right to respect for their home, and the Court sees no reason to hold otherwise.", "2. Whether the interference was justified", "33. Accordingly, it has to be determined whether the interference was justified under paragraph 2 of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question.", "(a) “In accordance with the law”", "34. As to the question of whether the measure was in accordance with the law, the Court ’ s case-law has established that a measure must have some basis in domestic law, with the term “law” being understood in its “substantive” sense, not its “formal” one. In a sphere covered by statutory law, the “law” is the enactment in force as the competent courts have interpreted it (see Robathin v. Austria, no. 30457/06, § 40, 3 July 2012). Domestic law must further be compatible with the rule of law and accessible to the person concerned, and the person affected must be able to foresee the consequences of the domestic law for him (see, among many other authorities, Robathin, cited above, § 40; and Kennedy v. the United Kingdom, no. 26839/05, § 151, 18 May 2010 ).", "35. In the present case, the Court notes that the search of the applicants ’ premises was based on the relevant provisions of the German Code of Criminal Procedure, namely Articles 102 and 105 of the Code of Criminal Procedure (see paragraph 2 6 above). As regards the foreseeability of their application in the present case, the Court takes note of the settled case-law of the Federal Constitutional Court according to which there was no absolute rule that evidence which had been acquired in violation of procedural rules could not be used in criminal proceedings (see paragraph 2 8 above). In these circumstances the Court finds that the applicants were able to foresee ‒ if necessary with the aid of legal advice ‒ that the domestic authorities would consider that the search warrant could be based on the Liechtenstein data despite the fact that they may have been acquired in breach of law. The Court therefore considers that the measure complained of was “in accordance with the law”.", "(b) Whether the interference pursued a legitimate aim", "36. The Court further observes that the search in issue was ordered in the context of criminal investigations on suspicion of tax evasion initiated following the purchase of a Liechtenstein data carrier. It therefore served a legitimate aim, namely the prevention of crime (compare Camenzind v. Switzerland, 16 December 1997, § 40, Reports of Judgments and Decisions 1997 ‑ VIII).", "(c) Whether the interference was “necessary in a democratic society”", "(i) The parties ’ submissions", "37. The applicants argued that their right to respect for their home had been infringed, as the search warrant had been based on evidence that had been acquired in violation of German domestic and international law. The data purchase from K. had constituted a criminal act. Moreover, the secret service had no authority under German law to purchase such data.", "38. The infringement of German domestic law had been so severe that the Liechtenstein data could not have been used to justify the search warrant. Therefore, the interference with their right to respect for their home had not been proportionate to the aim pursued. Furthermore, the house search had been excessive, as it had even included an examination of their will.", "39. The Government submitted that the search warrant had been in compliance with the second paragraph of Article 8 of the Convention. The decision to carry out a search had been based on a reasonable suspicion that the applicants might have committed tax evasion between 2002 and 2006. Moreover, the search warrant had been subjected to prior judicial control and contained reasons justifying its issuance. Accordingly, the applicants had enjoyed sufficient safeguards against abuse.", "40. The Government pointed out that the Regional Court ’ s decision had balanced the applicants ’ right to respect for their home with the public interest in criminal prosecution. It had even assumed that the acquisition of the Liechtenstein data had been by way of a criminal act, but had held that this could justify a search warrant whose objective in investigative proceedings was to find additional evidence in order to secure an effective criminal prosecution.", "41. It emerged from the Government ’ s submissions including the enclosed documents that the data set in question was the first set of tax data acquired by German authorities. Furthermore, the above- mentioned decisions of the Bochum Regional Court were among the first decisions with regard to the question whether unlawfully obtained data could serve as the basis of a search warrant.", "(ii) The Court ’ s assessment", "42. In accordance with the Court ’ s established case-law, the notion of “necessity” implies that an interference corresponds to a pressing social need and, in particular, is proportionate to the legitimate aim pursued. In determining whether an interference is “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the Contracting States (see Keegan v. the United Kingdom, no. 28867/03, § 31, ECHR 2006 ‑ X ). However, the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly, and the need for them in a given case must be convincingly established (see Mastepan v. Russia, no. 3708/03, § 40, 14 January 2010, with further references; Smirnov v. Russia, no. 71362/01, § 43, 7 June 2007; and Miailhe v. France (no. 1), 25 February 1993, § 36, Series A no. 256 ‑ C ).", "43. As regards searches of premises and seizures in particular, the Court has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences (see Vasylchuk v. Ukraine, no. 24402/07, § 79, 13 June 2013 ). The Court will assess whether the reasons put forward to justify such measures were relevant and sufficient, and whether the aforementioned proportionality principle has been adhered to (see Smirnov, cited above, § 44 ).", "44. As regards the latter point, the Court must first ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse ( see Société Colas Est and Others v. France, no. 37971/97, § 48, ECHR 2002 ‑ III, and Funke v. France, 25 February 1993, § 56, Series A no. 256 ‑ A ). Secondly, the Court must consider the specific circumstances of each case in order to determine whether, in the particular case, the interference in question was proportionate to the aim pursued. The criteria the Court has taken into consideration in determining this latter issue are, inter alia : the severity of the offence in connection with which the search and seizure were effected; the manner and circumstances in which the order was issued, in particular whether any further evidence was available at that time; the content and scope of the order, having particular regard to the nature of the premises searched and the safeguards implemented in order to confine the impact of the measure to reasonable bounds; and the extent of possible repercussions on the reputation of the person affected by the search (see Buck v. Germany, no. 41604/98, § 45, ECHR 2005 ‑ IV, and Smirnov, cited above, § 44 ).", "45. With regard to the safeguards against abuse provided by German legislation and established practice in cases involving searches like the one in the present case, the Court notes that such measures may, except in exigent circumstances, only be ordered by a judge under the limited conditions set out in the Code of Criminal Procedure (see paragraph 26 above). However, whilst a highly relevant consideration, the fact that an application for a warrant has been subject to judicial scrutiny will not in itself necessarily amount to a sufficient safeguard against abuse. Rather, the Court must examine the particular circumstances and evaluate whether the legal framework and the limits on the powers exercised were an adequate protection against arbitrary interference by the authorities (see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January 2004).", "46. The Court observes that, according to Article 102 of the Code of Criminal Procedure, a search of a property is dependent on reasonable grounds for suspecting that a person has committed an offence and the presumption that the search will lead to the discovery of evidence (see paragraph 2 6 above). Furthermore, the person concerned may also challenge the legality of a search warrant in cases where the order has already been executed (compare Buck, cited above, § 46). The Court notes lastly that, under the settled domestic case-law, even though there is no absolute rule that evidence which has been acquired in violation of procedural rules cannot be used in criminal proceedings, the Federal Constitutional Court held that the use of evidence was prohibited in cases of a serious, deliberate or arbitrary breach of procedural rules which systematically ignored constitutional safeguards (see paragraph 2 8 above).", "47. In the present case, the applicants made a complaint to the Bochum District Court, which was called upon to review the lawfulness of the search warrant. After the Bochum District Court dismissed the complaint, the Bochum Regional Court also reviewed the lawfulness of the search warrant ( see paragraphs 1 3 and 1 4 above). The Court further notes that the Regional Court not only assessed whether the search warrant complied with the domestic provisions, but also whether the taking of the Liechtenstein data as basis for the search warrant complied with the settled case-law of the Federal Constitutional Court with regard to the use of evidence in criminal proceedings. Thus the safeguards provided for by German legislation and jurisprudence against abuse in the sphere of searches in general can be considered both adequate and effective and to have been complied with in the instant case.", "48. As to the proportionality of the search warrant to the legitimate aim pursued in the particular circumstances of the case, the Court, having regard to the relevant criteria established in its case-law, observes in the first place that the offence in respect of which the search warrant was issued was tax evasion, an offence which affects State ’ resources and their capacity to act in the collective interest. As such, tax evasion constitutes a serious offence; a fact underlined in a case such as this where the suspected tax evasion related to the sum of approximately EUR 100,000 (see, in this regard, the OECD Convention on Mutual Administrative Assistance in Tax Matters, developed in 1988 and amended in 2010, according to which the tackling of tax evasion forms a top priority for all member states). Furthermore, in this field - the prevention of capital outflows and tax evasion - States encounter serious difficulties owing to the scale and complexity of banking systems and financial channels and the immense scope for international investment, made all the easier by the relative porousness of national borders (compare Cremieux v. France, no. 11471/85, § 39, 25 February 1993; and Funke, cited above, § 56).", "49. With regard to the manner and the circumstances in which the order was issued, the Court observes that the search was ordered to find further evidence. Furthermore, the Liechtenstein data were the only evidence available at the relevant time that suggested that the applicants might have evaded paying tax. The search warrant therefore appears to have been the only means of establishing whether the applicants were in fact liable for tax evasion (contrast Buck, cited above, § 49). It is the gist of the applicants ’ complaint, in this context, that the search warrant had been based on evidence which had been obtained by a flagrant breach of international and domestic law and which, therefore, should have been excluded as a basis for the warrant (see paragraphs 3 7 and 38 above).", "50. The Court notes in this respect that the Federal Constitutional Court did not find it necessary to decide whether the data carrier had been obtained in breach of international and domestic law, as the Regional Court had based its decision on, what was, for the applicants, the best possible assumption, namely that the evidence might in fact have been acquired unlawfully. Consequently, this Court finds it unnecessary to determine this issue in the present case, but will operate on the same assumption.", "51. The Court attaches particular weight to the fact that it is uncontested that, at the time the search warrant was issued, few, if any, relevant data sets other than the one at issue had been purchased by German authorities, and only a few sets of criminal proceedings relying on unlawfully obtained tax data as an evidential basis had been instigated (compare paragraph 41 above). Furthermore, these sets of criminal proceedings had been instigated on the basis of the present data set (see paragraph 14 above). Thus, no material submitted by the parties indicates that, at the relevant time, the domestic tax authorities were purposely acting in the light of any established domestic case-law confirming that unlawfully obtained tax data could be used to justify a search warrant. Neither does the fact alone that, according to the well-established case-law of the Federal Constitutional Court (see paragraph 28 above), there is no absolute rule that evidence which has been acquired in violation of the procedural rules cannot be used in criminal proceedings, imply that the authorities purposely obtained the data in breach of international or domestic law.", "52. Moreover, nothing in the material before the Court indicates that the German authorities, at the relevant time, deliberately and systematically breached domestic and international law in order to obtain information relevant to the prosecution of tax crimes. The Federal Constitutional Court ’ s findings in so far (see paragraph 23 above) have not been contested by the applicants.", "53. The Court further notes that any offence which the German authorities might have committed in purchasing the data carrier from K. would have consisted of acting as an accessory to a criminal offence and acting as an accessory to the divulgence of official secrets, and that K. might have committed the offence of industrial espionage (compare paragraph 13 above). Therefore, the German authorities, in issuing the search warrant, did not rely on real evidence obtained as a direct result of a breach of one of the core rights of the Convention. Moreover, the data carrier contained information concerning the financial situation of the applicants, which they were obliged to submit to the domestic tax authorities, but no data closely linked to their identity (compare G.S.B. v. Switzerland, no. 28601/11, § 93, 22 December 2015).", "54. Considering the content and scope of the search warrant, the Court notes that it named the grounds on which it was based, namely that the applicants were suspected of having made financial investments in Liechtenstein for which they were liable for tax in Germany, but failed to declare about EUR 50,000 of yearly interest in their tax returns for the years 2002 to 2006. Furthermore, the search warrant stated that the house search was urgently needed in order to find further evidence (see paragraph 7 above). As regards the scope of the warrant, the Court observes that it allowed the seizure of papers and other documents concerning the applicants ’ capital, both inside and outside Germany, especially documents concerning information on foundations and any documents that could help to determine the true tax liability of the applicants since 2002. The Court considers therefore that the search warrant was quite specific in its content and scope, containing an explicit and detailed reference to the tax evasion offence being investigated, with an indication of the items sought as evidence (contrast Roemen and Schmit v. Luxembourg, no. 51772/99, § 70, ECHR 2003 ‑ IV; and Robathin, cited above, § 47). Thus, nothing indicates that the warrant was not limited to what was indispensable in the circumstances of the case.", "55. With regard to the scope of the search warrant the Court further takes note of the applicants ’ allegation that the search covered the examination of their will. The Court attaches weight to the fact that, although a document of a very private nature, a will may contain information about property value. As the investigating officer did not seize the applicants ’ will, but only one envelope with L. Bank documents and five computer files (see paragraph 9 above), the Court considers that the mere inspection of the will did not impinge on the applicants ’ private sphere to an extent that was disproportionate (contrast Smirnov, cited above, § 48).", "56. Lastly, having regard to possible repercussions on the reputation of the person affected, the Court observes that, in the present case, the applicants did not allege any adverse effect on their personal reputation as a consequence of the executed search of their private premises.", "57. Taking into account that a margin of appreciation is left to the Contracting States in respect of domestic law and practice regulating the conditions under which residential premises may be searched (see paragraph 4 2 above), the domestic courts cannot be said to have overstepped their margin of appreciation, in particular, in basing the search warrant on the Liechtenstein data and considering the interference with the applicants ’ right to their home proportionate to the legitimate aim pursued. The interference with the applicants ’ rights under Article 8 of the Convention was thus necessary in a democratic society.", "58. Accordingly, there has been no violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "59. The applicants further complained under Article 6 of the Convention that their right to equality of arms had been infringed during the impugned proceedings in which they had challenged the house search, as they had been denied access to information concerning the role of the secret service, the protocols of K. ’ s hearings and the original data-carrier.", "60. The applicants also complained that their right to be heard had been infringed, as the domestic courts had not considered all the arguments put forward with regard to the breach of international law and the right of the secret service to pass on the data to the prosecution.", "61. Furthermore, there were many indications that the German authorities played an active role in the purchase of the Liechtenstein data and that K. had been incited by the German secret service.", "62. However, in the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of Article 6 of the Convention.", "63. It follows that this part of the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASES", "7. The applicants were born in 1964, 1935, 1963, 1965 and 1963 respectively.", "A. Background to the cases", "8. The status of Churches and religious societies is governed mainly by Articles 137 to 141 (known as the “Church Articles” – Kirchenartikel ) of the Weimar Constitution of 11 August 1919 ( Weimarer Reichsverfassung), as incorporated into the Basic Law by Article 140 of that Law. A couple of Churches and religious societies, including the Catholic Church (about 23.7 million members) and the Protestant Church of Germany (about 22.2 million members), commonly known as the two “big Churches” ( Grosskirchen ), have the status of public ‑ law entities. Other religious denominations have legal capacity under civil law.", "9. As regards their financing, churches and religious societies with the status of public-law entities are entitled to levy a church tax, which accounts for a significant portion of their total budget. The churches decide independently whether to levy a tax and what its rate should be. The rate of church tax has been over many years either 8 % or 9% of the tax on an individual ’ s income and, in most German Länder, is collected by the State tax authorities on behalf of churches and religious societies, which in return pay 3 % to 5% of their tax revenue to the State.", "10. The church tax is guaranteed by Article 140 of the Basic Law read in conjunction with Article 137 § 6 of the Weimar Constitution ( see paragraph 49 below). Only members of a particular religious denomination authorised to levy the tax are obliged to pay it. Any church member who does not want to pay church tax can leave that church by declaration towards the authorities.", "11. If spouses are members of different churches entitled to levy taxes ( konfessionsverschiedene Ehe ) and if they have opted for a joint income tax assessment ( gemeinsame steuerliche Veranlagung ), both churches levy the tax on the spouses in the form of an additional levy on the income tax of both spouses. The amount of each spouse ’ s church tax is calculated on the basis of half of the declared income tax.", "12. In marriages where only one spouse belongs to a church entitled to levy taxes ( glaubensverschiedene Ehe ), the church entitled to the tax levies it in accordance with that person ’ s tax assessment. Churches calculate the tax on the basis of the income tax attributable to the spouse liable to pay tax rather than on the basis of that spouse ’ s share of the total income. According to the Federal Constitutional Court ’ s settled case-law, if the spouse belonging to a church has no income in terms of the regulations of the Income Tax Code, the church tax cannot be levied (see 5 6 paragraph below ). In that case, in some German Länder ( inter alia, Baden ‑ Württemberg, Bavaria and Thuringia ), the church entitled to levy taxes charges its members a special “ church fee” ( besonderes Kirchgeld ). Although called a fee, the levy is, however, treated legally as a tax. The church fee amounts to about one-third of the relevant church tax.", "13. Churches only levy the special church fee if spouses decide on a joint income tax assessment. The special church fee is not levied if spouses make separate tax declarations ( getrennte Veranlagung ). It is important to note that in case of a joint income tax assessment the spouses benefit from a special calculation method for the income tax (the so-called “income ‑ splitting”, “ Splitting-Verfahren ”) and furthermore from the progressive effect ( Steuerprogression ) of the German tax system, which generally leads to a lower tax burden.", "14. If spouses decide on a joint income tax assessment, they submit a tax declaration ( Steuererklärung ). In most of the German Länder (except of the Land of Bavaria), in their tax calculation procedure ( Steuererhebungverfahren ) the tax authorities set the special church fee according to the calculation regulations of each church. The basis for calculating the special church fee is the church member ’ s living expenses ( Lebensführungsaufwand ), which are calculated on the basis of the spouses ’ joint income. The special church fee is only levied on the spouse who is a church member. The remaining tax liability is applied to both spouses.", "15. If a tax authority ’ s calculation on income tax leads to a tax reimbursement for the spouse not being a member of a church and who is liable to pay income tax, only that spouse will be credited with it. At the same time, the special church fee levied on one spouse can be offset against any tax reimbursement due to the other spouse. If the calculation of the income tax leads to a demand to pay more tax, offsetting cannot take place.", "16. Either spouse can file an objection ( Einspruch ) against that part of the tax bill which applies to them. If the special church fee has been offset against a tax reimbursement due to the spouse who is not a member of a church that spouse can apply for a settlement notice ( Abrechnungsbescheid ) in accordance with Article 218 of the Fiscal Code ( Abgabenordnung, see paragraph 51 below ) and thus have the possibility to be repaid the offset amount.", "B. The specific circumstances of each case", "17. The facts of the cases, as submitted by the parties, may be summarised as follows.", "1. Application no. 10138/11 ( the first applicant )", "18. The first applicant lives in Heidelberg, in the Land of Baden ‑ Württemberg. He is married. His wife is member of the Protestant Church, which is authorised to levy church taxes. In 2005 the first applicant left his church and was no longer obliged to pay church taxes.", "19. For the tax assessment period of 2008 the spouses opted for a joint tax assessment.", "20. Their 2008 tax bill, dated 22 April 2010, included a special church fee for the first applicant ’ s wife of 2,220 euros (EUR). As the spouses were jointly liable for income tax and the applicant ’ s wife ’ s income was below the minimum taxable amount, the wife ’ s special church fee was calculated as a proportion of her living expenses, which in turn were calculated on the basis of the spouses ’ joint income (see paragraphs 1 2 - 14 above ).", "21. The tax bill applied to both the first applicant and his wife. Page one showed the authority ’ s tax calculation ( Ergebnis des Steuererhebungsverfahrens ) in a table, with one column for income tax ( Einkommensteuer ), one for solidarity tax ( Solidaritätszuschlag ) and one headed “ Protestant Church tax, wife” ( Kirchensteuer evangelisch Ehefrau ). The third column showed the amount of EUR 2,220. The table further showed that the first applicant had a tax reimbursement claim of EUR 3,423 .00, which had been offset against the church fee of EUR 2,220 of his wife. It finished with a credit for the first applicant of EUR 1,203.00.", "22. Pages two to four of the tax bill contained a detailed assessment of the taxable annual income of the first applicant and his wife. The document then had explanations of the items. Line 40, out of 114 lines of explanations altogether, stated as follows:", "“ Only the wife is liable for church tax. ”", "Following the explanations, the tax bill provided information on possible legal remedies. As regards the special church fee, it stated as follows:", "“ An objection can be raised to the setting of the church tax and to the fixing of advance payment of church tax. ... An objection can be filed by the person on whom the church tax has been levied ” (“ Gegen die Kirchensteuerfestsetzung und die Festsetzung der Kirchensteuervorauszahlung ist der Einspruch gegeben. ... Zur Einlegung des Einspruches ist derjenige befugt, gegen den sich die Kirchensteuerfestsetzung richtet. ” ).", "23. The first applicant filed an objection against the tax bill. On 17 December 2010 the tax office dismissed the objection, referring to the Federal Constitutional Court ’ s decision of 28 October 2010, fully endorsing its reasoning (see paragraph 3 2 below).", "2. Application no. 16687/11 ( the second applicant )", "24. The second applicant lives in Sulzbach-Rosenberg in the German Land of Bavaria.", "25. The second applicant is a member of the Protestant Church. In 2005 he had an annual income of EUR 10,14 4. His wife, who was not member of a church, had income of EUR 162,522. In 2005, the second applicant and his wife were jointly liable for annual income tax.", "26. On 7 February 2007 the competent tax office charged the second applicant a special church fee of EUR 1,500. The fee was calculated on the basis of his living expenses, which in turn were calculated on the basis of his and his wife ’ s income (see paragraphs 1 2 -14 above ).", "27. The second applicant filed an objection to the decision. On 12 December 2007 the tax office dismissed the objection, relying on the Federal Constitutional Court ’ s case - law that has been settled since 1965 (see paragraphs 5 6 - 5 8 below).", "28. The second applicant lodged an action with the Nuremberg Tax Court, asserting a violation of his basic rights.", "29. On 18 June 2009 the Tax Court dismissed the action. It argued that the special church fee had not violated the second applicant ’ s right to equality or his right to freedom of religion or freedom of action and relied on the Federal Constitutional Court ’ s settled case-law. It refused leave to appeal.", "30. On 29 January 2010 the Federal Tax Court dismissed an appeal by the second applicant against the decision refusing him leave to appeal and endorsed the Nuremberg Tax Court ’ s reasoning.", "31. On 14 April 2010 the second applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that he had no income and therefore could not pay the special church fee on his own because it had been calculated on the basis of both spouses ’ income. As a consequence, the freedom of religion of both spouses had been violated and spouses in their kind of marriage had been discriminated against when compared with other kinds of marriage. The second applicant argued that he could only remain a member of his religious community if his spouse was willing to pay his special church fee, otherwise he would have to sue her for maintenance.", "32. On 28 October 2010, the Federal Constitutional Court declined to consider the second applicant ’ s constitutional complaint (file no. 2 BvR 816/10) after joining it, inter alia, with those of the third, fourth and fifth applicants. It considered that the constitutional complaint had not touched on any constitutional questions which needed to be decided as the relevant questions had been settled in a judgment delivered on 14 December 1965 (file no. 1 BvR 606/60, see paragraph 5 7 below). That judgment was still applicable and there was no doubt that the calculation of a person ’ s living expenses on the basis of the spouses ’ income was in conformity with constitutional law.", "3. Application no. 25359/11 ( the third and fourth applicants )", "33. The third and fourth applicants are a married couple who live in Gera in the German Land of Thuringia. The third applicant is a member of the Protestant Church and had the higher income of the two. The fourth applicant is not a member of a church. In 2004 the third applicant ’ s income amounted to EUR 53,511 while the fourth applicant ’ s income was EUR 11,720. In 2005 the sums were EUR 55,033 and EUR 4,928 respectively, while in 2006 they were EUR 54,996 and EUR 12,640.", "34. On 29 August 2005, 5 February 2006 and 26 June 2008 the competent tax office levied church tax on the third applicant for the years 2004 to 2006. As the applicants had opted for a joint tax assessment, the third applicant ’ s church tax was calculated with his income tax as a proportion of the income tax attributable to him, rather than in proportion to his share of the spouses ’ total income ( see paragraph 1 2 above).", "35. On 23 June 2008 the competent tax office dismissed an objection by the third and fourth applicants against the church tax calculation.", "36. The two applicants lodged an action with the Gera Tax Court, asserting a violation of their basic rights.", "37. On 31 March 2009 the Tax Court dismissed the action, arguing that the calculation had not violated their right to equality or freedom of religion. The court stressed that the German tax authorities had a wide margin of appreciation regarding tax regulations. The fact therefore that the third applicant ’ s church calculated its church tax on the base of a percentage of his income tax rather than on a percentage of income raised no doubts as to its legitimacy. The tax court refused leave to appeal.", "38. On 8 May 2009 the third and fourth applicants appealed against the decision refusing them leave to appeal, alleging, inter alia, a violation of their freedom of religion. They argued that in spite of the fourth applicant ’ s decision not to be member of a religious community, the tax authorities had taken her income into account when calculating her husband ’ s church tax.", "39. On 16 November 2009 the Federal Tax Court declared the applicants ’ appeal inadmissible for lack of sufficient reasoning.", "40. On 21 January 2010 the applicants lodged a constitutional complaint with the Federal Constitutional Court, alleging a violation of their right to equality and freedom of religion.", "41. On 28 October 2010, the Federal Constitutional Court declined to consider the third and fourth applicants ’ constitutional complaint after joining it, inter alia, with those of the second and fifth applicants (file no. 2 BvR 2715/09, see paragraph 3 2 above ).", "4. Application no. 28919/11 ( the fifth applicant )", "42. The fifth applicant lives in Nuremberg, situated in the German Land of Bavaria. In 2004 and 2005 the fifth applicant, who had no income, was a member of the Protestant Church of the German Land of Bavaria. Her husband was not member of a church. The spouses opted for a joint income tax assessment for 2004 and 2005.", "43. The competent tax authority levied no church tax on the fifth applicant as she had no income, but on 2 February 2007 applied a special church fee of EUR 3,600 for 2005 and on 27 June 2007 it charged her EUR 1,860 for 2004. The amounts were calculated on the basis of the fifth applicant ’ s living expenses, which were calculated on the basis of her and her husband ’ s joint income.", "44. The fifth applicant raised an objection against those decisions and applied for a suspension of enforcement. On 23 October 2008 the tax office dismissed her objection, arguing that there had been no violation of the right to equality because there had been an objective and reasonable justification for the difference in treatment.", "45. The fifth applicant lodged an action with the Nuremberg Tax Court, again applying to have enforcement suspended and asserting a violation of her right to equality.", "46. On 15 June 2009 the Tax Court dismissed the request for suspension of enforcement, arguing that the special church fee did not violate the fifth applicant ’ s right to equality in view of the Federal Constitutional Court ’ s settled case - law.", "47. On 22 July 2009 the fifth applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging, inter alia, a violation of her right to freedom of religion. She argued that she could not remain in her religious community if her husband, who was not a church member, did not agree to pay her special church fee.", "48. On 28 October 2010, the Federal Constitutional Court declined to consider the fifth applicant ’ s constitutional complaint after joining it, inter alia, with those of the second, third and fourth applicants (file no. 2 BvR 1689/09, see paragraph 3 2 above )." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Basic Law", "49. Article 140 of the Basic Law provides that Articles 136-39 and 141 of the Weimar Constitution of 11 August 1919 form an integral part of the Basic Law. Article 137 reads as follows:", "Article 137", "“(1) There shall be no State Church.", "(2) The freedom to form religious societies shall be guaranteed. ...", "(3) Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.", "...", "(5) Religious societies shall remain entities under public law in so far as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application, if their constitution and size of membership provide guarantees of long-term existence ...", "(6) Religious societies that are entities under public law shall be entitled to levy taxes on the basis of the civil taxation rolls in accordance with the law of the Land.", "...", "(8) Such further regulation as may be required for the implementation of the present provisions shall be a matter for the legislature of the Land .”", "Article 140", "“The provisions of Articles 136, 137, 138, 139 and 141 of the German Constitution of 11 August 1919 shall be an integral part of this Basic Law.”", "B. Relevant Provisions of the Tax Codes", "50. Article 36 of the Income Tax Code ( Einkommensteuergesetz) provides that the obligation to pay income tax arises after the expiry of the assessment period and after taking any advance payments into account.", "51. Article 218 § 1 of the Fiscal Code ( Abgabenordnung ) provides that the tax bill constitutes the legal basis to realise claims arising from the tax regime. According to paragraph 2 the authorities decide over disputes arising from paragraph § 1 by way of a settlement notice ( Abrechnungsbescheid ).", "52. Section 41 of the Tax Court Act ( Finanzgerichtsordnung ) provides for the possibility to lodge a declaratory action. It is recognised by German legal practise that under this provision also a preventive declaratory action can be lodged.", "C. Provisions on levying the general church tax and the special church fee within the German Länder", "53. Acts on the Collection of Church Taxes in the Länder of Baden ‑ Württemberg, Bavaria and Thuringia provide details about church taxes for those Länder. They state that churches in those Länder which are authorised to levy taxes are entitled to levy the church tax or a special church fee.", "54. Under Article 19 § 4 of the Act on the Collection of Church Taxes of the Land of Baden-Württemberg ( Kirchensteuergesetz Baden-Würtemberg ) as in force at the relevant time, the church tax was levied on top of the tax on income. The provision stated that if only one spouse belonged to a church entitled to levy taxes, that church imposed the tax in accordance with the tax assessment relating to that person. If the spouses were taxable together, the church tax of the spouse liable to pay tax was calculated proportionally as a supplement to income tax.", "55. Under Article 5 § 5 of the Act on the Collection of Church Taxes of the Land of Baden -Württemberg a church authorised to levy taxes levied the special church fee in cases where a member was married, taxable together with his or her spouse and had no taxable income. According to further provisions of the law ( Kirchensteuerbeschlüsse ), the special church fee was calculated on the basis of the liable person ’ s living expenses instead of their income. Those expenses were based on the joint income of the liable person and their spouse.", "D. Relevant case-law", "56. On 14 December 1965 the Federal Constitutional Court delivered a leading judgment concerning the right of churches to levy church taxes (file no. 1 BvL 31/62, 1 BvL 32/62). It held that a person who was not a member of a church authorised to levy church taxes was not liable to pay church tax on account of his or her spouse ’ s membership of a church.", "57. On the same day the Federal Constitutional Court delivered a further judgment on the issue of church taxes (file no. 1 BvR 606/60). It held that if only one spouse belonged to a church entitled to levy taxes and that person had no income in terms of the regulations of the Income Tax Code (“ ein eigenes Einkommen im Sinne des Einkommensteuergesetzes ”), the church was not allowed to take the other spouse ’ s income into account as a basis for calculating the church tax (Halbteilungsgrundsatz) because taxes were levied on the basis of an individual ’ s personal income. The spouse who was not a member of a church could not be regarded as a person liable to pay tax or be assumed to be liable to pay for the other spouse ’ s tax. At the same time, it held that in such cases the person may be liable to pay a special church fee, calculated on the basis of the liable person ’ s living expenses instead of their income. If those expenses were difficult to calculate, the calculation could be based on the spouses ’ joint income.", "58. That case - law has been applied consistently by the domestic tax courts, including the Federal Tax Court (see no. I R 76/05, 19 October 2005 and I B 109/12, 8 October 2013), and has been confirmed by the Federal Constitutional Court on 19 August 2002 (see no. 2 BvR 443/01).", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "59. Given their similar factual and legal backgrounds, the Court decides that the four applications should be joined, in accordance with Rule 42 § 1 of the Rules of Court.", "II. APPLICATION NO. 10138/11 (THE FIRST APPLICANT)", "A. Scope of the application", "60. Having regard to the submissions made by the first applicant in the course of the proceedings before this Court, the Court considers it necessary to clarify at the outset that the scope of the present case is delimited by the complaints raised in the first applicant ’ s original applications to the Court. In this regard, the Court notes that in his application and submissions the first applicant made factual statements only with regard to the tax bill for the year 2008. The Court concludes therefore that the applicant, represented by a lawyer, cannot be considered as having validly raised complaints about the tax bills concerning the years after 2008.", "B. Alleged violation of Article 9 of the Convention", "61. The first applicant complained that the system of collecting church taxes in Germany, as it had been applied to him, had infringed his right to freedom of religion, as provided in Article 9 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "62. The Government contested that argument.", "1. Admissibility", "63. The Government submitted that the first applicant could not claim to be a direct victim of a violation of Article 9 of the Convention as he had neither personally been charged the special church fee nor been liable to pay it. It had only been his wife who had been liable to pay the special church fee as she had been the recipient of the respective tax bill.", "64. The first applicant maintained that he had been a victim of a violation of Article 9 of the Convention as his wife ’ s special church fee had been offset against his tax reimbursement claim.", "65. In order to rely on Article 34 of the Convention, an applicant must be able to claim to be a victim of a violation of the Convention. The individual concerned must be able to show that he or she was “directly affected” by the measure complained of (see Lambert and Others v. France [GC], no. 46043/14, § 89, ECHR 2015 (extracts) ). This criterion is not to be applied in a rigid, mechanical and inflexible way (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX). The Court interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000 ‑ XI), even though the Court should have regard to the fact that an applicant had been a party to the domestic proceedings (see Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009).", "66. Turning to the case at hand, the Court notes that the special church fee levied on his wife was offset against the first applicant ’ s tax reimbursement claim (see paragraph 2 1 above). The Court considers that, irrespective of the question of whether or not the first applicant was liable for the special church fee pursuant to domestic law, he was directly affected by the impugned way of collecting his wife ’ s special church fee. In view of the foregoing, and given the need to apply the criteria governing victim status in a flexible manner, the Court accepts that the first applicant, even if the part of the tax bill related to the special church fee did not concern him directly, can be considered a victim of the facts complained of within the meaning of Article 34 of the Convention. It therefore rejects the Government ’ s objection that the first applicant lacked victim status.", "67. In so far as the Government submitted that the applicant could have applied for a settlement notice according to Article 218 of the Fiscal Code (see paragraph 51 above) or that he had had the possibility to lodge a preventive declaratory action ( vorbeugende Feststellungsklage, see paragraph 52 above ), the Court notes that the Government have not invoked in substance the rule to exhaust domestic remedies and, accordingly, sees no reason to address this point as an objection of inadmissibility.", "68. The Court notes that no other ground for declaring inadmissible the first applicant ’ s complaint under Article 9 of the Convention has been established. It must therefore be declared admissible.", "2. Merits", "( a) The first applicant ’ s submissions", "69. The first applicant submitted that he had been compelled to pay his wife ’ s special church fee as it had been offset against his tax reimbursement claim. Furthermore, the tax bill had not contained any information on his right to raise an objection against the offsetting or the possibility to apply for a settlement notice. He did thus not have the possibility to apply for a settlement notice. Furthermore, by opting for a joint tax assessment he had not consented to the offsetting as the decision to file a joint tax assessment had been motivated solely by financial considerations and had had nothing to do with a negative confession of religious beliefs.", "( b) The Government ’ s submissions", "70. The Government submitted that the special church fee had only been levied because the first applicant and his wife had opted for a joint tax assessment. If they had opted for a separate income tax assessment, the church fee would not have been levied. In that case, his income tax would have increased by EUR 8,400. Accordingly, the spouses ’ choice for joint tax assessment had led to a decrease in the first applicant ’ s tax burden.", "71. Furthermore, as far as the offsetting of the first applicant ’ s wife ’ s special church fee against his tax reimbursement claim was concerned, the first applicant could have prevented this offsetting by lodging a preventive declaratory action.", "72. The Government further argued that, once the offsetting had taken place, the first applicant had had the possibility to apply for a settlement notice under Article 218 of the Fiscal Code. He had thus had the possibility to be repaid the money that had been taken as a result of the offsetting of his wife ’ s special church fee.", "( c) Third parties ’ comments", "(i) The Churches ’ common submissions", "73. The intervening churches (compare paragraph 5 above) submitted that the manner and legal framework for raising funds for churches formed part of the relationship between the State and churches and was thus subject to the wide margin of appreciation which was given to States in the building of relations with churches. The levying of church taxes formed part of the right to the self-administration of churches in the Länder. Only church members were obliged to pay a contribution for their religious activities.", "74. They further submitted a guideline ( Dienstanweisung ) for tax authorities without, however, specifying which authority issued it, when it was issued and whether it applied to the first applicant at the relevant time. They alleged that on the basis of this guideline the automatic offsetting of the first applicant ’ s tax reimbursement claim against his wife ’ s special church fee could have been stopped upon his opposition.", "(ii) The Giordano Bruno Foundation ’ s submissions", "75. The Giordano Bruno Foundation submitted that the assessment of the special church fee on the basis of living expenses rather than on a member ’ s personal income, entailed, de facto, that the spouse who was not a member of a church had to pay the fee, thus forcing that person to contribute to church finances.", "( d) The Court ’ s assessment", "76. Having regard to the first applicant ’ s complaint, that he had been compelled to pay the special church fee levied on his wife without being a member of that church, the Court considers it appropriate to examine this case from the angle of the negative aspect of freedom of religion and conscience, namely the right of an individual not to be compelled to be involved in religious activities against his will (see, mutatis mutandis, Bruno v. Sweden (dec.), no. 32196/96, 28 August 2001 ).", "(i ) whether there was an interference", "77. The Court reiterates that as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, the freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I; and Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A).", "78. While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one ’ s religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Furthermore, the Court has had occasion to point out that Article 9 enshrines negative rights, for example the freedom not to hold religious beliefs and not to practise a religion (see, to this effect, Sinan Işık v. Turkey, no. 21924/05, § 38, 2 February 2010; and Alexandridis v. Greece, no. 19516/06, § 31, 21 February 2008 ).", "79. This general right protects everyone from being compelled to be involved in religious activities against his will. The payment of a specific tax to a church to fund its religious activities may, in certain circumstances, be seen as such involvement (see Lundberg v. Sweden (dec.), 36846/97, 28 August 2001).", "80. The Court notes that the tax bill at issue applied to both the first applicant and his wife (see paragraph 21 above). At the same time, one column of the table showing the result of the authority ’ s tax assessment was headed “Protestant Church tax, wife”. Furthermore, the explanatory part of the tax bill stated that only the first applicant ’ s wife was liable for the church tax (see paragraph 22 above). The Court, as a consequence, shares the Government ’ s point of view that it was the wife on whom the special church fee was being levied and not the first applicant.", "81. Nevertheless, the Court has accepted, as noted above, that Article 9 is also a precious asset for non-believers or for those not belonging to any institutionalised religious group like the first applicant in the present case. It necessarily follows that there will be an interference with the negative aspect of that provision when the State brings about a situation in which individuals are obliged – directly or indirectly – to contribute to a religious organisation of which they are not a member. In the present case, the special church fee which was levied on the first applicant ’ s wife was, in fact, subtracted directly from the first applicant ’ s tax reimbursement claim by way of an offset due to the spouses ’ decision to have their income tax assessed jointly.", "82. The Court observes that in the material submitted by the parties there is nothing to suggest that the first applicant had first to consent to the offsetting of his wife ’ s special church fee against a potential tax reimbursement claim, but that it followed as an automatic consequence of the spouses ’ decision for a joint tax assessment. The Court concludes that German legislation brought about a situation where the first applicant was subjected to his wife ’ s financial obligations towards her church without himself being a member of it.", "83. It follows that there has been an interference with the negative aspect of the applicant ’ s rights under Article 9 of the Convention.", "(ii) whether the interference was justified", "( α ) General Principles", "84. In order to determine whether or not an interference entails a violation of Article 9 of the Convention, the Court must ascertain whether it satisfied the requirements of Article 9 § 2, that is to say, whether it was “prescribed by law”, pursued a legitimate aim under that provision and was “necessary in a democratic society” ( İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 105, ECHR 2016).", "85. In particular, an instance of interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, among many other authorities, İzzettin Doğan and Others, cited above, § 105 ).", "86. As a matter of case-law, in cases concerning the right to freedom of religion the Court has consistently left the Contracting States a certain margin of appreciation in assessing the existence and extent of the necessity of an interference, but this margin is subject to European supervision, embracing both the legislation and the decisions applying it. The Court ’ s task is to determine whether the measures taken at national level were justified in principle and proportionate (see Manoussakis and Others v. Greece, 29 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, § 44).", "87. In delimiting the extent of the margin of appreciation, particularly as regards the building of the fragile relations that exist between the State and religions, the Court reiterates that there is no common European standard governing the financing of churches or religions, such questions being closely related to the history and traditions of each country (see Wasmuth v. Germany, no. 12884/03, § 63, 1 7 February 2011; Spampinato v. Italy (dec.), no. 23123/04, 29 March 2007; and Manoussakis and Others, cited above, § 44 ). The margin of appreciation left to Contracting States in this regard is thus a wide one (see Schilder v. The Netherlands (dec.), no. 2158/12, 16 October 2012; Miroļubovs and Others v. Latvia, no. 798/05, § 80, 15 September 2009; Alujer Fernández and Caballero García v. Spain (dec.), no. 53072/99, ECHR 2001 ‑ VI; and Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000 ‑ VII).", "( β ) Application to the present case", "88. The Court observes that there is no dispute between the parties that there was a legal basis for the impugned offsetting of the first applicant ’ s tax reimbursement claim against his wife ’ s special church fee.", "89. Furthermore, the interference pursued a legitimate aim within the meaning of Article 9 § 2 of the Convention, namely to guarantee the rights of churches and religious communities which, under German law, have the right to levy church taxes (compare Wasmuth, cited above, § 55). The Court therefore has to decide whether the impugned interference was necessary in a democratic society.", "90. In this regard the Court notes that there are two aspects to the first applicant ’ s complaint. Firstly, that he was compelled to pay his wife ’ s church fee as it had been offset against his tax reimbursement claim. Secondly, that the tax bill did not contain any information on his rights with regard to that offsetting.", "91. In determining whether, in the light of the above principles, the interference with the first applicant ’ s rights under Article 9 of the Convention is justified in principle and proportionate, the Court notes, at the outset, the first applicant ’ s submission that the decision to file a joint tax assessment was motivated solely by financial considerations (see paragraph 6 9 above). The Court considers important that, as a consequence of German tax legislation, the couple ’ s choice of a joint tax assessment not only had consequences for the calculation of the couple ’ s overall tax, but also for the administration of the tax claims against the first applicant and his wife, which were put together in one document.", "92. The Court further notes that at the time the first applicant and his wife decided for a joint tax assessment, they did not know whether the first applicant would have a tax reimbursement claim that would involve offsetting his wife ’ s special church fee, or whether the tax authorities would have additional tax claims that would prevent such an offsetting. That was because offsetting is part of the procedure for calculating taxes and the tax authorities only calculate the final income tax after spouses have submitted their tax declaration and made their choice of a joint or separate tax assessment. Under those circumstances, the Court doubts whether a preventive declaratory action can be regarded as a counterbalancing factor in the circumstances of the case, all the more so as the Government have not given any details as to the preconditions and effects of such an action.", "93. As far as concerns the Government ’ s argument that the decision in favour of a joint income tax assessment led to a net reduction in the first applicant ’ s tax burden, even though his wife ’ s special church fee was deducted from his tax reimbursement claim, the Court holds that that reduction does not remove the link between the spouses ’ choice on financial grounds of a joint tax declaration and the possibility for the tax authorities to offset the special church fee claim against a tax reimbursement claim.", "94. Nevertheless, that link has to been seen in the context of the domestic tax system as a whole. The Court considers it important that offsetting does not imply an irreversible financial loss (compare paragraph 16 above). It notes the Government ’ s argument in that regard that, to undo the offsetting, the first applicant could have applied for a settlement notice under Article 218 of the Fiscal Code. Accordingly, the first applicant ’ s obligation to pay his wife ’ s special church fee would have been, in any event, only temporary in case the applicant had applied for it.", "95. When balancing, on the one hand, the first applicant ’ s right to negative freedom of religion and, on the other hand, the public interest in the efficient collection of taxes, including church tax (compare Wasmuth, cited above, § 60), the Court has to take into account the burden put on the first applicant in the offsetting procedure. In particular, it is aware of the fact that the necessity to apply for a settlement notice obliged the first applicant to take more far-reaching action than in the case of Wasmuth, where the applicant had only once to give information of limited scope ( ibid. ).", "96. On the other hand, regard must be had to the fact that, unlike in Wasmuth, it was in the first place the decision of the first applicant and his spouse to make a joint tax declaration which led to the two separate tax claims being handled together in administrative terms. That decision required the State to engage in a more complicated tax assessment and put into motion the rather technical process of offsetting credits against debits. It can therefore be regarded as an administrative mechanism to set the final amount of tax the spouses had to pay after they decided to be taxed together. This administrative mechanism could be undone by setting in practise a further mechanism, namely that of the settlement notice.", "97. Furthermore, there is nothing in the material submitted by the parties which indicates that applying for a settlement notice would have caused the first applicant any financial burden, taken up much of his time or entailed any further consequences. That holds true even if an easier solution seems feasible, for instance by allowing spouses to indicate whether or not they agreed to offsetting reimbursement claims against special church fees as early as in the tax declaration form.", "98. Lastly, as regards the first applicant ’ s argument that the tax bill contained no information on available remedies for the offsetting (see paragraph 6 9 above) and thus did not inform him of his rights under that domestic provision, the Court reiterates its general case-law that the Convention does not guarantee, as such, the right to be informed of available domestic remedies (see Avotiņš v. Latvia [GC], no. 17502/07, § 123, ECHR 2016; and Société Guerin Automobiles v. the 15 States of the European Union (dec.), no. 51717/99, 4 July 2000).", "99. Having regard to the competing interests at stake and in view of the relatively minor interference with the first applicant ’ s rights under Article 9 of the Convention, the Court considers that the possibility to apply for a settlement notice under Article 218 of the Fiscal Code can be regarded as a counterbalancing factor in the present case.", "100. The foregoing considerations are sufficient to enable the Court to conclude that, taking into account the wide margin of appreciation left to Contracting States with regard to the definition of the relations between churches and the State (see paragraph 8 7 above), the domestic authorities have adduced relevant and sufficient reasons to justify the tax authorities ’ offsetting the claims of the Protestant Church of the German Land of Baden-Württemberg on his wife against the first applicant ’ s reimbursement claims, without, in the first place, obtaining the first applicant ’ s consent to such a calculation.", "101. There has accordingly been no violation of Article 9 of the Convention.", "C. Alleged violation of Article 14 of the Convention taken in conjunction with Article 9 of the Convention", "102. The first applicant further complained that the special church fee as levied by the Protestant Church of the Land of Baden-Württemberg, his wife ’ s church, discriminated against him when compared with married couples where one spouse did not belong to a church and the other one belonged to a religious community without the right to levy church taxes. He alleged that it was only in his case that a special church fee was levied in accordance with the church member ’ s living expenses. He relied on Article 9 of the Convention taken in conjunction with Article 14. The latter provision reads, so far as relevant here, as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... religion ... ”", "103. The Government contested that argument.", "104. The Court reiterates that according to its settled case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Fabris v. France [GC], no. 16574/08, § 47, ECHR 2013 (extracts) ).", "105. In the present case the Court notes that the first applicant – other than his complaint under Article 9 of the Convention (see paragraph 6 9 above) – did not complain that the offsetting of his tax reimbursement claim against the claims of his wife ’ s church discriminated against him, but only that the fact that his income was taken into account by the church when calculating his wife ’ s church fee was discriminatory. The Court, having regard to the submissions made by the first applicant and to the fact that the church fee had been levied on his wife and not on him, considers that he has not shown that this specific complaint falls within the ambit of Article 9 of the Convention. Thus, Article 14 of the Convention is not applicable.", "106. In the light of the foregoing, the Court finds that this complaint under Article 14 of the Convention taken in conjunction with Article 9 is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATIONS NOS. 16687/11 (SECOND APPLICANT) AND 28919/11 (FIFTH APPLICANT)", "A. Alleged violation of Article 9 of the Convention, taken alone and in conjunction with Article 14 of the Convention", "107. The second and fifth applicants complained that the special church fee levied by the Protestant Church of the Land of Bavaria infringed their right to freedom of religion, as provided in Article 9 of the Convention, taken alone and read in conjunction with Article 14.", "108. The Government contested that argument.", "1. The Government ’ s submissions", "109. Relying on the Commission ’ s decisions in the case of Gottesmann v. Switzerland (no. 10616/83, 4 December 1984) and E. and G.R. v. Austria (no. 9781/82, 14 May 1984), the Government stated that the second and fifth applicants ’ obligation to pay the special church fee did not constitute an interference with their right to freedom of religion, as both had been members of a church and the obligation to pay fees for that membership had not interfered with its members ’ freedom of religion. The Government further stressed that the applicants, had they not wanted to pay the special church fee, could have chosen to leave their church (reference Konttinen v. Finland, no. 24949/94, Commission decision of 3 December 1996 ).", "2. The applicants ’ submissions", "110. The second and the fifth applicants argued that the calculation of the special church fee on the basis of a church member ’ s living expenses rather than on the basis of his or her personal income had infringed their right to freedom of religion as the special church fee could exceed their personal income, which would render them dependent on their spouses in the exercise of their freedom of religion. The fifth applicant was furthermore of the opinion that the special church fee discriminated against women, as it was mainly women in Germany who had no income and on whom the special church fee was levied.", "3. The third parties", "111. The intervening churches (see paragraph 5 above) submitted that the aim of the special church fee was to include every church member without an income, according to his or her financial capacity in the funding of the churches ’ activity. In the case that this church member was married, the financial capacity stemmed in case of joint tax assessment not only from the income of the church member, but from the income of the spouse as well.", "112. According to the Giordano Bruno foundation the connecting point for the calculation of the special church fee, namely the joint taxable income, infringed the individual ’ s right to freedom of religion as the fee was not calculated with reference to the individual church member ’ s income.", "4. The Court ’ s assessment", "113. Having regard to its general principles (see paragraphs 7 7 - 7 9 above) the Court reiterates its case-law that a church tax does not, as such, interfere with the right to freedom of religion, as long as State legislation provides for the possibility to leave the church (compare E. and G.R. v. Austria, cited above; and Gottesmann, cited above).", "114. The Court notes that the second and fifth applicants were members of the Protestant Church of the Land of Bavaria and had thus not been compelled to be involved in religious activities against their will, without being a member of such a community ( contrast Bruno, cited above). Furthermore, the two applicants did not dispute the fact that they had a general obligation to pay a special church fee ( contrast E. and G.R. v. Austria, cited above). They only complained about the way the church calculated that fee, namely by basing it on their living expenses, and in turn their spouses ’ income as well as their own (see paragraph 1 10 above).", "115. The Court observes that the second and fifth applicants ’ obligation to pay a special church fee and the way it was calculated did not arise directly under the State ’ s legislation, which only authorised churches to levy church taxes, but derived from a decision taken independently by the Protestant Church of the Land of Bavaria to levy a special church fee on its members and the manner in which it was to be calculated. As such, it thus cannot be attributed to the respondent State. The fact that churches are subject to State control on this issue does not change the nature of the levying of contributions as an autonomous church activity (compare E. and G.R. v. Austria, cited above).", "116. Having regard to the fact that the State ’ s role in this field is limited to the exercise of a power of control and that the second and fifth applicants neither called into question their obligation to pay a church fee nor their right to leave their church, the Court is of the opinion that the German authorities have included sufficient safeguards to ensure freedom of religion. It concludes therefore that there is no appearance of any interference with the applicants ’ rights under Article 9 of the Convention.", "117. As regards the fifth applicant ’ s further complaint under Article 14 of the Convention taken in conjunction with Article 9, the Court, having regard to the submissions made by the applicant, considers that she has not shown that she was treated differently than other individuals in a similar situation because of her sex.", "118. The second and fifth applicants ’ complaints are thus manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "B. Further complaints", "119. The second and fifth applicants complained further under Article 8 and Article 12 of the Convention, each taken alone and in conjunction with Article 14, that the levying of a special church fee on spouses in a marriage where only one of them belonged to a church entitled to levy taxes discriminated against them when compared with spouses who belonged to different churches entitled to levy taxes and unmarried couples.", "120. In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that the second and fifth applicants ’ complaints do not disclose any appearance of a violation of Article 8 and Article 12 of the Convention, each taken alone and in conjunction with Article 14.", "121. The Court accordingly finds that their complaints are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "IV. APPLICATION NO. 25359/11 (THE THIRD AND FOURTH APPLICANTS )", "122. The third and fourth applicants complained that the domestic provisions concerning the levying of church taxes – unlike the cases of the second and fifth applicants, which concerned the levying of the special church fee ( with regard to the differences compare paragraph 12 above) – as they had been applied to them had breached their right to freedom of religion, as provided in Article 9 of the Convention, taken alone and read in conjunction with Article 14.", "123. The Government contested that argument.", "1. The Government ’ s submissions", "124. With regard to the third applicant, the Government contested his victim status as he had stated that he had been willing to pay church tax and had only complained that his wife ’ s income had been taken into account when the tax had been calculated, even though she was not a member of a church.", "125. With regard to the fourth applicant, the Government argued that the fact that her income had been taken into consideration when the church had calculated her husband ’ s church tax had stemmed, firstly, from the fact that the third applicant ’ s Church had linked the rate of his church tax to his income tax liability and, secondly, from the couple ’ s decision to have a joint tax assessment, and thus could not be attributed to the State. Furthermore, the fourth applicant had failed to show that she had contributed financially to her husband ’ s church as a result of that calculation method. On the contrary, as a direct result of the spouses ’ decision to opt for a joint tax assessment, the third applicant had benefited from the progressive effect of the German tax system, which had led to his church tax being lower than it would have been if he had made a separate income tax declaration. For example, the third applicant ’ s church tax in 2005 had been assessed at EUR 629.55, while under a separate income tax declaration it would have been EUR 825. 75.", "2. The third and fourth applicants ’ submissions", "126. The third and fourth applicants argued that their decision to make a joint income tax declaration had been based solely on financial considerations, namely the positive consequences of progressive taxation. However, it had also involuntarily directly affected the way the third applicant ’ s church tax had been calculated, as his church, as a direct consequence of that decision, had taken the fourth applicant ’ s income into account. As a result, the fourth applicant had had to contribute to financing her husband ’ s church, which had constituted an interference with her negative rights under Article 9 of the Convention.", "127. Furthermore, the third applicant had declared that he was willing to pay his church tax, but had objected that it had been too high as it had been calculated in relation to his share of their joint income tax rather than in relation to his share of their total income.", "128. Lastly, the applicants as spouses in a marriage where only one spouse belonged to a church entitled to levy taxes (see paragraph 1 2 above) stated that they had been discriminated against when compared with spouses who both belonged to a church levying church taxes in case of a joint tax declaration, as in both cases both incomes were taken into account to calculate the amount of the church tax even though in the case of the third and fourth applicants only one spouse belonged to a church.", "3. The Court ’ s assessment", "129. The Court notes, at the outset, that the parties agreed that the applicants ’ decision to file a joint income tax declaration directly determined how the church calculated the third applicant ’ s church tax as it was levied in accordance with his tax assessment basis and thus took both incomes into account. The Court further notes the Government ’ s submission (see paragraph 1 25 above), which was uncontested by the third and fourth applicants, that as a direct result of this decision, the third applicant benefited from Germany ’ s progressive tax system and that his church charged him a lower church tax than if they had made separate income tax declarations.", "130. Against this background the Court considers that both applicants failed to substantiate that their decision to have a joint tax assessment had increased the third applicant ’ s church tax, nor was that evident in the material submitted by the parties. On the contrary, according to the Government ’ s submissions, the direct result of the spouses ’ decision was that the third applicant ’ s church tax was lower than under separate income tax declarations. In contrast to the Government ’ s similar argument in the case of the first applicant, where this decision enabled his wife ’ s church to collect its special church fee at the expense of the first applicant ’ s tax reimbursement claim (see paragraph 9 3 above), in the present case the church tax was levied on and collected from the person liable to pay it, namely the third applicant, who is a member of a church.", "131. Moreover, having regard to the wide margin of appreciation left to Contracting States in this area (see Alujer Fernández, cited above; and Cha ’ are Shalom Ve Tsedek, cited above, § 84), the Court is of the opinion that the domestic courts ’ decisions on the calculation method used by the Protestant Church of the Land of Thuringia, as it did not cause any negative financial consequences for the applicants, cannot be said to have involved the fourth applicant in religious activities against her will, even though the domestic courts accepted that the church ’ s calculation method was a consequence of the decision to file a joint income tax declaration and thus took into consideration the fourth applicant ’ s income when assessing the third applicant ’ s church tax.", "132. As regards the third applicant ’ s further objection about the church ’ s method of calculation of his church tax, the Court reiterates that in view of its general principles as set out above (see paragraph 1 1 3 above), the church tax does not, as such, interfere with the right to freedom of religion, as long as State legislation provides for the possibility to leave the church. The calculation of the third applicant ’ s church tax did not arise directly from State legislation, but derived from a decision taken independently by the Protestant Church of the Land of Thuringia. As such, that decision cannot be attributed to the respondent State (see paragraph 1 15 above).", "133. As regards the third and fourth applicants ’ further complaint that they were being discriminated against when compared with spouses who both belong to a church levying church tax, the Court considers that, while in the latter case both spouses belonged to a church levying church tax, in the case of the third and fourth applicants only one spouse had to pay a church tax. Thus the third and fourth applicants cannot be said to be in the same situation as couples who are both members of a church levying taxes.", "134. Therefore, the Court concludes that their complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The facts of the case, as submitted by the parties, may be summarised as follows.", "6. The applicant Church has a worldwide membership of over 12 million people, known as Mormons, of whom approximately 180,000 live in the United Kingdom or the Republic of Ireland. Local church congregations are called wards, typically consisting of between 100 and 500 members, and are presided over by a local bishop. Each ward meets in a local chapel. Five to 15 wards constitutes a stake. In each stake one of the larger chapels is designated as a stake centre, where meetings from members of all the wards in the stake can take place.", "7. In addition, the applicant Church has two temples in the United Kingdom: one in London and one in Preston, Lancashire. The temple is considered, by the applicant Church ’ s members, to be the house of the Lord and one of the holiest places on earth. Ceremonies or “ordinances” held at the temple carry profound theological significance to Mormons, who believe as a tenet of their faith that only the worthy may be admitted. Only the most devout members of the applicant Church, who hold a current “recommend”, are entitled to enter the temples. This is explained in the applicant ’ s published statement of doctrine:", "“WORTHY TO ENTER", "You must possess a current recommend to be admitted to the temple ... Only those who are worthy should go to the temple ...", "The interview for a temple recommend is conducted privately between the bishop and the Church member concerned. Here the member is asked searching questions about his or her personal conduct, worthiness and loyalty to the Church and its officers. The person must certify that he is morally clean and keeping the Word of Wisdom, paying a full tithing [approximately 10% of income to be paid to the Church], living in harmony with the teachings of the Church and not maintaining any affiliation or sympathy with apostate groups ...", "THE PROCESS OF OBTAINING A TEMPLE RECOMMEND IS A BLESSING”", "The standards required in order to be granted a recommend include honesty, eschewing abusive conduct, attention to family duties, marital fidelity, the adoption of healthy lifestyle practices and, for divorcees, full compliance with support orders and other legal obligations.", "8. The present application concerns the temple at Preston, where congregational services are attended by on average 950 people a week. Under the Local Government Finance Act 1988, a valuation officer must compile and maintain a local rating list for his or her area. Premises included on the list are liable for the payment of business rates. Premises used for charitable purposes are entitled to charity business rates relief, which cuts the amount of rates payable by 80%. Places of “public religious worship” are wholly exempt from the tax. In 1998 the Preston temple was listed as a building used for charitable purpose and therefore retained a liability to pay only 20% rates, but it was refused the statutory tax exemption reserved for places of “public religious worship”. The valuation officer accepted that the stake centre on the same site, with its chapel, associated hall and ancillary rooms, was a “ place of public religious worship” which was entitled to exemption. Other buildings on the site, for example a building providing accommodation for missionaries and various ancillary buildings were subject to full business rates. For the financial year 199 9 / 2000, the applicant paid a total of GBP 117,360 in respect of all the rateable buildings on its Preston site.", "9. On 5 March 2001 the applicant applied to have the temple removed from the rating list, claiming the benefit of the exemption for places of “public religious worship”. On 21 October 2004 the Lancashire Valuation Tribunal granted the application for appeal and determined the temple to be exempt under the statutory provision. On 14 December 2005 the Lands Tribunal overturned that decision. The applicant ’ s appeal to the Court of Appeal was dismissed on 24 November 2006. The applicant then appealed to the House of Lords.", "10. The applicant did not raise any arguments under the Convention before the Valuation Tribunal, the Lands Tribunal or the Court of Appeal. However, with the House of Lords ’ permission, upon their granting leave to appeal, the applicant argued that the legislation in question was incompatible with its rights under Article 9 of the Convention and Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 14.", "11. On 30 July 2008 the House of Lords unanimously dismissed the further appeal ( Gallagher (Valuation Officer) v. Church of Jesus Christ of Latter-day Saints [2008] UKHL 56) holding, on the basis of an earlier judgment ( Church of Jesus Christ of Latter-day Saints v. Henning [1964] AC 420), that as a matter of domestic law a place of “public religious worship” must be one that is open to the general public. Four of the five Law Lords further dismissed the applicant ’ s arguments under the Convention, holding that the liability to pay 20 % business rates on the Temple did not fall within the ambit of Article 9, since Mormons were still free to manifest their religion and since the statutory requirement to be open to the public applied equally to all religious buildings and did not target Mormons in particular. In the words of Lord Hoffmann, with whom Lords Carswell and Mance agreed:", "“13. In order to constitute discrimination on grounds of religion, however, the alleged discrimination must fall ‘ within the ambit ’ of a right protected by article 9, in this case, the right to manifest one ’ s religion. In the present case, the liability of the Temple to a non-domestic rate (reduced by 80% on account of the charitable nature of its use) would not prevent the Mormons from manifesting their religion. But I would not regard that as conclusive. If the legislation imposed rates only upon Mormons, I would regard that as being within the ambit of article 9 even if the Mormons could easily afford to pay them. But the present case is not one in which the Mormons are taxed on account of their religion. It is only that their religion prevents them from providing the public benefit necessary to secure a tax advantage. That seems to me an altogether different matter.", "14. For example, I do not think that a Sabbatarian could complain that he was discriminated against because he was unable, on religious grounds, to provide services on the Sabbath and therefore earned less than people of a different religion. A case which in my opinion is very much in point is M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91, in which a woman would have been able to secure a reduction in her liability for the maintenance of her child if she had been living with a male partner. She was unable to qualify because, on account of her sexual orientation, she chose to live with a female partner. The House of Lords decided that the alleged act of discrimination did not fall within the ambit of article 8 (her right to family life and in particular her right to live with a female partner) because loss of the opportunity to gain a financial advantage was too remote from interference with the right in question. The same seems to me true of this case.", "15. Furthermore, I think that even if this can be regarded as a case of indirect discrimination, it was justified. Parliament must have a wide discretion in deciding what should be regarded as a sufficient public benefit to justify exemption from taxation and in my opinion it was entitled to take the view that public access to religious services was such a benefit.”", "Lord Hope of Craighead agreed with Lord Hoffmann and added:", "“31. ... I do not see this case falling within the ambit of article 9. Those who are qualified to worship in the Temple are not prevented from manifesting their religion or their belief by the fact that it is subject to non-domestic rating, the legislation is not directed at Mormons because of what they believe in. It applies generally to all whose religious beliefs and practices prevent them from participating in public religious worship. It is easier to see the case as falling within the ambit of article 1 of Protocol 1, but the second paragraph of that article preserves the right of the State to secure the payment of taxes or other contributions or penalties. In my opinion Parliament ’ s decision as to the scope of the exemption was within the discretionary area of judgement afforded to it by that paragraph. ... ”", "Lord Scott of Foscote, however, differed from the majority in his concurring opinion and found that the difference in treatment fell within the ambit of Article 9, although he considered that the Article was not violated:", "“49. Lord Hoffmann and Lord Hope have expressed the view that the withholding of rating relief from the Temple does not fall within the ambit of article 9. I am uneasy about that conclusion because it is well settled that an allegedly discriminatory act said to be in breach of article 14 does not need to constitute an actual breach of the substantive article within whose ambit the act in question is said to fall. It needs simply to be within the ambit of the substantive article. The case-law as to when an act of discrimination, not being in breach of a particular substantive article, will sufficiently relate to that article in order to be capable of constituting a breach of article 14 does really no more than ask whether the act is within ‘ the ambit ’ of the article. There is no precise yardstick; the requirement is left inherently, and perhaps unsatisfactorily, flexible. It seems to me, however, that the levying of taxation on a place of religious worship, or on those who enter the premises for that purpose, would be capable in particular circumstances of constituting a breach of article 9 and, accordingly, that it is difficult to regard the levying of rates on such premises as otherwise than within the ambit of article 9. I would prefer, therefore, to examine the second issue on the footing that the withholding of rating relief from the Temple does fall within the ambit of article 9 for article 14 purposes.", "50. If that is so, there is, as it seems to me, an element of discrimination that requires to be justified. The discrimination consists of the denial of rating relief for the Temple on the ground that, although a place of religious worship, it is not a place of public religious worship. No one who is not a Mormon, or who, although a Mormon, does not possess a ‘ recommend ’ permitting him or her entry, can enter the Temple .... The ‘ open doors ’ requirement in order to enable premises used for religious worship to qualify for rating relief discriminates, adversely to the Mormons, between premises used for religious worship that are open to the public and those that are not. If that is right, the discrimination requires to be justified if it is to escape being held unlawful.", "51. I would, for my part, unhesitatingly hold that the grant of rating relief to premises for religious services that are open to the public and the withholding of that relief from premises for religious services which take place behind closed doors through which only a select few may pass is well justifiable and within the margin of appreciation available to individual signatory states. First, states may justifiably take the view that the practice of religion is beneficial both to the individuals who practise it as well as to the community of whom the individuals form part, and that, therefore, relief from rating for premises where religious worship takes place is in the public interest. But, second, states may also recognise that, although religion may be beneficial both to individuals and to the community, it is capable also of being divisive and, sometimes, of becoming dangerously so. No one who lives in a country such as ours, with a community of diverse ethnic and racial origins and of diverse cultures and religions, can be unaware of this. Religion can bind communities together; but it can also emphasise their differences. In these circumstances secrecy in religious practices provides the soil in which suspicions and unfounded prejudices can take root and grow; openness in religious practices, on the other hand, can dispel suspicions and contradict prejudices. I can see every reason why a state should adopt a general policy under which fiscal relief for premises used for religious worship is available where the premises are open to the general public and is withheld where they are not. In my opinion, the withholding of rating relief from the Temple does not constitute a breach of article 14, whether considered in the context of article 9 or, for the same reasons, in the context of article 1 of the 1 st Protocol.”" ]

[ "II. RELEVANT DOMESTIC LAW", "12. The relevant provisions of the Local Government Finance Act 1988 are as follows :", "“ Section 41 - Local Rating Lists", "(1) In accordance with this Part the valuation officer for a charging authority shall compile, and then maintain, lists for the authority (to be called its local non-domestic rating lists) ...", "Section 43 – Occupied Hereditaments Liability", "(6) This subsection applies where on the day concerned the ratepayer is a charity or trustees for a charity and the hereditament is wholly or mainly used for charitable purposes (whether of that charity or of that and other charities).", "Section 51 – Exemption", "Schedule 5 below shall have effect to determine the extent (if any) to which a hereditament is for the purposes of this Part exempt from local non-domestic rating.", "Schedule 5, paragraph 11 – Places of religious worship etc.", "(1) A hereditament is exempt to the extent that it consists of any of the following:", "(a) a place of public religious worship which belongs to the Church of England or the Church in Wales ... or is for the time being certified as required by law as a place of religious worship;", "(b) a church hall, chapel hall or similar building used in connection with a place falling within paragraph (a) above for the purposes of the organisation responsible for the conduct of public religious worship in that place. ”", "13. In Church of Jesus Christ of Latter-day Saints v. Henning [1964] AC 420, the House of Lords examined a similar complaint about the refusal to grant the exemption for places of “public religious worship” to the Mormon Temple at Godstone, Surrey. Lord Pearce, with whom the majority agreed, explained that from 1601 churches of the Church of England were not subject to rates and that this exemption was extended by the Poor Rate Exemption Act 1833 to “any churches ... meetinghouses, or premises, or any part thereof that shall be exclusively appropriated to public religious worship”. He continued:", "“By the Act of 1833 the legislature was intending to extend the privileges of exemption enjoyed by the Anglican churches to similar places of worship belonging to other denominations. Since the Church of England worshipped with open doors and its worship was in that sense public, it is unlikely that the legislature intended by the word ‘ public ’ some more subjective meaning which would embrace in the phrase ‘ public religious worship ’ any congregational worship observed behind doors closed to the public.", "I find it impossible, therefore, to hold that the words ‘ places of public religious worship ’ includes places which, though from the worshippers ’ point of view they were public as opposed to domestic, yet in the more ordinary sense were not public since the public was excluded.", "... Furthermore, it is less likely on general grounds that Parliament intended to give exemption to religious services that exclude the public, since exemptions from rating, though not necessarily consistent, show a general pattern of intention to benefit those activities which are for the good of the general public. All religious services that open their doors to the public may, in an age of religious tolerance, claim to perform some spiritual service to the general public. ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 9", "14. The applicant complained that the refusal to its Preston temple of the exemption from business rates accorded to places of public religious worship amounted to discrimination on religious grounds, in breach of Article 14 of the Convention taken in conjunction with Article 9.", "Article 9 of the Convention provides:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "Article 14 reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "1. The parties ’ arguments", "a. The Government", "15. The Government submitted that, since Article 14 did not confer a free-standing right to non-discrimination, its scope should be kept within boundaries of association closely associated with and directly bearing upon the operation of the other Convention rights. The applicant had not identified any concrete link between the scope of the tax exemption and Article 9; the facts of the case were far removed from the core values and concerns which Article 9 sought to protect. It followed that Article 14 did not apply and that the complaint should be declared inadmissible.", "16. Moreover, the Government did not accept that the applicant had established that it was in any significantly different position in relation to the 1988 Act than any other religious organisation. The rule was of general application and concerned only the use made of the building; it did not discriminate on the basis of religious belief. Any of the applicant ’ s places of worship, such as its chapels and stake centres, that were open to the public, had the benefit of the exemption. Other religious organisations also operated a mixture of private and public places of worship. For example, whilst Church of England churches were usually open to the public, its religious buildings run by closed orders or schools or college chapels might not be. Where such buildings were not open to the public, they were not exempt from rates. There had been no direct discrimination against the applicant Church; the complaint should be characterised as one of indirect discrimination. This was a concept that the Court had recognised as being covered by Article 14 only relatively recently, and it should be cautious not to extend the breadth of Article 14 too far in developing this new principle. It was for the applicant to produce prima facie evidence that the effect of a measure or practice was discriminatory, whereupon the burden of proof would shift to the Government to justify the measure. The ill-defined difference of treatment complained of in the present case did not, in the Government ’ s submission, cross this threshold.", "17. If, contrary to the foregoing, the Court should conclude that there was prima facie discrimination in this case, the Government contended that it was objectively justified. The essential purpose of the legislation was to confine the benefit of the exemption to buildings that offered a public benefit. This decision by Parliament reflected the “general interest of the community” both in raising revenue for public purposes and, more specifically, the “considerations of fairness and public benefit” identified by Lord Pearce in Henning (see paragraph 13 above). Lord Scott had identified a second aim pursued by the legislation, observing that in the context of a culturally diverse society such as the United Kingdom, secrecy in religious practice was potentially divisive, and sometimes “dangerously so” (see paragraph 11 above). Parliament had struck the same balance in pursuit of the same legitimate objectives in successive rating statutes since Henning, including the 1988 Act. The exemption reflected a policy judgment that the exemption from tax should be based upon a public good, not a private benefit. The revenue raised was itself applied to the public benefit by the local authority. The Government was plainly entitled to draw a distinction between the direct benefit to the public drawn from worshipping within a religious building and the kind of indirect and amorphous benefits alluded to by the applicant.", "18. The national authorities were generally afforded a wide margin of appreciation, both in connection with general measures of economic or social strategy and when it came to striking a balance between public interests and religious rights. The applicant had not identified any practical impact on the ability of its members to manifest their religious belief arising out of the requirement to pay rates reduced by 80% on the temple premises. The figures provided by the applicant related to the rates paid in relation to the entire temple site and the amount attributable to the temple building and curtilage was less. These sums had to be seen in the context of the applicant ’ s overall resources, which were considerable. If the Court were to find Article 14 applicable, the proportionality test was clearly satisfied.", "b. The applicant", "19. The applicant reasoned that the Preston temple and its curtilage, including the vestry or dressing room, utility rooms, office space used for temple administration and refectory used for dining by temple worshippers, ought to be exempt from business rates. However, it emphasised that its dispute with the Government concerned the principle of the exemption in relation to the temple, rather than its precise extent. The tax provisions at issue resulted in differential treatment. They imposed a tax burden on the applicant ’ s temple which was not applied to other religious structures. More importantly, they excluded the applicant ’ s most sacred space and rituals from eligibility for tax exemption, while granting exempt status to the full range of worship for other denominations. Implicit in this differentiation were non-neutral State assumptions, stereotypes and stigmatisation that operated prejudicially against the applicant and those if its members who chose to engage in temple worship.", "20. Discrimination on the basis of religion was one of the specifically enumerated grounds identified by Article 14 and could be justified only by very weighty reasons. The Government sought to minimise the discrimination involved in the case by categorising it with other tax provisions and with more general social and economic legislation, in respect of which they contended that the Court should apply a lax standard of supervision. However, this was a reversal of the proper analysis. The point was not that measures affecting religion were subject to a lower degree of scrutiny because tax or other social or economic legislation was involved. Rather, it was that tax and social and economic legislation was generally about non-religious issues, and thus not subject to the stricter scrutiny that differentiations in the religious domain required. The decision whether to exempt the Preston temple from taxation could not be characterised as a mere “general measure of economic or social strategy”. While it was obviously a tax measure, it was one that both directly, not incidentally, applied to religious organisations and imposed a disproportionate burden on a specific religious community because of its distinctive beliefs.", "21. The applicant contended that its temple worship should be treated with the same respect and accorded the same tax exempt treatment as the worship facilities of the Church of England and other denominations. Temple worship, by its very nature as understood by its believers, required that only those who voluntarily lived by the kinds of commitments made in the temple should be allowed to participate. This was not a case of worship being made private for the purposes of being exclusive or to provide private benefit; it was because the very nature of the worship as understood by its believers required privacy to promote the sacred character of the worship. The relevant analogy would be to insist that the tax exemption be denied to space devoted to confessionals or to the area behind the iconostasis in Orthodox churches. Just as an invitation to the general public to enter these spaces would disrupt sacred practices, so the nature of temple worship would be destroyed if there were a general requirement that the public be able to sit in. It was inappropriate for State officials to engage in drawing lines that discriminated between religions on the basis of mistaken understandings of the nature and impact of religious practices or merely because such practices are different from those of more familiar religions.", "22. Once differential treatment had been established, it was for the respondent State to show that the difference in treatment could be justified. The Government had asserted that the legitimate aim of the provision was to “confine the benefit of the exemption from the general obligation to pay rates to buildings that offer a public benefit”. While this was in principle a legitimate aim, the Government had failed to show that public benefit did not similarly flow from the applicant ’ s temple worship. Far from being rooted in objective considerations, the difference in treatment reflected non-objective assumptions about how religion benefits the public. The average attendance at congregational services in the temple at Preston was approximately 950 a week, which would not compare unfavourably with churches of the Church of England and other places of religious worship. The public benefit flowing directly from temple worship included, among other things, extensive participation in charitable and humanitarian endeavours, commitment to good citizenship and careful devotion to family responsibilities. Sacred pledges made in the course of collective worship in the temple, which were then lived out in the world, redounded to the benefit of society at large. The money taken in tax ceased to be available for the religious witness and charitable mission of the applicant and cut into its ability to construct additional worship facilities. While it was true as a general matter that systems of taxation must use broad categories to be workable, the situation was different where, as here, an ostensibly neutral provision imposed a disproportionate and discriminatory burden when applied to the applicant ’ s religion. A discriminatory tax provision could not be justified merely because it was broad.", "2. The Court ’ s assessment", "a. Admissibility", "23. The Court recalls that a religious association may exercise on behalf of its members the rights guaranteed by Article 9 of the Convention, taken alone and in conjunction with Article 14 (see, mutatis mutandis, Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 72, ECHR 2000 ‑ VII ). In the present case, for the purposes of Article 34 of the Convention, the applicant Church may therefore be considered to have standing to bring the application.", "24. For the reasons set out below, the question whether Article 14 applies on the facts of the case is closely linked to the merits of the complaint. The Court therefore decides to join to issue of the admissibility of the complaint under Article 9 taken in conjunction with Article 14 to the merits.", "b. Merits", "i. General principles", "25. The Court recalls that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see, among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 58, 29 April 2008). Thus, a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe the Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature (see, for example, the Belgian linguistic case (merits), 23 July 1968, § 9, Series A no. 6, pp. 33-34). The Court has also explained that Article 14 comes into play whenever “the subject-matter of the disadvantage ... constitutes one of the modalities of the exercise of a right guaranteed” (see the National Union of Belgian Police v. Belgium judgment of 27 October 1975, Series A no. 19, p. 20, § 45), or the measure complained of is “linked to the exercise of a right guaranteed” (see the Schmidt and Dahlström v. Sweden judgment of 6 February 1976, Series A no. 21, p. 17, § 39).", "26. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 ( see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). “Religion” is specifically mentioned in the text of Article 14 as a prohibited ground of discrimination.", "27. Generally, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations ( Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008 ‑ ). However, this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different ( Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV; see also D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007; Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, § 35, 10 May 2007; Eweida and Others, cited above, § 87 ).", "28. Such a difference of treatment between persons in relevantly similar positions - or a failure to treat differently persons in relevantly different situations - is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( Burden, cited above, § 60; Eweida, cited above, § 88 ). The scope of this margin will vary according to the circumstances, the subject-matter and the background ( Carson and Others, cited above, § 61).", "29. Finally, in this connection, the Court recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate ( Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000 ‑ XI ). The State therefore has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 116, ECHR 2001 ‑ XII; Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 97, 31 July 2008; Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 88, 9 December 2010 ). The Court considers that the obligation under Article 9 incumbent on the State ’ s authorities to remain neutral in the exercise of their powers in the religious domain, and the requirement under Article 14 not to discriminate on grounds of religion, requires that if a State sets up a system for granting tax exemptions on religious groups, all religious groups which so wish must have a fair opportunity to apply for this status and the criteria established must be applied in a non-discriminatory manner (see, mutatis mutandis, Religionsgemeinschaft der Zeugen Jehovas and Others, cited above § 92).", "ii. Application of these principles to the facts of the case", "30. The applicant ’ s complaint concerns the rating status of its temple in Preston. This building is considered by the members of the applicant Church to constitute its most sacred centre. It is used as a place of congregational religious worship by those who have established their devotion and been accorded a “recommend” (see paragraphs 6-7 above). In the domestic proceedings, the opinion of the majority of the House of Lords was that the subject-matter of complaint did not come within the ambit of Article 9 of the Convention, with the consequence that Article 14 did not apply, since the refusal of the tax exemption did not prevent Mormons from manifesting their religion and since the tax exemption rules were applied neutrally to all religious groups and not directed specifically at the applicant Church (see paragraph 11 above). The Court can well understand such an assessment by the national courts of the facts of the present case, although it may be that in certain circumstances issues concerning the operation of religious buildings, including expenses incurred as a result of the taxation status of such buildings, are capable of having an impact on the exercise of the right of members of religious groups to manifest religious belief (see, mutatis mutandis, Association Les Témoins de Jéhovah v. France, no. 8916/05, §§ 48-54, 30 June 2011 ). The Court does not, however, need to decide whether, in the particular circumstances, the applicant ’ s complaint about the application to it of the tax exemption legislation falls within the ambit of Article 9, so that Article 14 applies, since for the reasons given below it has come to the conclusion that the claim of discrimination is unfounded on its merits.", "31. To establish differential treatment, the applicant Church relied on the argument that, because of the nature of its doctrine, which holds that access to the temple should be restricted to its most devout members who hold a current “recommend”, the law which granted a full exemption from rates only to buildings designated for “public religious worship” provided a lower fiscal advantage to the Mormon Church than to such other faiths as to not restrict access to any of their places of worship, even the most sacred. The Court agrees with the Government that the applicant ’ s complaint might, at most, be characterised as one of indirect discrimination. However, on the facts of the case, it is open to doubt whether the refusal to accord an exemption in respect of the applicant Church ’ s temple in Preston gave rise to any difference of treatment of comparable groups, given that the tax law in question applied in the same way to, and produced the same result in relation to, all religious organisations, including the Church of England in respect of its private chapels. Neither is the Court convinced that the applicant Church was in a significantly different position from other churches because of its doctrine concerning worship in its temples, so as to call for differential treatment involving exemption from the contested tax, since other faiths likewise do not allow access of the public to certain of their places of worship for doctrinal reasons.", "32. Moreover, in the Court ’ s view, any prejudice caused to the applicant Church by the operation of the tax law was reasonably and objectively justified. In this respect, the Court observes that the rates exemption was first conferred on places of public religious worship by the Poor Rate Exemption Act 1833. The purpose of the exemption, as explained by Lord Pearce in the Henning case, was, from the moment it was introduced in 1833, to benefit religious buildings which provided a service to the general public and where the church in question “worshipped with open doors” (see paragraph 13 above). The House of Lords held that there was a public benefit in granting the general public access to religious services. In this regard Lord Scott of Foscote stated that such openness in religious practice could dispel suspicions and contradict prejudices in a multi-religious society (see paragraph 11 above).", "33. According to its settled case-law, the Court leaves to Contracting States a certain margin of appreciation in deciding whether and to what extent any interference is necessary. It is true, as the Government have pointed out, that a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy. This is because, given their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest” (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98; see also, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997-VII). The policy of using rates exemptions to promote the public benefit in enjoying access to religious services and buildings can be characterised as one of general social strategy, in respect of which the State authorities have a wide margin of discretion. However, given the importance of maintaining true religious pluralism, which is inherent in the concept of a democratic society (see Kokkinakis, cited above, § 31), the Court must be vigilant to ensure that the measure did not have disproportionate consequences in relation to the applicant Church.", "34. In this connection, the Court notes that all the applicant ’ s places of worship that are open to the public, such as its chapels and stake centres, had the benefit of the full exemption from rates. Indeed, the stake centre situated on the same site in Preston as the temple was accepted as a “place of public religious worship”, benefiting from the statutory exemption (see paragraph 8 above). The temple itself, which is not open to the public, does not attract the full exemption, but does benefit from an 80% reduction in rates in view of its use for charitable purposes (see paragraph 8 above). This 80% reduction can be seen as reflecting the elements of public benefit which the applicant identifies as flowing from the nature of temple worship. Neither in its objects nor in its effects does the legislation prompting the contested measure go to the legitimacy of Mormon beliefs. The legislation is neutral, in that it is the same for all religious groups as regards the manifestation of religious beliefs in private; and indeed produces exactly the same negative consequences for the officially established Christian Church in England (the Church of England) as far as private chapels are concerned. Moreover, the remaining liability to rates is relatively low, in monetary terms, and the impact on the applicant of the impugned measure cannot be compared to the detriment suffered by the applicants in cases such as Moscow Branch of the Salvation Army v. Russia, no. 72881/01, ECHR 2006 ‑ XI, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, 31 July 2008, Savez crkava “Riječživota” and Others v. Croatia, no. 7798/08, 9 December 2010.", "35. In conclusion, insofar as any difference of treatment between religious groups in comparable situations can be said to have been established in relation to tax exemption of places of worship, such difference of treatment had a reasonable and objective justification. In particular, the contested measure pursued a legitimate aim in the public interest and there was a reasonable relationship of proportionality between that aim and the means used to achieve it. The domestic authorities cannot be considered as having exceeded the margin of appreciation available to them in this context, even having due regard to the duties incumbent on the State by virtue of Article 9 of the Convention in relation to its exercise of its regulatory powers in the sphere of religious freedom. It follows that the Court does not find that the applicant Church has suffered discrimination in breach of Article 14 of the Convention, taken in conjunction with Article 9.", "36. In conclusion, and subject to the doubts expressed above, the Court declares the complaint under Article 14 taken in conjunction with Article 9 admissible, but finds no violation.", "II. ALLEGED VIOLATIONS OF ARTICLE 9 OF THE CONVENTION TAKEN ALONE AND ARTICLE 1 OF PROTOCOL NO. 1, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14", "37. In addition, the applicant complained that the denial of the full rates exemption gave rise to a violation of its members ’ right to manifest their religious belief, in breach of Article 9 of the Convention taken alone (for the text of the Article, see paragraph 14 above). It further alleged that the levying of the business rate amounted to a deprivation of its possessions, and that this was discriminatory because it applied to the applicant but not to other religious organisations which were able to claim the statutory exemption, in breach of its rights under Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14. Article 1 of Protocol No. 1 provides:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "38. It may be doubted whether the measure in question gave rise to any interference with the rights of the applicant Church ’ s members under Article 9. The relatively small impact of the 20% liability to rates on the temple, but not the Church ’ s other places of worship open to the public, distinguishes this case from others where substantial financial detriment has been caused through a State ’ s fiscal policy towards a particular religious group (compare, for example, Association Les Témoins de Jéhovah v. France, cited above). In any event, in the light of the above finding that the policy of exempting from rates buildings used for public religious worship fell within the State ’ s margin of appreciation under Articles 14 and 9 taken together, in the Court ’ s view there is no call to examine separately in detail the complaints under Article 9 taken alone and under Article 1 of Protocol No. 1 to the Convention, taken alone and in conjunction with Article 14. This is because, on the facts of this case, it considers that the margin of appreciation to be afforded to the State in respect of those provisions would be similar to, if not more generous than, that afforded under Article 14 taken in conjunction with Article 9.", "39. In conclusion, the Court does not find it necessary to examine separately these complaints, either as regards their admissibility or the merits.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "40. Finally, the applicant alleged that the fact that the House of Lords considered itself bound by earlier precedent, namely the Henning judgment, deprived it of an effective remedy under Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "41. The Court refers to its settled case-law to the effect that Article 13 guarantees the existence of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant ’ s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, McGlinchey and Others v. the United Kingdom, no. 50390/99, § 62, ECHR 2003 ‑ V ).", "42. In the present case, it is clear that an appropriate and effective remedy was available to the applicant Church. Although the applicant chose not to advance its Convention complaints in the High Court and the Court of Appeal, it was granted leave by the House of Lords to advance these new arguments under the Human Rights Act before it. That the outcome was not favourable for the applicant does not mean that the remedy was in principle ineffective. Compliance with Article 13 does not depend on the certainty of a favourable outcome for an applicant ( see, for example, Ramirez Sanchez v. France [GC], no. 59450/00, § 159, ECHR 2006 ‑ IX ).", "43. In conclusion, the Court considers that the applicant ’ s complaint under Article 13 of the Convention is manifestly ill-founded and must be rejected as inadmissible under Article 35 §§ 3(a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant, Mrs Ianka Riener, was born in 1946 in Lubimetz, Bulgaria, and lives currently in Sofia.", "A. Relevant background", "9. The applicant moved to Austria in 1985 and in 1986 married an Austrian national. In December 1989 she obtained Austrian nationality. Until December 2004 she remained a Bulgarian national (see paragraphs 48-52 below).", "10. The applicant has a daughter, born in 1963 in Bulgaria, currently an Austrian national living in Austria with her husband and children (the applicant ’ s grandchildren).", "11. The applicant was co-owner and commercial director of a company registered in Austria. In January 1991 she also registered in Bulgaria as a foreigner conducting economic activities there. Her main business was the importation of coffee in Bulgaria.", "12. Between 1991 and 1995 the applicant spent most of her time in Bulgaria. She has remained there ever since.", "13. By decision of 1 July 1992 a district fiscal authority in Sofia found that the applicant owed 26,494,582 “old” Bulgarian levs (“BGL”) of unpaid excise tax and BGL 4,104,925 of interest (the total amount due having been at the time the equivalent of about 1 million United States dollars (“USD”). The applicant ’ s ensuing appeals were dismissed on 20 August 1992 by the Sofia fiscal authority and on 7 April 1993, after a hearing on the matter, by the Sofia City Court. On 7 October 1994 the Supreme Court dismissed the applicant ’ s petition for review (cassation) of the above decisions. The applicant then instituted proceedings seeking to declare the fiscal decisions null and void. This was refused by the Sofia Regional Court on 28 October 1996.", "14. In 1992 and 1993 the fiscal authorities attached certain monies in bank accounts of the applicant and her company. It appears that not more than BGL 400,000 (less than 2 % of the debt) was thus collected in 1992.", "15. In 1993 the fiscal authorities attached another USD 50,000. A smaller amount of money was seized from the applicant in relation to a criminal investigation against her, opened in 1991. The investigation was discontinued in 1993 and the money restored to her later (see paragraphs 53-56 below).", "B. Prohibition against the applicant leaving the country (“the travel ban”)", "1. Events before April 1997", "16. On 1 March 1995 the Sofia fiscal authority asked the Passport Department at the Directorate of the Police ( Napravlenie “ Pasporti i vizov rezhim, DNP) (“the Passport Police”) to impose on the applicant a travel ban under section 7 of the Law on Passports for Travelling Abroad ( Zakon za zadgranichnite pasporti ) (“the Passport Law”), until the payment of her debt, as established by the courts.", "17. On 7 March 1995 the Passport Police issued an order which stated inter alia that a prohibition was imposed against the applicant leaving the country and that her document for travelling abroad should be seized. The order referred to the fiscal decisions in the applicant ’ s case, stated that she had Bulgarian and Austrian nationality, and relied on section 29(1)(v) of the Law on the Sojourn of Aliens in Bulgaria ( Zakon za prebivavane na chuzhdentzite v Balgaria ).", "18. On 4 April 1995 the Bulgarian border control authorities seized the applicant ’ s Austrian passport when she attempted to leave Bulgaria and to enter Greece. The applicant did not have a Bulgarian passport.", "19. Upon the applicant ’ s complaint, on 20 April 1995 the Passport Police informed her that a travel ban under section 29(1)(v) of the Law on the Sojourn of Aliens had been imposed, in relation to the applicant ’ s obligation to pay BGL 26,499,582.", "20. On 26 May 1995 the applicant submitted an appeal to the Ministry of the Interior. She stated that the measure was unlawful as on other occasions she had been considered a Bulgarian citizen. On 22 June 1995 the Ministry replied stating that the measure against her had been based both on section 7(e) of the Passport Law and on section 29(1)(v) of the Law on the Sojourn of Aliens and had been lawful.", "21. On 28 June 1995 the applicant submitted an appeal to the Sofia City Court. She stated, inter alia, that she was a Bulgarian citizen and measures under section 29 of the Law on the Sojourn of Aliens could not be applied against her. She also claimed that the authorities held an adequate security as they had attached funds of the Austrian company worth USD 50,000. Insofar as section 7(e) of the Passport Law had been invoked, this provision concerned the possibility to refuse the issuance of, or to seize, a Bulgarian passport, not an Austrian one.", "22. On 24 April 1996 the City Court held a hearing, which was attended by the parties and their representatives. The applicant ’ s husband was also present.", "23. On 13 June 1996 the Sofia City Court dismissed the appeal. It found that the applicant ’ s obligation to pay a significant amount in taxes, as established by the courts, was a sufficient ground, under section 7(e) of the Passport Law, to seize any passport which is used for international travel. Unpaid tax was also a ground to impose a prohibition against leaving Bulgaria under section 29(1)(v) of the Law on Sojourn of Aliens. Although this provision did not provide expressly for a confiscation of a foreign passport, if applied in conjunction with the relevant regulations, it clearly allowed such measure in respect of a person against whom there had been a decision prohibiting his departure from Bulgaria. Since the applicant had double citizenship the authorities correctly relied both on the Law on the Sojourn of Aliens and on the Passport Law.", "24. On 25 June 1996 the applicant submitted to the Supreme Court a petition for review (cassation). On 17 March 1997, the Supreme Administrative Court, to which the case was transmitted following a reform in the judicial system, dismissed the applicant ’ s petition for review (cassation). It appears that another appeal against these decisions was dismissed by the Supreme Administrative Court on 13 June 1999.", "2. The decision of the former Commission of 11 April 1997 in application no. 28411/95", "25. By partial decision of 12 April 1996 and final decision of 11 April 1997 (DR 89, p. 83) the former European Commission of Human Rights declared inadmissible the applicant ’ s application in which she claimed, inter alia, that there had been violations of her right to freedom of movement and to respect for her private and family life on account of the restrictions on her travelling outside Bulgaria. The Commission found that the former complaint was incompatible ratione materiae with the provisions of the Convention as Bulgaria had not been a party to Protocol No. 4 of the Convention and that the latter complaint, examined under Article 8 of the Convention, was manifestly ill-founded, the applicant not having substantiated details about her family circumstances or whether or not she actually lived with her family between 1991 and 1995. The Commission also noted that there were no obstacles against the applicant ’ s family joining her in Bulgaria. In these circumstances there was no interference with her rights under Article 8 of the Convention.", "3. Events after the decision of the former Commission", "(a) The authorities ’ refusal to lift the travel ban and ensuing proceedings", "26. In 1996 and 1997 the value of the Bulgarian currency depreciated sharply and the inflation rate ran high. Statutory default interest rates also increased significantly but did not compensate fully for the inflation and the depreciation of the currency. As a result, persons owing monetary debts denominated in Bulgarian currency saw the burden of their debt diminish.", "27. According to calculations made by the fiscal authorities, as of 25 June 1997 the applicant ’ s outstanding debt was BGL 317,482,761 (the equivalent of approximately USD 160,000 at that time).", "28. On 18 July 1997 the applicant requested the Ministry of the Interior to terminate the prohibition against her leaving the country. On 5 August 1997 the request was refused. The decision stated that the prohibition was still in force and that the matter could not be re-examined, all administrative and judicial avenues of appeal having been exhausted.", "29. The applicant appealed against that refusal to the Sofia City Court which, on 11 November 1997, granted the appeal and set aside the refusal of the Ministry of the Interior. The court noted that the prohibition had been based on the Law on the Sojourn of Aliens. However, the applicant also had a Bulgarian nationality and, therefore, was not an alien. The authorities should have applied the Passport Law. Furthermore, the fiscal authorities were holding a significant amount as security, which could probably satisfy their claim against the applicant. It appears that the latter conclusion of the court was not based on a precise calculation of the debt. The Sofia City Court ’ s judgment of 11 November 1997 never entered into force as the Ministry of the Interior successfully appealed (see paragraphs 38-40 below).", "30. On 14 November 1997 the passport police issued a new order prohibiting the applicant ’ s leaving Bulgaria. The order referred to new enforcement proceedings opened by the fiscal authorities in respect of the same debt. It was based on section 29(1)(v) of the Law on the Sojourn of Aliens.", "31. Following these developments, there were two separate sets of judicial proceedings and two administrative proceedings, all concerning the travel ban imposed on the applicant:", "(b) First set of judicial proceedings", "32. On an unspecified date in 1997 the applicant appealed to the Sofia City Court against the order of 14 November 1997.", "33. On 20 May 1999 the Sofia City Court dismissed her appeal, noting that the applicant owed significant amounts and that insufficient security had been provided.", "34. Upon the applicant ’ s cassation appeal, on 21 June 2000 the Supreme Administrative Court upheld the lower court ’ s decision. Addressing the applicant ’ s argument that the new Aliens Law, in force since December 1998, should be applied, the court stated that that law did not have retroactive effect. The courts ’ task was to assess the lawfulness of the impugned administrative order in accordance with the law as in force at the moment when it was issued. Furthermore, it was not true that there had been “violations of international law”.", "(c) Administrative proceedings", "35. Separately, in 2000 the applicant also submitted administrative appeals against the order of 14 November 1997. She relied, inter alia, on Protocol No. 4 to the Convention, in force for Bulgaria as of 4 November 2000.", "36. Her appeal to the Ministry of the Interior was dismissed on 12 December 2000. The reply stated that the travel ban could only be lifted in case of payment of the debt or if sufficient security were deposited. As to the Fourth Protocol to the Convention, its Article 2 provided that freedom of movement could be restricted by national law. The former Law on the Sojourn of Aliens and the new Aliens Law provided for such restrictions.", "37. The applicant ’ s appeal to the Ministry of Finance was dismissed on 2 January 2001. She received a letter explaining that the measures against her were lawful as she had not paid her debt. Furthermore, the applicant could not rely on the Fourth Protocol to the Convention, which had entered into force for Bulgaria in 2000, because the impugned order had been issued on 14 November 1997.", "(d) Second set of judicial proceedings", "38. On an unspecified date in 1997 the Ministry of the Interior appealed against the Sofia City Court ’ s judgment of 11 November 1997 (see paragraph 29 above). In these proceedings the Ministry ’ s request for a stay of execution was granted on 23 December 1997 by the Supreme Administrative Court. In her submissions to the courts the applicant relied, inter alia, on Articles 8 and 13 of the Convention.", "39. On 22 December 1999 the Supreme Administrative Court set aside the Sofia City Court ’ s judgment of 11 November 1997 and dismissed the applicant ’ s request for the termination of the travel ban. The court found that the deposit held by the fiscal authorities as security was insufficient. It also found that prohibitions on leaving the country could be imposed on Bulgarian and foreign nationals alike and that it was not unlawful to rely on the Law on the Sojourn of Aliens. Although certain aspects of the legislation as in force at the time the prohibition had been imposed might have been unclear, the applicant was not entitled to rely thereon with the purpose to leave the country without having paid her debt. The court also stated that the prohibition would remain in force as long as the reasons for which it had been imposed remained valid.", "40. The applicant ’ s subsequent request for reopening of these proceedings was dismissed on 19 March 2001.", "(e) Continuing refusals of the authorities to lift the travel ban", "41. The prohibition against the applicant leaving Bulgaria remained in force. Throughout the relevant period, by way of yearly internal notes the fiscal authorities informed the passport police that the applicant had not paid yet.", "42. On 13 February 2002 the applicant ’ s Austrian passport was returned to her without prejudice to the prohibition on her travelling outside Bulgaria, which remained in force.", "43. On 10 February 2003 the applicant again requested that the travel ban be lifted, arguing that the statutory limitation period in respect of her debt had expired.", "44. By letter of 13 February 2003 the Passport police refused. The applicant filed an appeal with the Sofia City Court, but it was never examined.", "(f) The lifting of the travel ban", "45. On 26 August 2004 the Sofia tax authority sent a letter to the Ministry of the Interior, Directorate of Migration, stating, inter alia :", "“Having regard to the fact that the absolute prescription period with regard to the [applicant ’ s] fiscal debt, which was established by administrative decisions of 1 July 1992 and 9 October 1992, has expired and taking into consideration the fact that the [applicant] has made an objection with reference to the expiry of the prescription period, [it follows that] the fiscal administration ’ s right to seek the collection of the debt is extinguished... Therefore, there are no longer valid grounds for the prohibition against [the applicant] leaving the country... You are requested to repeal [that] administrative measure...”", "46. On 27 August 2004 the Ministry of the Interior repealed the prohibition. On 1 September 2004 the applicant received a copy of the order.", "47. The applicant remained in Bulgaria. In her letter of 23 September 2005 to the Court she explained that she stayed because she needed to organise the liquidation of her husband ’ s company in Bulgaria and that she would leave as soon as the liquidation procedure was completed.", "C. The applicant ’ s requests to renounce her Bulgarian citizenship", "48. In 1989, 1994 and 1995 the applicant ’ s requests to renounce her Bulgarian citizenship were refused by way of unreasoned decisions.", "49. In February 2001 the applicant submitted again a request to the Ministry of Justice, seeking to renounce her Bulgarian citizenship. By decree of the President of Bulgaria of 12 October 2001 the request was refused. The decree is not amenable to judicial review (see paragraph 70 below). The applicant nevertheless attempted to institute judicial proceedings, challenging the fact that the Ministry of Justice had given a negative opinion on her request, before its transmission to the President. Those proceedings ended by final decision of 22 April 2004 of the Supreme Administrative Court, whereby the applicant ’ s appeal was declared inadmissible.", "50. Despite the refusal of her request, as she did not wish to be regarded as a Bulgarian citizen, the applicant refused to apply for Bulgarian identity papers and as a result encountered certain difficulties in respect of health care, housing, etc in the period 2001–2004. The applicant wished to have papers of a foreigner residing in Bulgaria. However, she was repeatedly informed that in accordance with the relevant law Bulgarian citizens who held a second citizenship were considered as Bulgarian citizens for purposes of their relations with the Bulgarian authorities.", "51. On 19 June 2003 the applicant requested again to renounce her Bulgarian citizenship. In 2003 the Austrian Embassy in Sofia inquired with the Bulgarian authorities about the applicant ’ s situation, expressed the view that the statutory prescription period for the applicant ’ s debt had expired and considered that the applicant ’ s request to renounce her Bulgarian citizenship could be granted.", "52. By decree of 8 December 2004, the Vice President of Bulgaria granted the applicant ’ s request to renounce her Bulgarian citizenship. The applicant was informed thereof by letter of 25 January 2005.", "D. Other developments", "53. On 23 November 1998 the Sofia District Court gave judgment in a case concerning the applicant ’ s appeal against the attachment order made by the fiscal authorities in 1993. The attachment order was declared unlawful and set aside. As a result, on 6 January 1999 the fiscal authorities lifted the attachment of USD 50,000 which was paid to the applicant ’ s bank account.", "54. In September 1999 the applicant brought an action against the fiscal authorities and several courts claiming damages as a result of numerous allegedly unlawful acts against her.", "55. On 15 May 2003 the Sofia City Court dismissed the claims. The court acknowledged, inter alia, that the attachment imposed by the fiscal authorities in 1993 had been declared unlawful in 1998 and that the seizure of an amount of money in 1991 by the investigation authorities had also been annulled. As a result, in principle the applicant was entitled to compensation under the State Responsibility for Damage Act. However, she had failed to prove the amount of the loss suffered. Her action was, therefore, unsubstantiated and ill-founded. As far as alleged losses resulting from the travel ban were concerned, the court found that the prohibition on the applicant leaving Bulgaria was lawful and no issue of State liability arose.", "56. The applicant appealed to the Sofia Appellate Court. The outcome of those proceedings is unknown." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Prohibition against leaving the country", "57. Article 35(1) of the Constitution provides that “[e] veryone shall have the right to ... leave the country” and that this right “may be subject to restrictions provided for by act of Parliament, in the interest of national security, for the protection of public health and the rights and freedoms of others.”", "58. At the time when the initial prohibition was imposed, the relevant legal provisions were those of the Law on the Passports for Travelling Abroad (the Passport Law) and the Law on the Sojourn of Aliens.", "59. The Passport Law, in sections 7(e) and 8, provided that the issuance of a passport might be refused, or the passport seized, if, inter alia, the person concerned had “significant pecuniary obligations, established by the courts, owed to the State or to Bulgarian legal persons or nationals, except if the [person ’ s] possessions cover the obligations or if a duly executed collateral is submitted.”", "60. Section 29 of the Law on the Sojourn of Aliens insofar as relevant, provided that an alien might be refused permission to leave the country where he or she owed the payment of a fine or another pecuniary obligation to the State. Paragraph 2 of section 29 provided:", "“The alien may be authorised by the competent state organ to leave the country if there are guarantees that he [or she] will fulfil the obligations ... or if a security has been deposited...”", "61. In December 1998 the Law on the Sojourn of Aliens was superseded by the Aliens Law.", "62. Its section 43 provides that a prohibition on leaving the country may be imposed on aliens or persons who hold at the same time a Bulgarian and a foreign nationality.", "63. In the initial text of the 1998 Aliens Law, one of the grounds for such a prohibition was unpaid debts. According to section 43 as in force since 2002, only unpaid debts owed to the State and exceeding 5,000 “new” Bulgarian levs (“BGN”) (approximately EUR 2,500) may serve as grounds for a ban on leaving the country.", "64. On 1 April 1999 the Passport Law was superseded by new legislation, the Law on the Bulgarian Identity Documents.", "65. Under section 75(5) of the new law, Bulgarian citizens who owe significant amounts to the State may be prevented from leaving the country.", "66. Under all relevant provisions, the only grounds on which a prohibition on leaving the country may be lifted are payment of the debt or the deposit of sufficient security. The prohibition is not subject to a statutory maximum of duration.", "B. Prescription periods for fiscal receivables", "67. In accordance with section 22 of the Fiscal Procedure Act, in force until 1 January 2000, the statutory prescription period for fiscal and other public receivables was five years. That provision remains applicable to all fiscal receivables that became due before 1 January 2000 (Decision no. 8179 of 25.08.2003 in case no. 7256/02 of the Supreme Administrative Court).", "68. In accordance with section 6 §§ 3 and 4 of the Collection of State Receivables Act 1989, in force until June 1996 (applicable in respect of receivables that became due before June 1996) and section 4 §§ 3 and 4 of the Collection of State Receivables Act 1996, as in force between June 1996 and 1 January 2000, a fresh five years ’ prescription period starts to run whenever the fiscal authorities undertake action to seek payment. It appears that as long as judicial proceedings concerning the fiscal receivable are pending, it is considered that action to seek payment is being undertaken (Decision no. 2352 of 16 March 2004 in case no. 4396/03 of the Supreme Administrative Court). Regardless of any suspension or renewal of the prescription period, fiscal receivables that became due before 1 January 2000 are considered prescribed after fifteen years (“absolute prescription period”) (section 6 § 5 of the Collection of State Receivables Act 1989 and section 4 § 5 of the Collection of State Receivables Act 1996).", "69. As of 1 January 2000, the new Fiscal Procedure Code regulates prescription periods in respect of receivables that became due after its entry into force. The “absolute prescription period” under the Code is ten years.", "C. Renunciation of Bulgarian nationality", "70. In accordance with section 20 of the Bulgarian Citizenship Act, a Bulgarian citizen living permanently abroad and having acquired a foreign nationality may file a request for renunciation of Bulgarian nationality. The request is processed by the Ministry of Justice. A final decision is taken by the President of the Republic. The law does not require reasons to be given for a refusal of a request to renounce Bulgarian nationality. The President ’ s decree is not amenable to judicial review (procedural decision of the Supreme Administrative Court no.1183 of 23.02.2001 in case no. 9708/2000).", "71. Under the relevant fiscal law, renunciation of Bulgarian nationality is not among the grounds on which an individual may be relieved from the obligation to pay tax liabilities.", "III. RELEVANT INTERNATIONAL MATERIALS", "A. Restrictions on the right to leave one ’ s country imposed for tax obligations", "1. Restrictions in the domestic law of member states and other countries", "(a) “Civil law” countries", "72. In the law of several member states a possibility for imposing a ban on leaving one ’ s country due to tax obligations is expressly provided for: Croatia, Moldova, the Netherlands, Slovakia, Georgia, Poland, Russia, Ukraine and Norway. In Greece and Hungary the legal provisions allowing restrictions on the right to leave one ’ s country due to tax debts have now been abolished.", "73. In most states the possibility to resort to a travel ban for unpaid taxes is not unconditional. In particular, in Croatia, a passport application can be denied if there is a justified suspicion that the applicant was going to evade a tax obligation. In the Netherlands, the law states that a travel document can be refused or invalidated if there is good reason to believe that the person is neglecting his obligation to pay taxes. In Slovakia, a passport can be withdrawn or its issue refused to a citizen upon a court ’ s or tax authority ’ s request when the person avoids the enforcement of the decision, or obstructs it or there is reason to believe that he or she will do so (an alien ’ s freedom to leave the country can also be restricted). In Poland “unfulfilled obligations established by a court” can serve as grounds for a travel ban only if there is a serious risk that the person ’ s travel abroad will render the fulfilment of the obligation impossible. In Norway, under the Enforcement of Civil Claims Act 1992, a debtor may be barred from leaving the country if that is essential for the enforcement of a court decision and seizure of property does not provide sufficient security (a prohibition order cannot be issued if, in view of the nature of the case and all of the circumstances involved, it would be a disproportionately severe measure and the order automatically ceases to have effect after 3 months).", "74. A further area in which countries resort to travel bans, is bankruptcy proceedings. The laws of several countries stipulate that a court may impose a prohibition against a debtor leaving the country in order to secure his presence before the court (e.g. Estonia, Denmark, Finland, Italy, Norway ). Most member States ’ legal systems provide for prohibitions against leaving the country in respect of defendants in criminal proceedings.", "(b) Common-law jurisdictions", "75. In common-law jurisdictions, travel bans may be imposed by way of injunction.", "(i) United Kingdom", "76. In the United Kingdom, the tax authorities may seek from the courts a Mareva injunction (an order preventing the other party from disposing of assets outside the country), an injunction under section 37(1) of the Supreme Court Act 1981 to restrain the other party from leaving the jurisdiction (“ Bayer injunction”) or the writ of “ ne exeat regno ”, an ancient writ which has much the same effect.", "77. The simple fact that the person concerned has failed to pay would not be enough to satisfy the criteria for an injunction. In order to obtain an injunction under s. 37(1) restraining someone from leaving the country, the claimant must persuade the court that it is “necessary and convenient” to grant the order, for example, that the other party has information which he is refusing to disclose and which, if he is allowed to leave the United Kingdom, he will never disclose. A writ of “ ne exeat regno ” may be issued if several conditions are satisfied, such as, inter alia, cause to believe that the other party ’ s absence from the jurisdiction would materially prejudice the claimant in pursuing the action.", "78. Because the orders above are interferences with the liberty of the subject, they should last no longer than necessary – e.g. until the other party has disclosed all the information that they were refusing to disclose. The orders can be discharged on grounds that one of the requisite conditions was not in fact fulfilled but also on ‘ equitable ’ grounds.", "(ii) Ireland", "79. While the right to travel abroad is recognised as an implicit constitutional right in national case law, the courts have also recognised restrictions, in particular where there are “ undischarged obligations”.", "80. In civil contexts, Irish courts, like English courts, may make use of Mareva injunctions or Bayer injunctions, as described above. The High Court has held that such orders could be granted only in exceptional and compelling circumstances. Probable cause for believing that the defendant is about to absent himself from the jurisdiction with the intention of frustrating the administration of justice and/or an order of the court is a condition for granting an injunction. The injunction should not be imposed for punitive reasons. The injunction ought not to be granted where a lesser remedy would suffice and it should be interim in nature and limited to the shortest possible period of time. The defendant ’ s right to travel should be out-balanced by those of the plaintiff and the proper and effective administration of justice.", "2. Article 12 of the International Covenant on Civil and Political Rights and the practice of the United Nations Human Rights Committee", "81. Article 12 of the ICCPR, which served as a basis for the drafting of Article 2 of Protocol No. 4 to the Convention, reads, in so far as relevant:", "“... (2) Everyone shall be free to leave any country, including his own.", "(3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order ( ordre public ), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant...”", "82. The preparatory work of paragraph 3 of Article 12 reveals that, before agreeing on the general formula, the drafters had attempted first to come up with an exhaustive list of all grounds for restriction. The first draft thus contained no less than 14 reasons for which freedom of movement could be restricted, including tax debts. The list was eventually abandoned in favour of a general restriction clause.", "83. The UN Human Rights Committee has not dealt specifically with the issue of tax debts either in its General Comment No. 27 (1999) on Article 12 of the ICCPR or in its observations on State reports in the context of the monitoring procedure. General Comment No. 27 (1999) contains some observations on the interpretation of Article 12:", "“Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.", "The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided.”", "84. In the context of the complaint procedure, in the case of Miguel González del Río v. Peru, the Committee was called to examine the proportionality of the restriction on the applicant ’ s freedom to leave his country imposed in judicial proceedings which had been delayed. It held as follows:", "“The Committee considers that pending judicial proceedings may justify restrictions on an individual ’ s right to leave his country. But where the judicial proceedings are unduly delayed, a constraint upon the right to leave the country is thus not justified. In this case, the restriction on Mr. González ’ freedom to leave Peru has been in force for seven years, and the date of its termination remains uncertain. The Committee considers that this situation violates the author ’ s rights under article 12, paragraph 2...”", "B. Restrictions on renunciation of nationality on grounds of tax obligations", "1. Restrictions in the domestic law of member states and other countries", "85. The national citizenship laws generally provide that a renunciation request can be accepted only if the person concerned has acquired the citizenship of another state or has given assurances of acquiring one. Many states also require that the person concerned has his habitual residence abroad.", "86. In a number of states renunciation requests may be refused in connection with military service duties (Austria, Estonia, France, Croatia, Germany, Greece, Latvia and Moldova) or if the person concerned is subject to criminal proceedings or has to serve a sentence imposed by a court (Albania, Austria, Bulgaria, Greece, Hungary, Lithuania, Romania, Russia, Slovakia and Ukraine).", "87. The laws of Bulgaria, Croatia, Hungary, Romania and Slovakia provide explicitly that a person may not be released from citizenship if he or she has tax debts to the State. Also, under the laws of Albania, Estonia, Finland, Latvia and Russia, “unfulfilled obligations to the State” – which apparently may include tax debt – are grounds for refusing a renunciation request.", "88. In Ireland the law explicitly separates renunciation of citizenship from any liability, specifying that renunciation does not free the person from any obligation or duty imposed or incurred before the severance of the link to the nation. In the United States of America, similarly, the act of renouncing citizenship may have no effect on the person ’ s tax obligations.", "2. The Council of Europe ’ s European Convention on Nationality (“the ECN”)", "89. The ECN, which entered into force for several states in 2000, was signed by Bulgaria in 1998 and ratified in February 2006 (entry into force for Bulgaria on 1 June 2006 ). Its Article 8 provides:", "“Loss of nationality at the initiative of the individual", "1. Each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless.", "2. However, a State Party may provide in its internal law that renunciation may be effected only by nationals who are habitually resident abroad.”", "90. According to the Explanatory report, it is not acceptable to refuse renunciation merely because persons habitually resident in another State still have military obligations in the country of origin or because civil or penal proceedings may be pending against a person in that country of origin. Civil or penal proceedings are independent of nationality and can proceed normally even if the person renounces his or her nationality of origin (paragraphs 78 and 81 of the report).", "91. Article 11 of the ECN requires that “... decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing.”", "THE LAW", "I. ALLEGED VIOLATIONS OF THE CONVENTION WITH REGARD TO THE TRAVEL BAN AND THE ALLEGED LACK OF EFFECTIVE REMEDIES AGAINST IT", "92. The applicant complained that for more than nine years she had not been allowed to leave Bulgaria. In her view that prohibition had been unlawful and unjustified. The applicant emphasised the fact that her family lived in Austria.", "93. The Court has jurisdiction to review the circumstances complained of by an applicant in the light of the entirety of the Convention ’ s requirements. In the performance of that task it is, notably, free to attribute to the facts of the case, as found to be established on the evidence before it, a characterisation in law different from that given by the applicant or, if need be, to view the facts in a different manner; furthermore, it has to take account not only of the original application but also of the additional documents intended to complete the latter by eliminating initial omissions or obscurities (see K. ‑ H.W. v. Germany [GC], no. 37201/97, § 107, ECHR 2001 ‑ II (extracts), Camenzind v. Switzerland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 50 and Foti and Others v. Italy, judgment of 10 December 1982, Series A no. 56, pp. 15–16, § 44).", "94. Having regard to the circumstances of the present case the Court considers that the alleged interference with the applicant ’ s freedom of movement as protected by Article 2 of Protocol No. 4 to the Convention and the alleged unavailability of effective domestic remedies in this respect (Article 13 of the Convention) are at the heart of the case.", "A. Admissibility", "1. The Court ’ s jurisdiction ratione temporis", "95. As noted by the Government, with regard to the complaints under Article 2 of Protocol No. 4 to the Convention, taken alone and in conjunction with Article 13 of the Convention, the Court ’ s jurisdiction ratione temporis begins on 4 November 2000, the date on which Protocol No. 4 came into force in respect of Bulgaria. The Court may nevertheless have regard to facts and decisions prior to that date, in so far as they remained relevant after 4 November 2000.", "96. In so far as the applicant ’ s complaints fall to be examined under Article 8 of the Convention, taken alone and in conjunction with Article 13, the Court has jurisdiction ratione temporis to examine the relevant period in its totality, the Convention having entered into force for Bulgaria on 7 September 1992.", "2. Article 35 § 1 of the Convention", "97. The Government stated that the applicant had failed to exhaust all domestic remedies and had not complied with the six months ’ time-limit under Article 35 § 1 of the Convention.", "98. In support of that submission, the Government stated that the applicant had introduced her application prior to the decisions of the domestic authorities on some of her appeals, that some of the proceedings she had instituted were still pending and that in the applicant ’ s case there had been several separate administrative decisions which should be regarded as separate acts of the authorities.", "99. The applicant replied that she had tried to no avail all possible judicial and administrative remedies.", "100. The Court notes that the applicant appealed repeatedly against the relevant administrative decisions, including to the highest jurisdiction in Bulgaria. Following the entry into force for Bulgaria of Protocol No. 4 to the Convention she filed additional administrative appeals and a judicial appeal and raised expressly before the domestic authorities the grievances she maintains before the Court (see, inter alia, paragraphs 32-44 and 55 above). The Government have not claimed that the applicant stood a better chance to obtain relief had she filed more of the same appeals and have not referred to any other effective remedy that she could have used but has not done so.", "101. As to the six months ’ time-limit, the Court notes that the applicant ’ s complaints concern a ban against her leaving Bulgaria which was imposed in 1995 on grounds of her unpaid tax debt and was in force without interruption until 27 August or 1 September 2004 (see paragraphs 17 and 46 above). In such circumstances the six months ’ time limit could only start running after the situation complained of was brought to an end. The fact that the travel ban was periodically re-confirmed and that several sets of proceedings ensued cannot lead to the conclusion that the events complained of were composed of separate and unrelated occurrences so that a fresh six months ’ period should start to run after every relevant decision. Therefore, it suffices to note that in the present case the initial application and the additional complaints under Article 2 of Protocol No. 4 were submitted during the period when the travel ban was in force.", "102. In sum, the Court finds that the applicant has exhausted all domestic remedies and has submitted the complaints concerning the travel ban in compliance with Article 35 § 1 of the Convention.", "3. Other grounds for inadmissibility", "103. Some of the events complained of were the subject matter of application no. 28411/95, declared inadmissible by the former Commission (decision of 11 April 1997, DR 89, p. 83). However, the present case concerns essentially a continuous situation and the new developments since 1997 constitute “relevant new information” within the meaning of Article 35 § 2 (b) of the Convention. The application is not, therefore, substantially the same as application no. 28411/95 and cannot be rejected on that ground.", "104. Furthermore, the Court considers, in the light of the parties ’ submissions, that the complaints concerning the travel ban and the alleged lack of effective remedies in this respect raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.", "B. Merits", "1. Alleged violation of Article 2 of Protocol No. 4 to the Convention", "105. That provision reads, in so far as relevant:", "“... 2. Everyone shall be free to leave any country, including his own.", "3. No restrictions shall be placed on the exercise of [this right] other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others...”", "(a) The parties ’ arguments", "106. The applicant submitted, inter alia, that she had been the victim of an unlawful and arbitrary repression. The travel ban had been unlawful and resulted in her ten-year imprisonment in the country she wanted to leave.", "107. As regards the alleged unlawfulness of the measures against her, the applicant submitted that in their decisions of 1992-1994, the Bulgarian authorities had failed to distinguish between her activities as a physical person engaged in commerce and her position as manager of the Austrian company she owned. That had resulted in wrong assessment of her tax liability. In reality she did not owe taxes. The applicant also complained that the legal basis of the travel ban had been unclear as the authorities had relied on different legal provisions in different decisions.", "108. The Government stated that the measures against the applicant had been lawful and necessary in a democratic society for the maintenance of ordre public and the protection of the rights and freedoms of others. Emphasising that the applicant had owed significant amounts in taxes and had refused to pay, contesting her debt, the Government considered that the measure against the applicant had been imposed on an individual basis, taking into account her behaviour. Also, the applicant had owned and managed a firm in Austria, not in Bulgaria, which allegedly meant that no security for payment had been available. The principle of proportionality had been respected.", "(b) The Court ’ s assessment", "109. Article 2 of Protocol No. 4 guarantees to any person a right to liberty of movement, including the right to leave any country for such other country of the person ’ s choice to which he or she may be admitted. Any measure restricting that right must be lawful, pursue one of the legitimate aims referred to in the third paragraph of the above-mentioned Convention provision and strike a fair balance between the public interest and the individual ’ s rights (see Baumann v. France, judgment of 22 May 2001, Reports of Judgments and Decisions 2001-V, p. 217, § 61).", "(i) Whether there was an interference", "110. The prohibition against the applicant leaving Bulgaria constituted an interference by a public authority with her right to leave the country, as guaranteed by Article 2 § 2 of Protocol No. 4 to the Convention.", "111. It must be established, therefore, whether or not the interference was lawful and necessary in a democratic society for the achievement of a legitimate aim.", "(ii) Lawfulness", "112. The applicant owed a significant amount in taxes, as established by final judicial decisions which had entered into force prior to the impugned events. The applicant ’ s complaint that those decisions were arbitrary was rejected by the former Commission as being manifestly ill-founded (see partial decision of 12 April 1996 in application no. 28411/95). While it appears that there was certain ambiguity as to whether the Passport Law or the relevant legislation on the residence of foreigners applied in respect of the travel ban imposed on the applicant (who had double citizenship until 2004), the Bulgarian courts examined in detail her arguments and dismissed them in reasoned decisions (see paragraphs 20-24 above). On the basis of the material before it, the Court is satisfied that the prohibition against the applicant leaving Bulgaria had legal basis in Bulgarian law.", "113. In the Court ’ s view, the remaining questions related to the travel ban ’ s lawfulness, such as the foreseeability and clarity of the authorities ’ legal acts in particular, with regard to the duration of the travel ban, the calculation of the debt and the issue of prescription are closely linked to the issue of proportionality and fall to be examined as an aspect thereof, under paragraph 3 of Article 2 of Protocol No. 4 to the Convention (see, mutatis mutandis, T.P. and K.M. v. the United Kingdom, [GC], no. 28945/95, ECHR 2001-V, § 72, and Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-I, § 92 ).", "(iii) Legitimate aim", "114. The aim of the interference with the applicant ’ s right to leave Bulgaria was to secure the payment of considerable amounts in taxes, owed by her.", "115. The Court observes that Article 1 of Protocol No. 1 to the Convention, which concerns the protection of property, reserves the right of States to enact such laws as they deem necessary for the purpose of securing the payment of taxes. Bulgaria is a party to Protocol No. 1 to the Convention.", "116. In the law of several member states of the Council of Europe, in certain circumstances and subject to conditions, unpaid taxes may be a ground for restrictions on the debtor ’ s freedom of movement (see paragraphs 72-80 above). The purpose of such restrictions is, as in the present case, maintaining of ordre public and protection of the rights of others.", "117. The Court considers, therefore, that the travel ban imposed on the applicant had a legitimate aim under Article 2 of Protocol No. 4.", "(iv) Proportionality", "118. The parties failed to produce conclusive evidence about the exact amount of the debt owed by the applicant. Since the imposition of the travel ban several assessments had been made and the figures differed (see paragraphs 19, 26, 27, 29 and 39 above). Between 1992, when the fiscal authorities first sought payment, and 2004, when the debt was declared extinguished by prescription, its value decreased as a result of the depreciation of the Bulgarian currency. Despite those facts, it appears that as of November 2000, when Protocol No. 4 entered into force for Bulgaria, the applicant owed the equivalent of at least EUR 150,000, probably more (see paragraphs 26 and 27 above).", "119. The public interest in recovering unpaid tax of such an amount could warrant appropriate limitations on the applicant ’ s rights. States have a certain margin of appreciation to frame and organise their fiscal policies and make arrangements to ensure that taxes are paid (see, mutatis mutandis, Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, § 39).", "120. The Court notes, however, that as of November 2000, when Protocol No. 4 to the Convention entered into force for Bulgaria (see paragraph 95 above concerning the Court ’ s competence ratione temporis ), the prohibition against the applicant leaving the country had been in place for more than five years. Furthermore, it remained unaltered for nearly four more years, until September 2004.", "121. Even where a restriction on the individual ’ s freedom of movement was initially warranted, maintaining it automatically over a lengthy period of time may become a disproportionate measure violating the individual ’ s rights (see Luordo v. Italy, no. 32190/96, 17 July 2003, mutatis mutandis İletmiş v. Turkey, no. 29871/96, 6 December 2005, and the similar position taken by the UN Human Rights Committee in the case of Miguel González del Río v. Peru – see paragraph 84 above).", "122. It follows from the principle of proportionality that a restriction on the right to leave one ’ s country on grounds of unpaid debt can only be justified as long as it serves its aim – recovering the debt (see Napijalo v. Croatia, no. 66485/01, 13 November 2003, §§ 78-82).", "123. That means that such a restriction cannot amount to a de facto punishment for inability to pay.", "124. In the Court ’ s view, the authorities are not entitled to maintain over lengthy periods restrictions on the individual ’ s freedom of movement without periodic reassessment of their justification in the light of factors such as whether or not the fiscal authorities had made reasonable efforts to collect the debt through other means and the likelihood that the debtor ’ s leaving the country might undermine the chances to collect the money.", "125. In the applicant ’ s case it does not appear that the fiscal authorities actively sought to collect the debt, either before or after the entry into force for Bulgaria of Protocol No. 4 to the Convention. In particular, after 1993 no fresh effort was made to seize any asset or movable property of the applicant in Bulgaria. The sum of USD 50,000 owned by her was attached until 3 January 1999 but was never seized and, after that date, was paid back to the applicant. The possibility of inquiring into the applicant ’ s resources in Austria, if any, was never contemplated by the fiscal authorities (see paragraphs 14-47 and 53-56 above). The Court considers that the authorities ’ failure to employ obvious means for the collection of at least a portion of the debt undermines the respondent Government ’ s position that the travel ban remained necessary for its collection or proportionate to the far-reaching restriction imposed on the applicant ’ s freedom of movement.", "126. Contrary to the respondent Government ’ s assertion, the periodic “confirmations” of the travel ban were not based on analysis of the applicant ’ s attitude, on information about her resources or any concrete indication that the chances for recovery would be jeopardised if she were allowed to leave the country. The fact that the applicant had a family abroad was not taken into consideration. Neither the administrative decisions related to the travel ban, nor the courts ’ judgments upholding them contained any proportionality analysis, either before or after the entry into force of Protocol No. 4 to the Convention in respect of Bulgaria (see paragraphs 17, 19, 23, 28, 34, 36, 37 and 39-44 above).", "127. That was so because the applicable law treated as irrelevant the question whether or not the fiscal authorities made efforts to secure payment by other means, the debtor ’ s attitude and his or her potential ability to pay. The only grounds on which the travel ban could be lifted were payment, submission of sufficient security (apparently understood as security covering the full amount) or, as it happened in the event, extinction of the debt by prescription (see paragraphs 36, 37, 39 and 57-66 above). In these circumstances the travel ban was in reality an automatic measure of indefinite duration. The yearly “confirmations” were merely information notes certifying that the applicant had not paid, with the automatic consequence of the travel ban remaining in place, without examination of its justification and proportionality (see paragraph 41 above).", "128. The Court considers that the “automatic” nature of the travel ban ran contrary to the authorities ’ duty under Article 2 of Protocol No. 4 to take appropriate care that any interference with the right to leave one ’ s country should be justified and proportionate throughout its duration, in the individual circumstances of the case. It notes in this context that in the domestic law of a number of member states prohibitions against leaving the country for unpaid taxes can only be imposed if there are concrete reasons to believe that the person concerned would evade payment if allowed to travel abroad. Also, in a number of countries there are limitations on the duration of the restrictions (see paragraphs 73, 77-80 above). Regardless of the approach chosen, the principle of the proportionality must apply, in law and in practice. It did not in the present case.", "129. Moreover, the Bulgarian authorities never clarified the date on which the relevant prescription period expired and made divergent calculations of the amount of the debt. The manner in which the authorities handled the yearly “confirmations” and the prescription question – through internal notes that were not communicated to the applicant – is difficult to reconcile with the legal certainty principle, inherent in the Convention. In this respect the relevant law did not provide sufficient procedural safeguards against arbitrariness (see paragraphs 27, 29, 39, 41, 43-45 and 67-69 above).", "130. In sum, having regard to the automatic nature of the travel ban, the authorities failure to give due consideration to the principle of proportionality, the lack of clarity in the relevant law and practice with regard to some of the relevant issues and the fact that the prohibition against the applicant leaving Bulgaria was maintained over a lengthy period, the Court considers that it was disproportionate to the aim pursued. It follows that has been a violation of the applicant ’ s right to leave any country, as guaranteed by Article 2 § 2 of Protocol No. 4.", "2. Alleged violation of Article 8 of the Convention", "131. That provision reads, in so far as relevant:", "“1. Everyone has the right to respect for his private and family life...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "(a) The parties ’ arguments", "132. The applicant stated that the travel ban, which she considered unlawful and arbitrary, had destroyed her private and family life. In particular, the impossibility to spend time with her husband, daughter and grandchildren who lived in Austria had been particularly painful.", "133. The Government stated that the applicant ’ s husband and daughter had been free to visit her in Bulgaria. Also, the applicant had close family and links with Bulgaria, where her mother and brother live. Accepting that there might have been an interference with the applicant ’ s right to respect for her family life, the Government considered that it had been lawful and proportionate to the legitimate aim pursued.", "(b) The Court ’ s assessment", "134. The Court examined above, under Article 2 of Protocol No. 4 to the Convention, the applicant ’ s complaint that the prohibition against her leaving Bulgaria was a disproportionate measure adversely affecting her. While the temporal scope of its competence under Article 2 of Protocol No. 4 did not encompass the period prior to November 2000, the Court had regard to the authorities ’ approach, legislation and decisions that had not undergone relevant substantial changes since the imposition of the travel ban. In these circumstances, the Court finds that it is not necessary to examine essentially the same facts and decisions also under Article 8 of the Convention. The Court also notes that part of the period pre-dating the entry into force of Protocol No. 4 in respect of Bulgaria was the subject matter of the former Commission ’ s decision of 11 April 1997 (see paragraph 25 above), which dealt with the applicant ’ s complaints from the angle of Article 8 of the Convention.", "3. Alleged violation of Article 13 in conjunction with Article 8 and Article 2 of Protocol No. 4 to the Convention", "135. Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "(a) The parties ’ arguments", "136. The applicant stated that her attempts to obtain a revision of the prohibition on her leaving Bulgaria were to no avail as the authorities acted arbitrarily and refused to examine her arguments.", "137. The Government stated that the applicant ’ s numerous complaints and appeals had been duly examined by the authorities who had given reasoned decisions. The fact that he appeals had been unsuccessful did not mean that the remedies available to her had been ineffective.", "(b) The Court ’ s assessment", "138. Where there is an arguable claim that an act of the authorities may infringe the individual ’ s right to leave his or her country, guaranteed by Article 2 of Protocol No. 4 to the Convention, or that person ’ s right to respect for private and family life, protected by Article 8 of the Convention, Article 13 of the Convention requires that the national legal system must make available to the individual concerned the effective possibility of challenging the measure complained of and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (see, mutatis mutandis, Shebashov v. Latvia (dec.), 9 November 2000, no. 50065/99 and Al-Nashif v. Bulgaria, no. 50963/99, 20 June 2002).", "139. There is no doubt that the applicants ’ complaints under Article 8 and Article 2 of Protocol No. 4 to the Convention in respect of the prohibition against her leaving Bulgaria were arguable. She was entitled, therefore, to an effective complaints procedure in Bulgarian law.", "140. Bulgarian law provided for a possibility to appeal to a court against an order imposing a prohibition on leaving the country. The applicant ’ s appeals against the travel ban were examined by the courts, which gave reasoned decisions.", "141. In their analysis, however, the courts were only concerned with the formal lawfulness of the ban and the question whether or not the applicant had paid her debt or provided sufficient security. Once satisfied that that she had not paid, the courts and the administrative authorities automatically upheld the travel ban against the applicant. The duration of the restrictions imposed on the applicant, the applicant ’ s potential ability to pay, questions such as whether or not the fiscal authorities had explored other means of collecting the debt and whether there was concrete information indicating that lifting the travel ban might result in compromising the chances of collecting the debt were all irrelevant. The applicant ’ s right to respect for her private and family life was also considered as irrelevant and no attempt was made to assess whether the continuing restrictions after certain lapse of time were still a proportionate measure, striking a fair balance between the public interest and the applicant ’ s rights (see paragraphs 23, 25, 28, 34, 36, 37, 39 ‑ 44 and 57-66 above).", "142. However, a domestic appeals procedure cannot be considered effective within the meaning of Article 13 of the Convention, unless it affords a possibility to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Giving direct expression to the States ’ obligation to protect human rights first and foremost within their own legal system, Article 13 establishes an additional guarantee for an individual in order to ensure that he or she effectively enjoys those rights (see Kudła v. Poland [GC], no. 30210/96, ECHR 2000 ‑ XI, § 152, and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, ECHR 2001-V, § 107).", "143. The limited scope of review afforded by Bulgarian law in the applicant ’ s case did not satisfy the requirements of Article 13 of the Convention in conjunction with Article 8 and Article 2 of Protocol No. 4. She did not have any other effective remedy in Bulgarian law. It follows that there has been a violation of Article 13 of the Convention.", "II. ALLEGED VIOLATIONS OF THE CONVENTION IN RESPECT OF THE REJECTION OF THE APPLICANT ’ S REQUEST TO RENOUNCE HER BULGARIAN NATIONALITY", "144. The applicant complained that her requests to renounce her Bulgarian nationality were repeatedly refused which, in her view, encroached on her Convention rights. She also complained, relying on Articles 6 and 13 of the Convention, that the refusals were unreasoned and were not amenable to appeal.", "145. The Court considers that those complaints fall to be examined under Articles 8 and 13 of the Convention.", "A. Admissibility", "146. The Government did not comment on the admissibility of the above complaints.", "147. The Court considers, in the light of the parties ’ submissions, that the complaints concerning the refusal of the applicant ’ s requests to renounce her Bulgarian nationality raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.", "B. Merits", "1. The parties ’ submissions", "148. The Government admitted that the applicant ’ s unpaid debt had been the reason underlying the refusal of her requests to renounce her Bulgarian nationality. They stated, however, that the refusal had had no incidence on her private and family life. In particular, the applicant ’ s right to leave the country did not depend on whether or not she remained a Bulgarian national.", "149. To the extent that the refusal of the applicant ’ s request to renounce her Bulgarian nationality could be regarded as an interference with Article 8 rights, the Government, referring to their submissions concerning the travel ban (see paragraph 112 above), stated that the interference had been lawful and proportionate.", "150. The applicant stated that she wished to renounce her Bulgarian citizenship as she felt Austrian, because of her job and family circle, because of the fact that under Austrian law she could not have double citizenship and also because she did not want to have Bulgarian identity papers. The applicant also referred to her submissions in relation to the prohibition on her leaving Bulgaria.", "2. The Court ’ s assessment", "151. Although a “right to nationality” similar to that in Article 15 of the Universal Declaration of Human Rights is not guaranteed by the Convention or its Protocols, the Court has previously stated that it is not excluded that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see Karassev v. Finland (dec.), no. 31414/96, ECHR 1999 ‑ II, with further references and Slivenko v. Latvia (dec.) [GC], no. 48321/99, ECHR 2002 ‑ II (extracts)).", "152. In the present case the applicant ’ s complaint does not concern a denial of citizenship, but her wish to renounce her Bulgarian citizenship and the authorities ’ refusal, until December 2004, to entertain her request.", "153. The Court considers that no right to renounce citizenship is guaranteed by the Convention or its Protocols. Other relevant international instruments and the national law of member states apply in such matters (see paragraphs 89-95 above).", "154. Nevertheless, the Court cannot exclude that an arbitrary refusal of a request to renounce citizenship might in certain very exceptional circumstances raise an issue under Article 8 of the Convention if such a refusal has an impact on the individual ’ s private life.", "155. In the present case the impugned refusal did not entail any legal or practical consequences adversely affecting the applicant ’ s rights or her private life.", "156. In particular, as regards the applicant ’ s statement that under Austrian law she could not have double citizenship, the Court notes that the applicant obtained Austrian citizenship in 1989 and has not shown that under Austrian law there was a risk of her losing her Austrian citizenship on the ground that her requests to renounce her Bulgarian citizenship had been refused (see paragraphs 9 and 51 above). The Bulgarian authorities ’ refusals did not, therefore, have any impact on her Austrian nationality.", "157. Furthermore, as regards the applicant ’ s freedom of movement and possibility to travel to Austria and interact with her professional and family circle there, it is noted that during the relevant period those were restricted on account of the travel ban imposed on her for unpaid taxes, not in relation to her Bulgarian citizenship. Under the relevant law such restrictions on the right to leave Bulgaria could be imposed in respect of Bulgarian and foreign nationals on essentially the same grounds (see paragraphs 58-65 above). In addition, under Bulgarian fiscal law renunciation of citizenship could not result in releasing an individual of the obligation to pay her debt (see paragraph 71 above).", "158. The applicant also stated that the impugned refusals affected her adversely as she felt Austrian and did not want to have Bulgarian identity papers. In the particular circumstances of the present case, the Court cannot accept that the alleged emotional distress resulting from the applicant ’ s being “forced” to remain Bulgarian citizen amounted to an interference with her right to respect for her private life as protected by Article 8 of the Convention.", "159. The Court finds that the refusal of the applicant ’ s request to renounce her citizenship did not interfere with her right to respect for her private life, within the meaning of Article 8 of the Convention and that she did not have an arguable claim under that provision. It follows that there has been no violation of Article 8 in this respect and that Article 13 did not apply.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "160. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "161. The applicant asserted that but for the prohibition on her leaving Bulgaria she would have worked for her Austrian company and would have earned pension rights which would have enabled her to receive EUR 59,044 in pension payments between the age of 60 and 66 (i.e. for the period 2006–2012) and an additional EUR 106,984 between the age of 66 and 84 (i.e. for the period 2012–2030). The applicant claimed, in addition, EUR 43,100 in respect of the cost of telephone calls between her and her husband in Austria for a period of nine years, EUR 27,000 for her husband ’ s travel expenses between Austria and Bulgaria, EUR 54,000 in respect of losses resulting from the fact that the applicant and her husband had to maintain two separate households instead of one and EUR 20,500,000 in respect of lost gains from business activities the applicant would have undertaken but for the prohibition against her leaving Bulgaria. Within the time-limit provided for that purpose, the applicant submitted a copy of an expert opinion concerning, inter alia, the probable profits the applicant could have realised had she continued her coffee importation business after 1993 and her expenses in relation to judicial proceedings concerning her fiscal liability. She also submitted documents concerning a business project in Austria.", "162. The Government stated that the claims were exorbitant, not supported by relevant evidence and concerned alleged losses that were not the direct result of the impugned events.", "163. The Court considers that the applicant ’ s claims are not supported by convincing evidence. The claims as regards her alleged pension rights and losses from unrealised business projects are based on speculations, not on real facts. The applicant has not stated why it was not possible to conduct her business activities from Sofia. As regards telephone calls, travel expenses and the cost of maintaining two households, the Court notes that even before the prohibition against the applicant leaving Bulgaria between 1991 and 1995, she spent most of her time there and that she remained in Bulgaria following the lifting of the travel ban in 2004 (see paragraphs 11 and 47 above). In these circumstances the claims in respect of pecuniary damages are dismissed.", "2. Non-pecuniary damage", "164. The applicant claimed EUR 1,500,000 in respect of the hardship she endured and, in particular, the separation from her husband, daughter and grandchildren and from friends in Austria.", "165. The Government stated that the claim was exorbitant.", "166. The Court considers that the applicant must have suffered non-pecuniary damage as a result of the violations of her rights found in the present case. In determining the amount, the Court takes into account the fact that even before the prohibition against her leaving Bulgaria, between 1991 and 1995, the applicant spent most of her time there and that she remained in Bulgaria following the lifting of the travel ban in 2004 (see paragraphs 11 and 47 above). Having regard to the above and also to all circumstances of the case as a whole, the Court, deciding on an equitable basis, awards EUR 5,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "167. The applicant claimed EUR 32,840 in respect of lawyers ’ fees in Bulgaria and in Austria. She submitted a copy of a bill presented by her Austrian lawyer, concerning work done on various matters, including the fiscal proceedings against the applicant in Bulgaria and the prohibition against her leaving Bulgaria.", "168. The Government stated that the claims were excessive and not supported by relevant evidence.", "169. The Court considers that the applicant has undoubtedly made expenses for legal fees in relation to the prohibition against her leaving Bulgaria and the proceedings before the Court. However, some of the claims apparently concern the fiscal proceedings against the applicant, not the travel ban that gave raise to a finding of a violation of the Convention in the present case. Furthermore, a reduction should be applied on account of the fact that some of the applicant ’ s complaints were rejected. Having regard to all relevant circumstances, the Court awards EUR 5,000 in respect of costs and expenses.", "C. Default interest", "170. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "11. Mr. Rolf Kosiek, who is a German national born in 1934, lives in Nürtingen. After studying physics for several years, he sat his degree examinations (Diplomhauptprüfung) in November 1960 at the University of Heidelberg, where he took a doctorate in physics three years later. From 1 September 1962 to 31 October 1968, he worked in the First Institute of Physics at the same University, first as an employee (Angestellter) and then, from 1 April 1963, as a research assistant (wissenschaftlicher Assistent) with the status of temporary civil servant (Beamter auf Widerruf).", "His appointment, initially limited to four years and subsequently extended, was terminated with his agreement after he had been told by his Director that he could not expect a further extension. According to the Government, these assistantships are used to train scientists and give them an opportunity to prepare themselves for an academic career. For this reason they are deliberately awarded on temporary contracts which should have a maximum total duration of six years.", "12. On 26 October 1962, shortly after taking up his duties, Mr. Kosiek signed a statement certifying that he had been given notice of the Federal Government ’ s decision of 19 December 1950 on anti-democratic activities by civil servants and of the decree issued on 12 September 1955 by the Land Government of Baden-Württemberg. Such a statement was required by the decree, whose first paragraph read:", "\"It is taken for granted that candidates for civil-service posts shall not belong to any organisation which sets out to abolish the free democratic constitutional system (freiheitliche, demokratische Grundordnung) or support such tendencies in any other way, directly or indirectly. If necessary, appointment or employment should be regarded as having been brought about by wilful deceit (arglistige Täuschung).\"", "The third paragraph stated that it was for the authorities concerned to take \"the necessary action (disciplinary proceedings, dismissal)\" \"against staff (Bedienstete) who fail in their duty of loyalty\".", "13. In 1965, Mr. Kosiek joined the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD); he was chairman of the Rhine-Neckar branch from 1965 to May 1974. In 1968, he was appointed to the Executive Committee of the Baden-Württemberg section, of which he remained a member until 1978. In 1971, he was appointed the Executive Committee ’ s district agent for North Baden. He was also one of the three Land deputy chairmen, an appointment which was again renewed in June 1974. From autumn 1971, he served on the NPD Federal Executive Committee, where his responsibilities included university matters; he resigned in 1979. He left the NPD on 9 December 1980; he claims that he had already informed the Minister of Education and Culture, in January 1974, that he intended to leave the party as soon as he was given tenure.", "He was an NPD member of the Baden-Württemberg Parliament (Landtag) from 1 June 1968 to 31 May 1972, and stood for the party in the Federal elections in the autumn of 1972, when it failed to secure any seats in the Bundestag.", "Mr. Kosiek set out his political views in two books. The first of these, published in September 1972 and reprinted several times, is entitled \"Marxismus? Ein Aberglaube! Naturwissenschaft widerlegt die geistigen Grundlagen von Marx und Lenin\" (\"Marxism? A superstition! Science disproves the intellectual foundations of Marx and Lenin\"); the second, published in 1975, is entitled \"Das Volk in seiner Wirklichkeit - Naturwissenschaften und Leben bestätigen den Volksbegriff\" (\"The People as it really is - Science and Life confirm the Concept of the Nation\").", "14. In 1970, he applied for a position as lecturer (Dozent) at the State Engineering College (Staatliche Ingenieurschule) in Koblenz. In March, he passed a test there, and the college asked the Ministry of Education and Culture (Ministerium für Unterricht und Kultur) of the Land of Rhineland-Palatinate to appoint him with effect from 1 March 1971.", "On 15 December 1970, the Ministry informed him that another applicant had been given the post. A year later, having learned through the press that his political activities in the NPD had been the main reason for his failure to secure the appointment, Mr. Kosiek went to court to compel the Land to employ him. His case was dismissed on 24 October 1972 by the Administrative Court (Verwaltungsgericht) of Neustadt an der Weinstrasse and, on 2 March 1977, by the Land Administrative Court of Appeal (Oberverwaltungsgericht), which refused him leave to apply to the Federal Administrative Court for review on points of law.", "The Court of Appeal held that he did not afford the guarantee required by section 9(1)(2) of the Land Civil Servants Act (in its version of 14 July 1970) that he would at all times uphold the free democratic constitutional system within the meaning of the Basic Law. It based its conclusions mainly on his book \"Das Volk in seiner Wirklichkeit\" (see paragraph 13 above).", "15. In 1972, the applicant applied for a vacant post as lecturer (Dozent) at Nürtingen Technical College (Fachhochschule). With two of the other seven candidates he took a test and was interviewed. On 14 July 1972, the Lecturers ’ Council (Dozentenrat) recommended the Ministry of Education and Culture to appoint him. On the same day, he was interviewed at the Ministry on the subject of his past activities as a member of the Land Parliament and his future political intentions. Immediately afterwards, he wrote to the principal of Nürtingen Technical College assuring him that he would, if appointed, keep his professional duties and private political commitment entirely separate and would not misuse his position as a teacher for political ends; he added that he had no intention of appearing in public in Nürtingen or the surrounding area as a party militant - during the election campaign for the Bundestag, for example.", "The Ministry appointed him as a lecturer (Dozent zur Anstellung) with the status of probationary civil servant (Beamter auf Probe) at Nürtingen Technical College, with effect from 1 September 1972. The decision was taken by the Minister himself who, according to the Government, had known the applicant as a parliamentarian and had no doubts whatever about his loyalty to the Constitution. The Land Civil Servants Act, in its version of 27 May 1971, requires all candidates for civil-service posts - whether temporary or permanent - to give \"a guarantee that they will consistently uphold the free democratic constitutional system within the meaning of the Basic Law\" (sections 6(1)(2) and 8). By virtue of section 64(2) of the Act, civil servants shall undertake to bear witness (bekennen) to the said system by their every word and deed and to uphold it.", "Mr. Kosiek did not have to sign a declaration of loyalty: the decree of 12 September 1955 (see paragraph 12 above) had been repealed on 4 February 1969, and it was not until 15 October 1973 that the Land Minister of the Interior issued directives implementing the decree on the appointment of extremists to the civil service which the Federal Chancellor and the Prime Ministers of the Länder had adopted on 28 January 1972 (\"Ministerpräsidenten-Beschluss\" - see paragraph 17 below).", "On 9 November 1972, the applicant was sworn in before the principal of Nürtingen Technical College; he promised, inter alia, to abide by and uphold the Basic Law and the Land Constitution (section 65 of the Land Civil Servants Act).", "16. On 17 October 1973, pursuant to section 24(1) and (2) of the Land Civil Servants Act, which makes it possible for the normal three-year probationary period to be shortened, the principal of the College requested that Mr. Kosiek be given tenure for life (Ernennung auf Lebenszeit).", "After examining whether the legal conditions for tenure were fulfilled (sections 6 and 8 of the Land Civil Servants Act - see paragraph 15 above), the Ministry replied that Mr. Kosiek ’ s attitude and political activities had given rise to doubts concerning his loyalty to the Constitution and that he might even have to be dismissed.", "17. On 13 February 1974, the applicant was interviewed on the subject of his attitude to the Constitution. On 28 February, the Ministry gave him notice of dismissal with effect from 30 June. Citing, inter alia, section 38(2) of the Land Civil Servants Act, which provides for dismissal of a probationary civil servant where he has not proved himself during the probationary period, and the decree of 28 January 1972 (see paragraph 15 above), it declared him unsuitable for the post (mangelnde Eignung): as a prominent NPD official, he had approved of NPD aims which were inimical to the Constitution (verfassungsfeindlich) and had thus shown that he did not support the free democratic constitutional system by his every word and deed and was not prepared to uphold it (section 64 of the Act). According to the Ministry, the NPD behaved in a manner hostile to the Constitution since, among other things, it rejected the idea of international understanding, human rights and the existing democratic order; specifically, it preached extreme nationalism and a racist ideology, and wished to abolish parliamentary government and the multi-party system.", "The decree of 28 January 1972 on the employment of extremists is designed to ensure uniformity of administrative practice in the matter; it reiterates civil servants ’ legal duty of loyalty to the free democratic constitutional system and in paragraph 2 provides (Official Gazette - Gemeinsames Amtsblatt - of certain Ministries of the Land, 1973, no. 34, p. 850):", "\"2. Every case must be examined and decided according to its particular circumstances. Regard must be had in the process to the following principles:", "2.1. Candidates", "2.1.1. A candidate who engages in activities inimical to the Constitution shall not be appointed to the civil service.", "2.1.2. If a candidate belongs to an organisation engaging in activities inimical to the Constitution, this fact shall cast doubt on whether he is prepared at all times to uphold the free democratic constitutional system. As a rule such doubt shall be sufficient reason for not appointing him.", "2.2. Civil servants", "If a civil servant <fails to comply with his duty of loyalty to the Constitution> the appointing authority shall draw the necessary conclusions on the basis of the particular facts established in his case and shall consider whether grounds exist for dismissing him from the service (Entfernung aus dem Dienst).\"", "German civil servants ’ special duty of loyalty to the State and its Constitution has been confirmed and clarified by the Federal Constitutional Court, in particular in a judgment on 22 May 1975 (Entscheidungen des Bundesverfassungsgerichts, vol. 39, pp. 334-391).", "18. On 8 March 1974, the applicant lodged an objection (Widerspruch) against his dismissal. This was rejected by the Ministry on 3 May, and he instituted proceedings before the Stuttgart Administrative Court on 10 June.", "On 8 April 1975, the Ministry revoked its decision of 28 February 1974 on the ground that it had failed to consult the Staff Committee (Personalrat) of the Technical College beforehand. At the same time, it again dismissed the applicant on the same grounds as in February 1974 - having interviewed him again and consulted the Staff Committee in the meantime - with effect from 30 June 1975. On 9 May, the Stuttgart Administrative Court accordingly stayed (einstellen) the proceedings before it, holding that the issues raised had been settled.", "19. On 2 May 1975, Mr. Kosiek lodged an objection against his second dismissal, arguing, inter alia, that the criticisms levelled at him had been unjustified. He asserted that it was common knowledge that he had personally and actively upheld the free democratic system. Since becoming a teacher he had resigned from several of his NPD posts, including those of chairman of the Rhine-Neckar branch, district agent for North Baden and member of the Federal Executive Committee responsible for university matters. In addition, he had deliberately restricted his political activities in the Nürtingen-Esslingen area and had not appeared there in public. His membership of a party with aims allegedly inimical to the Constitution was no reason for dismissing him. The Technical College and the Staff Committee had supported him and had testified to his personal and professional abilities. Finally, the probationary period was now over: the period which he had previously spent as a temporary civil servant should be added to the two years and seven months which he had spent as a probationary civil servant.", "On 7 May, the Land Ministry of Education and Culture rejected his objection, mainly on account of the major role he had played in NPD activities. It also referred to the Federal Administrative Court ’ s ruling that mere membership of an unconstitutional party might justify a civil servant ’ s dismissal; that being so, it was unnecessary to establish whether the applicant had restricted his political utterances, and his professional qualifications were immaterial. Finally, probation did not end automatically under civil-service law; as he had not been established, Mr. Kosiek was still a probationer and could therefore be dismissed under section 38 of the Land Civil Servants Act.", "20. On 9 June 1975, the applicant challenged the Ministry ’ s decision before the Stuttgart Administrative Court, claiming that no definite proof had been adduced therein that his attitudes had been inimical to the Constitution. In German case-law, membership of an organisation regarded as being inimical to the Constitution was merely a possible reason for doubting a civil servant ’ s constitutional loyalty, and every case had to be examined in detail. The Ministry ’ s overall judgment did not satisfy this requirement. The applicant had always actively upheld the free democratic system - in 1968, for example, when the University of Heidelberg had been occupied; or in 1970 in Ulm, when he had retrieved the flag of the German Democratic Republic and handed it over to the public prosecutor; or again, as a member of the Land Parliament. The same was true of his writings. He could not be held responsible for NPD statements or actions which might be regarded as inimical to the Constitution. In any case, the party approved of the free democratic system within the meaning of the Basic Law. When the Land Minister appointed him as a probationary civil servant, he knew that he had been a member of the Federal Executive Committee (since 1971), a member of the Land Executive Committee (since 1968), the Land Executive Committee ’ s district agent for North Baden (since 1971) and chairman of the Rhine-Neckar branch of the NPD (since 1965). It was thus illogical that his commitment to the NPD should be seen as making him personally unsuitable and justifying his dismissal. The same inconsistency was apparent in earlier statements by the Minister. In December 1972, he had repeatedly stated - in the Land Parliament, on television and in interviews with the press - that Mr. Kosiek was not opposed to the Constitution and that his four-year record in Parliament showed as much.", "21. On 26 January 1977, the Stuttgart Administrative Court set aside the decisions of 8 April and 7 May 1975.", "The court held that the law and general principles precluded dismissing a probationary civil servant on grounds which had been known - and should have been taken into account - when he was appointed.", "The Ministry had based its decision on facts already known in 1972 which it had not regarded at the time as indicating personal unsuitability. It had been aware from the decisions of the Conference of Land Ministers of the Interior (25 February 1972), quoted in the disputed decision of May 1974, that the NPD was regarded as having aims inimical to the Constitution, and it had also known that the applicant was an influential member of the party and an NPD member of the Land Parliament.", "The fact that the Ministry had nonetheless appointed Mr. Kosiek showed that it regarded his personal conduct, notwithstanding his commitment to the NPD, as affording the necessary guarantee of allegiance to the Constitution. This had been clear from the Minister ’ s reply to a question put to him in the Land Parliament in December 1972. Thus, when it was being determined whether the applicant had proved himself during his probation, his political conduct was relevant only in so far as it had changed in the meantime. The applicant ’ s continuing commitment to his party could not be judged any differently from before, as the NPD ’ s aims had not changed in the meantime. As for his book \"Marxismus? Ein Aberglaube!\", which the Ministry had not originally been aware of, it was not sufficient proof of opposition to the Constitution.", "The court had beforehand called the applicant to give evidence explaining a number of passages in his book. It had sought such evidence notably in order to establish whether his theory of genetic and biological inequality in humans was based on racist views and whether Mr. Kosiek drew from it conclusions which were incompatible with the principles of equality and respect for human rights enshrined in the Basic Law.", "22. The Ministry appealed against this judgment on 23 June 1977. It contended that it must be free to rectify any error made during the appointment procedure; it could not be compelled to establish a probationary civil servant who lacked one of the requisite qualifications. Moreover, it had since been found that the NPD did not accept the Basic Law but was actively opposed to it and the lawful institutions. The applicant ’ s new book, \"Das Volk in seiner Wirklichkeit\", confirmed his personal views of the Basic Law; the Koblenz Administrative Court of Appeal (see paragraph 14 above) had been right to conclude from it that he did not recognise the Federal Republic and its Constitution as positive values, but extolled National Socialism.", "Mr. Kosiek contended that a book which had not appeared until 1975 could not be taken into account in the present proceedings. In any case, it did not give any grounds for doubting his allegiance to the Constitution; the Koblenz Court of Appeal had incorrectly summarised it and had totally distorted the views he had expressed in it (see paragraph 14 above). For the rest, he essentially repeated the arguments he had adduced at first instance.", "23. On 28 February 1978, the Administrative Court of Appeal of the Land of Baden-Württemberg allowed the appeal and dismissed the applicant ’ s action. In the light especially of the case-law of the Federal Constitutional Court, particularly its judgment of 22 May 1975 (see paragraph 17 above), it ruled that the impugned decisions were lawful.", "After reviewing in detail the Ministry ’ s arguments and evidence, the Court held that it had not been proved that the NPD was pursuing aims inimical to the Constitution, that is to say, was systematically (planvoll) and actively seeking to undermine the free democratic constitutional system, bring about its abolition or jeopardise the continued existence of the Federal Republic of Germany (Article 21 of the Basic Law). Mere membership of the NPD could not therefore be construed as a sign of doubtful allegiance. Many NPD statements nonetheless did indicate a worrying tendency, and, that being so, a political party ’ s constitutionally suspect (verfassungsrechtlich bedenklich) views might give grounds for ascertaining the personal views of a civil servant who was a party member. A civil servant, who was bound actively to uphold the free democratic system, might accordingly be required to dissociate himself explicitly from the objectionable views of his party.", "Mr. Kosiek had failed to dispel the suspicion that he approved the NPD line. On the contrary, he had identified himself with it by his many militant activities. These, and the personal views he had expressed in his book \"Das Volk in seiner Wirklichkeit\", cast serious doubts on his loyalty to the Constitution. In his book, which could legitimately be taken into consideration, he had played down or indeed praised, without the least reservation or criticism, circumstances and events that had marked the Third Reich. In this respect, the Land Administrative Court of Appeal shared the views of the Koblenz Court of Appeal, which had analysed the book in detail (see paragraph 14 above). Admittedly, the applicant maintained that he had written in appreciative terms only of the first phase of the Third Reich, but this showed merely that there were at least some aspects of National Socialism of which he approved, not that he disavowed it. As early as 1933, the most important fundamental rights had been suspended, separation of powers abolished, political parties disbanded, trade unions broken up and (what marked the beginning of the persecution of the Jews) \"non-Aryan\" civil servants dismissed. Without any reservation or criticism the applicant judged the circumstances, events and ideas of the Third Reich preferable to the current situation. It was thus impossible to believe that he also endorsed the fundamental views and principles of the Basic Law as being a priceless asset to be protected.", "The Ministry had rightly concluded that Mr. Kosiek did not give any guarantee that he would at all times uphold the free democratic constitutional system within the meaning of the Basic Law, and that he had accordingly failed to prove himself during his probation. It mattered little whether he had the necessary professional qualifications and had refrained from expressing any political views at the Technical College. Before appointing him the Minister had certainly been aware of his prominence in the NPD, but this did not make the disputed revocation of his appointment unlawful. Performance of duties as a probationary civil servant was of vital importance for determining whether a probationer could be relied on to be loyal to the Constitution. The applicant should have expected the Ministry to carry out, at the end of the probationary period, a further thorough and final assessment of matters already known to it.", "24. With leave of the Court of Appeal Mr. Kosiek applied for review on points of law, but the Federal Administrative Court (Bundesverwaltungsgericht) found against him on 28 November 1980.", "The Ministry ’ s doubts about the applicant ’ s loyalty to the Constitution - prompted by his active membership of the NPD - were justified. In this connection, the Court of Appeal had erred in regarding membership of a party as relevant only if the party deliberately sought to undermine or destroy the free democratic system - in other words, was liable to banning by the Constitutional Court under Article 21 of the Basic Law. It was in fact sufficient if the party pursued aims that were incompatible with that system. The NPD did; and the applicant, far from repudiating its aims, had approved of them. The Ministry ’ s doubts had consequently not been prompted, as the Court of Appeal had held, by statements in the applicant ’ s book \"Das Volk in seiner Wirklichkeit\" but had been corroborated and strengthened by them.", "Article 5(3) of the Basic Law, which was relied on by the applicant and protected freedom of art, science, research and teaching, did not lead to any different conclusion. Academics had a large measure of professional independence but that did not absolve them from their duty of loyalty to the Constitution. Notwithstanding the first sentence of Article 5(3), they remained civil servants, and a university lecturer with the status of probationary civil servant could be dismissed for unsuitability.", "The Ministry had been entitled to base its decision on Mr. Kosiek ’ s involvement with the NPD, notwithstanding that it had been aware of this at an earlier date, and on the content of the aforementioned book, which had been published only in 1975 and mentioned in the appeal proceedings.", "Lastly, the Federal Administrative Court dismissed various procedural complaints which had been raised before it.", "25. On 16 March 1981, Mr. Kosiek applied to the Federal Constitutional Court to have the judgments of the Court of Appeal and the Federal Administrative Court set aside, on the ground that they contravened various Articles of the Basic Law.", "In particular, he challenged the objectivity and relevance of the evidence used against him and contended that the judgments complained of had been arbitrary. The courts which had given those judgments had made no attempt to establish whether the NPD and he had, by their statements, attacked the principles of the Basic Law. The NPD and he were not in fact pursuing aims that were incompatible with the Basic Law. The views expressed in his book were covered by freedom of expression and none of them bore on any principles of the free democratic system. Moreover, they were in line with the views of most present-day historians. The judgments in issue had accordingly infringed his right, secured in Article 3 of the Basic Law, not to be discriminated against on account of his opinions. In penalising a political opponent for holding views that were not directed against the democratic system, the authorities had disregarded his right to freedom of conscience and opinion, secured in Article 4. His dismissal and the criticisms of his book amounted to unlawful interference with his freedom of expression, contrary to Article 5(1) and (3). He had also been banned from his profession (Berufsverbot), a measure which was incompatible with Article 12, since he could no longer find a university lectureship at his age. In dismissing him, the Land, in defiance of Article 33(1), had deprived him of rights recognised by all the other Länder (except Bavaria ), which did not harass NPD members. Despite his suitability, professional qualifications and efficiency, he was being arbitrarily refused access to a civil-service post, or prevented from remaining in one, contrary to Article 33(2) and (3). Lastly, his dismissal - based on circumstances which were both lawful and known at the time of his appointment - was contrary to Article 103.", "26. Sitting as a panel of three judges, the Constitutional Court decided on 31 July 1981 not to entertain the constitutional complaint, on the ground that it had insufficient prospects of success.", "Citing its own case-law (judgment of 22 May 1975 ), it recalled firstly that the duty of loyalty to the State and the Constitution was one of the traditional principles of the civil service (Article 33(5) of the Basic Law). Anyone who was not clearly prepared at all times to uphold the free democratic constitutional system was thus unfit to hold a civil-service post. Any probationary civil servant who could not be relied upon to do so must therefore be dismissed on grounds of personal unsuitability. In this connection, membership of a party whose aims were incompatible with the free democratic system was a relevant consideration.", "In the particular case, examination of the judgments challenged did not disclose any breach of constitutional law. Neither the findings of fact nor the conclusions of the Court of Appeal and the Federal Administrative Court were tainted by arbitrariness. The applicant ’ s dismissal did not breach any of the rights he relied on.", "27. As his appeal against dismissal had a suspensive effect, Mr. Kosiek was able to continue teaching at Nürtingen Technical College, but the dismissal became final after the Federal Administrative Court ’ s judgment of 28 November 1980. He was accordingly notified on 15 December 1980 that his employment was at an end." ]

[ "PROCEEDINGS BEFORE THE COMMISSION", "28. Mr. Kosiek ’ s application (no. 9704/82) was lodged with the Commission on 20 February 1982. He claimed that his dismissal was contrary to Article 10 (art. 10) of the Convention.", "The Commission declared the application admissible on 16 December 1982. In its report of 11 May 1984 (Article 31) (art. 31), it found, by ten votes to seven, that the Convention had not been violated.", "The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to the present judgment.", "FINAL SUBMISSIONS BY THOSE APPEARING BEFORE THE COURT", "29. In their memorial and at the hearing on 22 October 1985, the Government requested the Court to find that:", "\"(i) the Court cannot deal with the merits of the case, on the ground that the application was incompatible with the provisions of the Convention;", "alternatively", "(ii) the Federal Republic of Germany did not violate the European Convention for the Protection of Human Rights and Fundamental Freedoms.\"", "30. The Delegate of the Commission, at the close of the hearing, asked the Court to rule on the following issues:", "\"Was there in this case an interference with the applicant ’ s rights under Article 10 para. 1 (art. 10-1) of the Convention and, if so, was such interference justified?\"", "AS TO THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION", "31. The Government considered Mr. Kosiek ’ s application incompatible with the provisions of the Convention. They submitted that he was claiming a right that was not secured in the Convention. In their view, the present proceedings concerned issues of access to the civil service - in this case a teaching post - and not the right to freedom of expression relied on by the applicant. At the hearing, the Government stated that they could have submitted their arguments in the form of an objection to jurisdiction, as they had done before the Commission, but that because of \"the apparent complexity of the case\" they were willing for the problem to be looked at in a wider context, including matters going to the merits. They submitted that Article 10 (art. 10) was inapplicable in the instant case.", "Mr. Kosiek contended that the admissibility of his application had to be determined on the basis of his complaints, and before the Convention institutions he had never claimed any right of access to the civil service; he was complaining solely of the damage he had suffered on account of having disseminated his opinions in books.", "The Delegate of the Commission considered the Government ’ s argument to be ambiguous: while submitting that the application was incompatible with the provisions of the Convention, they in fact recognised that the issue to be decided in the proceedings before the Court was whether Article 10 (art. 10) applied or not. The issue of incompatibility as such had been determined by the Commission in its decision on admissibility, while the question of the applicability of Article 10 (art. 10) fell to be dealt with on the merits of the case.", "32. Mr. Kosiek complained of dismissal from a lectureship - to which he had been appointed in 1972 with the status of probationary civil servant - on account of his political activities for the NPD and of the content of the two books he had written (see paragraphs 13 and 17-24 above); he claimed to be the victim of a breach of Article 10 (art. 10) of the Convention.", "Such a complaint does not fall \"clearly outside the provisions of the Convention\" (see the judgment of 9 February 1967 in the \"Belgian Linguistic\" case, Series A no. 5, p. 18). It relates to the interpretation and application of the Convention (Article 45) (art. 45): in order to decide the case, the Court must inquire whether the disputed dismissal amounted to an \"interference\" with the exercise of the applicant ’ s freedom of expression as protected by Article 10 (art. 10). For the Court, this is a question going to the merits, which it cannot try merely as a preliminary issue (see, mutatis mutandis, the aforementioned judgment of 9 February 1967, pp. 18-19; the Airey judgment of 9 October 1979, Series A no. 32, p. 10, para. 18; and the Barthold judgment of 25 March 1985, Series A no. 90, p. 20, para. 41).", "II. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)", "33. Mr. Kosiek claimed that his dismissal contravened Article 10 (art. 10) of the Convention, which provides:", "\"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\"", "The Government contended that this provision was not material in the circumstances; in their submission, the present case concerned the right - not secured in the Convention - of access to a post in the civil service. This contention did not find favour with the Commission.", "34. The Universal Declaration of Human Rights of 10 December 1948 and the International Covenant on Civil and Political Rights of 16 December 1966 provide, respectively, that \"everyone has the right of equal access to public service in his country\" (Article 21 para. 2) and that \"every citizen shall have the right and the opportunity ... to have access, on general terms of equality, to public service in his country\" (Article 25). In contrast, neither the European Convention nor any of its Protocols sets forth any such right. Moreover, as the Government rightly pointed out, the signatory States deliberately did not include such a right: the drafting history of Protocols Nos. 4 and 7 (P4, P7) shows this unequivocally. In particular, the initial versions of Protocol No. 7 (P7) contained a provision similar to Article 21 para. 2 of the Universal Declaration and Article 25 of the International Covenant; this clause was subsequently deleted. This is not therefore a chance omission from the European instruments; as the Preamble to the Convention states, they are designed to ensure the collective enforcement of \"certain\" of the rights stated in the Universal Declaration.", "35. While this background makes it clear that the Contracting States did not want to commit themselves to the recognition in the Convention or its Protocols of a right of recruitment to the civil service, it does not follow that in other respects civil servants fall outside the scope of the Convention (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 31-32, para. 60). In Articles 1 and 14 (art. 1, art. 14), the Convention stipulates that \"everyone within <the> jurisdiction\" of the Contracting States must enjoy the rights and freedoms in Section I \"without discrimination on any ground\" (see, mutatis mutandis, the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 23, para. 54). And Article 11 para. 2 (art. 11-2) in fine, which allows States to impose special restrictions on the exercise of the freedoms of assembly and association by \"members of the armed forces, of the police or of the administration of the State\", confirms that as a general rule the guarantees in the Convention extend to civil servants (see, mutatis mutandis, the Swedish Engine Drivers ’ Union judgment of 6 February 1976, Series A no. 20, p. 14, para. 37; the Schmidt and Dahlström judgment of the same date, Series A no. 21, p. 15, para. 33; and the Engel and Others judgment, loc. cit.).", "36. The status of probationary civil servant that Mr. Kosiek had acquired through his appointment as a lecturer accordingly did not deprive him of the protection afforded by Article 10 (art. 10). This provision is certainly a material one in the present case, but in order to determine whether it was infringed it must first be ascertained whether the disputed measure amounted to an interference with the exercise of freedom of expression - in the form, for example, of a \"formality, condition, restriction or penalty\" - or whether the measure lay within the sphere of the right of access to the civil service, a right that is not secured in the Convention.", "In order to answer this question, the scope of the measure must be determined by putting it in the context of the facts of the case and of the relevant legislation.", "37. The Ministry of Education and Culture gave as its reason for dismissing Mr. Kosiek his activities on behalf of the NPD (see paragraphs 17-19 and 21-24 above); during the court proceedings, the Ministry also relied on the two books that the applicant had published (see paragraphs 21-24 above). Its decision was therefore based on the political stances the applicant had adopted.", "38. At the time his employer recommended to the Ministry that he should be given tenure, Mr. Kosiek had completed approximately one year of the probationary period he had to serve before he could be given a permanent post (see paragraph 16 above). The Ministry, however, considered that he had not proved himself, because he did not fulfil the condition - as required under sections 6 and 8 of the Land Civil Servants Act (see paragraphs 15 and 16 above) - that he would consistently uphold the free democratic system within the meaning of the Basic Law. This is one of the personal qualifications required of anyone seeking a post as a civil servant - whether temporary or established - in the Federal Republic of Germany. This requirement applies to recruitment to the civil service, a matter that was deliberately omitted from the Convention, and it cannot in itself be considered incompatible with the Convention. The Minister originally considered that the requirement had been fulfilled, since he had appointed the applicant as a lecturer with the status of probationary civil servant (see paragraph 15 above). After a fresh examination of Mr. Kosiek ’ s political activities and of his publications, however, the Ministry came to the conclusion that Mr. Kosiek - who, as \"a prominent NPD official\", \"had approved of NPD aims which were inimical to the Constitution\" (see paragraph 17 above) - did not meet one of the conditions of eligibility laid down in the Act for the post in question, as a result of which it decided not to give him tenure and so dismissed him from his post as a probationary civil servant (sections 38(2), 6 and 8 of the Land Civil Servants Act; see paragraphs 17-18 above); the domestic courts before which proceedings were brought adopted essentially the same approach, except for the Stuttgart Administrative Court (see paragraphs 21, 23, 24 and 26 above). It is not for the European Court to review the correctness of their findings.", "39. It follows from the foregoing that access to the civil service lies at the heart of the issue submitted to the Court. In refusing Mr. Kosiek such access - belated though the decision was -, the responsible Ministry of the Land took account of his opinions and activities merely in order to determine whether he had proved himself during his probationary period and whether he possessed one of the necessary personal qualifications for the post in question.", "That being so, there has been no interference with the exercise of the right protected under paragraph 1 of Article 10 (art. 10-1)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1984 and lives in Leeds.", "5. The facts of the case may be summarised as follows.", "1. The criminal proceedings against the applicant", "6. The applicant arrived in the United Kingdom on 26 January 2001 and thereafter lived illegally at an address in Bedford.", "7. Whilst living in the United Kingdom the applicant successfully applied for three jobs using a false French passport. Between April 2003 and November 2004 he was employed by a recruitment agency. Between August 2004 and January 2006 he was employed in a cash and carry business and between January 2006 and February 2007 he was employed as a forklift truck driver.", "8. The applicant had used the false passport to support his assertion that he was entitled to work in the United Kingdom. All of his employers subsequently stated that they would not have employed him had they known of his true immigration status. Between April 2003 and February 2007 the applicant earned a total gross salary of 73,293.17 pounds sterling (GBP) from his employment. At the end of this period he had total savings of GBP 21,649.60.", "9. In January 2007 the applicant applied to the Driving and Vehicle Licensing Agency for a provisional driving licence. The application was accompanied by the same false French passport that the applicant had used to obtain employment in the United Kingdom. When the falsity of the passport was discovered, the police were informed.", "10. On 4 June 2007 the applicant pleaded guilty in the Crown Court at Luton to three counts of dishonestly obtaining a pecuniary advantage by deception (counts one, two and three on the indictment). He also pleaded guilty to one count of having a false identity document with intent (count four), one count of driving whilst disqualified (count five) and one count of driving a motor vehicle without insurance (count six). On 29 June 2007 the applicant was sentenced to concurrent terms of fifteen months ’ imprisonment for the first four counts together with a consecutive sentence of two months ’ imprisonment for the offence of driving whilst disqualified. No separate sentence was imposed for driving without insurance. The trial judge also recommended the applicant for deportation.", "11. In addition to the custodial sentence and the recommendation for deportation, the prosecution sought a confiscation order under section 6 of the Proceeds of Crime Act 2002 in respect of the applicant ’ s earnings (see relevant domestic law and practice below). The trial judge accepted that the applicant had paid all the tax and national insurance due on his earnings and that the money he had made from his employment had been truly earned. After deducting tax and national insurance payments, it was calculated that the benefit the applicant received from his earnings was GBP 50,000. It was agreed that of the GBP 50,000 the applicant still had assets of GBP 21,949.60. On this basis, on 29 June 2007 the trial judge imposed a confiscation order in the sum of GBP 21,949.60 upon the applicant, with a consecutive sentence of twelve months ’ imprisonment to be served in default of payment. Thus, the confiscation order had the effect of depriving the applicant of all of the savings that he had accumulated during the four years of employment.", "12. On 8 April 2008 the applicant sought an extension of time within which to appeal to the Court of Appeal against the imposition of the confiscation order. In his grounds of appeal, he contended that the grant of the confiscation order had not respected “European law”. That application was refused on 13 June 2008. The Single Judge noted that the applicant had failed to establish good reason for the extension of time sought and that he had no arguable grounds of appeal because he had benefited from the use of the false passport to the extent that it had enabled him to work and earn money and there had been no breach of his rights under the Convention.", "13. The applicant renewed his application before the Court of Appeal which, on 14 November 2008, granted him an extension of time and leave to appeal. Leading counsel was appointed on his behalf. Counsel initially argued first; that the applicant ’ s earnings were not a relevant benefit from criminal conduct within the meaning of the Proceeds of Crime Act 2002; and secondly, that the prosecutor ’ s decision to seek a confiscation order in this case constituted an abuse of process.", "14. The Court of Appeal heard part of the appeal on 18 February 2009. However, it decided to adjourn the appeal pending the publication by the Department of Public Prosecution (“the DPP”) of guidance for prosecutors on the circumstances under which a confiscation order could be sought.", "15. In a supplementary skeleton argument dated 5 June 2008, counsel for the applicant accepted that in light of the decision in R v. Carter and Others [2006] EWCA Crim 416 (see relevant domestic law and practice below), the court was bound to reject the first ground of appeal, namely that the applicant ’ s earnings were not a relevant “benefit”. He therefore accepted that the issue on appeal was whether it was oppressive and therefore an abuse of process for the Crown to seek and the court to impose a confiscation order for what amounted to the applicant ’ s entire savings over nearly four years of genuine work. In this regard, counsel submitted that there would be an abuse of process where, on a correct application of the law to the facts, the resulting “benefit” figure yielded a disproportionate or oppressive result. He further noted that Parliament has intended the Proceeds of Crime Act 2002 to be applied in a manner compatible with the requirements of the Convention. Therefore, in light of Article 1 of Protocol No. 1, in order to remain proportionate the application of the confiscation regime had to remain rationally connected to the public interest aims pursued and go no further than necessary to achieve them. It was therefore submitted that to seek the imposition of a confiscation order on the basis of a benefit figure which far exceeded the value of the defendant ’ s crimes could properly be described as disproportionate – either in the traditional sense used in criminal sentencing (“not fitting the punishment to the crime”) or in the language of the Convention – and was therefore an abusive exercise of jurisdiction.", "16. The applicant further submitted that a confiscation order could be described as oppressive where it did not pursue any of the legitimate aims of the confiscation regime and/or did not further the Parliamentary intent of stripping defendants of the proceeds of crime. He reiterated that Parliament had intended the legislation to be compatible with the Convention.", "17. On 28 July 2009, after the DPP guidance had been promulgated (see relevant domestic law and practice below), the Court of Appeal held that the decision to seek a confiscation order against the applicant did not constitute an abuse of process. The court therefore dismissed the applicant ’ s appeal against the order. In reaching this conclusion, the Court of Appeal said that the guidance represented a fair analysis of the effect of previous Court of Appeal and House of Lords decisions on the confiscation order regime.", "18. The court stated:", "“Abuses of the confiscation process may occur and, when they do, the appropriate remedy will normally be a stay of proceedings. However an abuse of process cannot be founded on the basis that the consequences of the proper application of the legislative structure may produce an ‘ oppressive ’ result with which the judge may be unhappy. Although the court may, of its own initiative, invoke the confiscation process, the responsibility for deciding whether properly to seek a confiscation order is effectively vested in the Crown. When it does so, the court lacks any corresponding discretion to interfere with that decision if it has been made in accordance with the statute. The just result of these proceedings is the result produced by the proper application of the statutory provisions as interpreted in the House of Lords and in this court. However to conclude that proceedings properly taken in accordance with statutory provisions constitute an abuse of process is tantamount to asserting a power in the court to dispense with the statute.", "As a matter of principle, that is impermissible, and this court has said so. This, in R v. Shabir [2009] 1 CAR (S) 497, it was observed:", "‘ This jurisdiction must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic. ’", "We repeat what was said at an earlier hearing involving Paulet.", "‘ The abuse of process jurisdiction is one which needs to be exercised with great circumspection. The jurisdiction cannot be converted on a case by case basis into a structure which involves, on proper analysis, something like wholesale undermining of the statutory provisions. It is not easy to conclude that it is an abuse of process for those responsible for enforcing legislation to see that it is indeed properly enforced. ’ ”", "19. The Court of Appeal found that applicant ’ s case could not be distinguished from its previous ruling in R v Carter and Others (see relevant domestic law and practice, paragraph 31 below). It concluded:", "“The reality is that throughout the period of his employment [the applicant] was relying on a continuing dishonest representation to three different employers. He deceived them into thinking that he was entitled to obtain employment with them. That was a crucial element of his criminality. His earnings, of course, reflected the fact that he had done the necessary work, as we shall assume, to the satisfaction of his various employers. But the opportunity for him to do so, that is the pecuniary advantage, was unlawfully obtained. If the employee worked to his employer ’ s satisfaction, and he paid his tax and National Insurance contributions on his earnings, and his deception either lacked any significant wider public interest, or, perhaps because of the passage of time, but for whatever reason, had ceased to have any meaningful effect on his employers ’ decision to continue his employment, the resolution of the issue might well be different. As it is there was here a wider public interest. The appellant was deliberately circumventing the prohibition against him seeking remunerative employment in this country in any capacity. No basis for interfering with the order made in the Crown Court has been shown. In our judgment the appropriate link between the appellant ’ s earnings and his criminal offences, in the context of the wider public interest, was plainly established. The appeal therefore fails.”", "20. On 27 October 2009 the Court of Appeal refused to certify a point of law of general public importance which ought to be considered by the Supreme Court.", "21. Enforcement proceedings have since been instigated against the applicant.", "2. The asylum and deportation proceedings", "22. On 28 June 2007 the applicant applied for asylum in the United Kingdom, alleging that his father had been killed in a land dispute between the Dioula and Bete community and that he would be at risk in Ivory Coast owing to his Dioula ethnicity. On 4 October 2007 his application was refused by the Secretary of State for the Home Department, who found no objective evidence that the Dioula were targeted solely on account of their ethnicity, and that the delay in claiming asylum had adversely affected the credibility of the rest of the applicant ’ s claim. A deportation order made by the Secretary of State was served on the applicant on 19 November 2007. On 24 April 2008 the applicant brought judicial review proceedings challenging the refusal of asylum and the decision to make a deportation order. This application was refused by the High Court on 16 May 2008 as the application had been lodged out of time and, in any event, the applicant had failed to avail himself of his statutory appeal rights by applying to the then Asylum and Immigration Tribunal. His renewed application for judicial review was rejected by the High Court on 27 June 2008. However, it appears that on 3 April 2008 the applicant submitted a notice of appeal to the Asylum and Immigration Tribunal. This was rejected by the Tribunal on 29 April 2008 as out of time." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "1. The Proceeds of Crime Act 2002", "23. Confiscation proceedings are now governed by the Proceeds of Crime Act 2002. Section 6(4) sets out the approach to be followed by the court:", "“( a ) it must decide whether the defendant has a criminal lifestyle;", "(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;", "(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.”", "24. Section 6(5) provides that where the court decides that the defendant has benefited from the conduct referred to, it must decide the “recoverable amount” and make a confiscation order requiring him to pay that amount.", "25. Under section 7, the “recoverable amount” is defined as an amount equal to the defendant ’ s benefit from the conduct concerned unless the defendant shows that the available amount is less than that benefit. In that case the recoverable amount becomes the available amount.", "26. Section 8 sets out the test for determining the defendant ’ s benefit from his criminal activity. It reads as follows:", "“(1) If the court is proceeding under section 6 this section applies for the purpose of—", "(a) deciding whether the defendant has benefited from conduct, and", "(b) deciding his benefit from the conduct.", "(2)The court must—", "(a) take account of conduct occurring up to the time it makes its decision;", "(b) take account of property obtained up to that time.”", "27. Section 9 defines the recoverable amount as follows:", "“(1) For the purposes of deciding the recoverable amount, the available amount is the aggregate of—", "(a) the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and", "(b) the total of the values (at that time) of all tainted gifts.", "(2) An obligation has priority if it is an obligation of the defendant—", "(a) to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the confiscation order is made, or", "(b) to pay a sum which would be included among the preferential debts if the defendant ’ s bankruptcy had commenced on the date of the confiscation order or his winding up had been ordered on that date.”", "28. Section 76(3)–(7) defines, inter alia, “particular criminal conduct” (as used in section 6(4 )( c) above) and “benefit” as follows:", "“(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—", "(a) conduct which constitutes the offence or offences concerned;", "(b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;", "(c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.", "(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.", "(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.", "(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.", "(7) If a person benefits from conduct his benefit is the value of the property obtained.”", "2. The Criminal Justice Act 1998", "29. The above provisions of the Proceeds of Crime Act replaced similar provisions contained in section 71 of the Criminal Justice Act 1988. It gave the Crown Court (and where appropriate magistrates ’ courts) the power to make confiscation orders. Section 71(2) provided:", "“The Crown Court may make such an order against an offender where—", "(a) he is found guilty of any offence to which this Part of this Act applies; and", "(b) it is satisfied—", "( i ) that he has benefited from that offence or from that offence taken together with some other offence of which he is convicted in the same proceedings, or which the court takes into consideration in determining his sentence, and which is not a drug trafficking offence...”", "30. Section 71(4) and (5) provided:", "“(4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained.", "(5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage.”", "3. R v. Carter [2006] EWCA Crim 416", "31. In Carter the defendants were convicted of offences of dishonesty and deception in connection with a business supplying casual labour comprising illegal immigrants and asylum seekers. One defendant was convicted of conspiracy to use false instruments, possession of false registration cards, possession of replica immigration stamps and concealing the proceeds of criminal conduct, namely money laundering. Two other defendants, who had obtained work on the basis of the false documents, were convicted of obtaining a pecuniary advantage by deception and various other counts associated with the conspiracy.", "32. Confiscation orders were made under section 71 of the Criminal Justice Act in respect of the wages the defendants had earned in the course of the business. The defendants argued that their wages did not constitute benefit for the purposes of the Criminal Justice Act 1988. In response the Court of Appeal stated:", "“It seems to us to be obvious that where you obtain an opportunity to work from an offer of employment being made to you, and the offer has been induced by a false representation that you are entitled to work, the false representation continues thereafter for the benefit of the offender who, permitting the representation to continue, is able to retain employment.", "Once made it continues to have effect throughout the employment which has been taken up. At any stage had the representation been corrected, it is plain the employment would have ceased.”", "33. The Court of Appeal considered that, in determining whether benefit was obtained within the meaning of section 71(4) of the Criminal Justice Act 1988, the question was whether the deception was “an operative cause” of obtaining the benefit. On the facts in Carter, that test was met. The court also stated that, whilst the confiscation order regime was “draconian”, it was satisfied that it was proportionate for the purposes of Article 1 of Protocol No. 1.", "4. R v. May [2008] UKHL 28", "34. In May the House of Lords emphasised the broad principles to be followed by those called upon to exercise the power to make confiscation orders:", "\"(1) The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit gained is the total value of the property or advantage obtained, not the defendant ’ s net profit after deduction of expenses or any amounts payable to co-conspirators.", "(2) The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? Where issues of criminal life style arise the questions must be modified. These are separate questions calling for separate answers, and the questions and answers must not be elided.", "(3) In addressing these questions the court must first establish the facts as best it can on the material available, relying as appropriate on the statutory assumptions. In very many cases the factual findings made will be decisive.", "(4) In addressing the questions the court should focus very closely on the language of the statutory provision in question in the context of the statute and in the light of any statutory definition. The language used is not arcane or obscure and any judicial gloss or exegesis should be viewed with caution. Guidance should ordinarily be sought in the statutory language rather than in the proliferating case law.", "(5) In determining, under the 2002 Act, whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership. While the answering of the third question calls for inquiry into the financial resources of D at the date of the determination, the answering of the first two questions plainly calls for a historical inquiry into past transactions.", "(6) D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.\"", "5. R v. Mohammed Shabir [2008] EWCA Crim 1809", "35. The case of Shabir involved a defendant whose defalcations were accepted to amount to GBP 464 but from whom the Crown sought a confiscation order of over GBP 400,000. The applicant argued, inter alia, that the confiscation order was oppressive and/or a breach of his rights under Article 1 of Protocol 1 to the Convention.", "36. In considering these arguments, the Court of Appeal concluded:", "\"The court retains the jurisdiction to stay an application for confiscation, as any other criminal process, where it amounts to an abuse of the court ’ s process. In the present context, that power exists where it would be oppressive to seek confiscation, or to do so on a particular basis.", "... ... ...", "This jurisdiction must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the Judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic. A specific example of that principle is that it is clearly not sufficient to establish oppression, and thus abuse of process, that the effect of confiscation will be to extract from a defendant a sum greater than his net profit from his crime(s). That is inherent in the statutory scheme.", "... ... ...", "This country ’ s confiscation regime has consistently been held to be a proportionate and legitimate response to crime and thus to occasion no infringement of the Protocol: see for example Phillips v United Kingdom (2001) 11 BHRC 280 and R v Rezvi [2003] 1 AC 1099. Even if it be accepted that the Protocol may be capable of being infringed by a truly oppressive and thus disproportionate individual order for confiscation (as to which we express no opinion), it is clear that the court ’ s power to stay for oppression provides the remedy.", "... ... ...", "The enormous disparity between the excess of Shabir ‘ s inflated claims (some few hundreds of pounds) and the confiscation order of over £212,000 raises the real likelihood that this order is oppressive. As it seems to us, however, such a disparity will not in every case by itself establish oppression. If it is a case in which the criminal lifestyle provisions of the Act can legitimately be applied, and with them the several section 10 assumptions as to the source of assets, it may well be perfectly proper for a confiscation order to be massively greater than the gain from the offences of which the defendant has been convicted. That is the whole purpose of the criminal lifestyle provisions. They extend the reach of confiscation beyond the particular offences of which the defendant has been convicted.\"", "6. R v. Waya [2012] UKSC 51", "37. The applicant in this case had obtained a loan of GBP 465,000, which he combined with GBP 310,000 of his own money to purchase a property for GBP 775,000. The mortgage was subsequently redeemed. The applicant was later convicted of making false statements in obtaining the GBP 465,000 loan. By the time of confiscation proceedings in 2008, the value of the property was GBP 1,850,000. At the suggestion of the Crown, the judge assessed his “benefit” as the value of the property at the time of trial, less his original untainted contribution of £310,000. This led to an order being made in the sum of GBP 1,540,000. The Court of Appeal reduced the confiscation order to GBP 1,100,000, being 60% of the market value of the flat, since 60% of the purchase price came from the tainted mortgage.", "38. On appeal, the Supreme Court considered, inter alia, the impact of the Human Rights Act 1998 on the Proceeds of Crime Act 2002. It held unanimously that the provisions of the 2002 Act were capable of operating in a manner which violated Article 1 of Protocol No. 1 to the Convention. Consequently, the 2002 Act had to be given effect in a way which was compatible with the Convention. In practice, that meant that a judge should, \"if confronted with an application for an order which would be disproportionate, refuse to make it but accede only to an application for such sum as would be proportionate\".", "39. The Supreme Court considered the Court of Appeal ’ s judgments in a number of cases, including that of Shabir. It noted that:", "\"Whilst the outcomes of those cases were, as is conceded, correct, the better analysis of such situations is that orders such as those there considered ought to be refused by the judge on the grounds that they would be wholly disproportionate and a breach of [Article 1 of Protocol No.1]. There is no need to invoke the concept of abuse of process.\"", "7. Guidance for Prosecutors on the Discretion to Instigate Confiscation Proceedings", "40. The above Guidance was issued by the Crown Prosecution Service on 28 May 2009. The Guidance sets out four circumstances when it may be inappropriate for prosecutors to decide to instigate confiscation proceedings. The first was where the Crown has reneged on an earlier agreement not to proceed with confiscation. The second was where the defendant had voluntarily paid full compensation to the victim or victims, or was ready, willing and able immediately to repay all of the victims to the full amount of their losses, and had not otherwise profited from his crime. The third was where a court might be compelled to find that property obtained in the most part legitimately by the defendant, and to which the defendant would have been entitled but for his criminal conduct, must be treated as “benefit”. The example was given of a case where the defendant was in fact entitled to the property which he had instead chosen to obtain by deception.", "41. The Guidance considered that a fourth situation would be where a defendant had obtained paid employment by a false representation to his employer. The Guidance stated:", "“The defendant ’ s wages may be his benefit ( R v Carter [2006] EWCA Crim 416), but some cases will arise where the link between the criminality and the receipt of payment from dishonestly obtained employment is too remote, for example, where had the representation been corrected, the employment would have continued, or where after many years of otherwise lawful employment, a relatively minor previous conviction is discovered.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION", "42. The applicant complains that the confiscation order was a disproportionate interference with his right to peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1, which reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "43. The Government contested that argument.", "A. Admissibility", "44. The Government contended that the application should be rejected as inadmissible on the ground that the applicant had failed to exhaust domestic remedies contrary to the requirement of Article 35 § 1 of the Convention as his principal complaint – that the confiscation order disproportionately interfered with his rights under Article 1 of Protocol No. 1 – was never articulated, either in form or substance, before the domestic courts. On the contrary, his complaints were framed only by reference to the established principles of domestic law.", "45. In particular, the Government submitted that the applicant could have asserted directly before the Crown Court and the Court of Appeal that his rights under Article 1 of Protocol No. 1 would have been infringed by the grant of the confiscation order in the circumstances of his case. However, despite being represented by leading counsel in the proceedings before the Court of Appeal, this argument was not articulated. As a consequence, the domestic courts were deprived of the opportunity of addressing the particular Convention violation alleged against the respondent State.", "46. The applicant submitted that the abuse of process jurisdiction was the appropriate means by which to challenge a confiscation order on the ground that it was a disproportionate interference with the right to peaceful enjoyment of possessions.", "47. In any case, the applicant submitted that the substance of his complaint – that the confiscation order was disproportionate – was plainly raised in his skeleton argument and indeed Article 1 of Protocol No. 1 was expressly cited.", "48. The Court recalls that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, inter alia, Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200, Elçi and Others v. Turkey, nos. 23145/93 and 25091/94, §§ 604 and 605, 13 November 2003, and Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III).", "49. In Ahmet Sadık v. Greece, 15 November 1996, § 32, Reports of Judgments and Decisions 1996 ‑ V, in deciding whether or not an applicant raised a Convention complaint in substance, the Court asked whether or not he had relied on domestic law arguments “ to the same or like effect ” as his Convention complaint. In Castells v. Spain, 23 April 1992, § 30, Series A no. 236 and Fressoz and Roire v. France [GC], no. 29183/95, § 38, ECHR 1999 ‑ I the Court found that where the applicants had relied on equivalent provisions of domestic law, they had raised their Convention complaints in substance before the domestic courts. Likewise, in Guzzardi v. Italy, 6 November 1980, § 72, Series A no. 39 the applicant was found to have “ derived from the Italian legislation pleas equivalent, in the Court ’ s view, to an allegation of a breach of the right guaranteed by Article 5 ” and, in so doing, had “ provided the national courts, in particular the Court of Appeal, with the opportunity ... of putting right the violations alleged against them ”.", "50. It is apparent from the applicant ’ s skeleton argument that he raised two distinct grounds on appeal before the Court of Appeal: that his earnings did not amount to a benefit for the purposes of the 2002 Act; and that the making of a confiscation order was oppressive and/or an abuse of process. Prior to the hearing he accepted that he could not succeed on the first ground in view of the court ’ s decision in R v. Carter. In respect of the second ground, he submitted that in light of Article 1 of Protocol No. 1, in order to remain proportionate the application of the confiscation scheme had to remain rationally connected to the public interest aims pursued and go no further than necessary to achieve them. Thus, a confiscation order would be oppressive or an abuse of process in accordance with domestic law where the benefit figure far exceeded the value of the defendant ’ s crimes and could properly be described as disproportionate – either in the traditional sense used in criminal proceedings or in the language of the Convention (see paragraphs 13 – 16 above).", "51. The Court notes that it was only in 2012, while giving judgment in R v. Waya (see paragraphs 3 7 – 3 9, above), that the Supreme Court indicated that it would be preferable under British law to analyse confiscation cases in terms of proportionality under Article 1 of Protocol No. 1 than for complainants to invoke the concept of abuse of process. Therefore, at the time the applicant brought his complaint before the domestic courts, it was appropriate for him to argue his case in terms of “oppression” or “abuse of process” (see, for example, R v. Mohammed Shabir, in which the appellant argued, inter alia, that the confiscation order was oppressive and/or a breach of his rights under Article 1 of Protocol 1 to the Convention, and the domestic courts primarily considered whether or not the order was oppressive ). The Court of Appeal in the applicant ’ s case itself stated that “abuses of the confiscation process may occur and, when they do, the appropriate remedy will normally be a stay of proceedings” (see paragraph 18 above). In fact, in arguing that a confiscation order would be oppressive if it was disproportionate pursuant to Article 1 of Protocol No. 1 the applicant gave the domestic courts an opportunity to align, in substance, the criteria for the application of the domestic - law test with the test stated in this Court ’ s case-law for compliance with the Convention (see, for example, Hentrich v. France, 22 September 1994, § 33, Series A no. 296 ‑ A). However, the domestic courts did not follow this approach and the Court does not consider that the applicant could – or should – have taken any further steps to advance his Convention complaint at the domestic level.", "52. Consequently, the Court is not persuaded that the applicant ’ s complaints under Article 1 of Protocol No. 1 to the Convention should be declared inadmissible for failure to exhaust domestic remedies.", "53. The Court further notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "54. The applicant did not dispute that the statutory scheme providing for confiscation in appropriate cases was compatible with Article 1 of Protocol No. 1. Moreover, he accepted that it was justified by the fight against drug ‑ trafficking, money laundering and the financing of terrorism. However, he submitted that the confiscation order made in the present case was not proportionate.", "55. In particular, he submitted that his case could be distinguished from case such as Phillips which concerned serious criminal offences such as drug - trafficking and organised crime, and in which there was clearly a compelling need to deter such criminal behaviour. In the present case, the “public interest” relied upon by the Government was that persons who had applied to enter the United Kingdom from overseas would feel justifiably aggrieved if those who had skipped the queue could retain the savings earned through illegal employment.", "56. The applicant relied on the case of Ismayilov v. Russia, no. 30352/03, 6 November 2008 as authority for the proposition that where the purpose of a confiscation order was punitive and not compensatory, it might pose an “individual and excessive burden” on an applicant if he had already been punished for the underlying offence by a period of imprisonment.", "57. The applicant further averred that no harm had been caused either to his employers or the State; in fact, the sentencing judge indicated that the State had gained more in taxes from the applicant ’ s employment than he himself had saved.", "58. Finally, the applicant submitted that there was a discrepancy between the offence that he was convicted of (deceiving his employers) and the alleged justification for the confiscation order (a general deterrent to working without authority).", "59. The Government submitted that the making of the contested confiscation order did not amount to a disproportionate interference with the applicant ’ s peaceful enjoyment of his possessions. In particular, they submitted that the order was in accordance with the law; it represented a control of the use of property in accordance with a recognised public interest; and it was proportionate to the aim pursued.", "60. The Government submitted that in implementing and enforcing a regime for confiscating the proceeds of crime, it sought to combat serious crime and provide a deterrent against the commission of further or other offences and reduce the profits available for use in future criminal activity. However, pursuit of such legitimate aims was not restricted to cases concerning drug - trafficking or organised crime. In the present case, restrictions on the entitlement of persons such as the applicant to seek and obtain work in the United Kingdom were also in the general or public interest because otherwise persons who had applied to enter the United Kingdom through the visa system would be aggrieved that others could “skip the queue” and retain the benefits of their criminal conduct.", "61. With regard to the issue of proportionality, the Government submitted that the regime as a whole was proportionate because confiscation could only be ordered where an individual was convicted of a criminal offence; only available assets with a value equivalent to a person ’ s benefit from criminal conduct could be the subject of a confiscation order; and the convicted criminal could only be responsible for paying what could be obtained from the realisable assets. Moreover, as recognised by the Guidance from the Crown Prosecution Service – and confirmed by the House of Lords in R. v. May – procedures were available to the domestic courts to provide a remedy if a disproportionate order was sought.", "62. Finally, the Government submitted that the order made in the present case was proportionate because it was made following the conclusion of fair proceedings; the sum confiscated was lower than the benefit obtained from the crime; and the applicant was able to realise the sum confiscated from assets in his possession.", "2. The Court ’ s assessment", "63. Article 1 of Protocol No. 1 in substance guarantees the right of property (see Marckx v. Belgium, 13 June 1979, § 63, Series A no. 31 ). It comprises “ three distinct rules ” : the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (see, inter alia, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 61, Series A no. 52 ). However, the three rules are not “ distinct ” in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see Lithgow and Others v. the United Kingdom, 8 July 1986, § 106, Series A no. 102 ).", "64. It is not in dispute that the confiscation order in the present case amounted to an interference with the applicant ’ s right to peaceful enjoyment of his possessions as protected by the first sentence of Article 1 of Protocol No. 1. Moreover, it is clear from Phillips v. the United Kingdom, no. 41087/98, § 51, ECHR 2001 ‑ VII, that confiscation orders fall within the scope of the second paragraph of Article 1 of Protocol No. 1, which, inter alia, allows the Contracting States to control the use of property to secure the payment of penalties. However, this provision must be construed in the light of the general principle set out in the first sentence of the first paragraph and there must, therefore, exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, among many examples, Allan Jacobsson v. Sweden (no. 1), judgment of 25 October 1989, Series A no. 163, p. 17, § 55).", "65. An interference with Article 1 of Protocol No. 1 will be disproportionate where the property-owner concerned has had to bear “an individual and excessive burden”, such that “the fair balance which should be struck between the protection of the right of property and the requirements of the general interest” is upset (see Sporrong and Lönnroth v. Sweden, cited above, §73 ). The striking of a fair balance depends on many factors ( AGOSI v. the United Kingdom, 24 October 1986, § 54, Series A no. 108). Although the second paragraph of Article 1 of Protocol No. 1 contains no explicit procedural requirements, the Court must consider whether the proceedings as a whole afforded the applicant a reasonable opportunity for putting his case to the competent authorities with a view to enabling them to establish a fair balance between the conflicting interests at stake ( AGOSI, cited above, § 55, and Jokela v. Finland, no. 28856/95, § 55, ECHR 2002 ‑ IV).", "66. The Court has already observed that at the time the applicant brought his complaint before the domestic courts, it was appropriate for him to argue his case in terms of “oppression” and “abuse of process”. Although the applicant sought to argue that “oppression” should be interpreted in line with the proportionality test required by Article 1 of Protocol No. 1, such an analysis was not adopted by the Court of Appeal (see paragraphs 17 – 19 above). It was only in 2012, while giving judgment in R v. Waya (see paragraphs 3 7 – 3 9, above), that the Supreme Court indicated that it would be preferable to analyse confiscation cases in terms of proportionality under Article 1 of Protocol No. 1.", "67. It is clear that in assessing whether or not the confiscation order in the present case was “oppressive” and thus an “abuse of process”, the Court of Appeal did ask whether or not the order was in the public interest. However, having decided that it was, they did not go further by exercising their power of review so as to determine “whether the requisite balance was maintained in a manner consonant with the applicant ’ s right to ‘ the peaceful enjoyment of his possessions ’, within the meaning of the first sentence of Article 1 ” ( see Sporrong and Lönnroth v. Sweden, cited above, § 69). On the contrary, the Court of Appeal made it clear that the abuse of process jurisdiction had to be exercised “sparingly”. In particular, it noted that", "“ the responsibility for deciding whether properly to seek a confiscation order is effectively vested in the Crown. When it does so, the court lacks any corresponding discretion to interfere with that decision if it has been made in accordance with the statute ”.", "68. Consequently, the Court cannot but conclude that at the time the applicant brought the domestic proceedings, the scope of the review carried out by the domestic courts was too narrow to satisfy the requirement of seeking the “fair balance” inherent in the second paragraph of Article 1 of Protocol No. 1.", "69. The foregoing considerations are sufficient to enable the Court to conclude that in the circumstances of the applicant ’ s case there has been a violation of Article 1 of Protocol No. 1 to the Convention. The Court does not consider it necessary to reach any further conclusions in respect of the proportionality of the confiscation order imposed on the applicant.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "70. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "71. The applicant claimed twenty-one thousand nine hundred and sixty ‑ three pounds and eight pence (21,963.80 GBP), plus interest at such a rate as the Court considered appropriate, in respect of pecuniary damage.", "72. The Government accepted that this was the sum which the applicant paid pursuant to the confiscation order but submitted that any interest should only run from the date of payment.", "73. The Court recalls that the violation found in the present case was procedural in character, based as it was upon the lack of a review of the confiscation order capable of satisfying the requirements of Article 1 of Protocol No. 1 to the Convention. It cannot be excluded that, had a sufficiently wide review been conducted by the domestic courts, this Court would have found an outcome involving confiscation of the applicant ’ s remaining assets, as occurred in the present case, to be consistent with the Convention. The sum claimed by the applicant in respect of pecuniary damage as just satisfaction under Article 41 is in the region of the amount of the confiscation order made against him (see paragraphs 11 and 71 above). However, in the absence of a proximate causal link between the procedural violation found and financial loss sustained by the applicant by reason of the confiscation order, the Court cannot make an award to the applicant under this head. Nevertheless, the Court recognises that the applicant must have suffered some anguish and frustration as a result of the failure of the domestic courts to conduct a Convention-compliant review of the confiscation order. It would therefore award him EUR 2,000 in respect of such non-pecuniary prejudice.", "B. Costs and expenses", "74. The applicant also claimed GBP 13,353. 5 0 for the costs and expenses incurred before the Court.", "75. The Government submitted that this figure was excessive.", "76. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10,000 covering costs for the proceedings before the Court.", "C. Default interest", "77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1978 and lives in Riga. The applicant was represented by Mr R. Arthur, a lawyer practising in Bristol, UK.", "3. The Government were represented by their Agent, Ms K. Līce.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "THE CIRCUMSTANCES OF THE CASE", "The applicant’s employment and employment record", "5. In 2005 the applicant started working as an air traffic control officer (hereinafter “ATCO”) for a State-owned joint stock company, Latvijas Gaisa Satiksme (hereinafter “LGS”), which is overseen by the Ministry of Transport. In 2010 she also undertook ATCO instructor duties.", "6. On 3 May 2011 the applicant was presented with a revised job description, which she signed, adding a note that read: “I have acquainted myself [with the job description] but do not agree” ( Iepazinos, bet nepiekrītu ). The subject of the disagreement concerned the regulation of the allocation of seniority grades following longer periods of absence, such as maternity leave. The matter was discussed with the applicant’s manager. The applicant signed the revised job description on 29 June 2012, after the matter had resurfaced during the internal investigation (see paragraph 21 below).", "Trade Union activities and the letter of 2 March 2012", "7. On 27 October 2011 the Latvian Air Traffic Controllers’ Trade Union (hereinafter “the Trade Union”), was established and the applicant became the chairperson of its board. According to the Trade Union’s Statute and the information entered in the Enterprise Register, the chairperson of the Trade Union board had the right to represent the Trade Union individually.", "8. On 7 November 2011 the Trade Union sought clarification from the LGS board about a recent order concerning the ATCO instructors’ work schedules with respect to their training duties. LGS responded that ATCO training was supposed to be carried out outside normal work shifts – it would be regarded as additional work and would be paid separately. In subsequent correspondence the Trade Union insisted that ATCO instructors’ training work was not being recorded and that those ATCO instructors were hence not being paid for such work. It emphasised the negative impact of such a situation, including potentially negative effects on flight safety. This correspondence was signed by the applicant in her capacity as the chairperson of the Trade Union board.", "9. On 14 February 2012 the Trade Union held a board meeting. The minutes of the meeting, which were signed by all three Trade Union board members, stated:", "“It has been decided to write a complaint in the name of the Trade Union to LGS’s [sole] shareholder and to the Minister of Transport, as the board sees no other way of rectifying the working procedures of the instructors. In the view of the Trade Union board, the LGS board does not have the necessary knowledge and expertise to comprehend the problem of the poor organisation of the ATCO instructors’ work and to take the appropriate decision to resolve the problem. The complaint should also address other relevant problematic issues.”", "10. The above-mentioned complaint, formulated in a letter dated 2 March 2012, was addressed to the Minister of Transport and the person representing the State as the sole shareholder of LGS. It was drawn up on the letterhead of the Trade Union; its text used formulations like “the Trade Union announces”, “we, the air traffic control officers”; and it was signed by the applicant next to the words: “In the name of the Latvian Air Traffic Controllers’ Trade Union, chairperson of the board”.", "11. The letter asserted that the LGS board did not comply with the requirements set out by the relevant laws, was infringing the legal rights of the LGS employees, and was mismanaging the company’s funds. The letter then stated:", "“Even though the Trade Union has repeatedly attempted to find a constructive solution through negotiations, the situation has become unmanageable [ kļuvusi nevaldāma ] and seriously endangers both the quality of the provision of aeronavigation services [ aeronavigācijas pakalpojumu nodrošināšanas kvalitāti ] and LGS’s ability to grow and compete in the international market.”", "The letter then recounted the history of unsuccessful negotiations and collective bargaining attempts, emphasising an alleged lack of cooperation and withholding of information on the part of the LGS board.", "12. The letter continued by describing the problems regarding the ATCO training. The introductory part of this section read:", "“We also wish to draw your attention to other problematic issues that have not been resolved for a long time and could in the near future affect not only the sustainability of the enterprise, but also, unfortunately, flight safety in Latvian airspace. [ATCOs], and hence also the Trade Union, are very concerned in this regard and consider it to be their duty to inform higher State officials and authorities [of their concerns], so that the above-mentioned issue regarding a deterioration in flight safety and a lowering of the sustainability of the enterprise might be prevented.”", "13. The letter then relayed the information that LGS had ordered ATCO instructors to train ATCO trainees outside their scheduled working hours. This training time was not recorded and the ATCO instructors were not paid for such work. Aside from being contrary to the labour laws, this practice harmed morale, hampered possibilities to upgrade qualifications, negatively impacted the training process, and caused disappointment among ATCO trainees who had been forced (without any proper explanation) to take unpaid leave. That increased the risk that LGS would lose those employees. According to the letter, all the above-noted factors would affect flight safety in future.", "14. The letter then addressed numerous other problems concerning the organisation of ATCOs’ work, such as: discrimination with respect to the payment of bonuses (that is to say of all LGS’s employees the ATCOs received the lowest bonuses); failure to pay monthly allowances that had been agreed upon; failure to include ATCOs in the “high-risk” employee category in the light of the continuous stress that they faced; failure to categorise ATCOs working during the night time as night workers; a violation of the collective agreement by failing to insure ATCOs against the loss of their licences; failure to pay extra for carrying out the work of an absent colleague; and paying ATCOs only 75% of their agreed salary for two years following their acquisition of their permanent ATCO licences.", "15. The letter next identified specific payments that were regarded as constituting the mismanagement of funds. It also stressed the fact that the ATCOs working for LGS were among the lowest paid in Europe and that owing to problems within LGS four very experienced ATCOs had resigned. This part of the letter included the following passages:", "“Everything we have mentioned in this letter points to a serious risk to the enterprise and to the aeronavigation sector in Latvia.”", "“If the situation within the enterprise does not change, this trend [of resignations] will not only continue but will get worse. However, if the goal of the [LGS] board is to lead the enterprise to a state in which it is unable to ensure safe air traffic navigation services, thereby endangering the existence of the enterprise, this could be attained in the not so distant future.”", "16. In conclusion, the Trade Union noted that these issues were of societal importance and that the LGS employees were prepared to discuss them publicly and, if need be, to organise strike action and to appeal to international organisations. The Trade Union then called for the LGS board to be removed.", "The reaction to the letter of 2 March 2012", "17. On 9 March 2012 nineteen ATCOs, some of whom were not members of the Trade Union, wrote a letter to LGS distancing themselves from the Trade Union’s letter of 2 March 2012. In the subsequent civil proceedings one of the signatories testified that they had been ordered to sign the letter of 9 March 2012 under the threat of suspension (see paragraph 31 below).", "18. On 15 March 2012, in response to an enquiry made by LGS, the Civil Aviation Agency expressed concerns about the Trade Union’s “extreme pronouncements” regarding flight security. It advised LGS to assess whether the ATCOs whose statements had “contained threats about lowering the level of flight security” had complied with their terms of employment. As to LGS’s refusal to conclude agreements with ATCO instructors regarding their training duties, it noted that LGS was acting correctly, as it was “ensuring the allowed amount of monthly hours”. The Trade Union had not raised the issues that were of concern to them through the proper channels, as the Civil Aviation Agency had received no reports of “breaches in ATCOs’ employment”.", "19. The Trade Union members in written statements addressed to the Trade Union reported that on the following day the LGS board summoned all the ATCOs who were at work that day to attend a meeting concerning the letter of 2 March 2012. The chairperson of the LGS board, D.T., emphasised that he had strong political support and asked everyone to sign a letter, addressed to him, certifying that ATCOs worked in compliance with the domestic and international legal instruments.", "20. The Trade Union members also wrote statements of further meetings between the LGS board and the members of the Trade Union that were organised on 19, 20 and 22 March 2012. They submitted that D.T. had repeatedly emphasised that he had strong political support and asked the Trade Union members to sign statements attesting that they were ensuring that flight safety was maintained. It was indicated that signing them would be interpreted as compliance with the requirements of the post, whereas a refusal to sign would trigger an investigation and possibly suspension from duties. In addition, D.T. repeatedly asserted that the applicant was “inadequate”, that it was not possible to communicate with her, and that she was not capable of leading the Trade Union. He suggested that the applicant be removed as the Trade Union representative and be replaced with a more “adequate” person.", "21. On 23 March 2012 LGS commenced an internal investigation with the stated purpose of establishing whether the dissemination of the statements about the potential threats to flight safety had been lawful. During the investigation, the applicant’s failure to sign the job description (see paragraph 6 above) was also reviewed. The applicant was suspended from her post for the period of the investigation. Her average salary was maintained, but she was prohibited from entering the premises of LGS.", "22. On the same day, the Trade Union members gathered for a spontaneous meeting with the LGS board, requesting an explanation for the applicant’s suspension and the fact that only one person was being held responsible for a letter that had been sent in the name of the Trade Union. According to written statements by the Trade Union members, D.T. responded that the applicant would merely need to provide some explanations, as she had been the one who had signed the letter. Additionally, her representing the Trade Union was senseless, and her goals did not correspond with those of the Trade Union’s members. D.T. also warned against trying to obtain any help from “outside”. All issues had to be resolved within LGS, and letters such as this only harmed the Trade Union’s members.", "23. On 27 March 2012 fifty-one ATCOs wrote a letter to D.T. expressing their support for the applicant. They requested that the applicant be reinstated in her post and called it unacceptable to confuse the applicant’s Trade Union activities with her direct duties at work. On 15 June 2012 forty-seven ATCOs wrote a letter to the Prime Minister in which they affirmed the continuance of the problems highlighted in the Trade Union’s letter of 2 March 2012. They also expressed their indignation about the retaliatory measures directed against the applicant.", "24. On 30 March 2012 the Civil Aviation Agency ordered the applicant to undergo an evaluation of her neuropsychological state and on 14 April 2012 ordered an evaluation of her mental health. Both examinations confirmed that the applicant was healthy. On 28 April 2012 LGS lodged a complaint with the Security Police – the State’s counterintelligence and internal security service – concerning “the potential threat to flight safety in view of the Trade Union’s complaint”. On 18 June 2012, the Security Police responded that the conflict in question constituted a labour dispute and that there were therefore no grounds to examine it under the Criminal Procedure Law.", "25. On 11 May 2012 the internal investigation was completed, with the investigation commission suggesting that the applicant be dismissed. The LGS board revoked the applicant’s salary and asked the Trade Union to agree to the applicant’s dismissal; the Trade Union refused.", "26. In June 2012 the Latvian Federation of Aviation Trade Unions organised talks aimed at achieving a friendly settlement. LGS insisted that the applicant or the Trade Union write a letter to the Ministry of Transport stating that the threats outlined in the letter of 2 March 2012 no longer existed. The applicant and the Latvian Federation of Aviation Trade Unions considered this condition unacceptable.", "27. On 26 June 2012, following the expiry of the maximum period for which she could be suspended, LGS reinstated the applicant in her position while simultaneously ordering her to “stand idle” – that is to say to be present at the workplace every day without carrying out her direct employment duties. During that period the applicant was to receive her average wage. However, from 14 December 2012 the applicant was again refused entry to the premises of LGS and from 11 March 2013 the payment of her salary was terminated.", "28. Over this time period LGS management demanded explanations from colleagues of the applicant who had congratulated her on her birthday or had otherwise manifested a favourable attitude towards her (for example, by giving her a lift or taking a photograph of themselves together), as confirmed by witness statements during the civil proceedings.", "Civil proceedingsFirst-instance proceedings", "First-instance proceedings", "First-instance proceedings", "29. On 23 April 2012 the applicant brought civil proceedings against LGS, challenging her suspension and seeking reinstatement. In a subsequent addendum she lodged additional claims regarding, inter alia, the order for her to stand idle, the discrimination against her on the basis of her trade union activities, and the interference in the work of the Trade Union.", "30. At the first hearing LGS lodged a counterclaim seeking the termination of the applicant’s employment. That hearing was adjourned. At the next hearing LGS requested that the case be examined in closed proceedings, as the case called for an assessment of information about the security of Latvian airspace, and misinterpreted facts had already reached the public, fuelling undesirable speculation about threats to flight safety. The applicant’s representative objected, as the case did not concern any classified information. The court granted LGS’s request on the grounds that this would allow for a “more efficient and successful administration of justice”.", "31. During the proceedings several ATCO instructors testified that they had to carry out their training duties in their free time (that is to say outside their work shifts). They spoke of the fatigue that this arrangement caused to them and to the ATCO trainees. They also testified about the pressure placed on them by the LGS management to sign statements attesting that there existed no threat to flight safety, and to distance themselves from the Trade Union’s letter of 2 March 2012. One of the signatories of the letter of 9 March 2012 testified that they had been told to sign that letter under the threat of suspension. She agreed with the text of that letter in so far as it stated that ATCOs were not endangering flight safety. The applicant’s superiors at LGS and a witness from the Civil Aviation Agency testified that the applicant was a highly qualified employee and that they had no information about her committing any infringements at work.", "32. On 11 March 2013 the Riga City Kurzeme District Court dismissed all the applicant’s claims and upheld LGS’s counterclaim seeking the termination of her employment. The summary judgment was pronounced in a closed hearing; the full text was made available to the parties on 21 March 2013.", "33. The court found that the applicant’s suspension and the requirement that she stand idle had been justified under section 34 of the Law on Aviation (see paragraph 51 below). With her statements about the risks to flight safety – which had been inextricably linked with her performance of her ATCO duties – the applicant had created an emergency requiring extraordinary measures. The applicant had not reported threats to flight security to the relevant institutions and had not used the opportunity, offered during the friendly-settlement negotiations, to “retract her conviction” about a threat to flight safety. A professionally substantiated opinion had to be distinguished from an “ideological conviction”, which the applicant had expressed merely for the sake of it ( pārliecības paušana pārliecības dēļ ), and it was inappropriate to invoke human rights in this instance. The applicant’s conduct could have caused the employer to be concerned that she might be unpredictable in the performance of her professional duties.", "34. As regards the applicant’s discrimination claim, the court found that a suspension based on the performance of employment duties could not be perceived as constituting a difference in treatment. The circumstances meriting the applicant’s suspension pertained only to her. The applicant had submitted no evidence that LGS had interfered with the exercise of her trade union rights. The applicant’s suspension had had no impact on her ability to represent employees. The allegation that LGS had interfered with the work of the Trade Union could not be assessed, as the applicant’s claim had been lodged only in the name of the applicant.", "35. LGS’s counterclaim seeking the termination of the applicant’s employment was based on the assertion that she, when performing her work, had acted unlawfully and had thereby lost the employer’s trust (section 101(1)(2) of the Labour Law – see paragraph 48 below). The court considered that the applicant had indeed acted unlawfully in two respects. Firstly, she had performed her employment duties without having accepted the revised job description. By adding a note expressing her disagreement with the revised job description (see paragraph 6 above) the applicant had indicated her intention not to comply with the normative acts regulating air traffic. Accordingly, the applicant had been unpredictable in her function as an ATCO, and it had been impossible to foresee whether she might significantly endanger flight safety. For that reason, the applicant had been prohibited, under section 34(1)(2) of the Law on Aviation, from carrying out her functions (see paragraph 51 below).", "36. Secondly, the applicant had acted unlawfully by knowingly disseminating untruthful information about her employer. It could not be established that the letter of 2 March 2012 had been based on a decision by the Trade Union’s General Assembly or that it reflected the majority opinion of its members. Some ATCOs had distanced themselves from the letter (see paragraph 17 above), and the other board members had not authorised the applicant to sign Trade Union letters individually. Referring to three subsequent Trade Union letters (including the letter to the Prime Minister expressing support for the applicant (see paragraph 23 above) and the letter refusing consent to the applicant’s dismissal (see paragraph 21 above)), the court concluded that Trade Union’s letters were usually signed by at least two board members or by a large number of its members. It followed that in the letter of 2 March 2012 the applicant had expressed her personal opinions and had been acting in her capacity as an ATCO, instead of in her capacity as the Trade Union representative.", "37. As to the truthfulness of the disseminated information, the court considered that the applicant had made allegations about threats to flight safety. Referring to testimony given by LGS employees asserting that there no danger was posed to flight safety, written statements from ATCOs that they were ensuring flight safety, and documents from the Civil Aviation Agency and other evidence attesting, in general terms, that aeronavigation was safe, the court concluded that the applicant’s allegations had not been confirmed. The witness testimony concerning the organisation of working time (see paragraph 31 above) was not mentioned in the judgment.", "38. The court furthermore noted that the applicant had “made serious threats with respect to the quality of the performance of her direct employment duties”. Moreover, contrary to the procedure prescribed by law, the applicant had not reported the existence of any risks. According to the assertion that the applicant had made in her letter, ATCOs had acted in breach of section 34(2) of the Law on Aviation by performing their duties while tired and without reporting their tired state to their management. If the applicant considered that there had been threats to flight safety, she had been duty bound to stop performing her employment duties. Instead, for the purpose of creating a scandal, the applicant had disseminated an “untruthful opinion”, thereby harming her employer’s interests and damaging its reputation. The applicant had been loyal to her profession but not to the enterprise that she had worked for. The fact that the applicant had written the complaint to the Ministry of Transport, without first discussing the issues in question with her employer, indicated that the applicant had been merely interested in discrediting LGS. The applicant had knowingly disseminated to third parties untruthful information about threats to flight safety with the goal of securing socio-economic benefits for herself. Given those circumstances, the employer could justifiably have lost its trust in the applicant.", "Appeal proceedings", "39. On 8 April 2013 the applicant lodged an appeal with the Riga Regional Court. The Free Trade Union Confederation of Latvia requested that the case be examined in a public hearing. LGS requested a closed hearing on the grounds that the case concerned rules governing the security of airspace and the possible violations of those rules. The appellate court granted LGS’s request, referring to section 11(3)(1) of the Civil Procedure Law, which allows the exclusion of the public from a courtroom for the protection of State or commercial secrets. During the appeal hearing a picket organised by the Latvian Federation of Aviation Trade Unions was held outside the courthouse with the participation of members of the Free Trade Union Confederation of Latvia and the Lithuanian trade union Solidarumas.", "40. In its judgment of 20 June 2013, the operative part of which was pronounced publicly, the Riga Regional Court endorsed the findings and the reasoning of the first-instance court. It added that there was no doubt that the applicant had signed the letter of 2 March 2012 herself; hence, her objection to the fact that engaging in a trade union activity had been deemed to constitute a personal action on her part was unfounded. It would have been unacceptable to prevent the employer from taking measures against the applicant merely on the grounds that the letter stated that it had been written in the name of the Trade Union. Employees’ material or social guarantees could not be invoked as grounds for not complying with direct employment duties.", "41. The appeal court considered it immaterial that the ATCOs who had distanced themselves from the letter of 2 March 2012 had not been members of the Trade Union (see paragraph 17 above). Their letter of 9 March 2012 had confirmed that ATCOs’ professional training and experience ensured the necessary level of flight safety. The applicant’s argument that ATCOs had been intimidated into signing that letter under the threat of suspension was unfounded, as the witness had testified that she had never endangered air traffic (see paragraph 31 above). No evidence had been adduced confirming that flight security was endangered or that the situation in LGS was out of control. The appeal court upheld the first-instance court’s finding that the applicant had “ made serious threats with respect to the quality of the performance of her direct employment duties” and had disseminated an “untruthful opinion” with the goal of destabilising LGS and securing socio ‑ economic benefits for herself.", "Appeal on points of law proceedings", "42. On 5 August 2013 the applicant lodged an appeal on points of law. On 28 February 2014, after examining the case in written proceedings, the Supreme Court upheld the judgment of the Riga Regional Court. With respect to the applicant’s argument that her statements had not contained any threats, the Supreme Court responded that the question of whether or not the applicant had made a threat could not be understood merely as her having threatened not to fulfil duties with regard to flight safety but also as her having made statements that the institution carrying out such tasks was not capable of functioning and, hence, that Latvian airspace was not safe.", "Other aspects relevant to the dispute", "43. On 10 January 2012 an internal audit of LGS identified nine areas of non-compliance with regulations in the field of air traffic control, including the training of ATCOs. It also concluded that the internal bodies of LGS had disagreements regarding their respective areas of responsibility, and that the applicable legal instruments and the internal mechanism for resolving such differences were not functioning.", "44. On 24 May 2012 the European Transport Workers’ Federation wrote to the Prime Minister that the actions of LGS had contravened EU Directive 2003/42/EC on occurrence reporting in civil aviation, as well as the Law on Trade Unions and the Labour Law. It requested the Prime Minister to halt the disciplinary investigation against the applicant and to revoke her suspension. On 11 April 2013 it wrote to the LGS board that the treatment of the applicant, as well as that of the other employees who had been intimidated into signing various statements, had been incompatible with trade union freedoms and autonomy and had contravened International Labour Organisation (ILO) Convention No. 135. On 22 April 2013 the Latvian Federation of Aviation Trade Unions expressed similar concerns to the LGS board.", "45. On 17 January 2013 the International Federation of Air Traffic Controllers’ Associations wrote a letter to the Prime Minister, the Minister of Transport, the Civil Aviation Agency, and the LGS board expressing serious concerns about compliance with the principles of a “just culture” in the light of the treatment of individual ATCOs who had raised safety concerns. On 14 March 2014 the International Transport Workers’ Federation and the European Transport Workers’ Federation wrote a joint letter to the President of Latvia expressing grave concerns about the ruling of the first-instance court and, notably, its anti-union bias. They emphasised the fact that the complaint of 2 March 2012 had been sent by the applicant as the chairperson of the board of, and on behalf of, the Trade Union. It had raised problematic issues within LGS relating to social dialogue and the main issues highlighted had concerned training, rest times and fatigue. The ruling contradicted the principles of freedom of association and the legal protection of trade union representatives, as well as ILO Conventions No. 87, 98, and 135 and EU Directive 2003/42/EC.", "46. On 1 February 2013 the applicant was re-elected as the chairperson of the Trade Union board.", "47. On 27 June 2014 the State Labour Inspectorate concluded that LGS had committed an administrative offence by not complying with the Labour Law in respect of overtime work – inter alia, by exceeding the lawful limits for ATCO overtime work and by failing to properly record employees’ working hours." ]

[ "RELEVANT LEGAL FRAMEWORK", "Domestic law", "48. Section 101(1)(2) of the Labour Law authorises an employer to dismiss an employee if he or she, when carrying out his or her work, has acted unlawfully and has thereby lost the employer’s trust.", "49. Section 110(1) of the Labour Law provides that an employer cannot dismiss an employee who is a member of a trade union without the trade union’s prior agreement. Section 110(4) further specifies that if the trade union does not agree with the dismissal, the employer may, within one month of receiving the trade union’s response, bring proceedings in a court seeking termination.", "50. Section 31(1) of the Labour Law provides for a prescription period of two years for all claims emanating from labour relationships, unless otherwise provided for by law. Sections 34, 60 and 95(2) specify a three-month prescription period with respect to various discrimination claims.", "51. Section 34(1)(2) of the Law on Aviation, as worded at the relevant time, provided that a civil aviation specialist was prohibited from performing his or her functions if he or she was sick, tired or could not perform his or her functions because of other circumstances, in order to guarantee flight safety or civil aviation security.", "52. Section 44 of the Law on Associations and Foundations, which at the relevant time also regulated the representation of the trade unions, provides that members of the board represent the association jointly, unless otherwise provided in the Statute.", "53. Section 11(3)(1) of the Civil Procedure Law provides that on the basis of a reasoned request by a party to a case or at the discretion of the court, a hearing (or a part thereof) may be closed to the public if this is necessary to protect a State secret or a commercial secret. Section 11(3)(5) provides that a closed hearing may also be held in the interests of the administration of justice. Section 11(8) provides that in cases that have been examined in closed hearings the operative part of the judgment must be pronounced publicly.", "54. With respect to cases that have been examined in closed hearings, section 28 2 (2) of the Law on the Judiciary provides that the introductory and the operative parts of the judgment that have been pronounced publicly must be available to the public. Under sections 28 4 (1) and 28 4 (2), the case file in such cases shall be available only to the parties to the case and other specifically listed persons for twenty years; after this period has elapsed the case file will become available as “restricted information”.", "International law and materials", "55. Article 1 of ILO Convention No. 98 on the Application of the Principles of the Right to Organise and to Bargain Collectively (adopted in 1949 and ratified by Latvia on 27 January 1992), in its relevant part, reads:", "“1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.", "2. Such protection shall apply more particularly in respect of acts calculated to...", "(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.”", "56. Article 1 of ILO Convention No. 135 on Worker’s Representatives (adopted in 1971 and ratified by Latvia on 27 January 1992) reads:", "“Workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.”", "57. A report by the ILO Committee of Experts on the Application of Conventions and Recommendations entitled “Giving globalisation a human face” (issued during the 101st session of the International Labour Conference, 2012) reads:", "“59. ... The ILO supervisory bodies have since unceasingly stressed the interdependence between civil liberties and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations. ...", "173. Under the terms of the first two Articles of Convention No. 98, States are under the obligation to take specific measures to ensure both: (i) the adequate protection of workers against any acts of anti-union discrimination both at the time of taking up employment and in the course of employment, including at the time of the termination of the employment relationship, and covering ‘acts of anti-union discrimination in respect of their employment’ (dismissal, transfer, demotion and other prejudicial acts); and (ii) adequate protection for workers’ and employers’ organizations against ‘any acts of interference by each other’ in their establishment, functioning or administration.”", "58. An ILO document entitled “Freedom of Association: compilation of decisions of the Committee on Freedom of Association, International Labour Office” (Geneva, 6th edition, 2018), reads:", "“586. Workers and their organizations should have the right to elect their representatives in full freedom and the latter should have the right to put forward claims on their behalf. ...", "719. Employers’ and workers’ organizations must be allowed to conduct their activities in a climate that is free from pressure, intimidation, harassment, threats or efforts to discredit them or their leaders...", "720. Professional organizations of workers and employers should under no circumstances be subjected to retaliatory measures for having exercised their rights arising from ILO instruments on freedom of association...", "731. The exercise of trade union rights might at times entail criticisms of the authorities of public employer institutions and/or of socio-economic conditions of concern to trade unions and their members. ...", "737. Denouncing to the competent authorities insufficient occupational safety and health measures is in fact a legitimate trade union activity and a workers’ right which should be guaranteed by law. ...", "1075. No person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. ...", "1078. Since inadequate safeguards against acts of anti-union discrimination, in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts. ...", "1131. Especially at the initial stages of unionization in a workplace, dismissal of trade union representatives might fatally compromise incipient attempts at exercising the right to organize, as it not only deprives the workers of their representatives, but also has an intimidating effect on other workers who could have envisaged assuming trade union functions or simply join the union. ...", "1138. The government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. ...", "1175. If the judicial authority – or an independent competent body – determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination ...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION read in the light of Article 10", "59. Invoking Articles 6, 8, 10, 11 and 14 of the Convention, the applicant complained of the negative consequences that she had suffered owing to the letter she had addressed to the State officials overseeing a State-owned company in her capacity as the chairperson of the Trade Union board. In her subsequent observations she argued that this complaint should be examined under Article 11, read in the light of Article 10. Those provisions read as follows:", "Article 10", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Article 11", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "Admissibility", "60. The Government submitted that when signing the letter, the applicant had acted in a personal capacity and that Article 11 was therefore not applicable. The applicant had also not clarified how her status as a trade union member and leader had been affected – she had continued to be the chairperson of the Trade Union and had been allowed to participate in its meetings. Therefore, she could not claim to be the victim of a violation of Article 11. In the alternative, the Government argued that the applicant had not exhausted the domestic remedies, as she had not raised her claim (at least in substance) before the domestic courts, the civil proceedings having concerned her dismissal. She had argued that her suspension had affected the work of the Trade Union; however, she had failed to substantiate that claim. She had also failed to involve the Trade Union in the proceedings in a third-party capacity or to bring a claim against LGS on behalf of the Trade Union itself. Accordingly, the complaint before the Court could only be examined under Article 10.", "61. The applicant disputed the Government’s position. Her argument, domestically and before the Court, had been that she had been subjected to detriments by reason of her legitimate trade union activity in signing the letter. That had been an official Trade Union letter and it had concerned the terms and conditions of employment of the Trade Union’s members. It had been written as part of the process of collective bargaining. Article 11 guarded not only against interference with the right to participate in trade union activities but also against being penalised for participating in such activities.", "62. The Court notes that the domestic proceedings, to which the applicant was a party, concerned her suspension, dismissal and other detriments imposed on her for having written a letter in her capacity – as argued by the applicant – as a representative of the Trade Union. While the Government considered that she had written the letter in her private capacity, they did not dispute the fact that the applicant’s suspension and dismissal had been in reaction to the letter she had signed. Thus, the domestic proceedings raised in substance the same question, which is the complaint that the applicant has now brought before this Court relying on Articles 10 and 11 of the Convention. It follows that the applicant can claim to be the victim of the alleged violations of the Convention. Accordingly, the Court dismisses the Government’s objections concerning victim status and non-exhaustion. The remainder of the Government’s arguments, which pertain to the question whether indeed the applicant acted in her capacity of a Trade Union representative and, therefore, the existence of an interference with Article 11 rights rather than with Article 10 rights, are closely related to the merits of the case and must therefore be joined to the merits.", "63. The Court also notes that the above complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe applicant", "The applicant", "The applicant", "64. The applicant argued that after sending the Trade Union letter she had been subjected to a wave of detriments that had included: a disciplinary investigation; suspension from work; being banned from the workplace; unnecessary medical checks and neuropsychological assessments; the revocation of her pay (during her suspension period); being obliged to perform tasks unrelated to her employment duties; being obliged to stand idle; the compromising of her status as chairperson of the Trade Union board; the intimidation of those of her colleagues who had not distanced themselves from her; and – lastly – her dismissal. While those detriments had also interfered with her freedom of expression (as guaranteed under Article 10), she was entitled to even greater protection under Article 11, given that she had been acting as the Trade Union’s representative. Unlike in the case of Palomo Sánchez and Others v. Spain ([GC], nos. 28955/06 and 3 others, ECHR 2011) – where, owing to the nature of the content of the published material, the Court had examined the case under Article 10, read in the light of Article 11 – in the instant case the letter addressed socio-economic demands made by the Trade Union in the interests of its members. Therefore, the present case had to be regarded as primarily falling within the scope of Article 11, read in the light of Article 10.", "65. The applicant emphasised that she had signed the letter in her capacity as the chairperson of the Trade Union board, in pursuit of the protection of the interests of the Trade Union’s members. The domestic courts had had no jurisdiction to question her authority to sign the letter in the absence of a challenge to it by the Trade Union. Her authority had emanated from the Trade Union’s rules, had been confirmed by the subsequent acquiescence and support from the Trade Union’s members, and had been strengthened even further by the prior authorisation by the Trade Union board (see paragraph 9 above). Additionally, the contents of the letter had been typical of trade union correspondence raising grievances and concerns with an employer and pointing to perceived risks and the potential adverse consequences thereof. The domestic courts’ findings that the applicant had acted in a personal capacity were incompatible with the freedom of trade unions to draw up their own rules and administer their own affairs.", "66. The interference had not been prescribed by law. A reasonable interpretation of section 34(1)(2) of the Law on Aviation would not have rendered it applicable to the note that the applicant had appended to her revised job description, as that provision had only concerned a lack of physical capability to perform work (see paragraph 51 above). In any case, the applicant’s manager had given her a clear permission to express her disagreement, and the employer had permitted her to continue performing her ATCO functions. The courts’ finding that the applicant had thereby expressed her intention not to comply with the normative acts regulating air traffic had been absurd and unsupported by evidence. Such grounds for the applicant’s dismissal constituted a false construct, which had been created to conceal the real reason for the reprisals – her trade union activity.", "67. With respect to the purportedly legitimate aim of the interference, no independent and impartial tribunal could have concluded that an ATCO appending such a note to his or her job description could have conceivably given rise to a threat to public safety; nor had any party argued that the applicant signing the letter had posed a risk to flight safety. Indeed, since overtime work had persisted after the applicant’s dismissal, public safety had remained unprotected in that regard.", "68. In the Trade Union letter the applicant had noted that ATCOs were working long hours of unrecorded overtime, which was likely to make them fatigued. The applicant had expressed the view that flight safety was thereby threatened. This allegation had then been unjustifiably magnified by the Supreme Court into the extraordinary allegation that LGS was not capable of functioning and hence that Latvian airspace was not safe. However, it was a fact that the ATCOs undertaking the instruction of ATCO trainees had done so outside their normal working shifts and that this overtime work had not been recorded or paid for (as, inter alia, found by the State Labour Inspectorate – see paragraph 47 above). It had, however, been a value judgment as to whether that fact, if not resolved, would threaten flight safety. The applicant had clearly been an expert qualified to make such an assessment, as she had undertaken ATCO training and had worked with and represented other instructors who had delivered such training. Hence, this value judgment had clearly had a sufficient factual basis.", "69. While the tone and language of the letter had been forceful, the statements had not been immoderate, inflammatory, grossly insulting or offensive. Such forceful expressions were not unusual within the context of industrial relations between employers and trade unions. Insults could justify sanctions; however, criticism – even if it included strong and intemperate remarks – was protected. Where criticism emanated from a trade union representative advancing a claim for better terms and conditions, the categories of persons with respect to whom the acceptable level of criticism was wider had to be extended to the employing entity and its senior management.", "70. The Government’s argument about the damage that might be suffered as a result of the disclosure of the contents of the letter had concerned the potential consequences of disrupted air traffic. Neither the note to the revised job description, nor the letter had been capable of producing such effects. The Government’s case also rested on the dissemination of the letter “outside the premises of the company”, yet the letter had only been sent to the Minister of Transport (as the Ministry had owned 100% of the shares in LGS) and to its representative (who had held those shares on the Ministry’s behalf). In fact, this had been an internal letter addressed by the Trade Union to the management of the employer.", "71. Lastly, the detriments imposed on the applicant – particularly her suspension, “idle standing” and dismissal – had constituted very heavy sanctions. Even the mere threat of dismissal constituted a serious prejudice in employment that struck at the very core of the freedom of association. Such sanctions could have a chilling effect on legitimate trade union activity. Furthermore, as LGS was the sole employer of civilian ATCOs in Latvia, for the applicant the dismissal had resulted in the loss of her career, in Latvia, with material consequences for her entire family.", "The Government", "72. The question of whether the letter had reflected the position of the Trade Union had been examined before the domestic courts, which had concluded that the letter had expressed the applicant’s personal opinion. While the questions raised in the letter had been touched upon in discussions between the Trade Union’s members, they had not been informed of the exact content and expressions used in the letter, and had not supported the statements about the threats to the flight security. Similarly, as in Palomo Sanchez and Others (cited above), the restrictions imposed on the applicant had not been directed against her as a trade union representative but as an ATCO instructor.", "73. The applicant’s suspension had been based on section 34(1)(2) of the Law on Aviation and her dismissal had been based on section 101(1)(2) of the Labour Law (see paragraphs 51 and 48 above). The applicant had acted unlawfully as she had: 1) appended a dissenting note to her revised job description and 2) included in the letter of 2 March 2012 untrue statements regarding the flight safety. Accordingly, the restrictions had been based on law.", "74. The legitimate aim of the restrictions had been the protection of public safety and the rights of others. Given the nature and tone and the unambiguous statements about allegedly imminent dangers to flight safety, LGS had had a duty to react and initiate the required follow-up measures to verify the alleged dangers and to prevent them.", "75. The case raised the complex issue of the freedom of expression of employees regarding conditions of work in a State-owned company that fulfilled an important State function and was critical to its infrastructure. The specific nature of those services required that the most careful attention be paid to the kind of information and allegations that were disseminated to third persons, as unverified or unsubstantiated allegations could give rise to extensive harm. Among professionals, the limits of permissible expressions could be broader; however, with respect to third persons who did not deal with flight safety on a daily basis, the use of “forceful” expressions could give rise to unintended and potentially harmful reactions.", "76. The letter had in very strong terms referred to allegedly imminent threats to the safety of air traffic without there being sufficient factual basis. Institutions had carried out inspections and had not found that any threats to flight safety existed. There was also a difference between a value judgment made by one person and a commonly held opinion, or at least a majority opinion. The applicant had been at liberty to assert that she was suffering from fatigue owing to her long working hours, and this was presumably the reason why she had refused to take on additional working hours as an instructor. However, it was doubtful that when writing the letter the applicant had expressed an opinion agreed between all ATCO instructors.", "77. Due to their specific working environment, ATCOs were bound by the duty of loyalty that is applicable in the public sector. They were required to evaluate their own psycho-emotional state and ability to perform their respective tasks and were obliged to withdraw from their duties in the event of any doubt. LGS’s reaction constituted standard procedure whenever doubts about an ATCO’s ability to perform his or her duty arose. The fact that the applicant was a trade union leader could not exempt her from the necessary assessments that an employee would ordinarily face after making an allegation that the company’s ability to provide the services was threatened owing to overwork and fatigue.", "78. While the letter had contained some elements that could be characterised as legitimate socio-economic demands on the part of the Trade Union, the present case revolved around specific and forceful statements made by the applicant concerning the flight safety (a strictly regulated area). As in the case of Szima v. Hungary (no. 29723/11, 9 October 2012), a distinction had to be drawn between statements made with regard to legitimate trade union interests and those not related to trade union interests. The case had to be analysed in the light of the principles developed in Guja v. Moldova ([GC], no. 14277/04, ECHR 2008). Balancing the authenticity of the disseminated information against any damage it’s dissemination might have caused had been at the core of the dispute. The applicant had written the letter with the goal of obtaining socio-economic benefits and destabilising the LGS board.", "The third-party interveners", "(a) The European Transport Workers’ Federation", "79. The European Transport Workers’ Federation emphasised that employers frequently sought to penalise workers by claiming that activities carried out in the name of a trade union were in fact carried out in a personal capacity. That approach had a chilling effect on the willingness of workers to articulate the interests of their colleagues through their union. It was the trade union in question that had to be the arbiter of whether what was done by a worker was done on the authority of that union. Freedom of association encompassed the right of trade unions to organise their administration and activities without any interference by public authorities.", "80. Nothing could have a more chilling effect on trade union organisation at a workplace than the threat of the dismissal of that union’s elected representatives. One of the fundamental principles of freedom of association was that union representatives should enjoy adequate protection against all acts of anti-union discrimination in order to be able to perform their union duties completely independently, in accordance with the mandate given to them by their members.", "(b) The European Trade Union Confederation", "81. The European Trade Union Confederation stressed that the instant case was of fundamental importance for the protection of trade union rights, and in particular for the activities of trade union officials. The latter had to be effectively protected against harassment, dismissal and other forms of discrimination, as otherwise trade unions would be deprived of a substantial means of defending, protecting and furthering workers’ rights and interests. That would be even more the case in respect of trade union officials who were furthering the public interest by trying to secure the implementation of standards aimed at providing safe air traffic control services. Failure to observe safety and health regulations and limitations on the number of working hours could have a negative impact not only on workers’ health but also a potentially dangerous impact on the quality of work to be performed. In relation to work, such as air traffic control, that had a direct impact on the life and health of third persons, any activity on the part of the Trade Union was also aimed at contributing to public safety.", "82. A distinction had to be drawn between an “employee expression” and a “trade union expression” in respect of professional and employment-related matters. A trade union expression warranted a higher degree of protection, and the Court’s jurisprudence in respect of media freedom had to be applied also to trade unions, given their role as “watchdogs” for workers’ interests. In the instant case, priority had to be given to the examination of the case in the light of the trade union rights guaranteed by Article 11, their level of protection being strengthened by the right to freedom of expression enshrined in Article 10.", "83. By no means could an activity undertaken by a trade union official (or even more so, a chairperson) on behalf of his or her union be attributed to that single person if he or she at the same time happened to be a worker at the enterprise concerned. If such an activity was followed by reprisals, those measures were discriminatory and directly interfered with the rights guaranteed under Article 11. Anti-union discrimination, which included the dismissal of workers on the grounds of their trade union activities, constituted one of the most serious violations of freedom of association, as it could jeopardise the very existence of trade unions. The violation became even more serious, if such a dismissal had been preceded by a long series of other prejudicial acts (such as an internal investigation, a complaint with the Security Police, a suspension), and deprived the person in question of any possibility of enjoying a professional occupation (for example, due to being the only workplace in the country for the specific occupation).", "84. Employers often tried to influence trade union activities not only by discriminating against individual trade union members or officials but also in relation to the organisation of trade unions’ internal affairs. It was not up to the employer to decide who should act on behalf of the trade union; that was unquestionably the prerogative of the union and its internal administration. The right to freedom of association would also be violated if the employer organised meetings aimed at discrediting trade union activities, compelled workers to sign letters against a trade union, particularly under the threat of suspension, or demanded that certain trade union officials be replaced.", "(c) The International Federation of Air Traffic Controllers’ Associations", "85. The International Federation of Air Traffic Controllers’ Associations expressed concerns about attempts to penalise office holders in professional associations and trade unions for fulfilling the functions of their respective offices. Acts of anti-union discrimination were often disguised as criticism of a worker for carrying out his or her employment duties.", "86. Air traffic management was a specific working environment where the interests of safety were paramount. Any conflicts between management and staff contained elements that related to “safety critical” aspects. In a “safety critical” environment, it was of absolute importance that any shortcomings, irregularities, flaws, and potential safety risks could be reported at any time, both by individuals and by their representative organisations. Therefore, it was of great importance that air traffic management, civil aviation authorities, and staff promoted and created a working atmosphere that fostered the above-noted conditions. The reporting of safety issues had to be handled within a “just culture” atmosphere before any labour laws were applied. The right to report should not be denied without any proper motivation.", "87. The structural reporting of overtime was a safety issue. Management and civil aviation agencies had to be open to receiving critical information from staff. It went without saying that government, judicial authorities, and aeronavigation service providers should not hinder the possibility for individuals, staff associations and unions to report safety issues. Speaking up out of loyalty to the profession and a concern for safety was never a sign of lack of loyalty to an aeronavigation service provider.", "88. Air traffic management authorities had an above-average interest in respecting human rights in labour relations. Labour relations should not be used in a way that could diminish the reporting culture at a professional level.", "The Court", "(a) The applicable provision", "89. In the present case, the question of freedom of expression is closely related to that of freedom of association within a trade union context. The protection of personal opinions, as secured by Article 10, is one of the objectives of freedom of assembly and association, as enshrined in Article 11 (see Ezelin v. France, 26 April 1991, § 37, Series A no. 202; Palomo Sánchez and Others, § 52, cited above; Trade Union of the Police in the Slovak Republic and Others v. Slovakia, no. 11828/08, § 51, 25 September 2012; and Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, §§ 99 ‑ 101, ECHR 2011 (extracts)).", "90. The Court observes that the main focus of the applicant’s complaint is that she was penalised for carrying out a trade union activity and that the domestic courts arbitrarily denied the trade union element of the dispute. While the Court will deal with the question of whether the negative consequences suffered by the applicant were indeed the result of her acting as a Trade Union representative later (see paragraph 95 below), the Court considers that in view of the circumstances of the case and the nature of the applicant’s complaint, it should be examined under Article 11, interpreted in the light of Article 10 (compare also Schwabe and M.G., cited above, §§ 98 ‑ 101, and the references cited therein).", "(b) The relevant principles", "91. The Court reiterates that Article 11 § 1 presents trade union freedom as a special aspect of freedom of association. The Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. A trade union must thus be free to strive for the protection of its members’ interests, and its individual members have a right, in order to protect their interests, that that trade union should be heard (see Ognevenko v. Russia, no. 44873/09, §§ 54-55, 20 November 2018; Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96 and 2 others, § 42, ECHR 2002 ‑ V; and National Union of Belgian Police v. Belgium, 27 October 1975, § 39, Series A no. 19). One of the essential elements of the right of association is the right for a trade union to seek to persuade an employer to listen what it has to say of behalf of its members (see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 143 and 145, ECHR 2008; Wilson, National Union of Journalists and Others, cited above, § 44; Trade Union of the Police in the Slovak Republic and Others, cited above, § 54; and Tek Gıda İş Sendikası v. Turkey, no. 35009/05, § 33, 4 April 2017).", "92. Accordingly, the members of a trade union must be able to express to their employer the demands by which they seek to improve the situation of workers in their company. A trade union that does not have the possibility of expressing its ideas freely in this regard is deprived of an essential means of action. Consequently, for the purpose of guaranteeing the meaningful and effective nature of trade union rights, the national authorities must ensure that disproportionate penalties do not dissuade trade union representatives from seeking to express and defend their members’ interests (see the above-cited cases of Palomo Sánchez and Others, § 56, and Szima, § 28; see also the above-cited cases of Wilson, National Union of Journalists and Others, § 46, and Trade Union of the Police in the Slovak Republic and Others, § 55). Where statements clearly relate to trade union activities, their sanctioning is difficult to reconcile with the prerogatives of a trade union leader (see Szima, cited above, § 32). Even minimal sanctions dissuade trade union members from freely engaging in their activities (see Doǧan Altun v. Turkey, no. 7152/08, § 50, 26 May 2015).", "93. The protection against arbitrary, unlawful and unjustified restrictions guaranteed by Article 11 is not limited to bans and refusals to authorise the exercise of Convention rights, but also includes punitive measures taken after such rights have been exercised, including various disciplinary measures (see the above-cited cases of Ezelin, § 39; Ognevenko, § 61; and Trofimchuk v. Ukraine, no. 4241/03, § 35, 28 October 2010). In determining the conduct that has triggered the punishment the Court has been mindful not to take an overly formalistic approach and has been guided by the principle of practical and effective application of the Convention (see the above-cited cases of Trofimchuk, §§ 36-39, and Doǧan Altun, § 32).", "(c) Application of the relevant principles", "(i) Whether there was an interference", "94. The applicant submitted that the series of detriments imposed on her (listed in paragraph 64 above) were a direct reaction to her having sent, on behalf of the Trade Union, the letter of 2 March 2012. The Government countered that the applicant’s freedom of association had not been interfered with, as she had acted in her private capacity in sending the letter and her involvement in the Trade Union had not been affected.", "95. Having examined the material before it and the parties’ submissions, the Court considers it beyond any doubt that when signing the letter of 2 March 2012 the applicant represented the Trade Union. The applicant had general authority to act on behalf of the Trade Union as its chairperson (see paragraph 7 above) and the text of the letter made it plain that it was written and signed on behalf of the Trade Union (see paragraph 10 above). In addition, the Trade Union board had made a collective decision to address the institution overseeing the employer (see paragraph 9 above), and the letter dealt with socio-economic matters concerning the Trade Union’s members and their ability to correctly perform their function as ATCOs given their working conditions that had been raised in previous negotiations with the employer (see paragraph 8 above). Furthermore, the Trade Union members supported the applicant in her actions as their representative (see paragraph 23 above), and even though some individual members distanced themselves from the contents of the letter, possibly under the threat of suspension (see paragraphs 17 and 31 above), the Trade Union itself never retracted the letter or the contents thereof. The fact that other letters sent by the Trade Union – particularly those intended to express support for the applicant – were signed by more than one person can in no way be taken to infer that the applicant acted in her private capacity. Neither could a finding that not all members of the Trade Union shared all of the views expressed in the letter. Accordingly, the domestic courts’ finding that the applicant had acted in her private capacity has no legal or factual basis and is therefore manifestly arbitrary. It follows that by sending the Trade Union letter the applicant acted as its representative and thereby exercised her right to freedom of association.", "96. The Court further observes that the majority of the detriments that were imposed on the applicant were put in place expressly as a sanction for her having sent this letter (in particular, the disciplinary investigation, the suspension from work, the prohibition to attend the workplace, the revocation of pay, the obligation to stand idle, the dismissal – see paragraphs 21, 25, 27, 32, 40 above). The other detriments complained of were either closely connected to the aforementioned measures (such as the medical checks and the obligation to perform tasks unrelated to the employment duties – see paragraphs 24, 27 above), or, in view of the context, could only be understood as a reaction to the applicant’s trade union activities (such as the steps taken to compromise her status as the chairperson of the Trade Union board or to pressure the colleagues who had not distanced themselves from her – see paragraphs 20, 22, 28 above). There was therefore an interference with the applicant’s freedom of association.", "97. In the light of the above, the Court dismisses the Government’s remaining preliminary objections, joined to the merits, regarding the applicability of Article 11 of the Convention to the particular facts of the case (see paragraph 62 above).", "98. It remains to be determined whether that interference was prescribed by law, pursued one or more of the legitimate aims set out in paragraph 2 of Article 11, and was necessary in a democratic society for achieving those aims.", "(ii) Whether the interference was justified", "(α) Lawfulness", "99. The Court has certain misgivings as to whether the domestic law could have reasonably been interpreted as providing for the detriments imposed on the applicant. This relates, in particular, to the legal provisions invoked to justify the applicant’s suspension and dismissal as applied in the circumstances of the present case (see paragraphs 73, 51 and 48 above, see also paragraph 95 above). The Court will, however, proceed on the assumption that the interference had a legal basis. The justification for those measures is to be examined below.", "(β) Legitimate aim", "100. The Court accepts that the impugned measures were aimed at protecting the rights and freedoms of the employer, and therefore served the legitimate aim of protecting the rights and freedoms of others. The Government’s argument that they were also aimed at protecting the rights and freedoms of the wider public and the public safety was disputed by the applicant and will be analysed below.", "(γ) Necessity", "101. An interference with trade union freedom can be regarded as necessary in a democratic society if it answers a pressing social need and is proportionate to the legitimate aim pursued. Accordingly, in the present case the Court must determine, in particular, whether the domestic courts struck a fair balance between the applicant’s right to freedom of association on the one hand and protection of the employer’s interests on the other hand. In doing so the Court has to satisfy itself that the reasons adduced by the national authorities were relevant and sufficient and, in particular, that the standards applied were in conformity with the principles embodied in Articles 10 and 11 of the Convention and that the national authorities based themselves on an acceptable assessment of the relevant facts (see Tek Gıda İş Sendikası, cited above, § 34; National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 86, ECHR 2014; Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 133, ECHR 2013 (extracts); and Ognevenko, cited above, §§ 67 ‑ 68).", "102. The Court does not find it necessary to inquire into the kind of issues that have been central to its case-law on whistle-blowing (see Guja, cited above; Bucur and Toma v. Romania, no. 40238/02, 8 January 2013; Heinisch v. Germany, no. 28274/08, ECHR 2011 (extracts); and Gawlik v. Liechtenstein, no. 23922/19, 16 February 2021), as the present case concerns the context of the freedom of expression of a trade union representative. Here, the aim of the expression was not to raise the public awareness of an unlawful conduct but to advocate for the socio-economic interests of the Trade Union’s members and certain safety concerns. It is worth recalling, to the extent relevant, that the impugned letter was addressed to the State officials overseeing LGS, a State-owned company, and not disseminated publicly. The Court emphasises that advocating for the interests of trade union members is the very function of trade union representatives and constitutes a fundamental element of trade union freedom. It should also be distinguished from situations in which employees express their own personal opinions, as actions and statements aimed at furthering the interests of trade union members as a whole call for a particularly high level of protection (compare Herbai v. Hungary, no. 11608/15, § 44, 5 November 2019, with respect to the freedom of expression of an employee, and Vellutini and Michel v. France, no. 32820/09, §§ 37-39, 6 October 2011, with respect to the freedom of expression of trade union representatives). The arguments pertaining to whistle-blowing were also not raised before and analysed by the domestic courts.", "103. In view of the case-law concerning trade unions’ freedom of expression (see the above cited cases of Palomo Sánchez and Others; Szima; and Vellutini and Michel ), the Court considers the following elements to be relevant: the context within which the statements were made (including whether they formed part of a legitimate trade union activity); the nature of the statements (including whether the limits of acceptable criticisms were crossed); the damage suffered by the employer or other persons; and the nature and severity of the sanctions or other repercussions.", "104. The Court observes that the letter of 2 March 2012 addressed various socio-economic issues and practices that were considered to negatively affect LGS’ employees and the performance of their tasks as ATCOs and that had already been raised with the employer (see paragraphs 8 ‑ 16 above). By this letter these labour-related concerns were relayed to the State institution that owned and oversaw the employer. While the Court does not have enough information to conclude that the writing of this letter constituted an exercise of the right to engage in collective bargaining as argued by the applicant, it did form part of the Trade Union’s efforts to express the demands by which it sought to improve the situation of its members and safeguard the performance of their duties. Accordingly, the applicant was representing the Trade Union in its exercise of a legitimate trade union activity. Moreover, it concerned an essential element of the trade union freedom – seeking to persuade the employer to hear what it had to say on behalf of its members.", "105. The Court observes that aside from disregarding the fact that the letter was written by a Trade Union’s representative, the domestic courts also paid no attention to the trade union context when analysing its contents. This prevented the domestic courts from applying the relevant standards and appropriately assessing the pertinent facts, which led to contradictory conclusions. For example, the courts stated that the applicant had written the letter to obtain socio-economic benefits for herself, even though the majority of the issues addressed in the letter had not personally applied to her. Similarly, the courts concluded that the applicant had been under an obligation to stop performing her employment duties if she considered that there were circumstances affecting aeronavigation safety, even though she herself had not caried out the ATCO training that had been subjected to unrecorded overtime work.", "106. The Government argued that the letter contained statements about threats to aeronavigation safety, which had gone beyond the scope of legitimate trade union interests. However, the Court observes that after describing various shortcomings in the organisation of ATCO work, including unregistered overtime work, the letter submitted that these deficiencies could fatigue the employees, demoralise them, cause senior staff to leave and reduce the quality of the training. It further inferred that this, in turn, could lower flight safety and the sustainability of LGS (see paragraphs 11 ‑ 16 above).", "107. The Court reiterates that drawing inferences from existing facts is generally intended to convey opinions and is thus more akin to value judgments (see Marunić v. Croatia, no. 51706/11, § 61, 28 March 2017). Moreover, in the circumstances of the present case, these inferences could be regarded as a professional assessment of the potential impact of the identified deficiencies. However, the domestic courts, in finding that the applicant had distributed “untruthful information” and “untruthful opinion”, looked at the statements concerning the potential consequences and verified only whether those potential consequences had already occurred. In particular, they relied on documents and statements attesting, in general terms, that air traffic was safe and that ATCOs were not endangering aeronavigation safety. At the same time, they did not verify the statements of facts that had formed the basis for these inferences and did not analyse whether the deficiencies alleged had indeed existed. Most notably, the domestic courts did not determine whether the ATCO training had indeed taken place on the basis of unregistered overtime work, despite evidence supporting that allegation being presented at a hearing (see paragraph 31 above). Accordingly, the domestic courts failed to carry out a proper assessment of whether the existence of facts stated in the letter had been demonstrated and whether the opinions expressed therein had had a sufficient factual basis.", "108. The documents submitted to the Court indicate that the statements made in the letter were not devoid of factual grounds and did not amount to a gratuitous attack on the LGS board. They constituted a description of labour-related concerns and were made within the legitimate aim of protecting the labour-related interests of the Trade Union members and the effective performance of their work. They did not exceed the limits of acceptable criticism (compare Heinisch, §§ 79 and 85, and contrast Szima, § 31, and Palomo Sánchez and Others, § 67, all cited above). In addition, the Court notes that while employees have a duty of loyalty, reserve and discretion to their employer and certain expressions that may be legitimate within other contexts are not appropriate in labour relations (see the above ‑ cited cases of Guja, § 70; Trade Union of the Police in the Slovak Republic and Others, § 57; Palomo Sánchez and Others, § 76; and Herbai, § 38; though for the limits of this duty with respect to the freedom of expression see Marunić, cited above, § 52), within the context of trade union activities, criticism of social or economic policies or occupational safety and health measures constitutes a legitimate trade union activity and employees’ right that is guaranteed under Article 11. The duty of loyalty cannot be relied upon to deprive trade unions and their representatives of the very essence of their right to defend their members’ interests.", "109. With respect to the argument about the potential damage that could be caused by disseminating the information included in the letter, the Court points out that the letter was only sent to the State officials that oversaw the employer – a State owned company – and was not published or otherwise distributed to the wider public (compare Matalas v. Greece, no. 1864/18, § 55, 25 March 2021). The public shareholder in a State-owned company such as LGS had a right to be informed of matters affecting the socio ‑ economic circumstances and well-being of the staff and potentially influencing the quality and safety of the service provided (compare Heinisch, cited above, § 89). In fact, addressing the issues raised in the Trade Union letter could only have served the interests of the employer and the public, which is even further augmented by the fact that the letter discussed potential breaches of safety and health regulations in a “safety critical” environment. The Court therefore acknowledges that the ATCOs work, by its very essence, is related to public safety. The Court cannot, however, conclude in the circumstances of the present case that the detriments imposed on the applicant for seeking to protect the labour-related interests of the Trade union members and safeguard the performance of their duties pursued the legitimate aim of protecting the rights and freedoms of the wider public or public safety, as argued by the Government.", "110. With respect to the nature and severity of the repercussions, the Court considers that they were exceptionally harsh and clearly incompatible with the exercise of a legitimate trade union activity. By disregarding the trade union context the domestic courts ignored the applicant’ s position as a trade union representative and made her individually responsible for the Trade Union’s decision to communicate the grievances of its members to the employer’s owner. Furthermore, these sanctions were particularly punitive with respect to the applicant, given the sector she was employed in – LGS was the sole employer of civilian ATCOs in Latvia and her dismissal meant that her career as an ATCO in Latvia was terminated, with undeniable consequences for her private and professional life (compare Vogt v. Germany, 26 September 1995, § 60, Series A no. 323, and Gawlik, cited above, § 84).", "111. The Court additionally notes that the detriments imposed on the applicant were in themselves capable of having a chilling effect on the Trade Union’s members (compare Ognevenko, cited above, § 83). However, there were still further actions taken by the LGS board – as confirmed by the case materials – that were directed at the Trade Union’s members, such as requiring them to sign statements under the threat of suspension, pressuring them to distance themselves from the Trade Union letter and the applicant, and calling for the Trade Union’s leadership to be changed (see paragraphs 17, 19, 20, 22 and 28 above), that were clearly aimed at exerting pressure on them.", "(iii) Conclusion", "112. While the Court is mindful of the fundamentally subsidiary role of the Convention system, in the present case the domestic courts cannot be said to have applied standards that were in conformity with the principles deriving from Article 11 of the Convention, read in the light of Article 10, or to have based themselves on an acceptable assessment of the relevant facts. The Court accordingly concludes that the detriments imposed on the applicant were not compatible with the strict requirement of a “pressing social need” and were not proportionate to the legitimate aim pursued, and therefore could not be regarded as “necessary in a democratic society”.", "113. There has accordingly been a violation of Article 11 of the Convention, read in the light of Article 10.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "114. The applicant complained that the hearings had been held in closed sessions and that the judgments were not available to the public, contrary to Article 6 of the Convention, which reads as follows:", "“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. ...”", "Admissibility", "115. The Government submitted that the applicant could not claim to be a victim in relation to this complaint, as she had participated in all court hearings and had received the full texts of the judgments.", "116. The applicant did not comment on this point.", "117. The Court observes that the applicant’s complaint did not address her own participation in the proceedings within the context of her ability to present her case effectively but rather the exclusion of the public from the hearings and the absence of any public pronouncement of the judgments, depriving her of the right to have the administration of justice subjected to public scrutiny. The Court reiterates that the right to a public hearing and public pronouncement of judgments constitutes a fundamental principle enshrined in Article 6. The applicant’s complaint concerns proceedings to which she was a party; therefore, she is the direct victim of the violation complained of. The Government’s objection is therefore dismissed.", "118. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe applicant", "The applicant", "The applicant", "119. The applicant complained that all the domestic courts had held their hearings in closed sessions, so the public had been unable to hear the evidence submitted and to scrutinise the court proceedings. Moreover, the judgments, aside from the operative parts thereof, had been secret too, so the public had not been able to evaluate the reasoning contained therein. That had deprived the applicant of the possibility of having her case sympathetically reported by the media. The case was of great importance for trade unionists, who could know only that the courts had upheld as legitimate a battery of what she considered discriminatory measures that had culminated in her dismissal. This had a chilling effect on trade unions.", "120. There had been no valid reason for the courts to sit in camera. There had been nothing confidential about the issues raised by the letter, and no matters of national security had arisen in this case. The Government’s argument about the need to protect “the specific and vulnerable nature of the State sector” had not come close to the threshold of invoking national security as grounds for excluding the public. The Security Police document that had been classified as “restricted” had been the report stating the applicant had committed no breaches of security. Similarly, the evidence about the applicant’s state of health had merely indicated that she was perfectly healthy.", "The Government", "121. The Government argued that the first-instance court had held five hearings, of which three had been closed, one had been partly closed, and one had been open to the public, thus at this level of jurisdiction some publicity had been ensured. The decision to hold closed hearings had been based on (i) the need to protect “information about the specific and vulnerable nature of the State sector where the company [provided] its services”, (ii) a document issued by the Security Police with a “restricted” classification status, (iii) the fact that during the three closed hearings specific internal procedures governing aeronavigation services had been discussed, and (iv) one of the witnesses had given testimony regarding the applicant’s state of health.", "122. The operative parts of court judgments were always pronounced in public, and this rule had also been followed in this case. Full texts of the judgments in cases that had been examined in closed hearings were generally not available to the public; however, third persons could access anonymised copies of those judgments if they lodged a reasoned request with the court and their necessity was sufficiently justified. Such requests were then reviewed by the president of the court. Hence, even though the judgments in the present case were not widely accessible online or in the court’s registry, there were other means of obtaining them, which had been effectively used by researchers and students.", "The third-party interveners", "123. The European Transport Workers’ Federation, the European Trade Union Confederation, and the International Federation of Air Traffic Controllers’ Associations all emphasised the importance of public hearings in cases involving allegations of oppression of trade union representatives. Such publicity protected the litigants against administration of justice in secret and without public scrutiny. A reference to flight safety was not sufficient for the exclusion of the public.", "The Court", "(a) The relevant principles", "124. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle that is enshrined in paragraph 1 of Article 6. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1 – namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society (see, for example, Martinie v. France [GC], no. 58675/00, § 39, ECHR 2006 ‑ VI; Malhous v. the Czech Republic [GC], no. 33071/96, § 55, 12 July 2001; and Nikolova and Vandova v. Bulgaria, no. 20688/04, § 67, 17 December 2013). These principles apply to both the public holding of hearings and to the public delivery of judgments, which have the same purpose (see Fazliyski v. Bulgaria, no. 40908/05, § 64, 16 April 2013).", "125. Article 6 § 1 does not prohibit courts from derogating from these principles on the grounds listed in this provision in the event that holding proceedings in camera, either wholly or partly, is strictly required by the circumstances of the case in question (see the above-cited cases of Martinie, § 40, and Nikolova and Vandova, § 68). However, Article 6 § 1 encompasses a procedural obligation on the part of the courts to consider whether the exclusion of the public from a particular set of proceedings is necessary in the specific circumstances in order to protect the public interest, and to confine the measure to what is strictly necessary in order to attain the objective pursued (see Nikolova and Vandova, cited above, § 74).", "126. As to the requirement that judgments be publicly pronounced, the Court has applied some degree of flexibility. Despite the wording of Article 6 § 1, which would seem to suggest that reading a judgment out in open court is required, other means of rendering it public may be compatible with that provision. As a general rule, the form of publicity to be given to the judgment under domestic law must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1 (see Moser v. Austria, no. 12643/02, § 101, 21 September 2006, and Lorenzetti v. Italy, no. 32075/09, § 37, 10 April 2012). Even where full disclosure could compromise national security or the safety of others, the courts can use techniques that could accommodate legitimate security concerns without fully negating fundamental procedural guarantees such as the publicity of judicial decisions (see Fazliyski, cited above, § 69, and Raza v. Bulgaria, no. 31465/08, § 53, 11 February 2010).", "(b) The application of the relevant principles", "(i) The right to a public hearing", "127. According to the material presented to the Court, before the first ‑ instance court the first hearing, which was public, was adjourned prior to the examination of the merits of the case, as the defendant lodged a counterclaim. During the second hearing, the first-instance court decided to examine the case in closed proceedings for the purposes of the “more efficient and successful administration of justice” (see paragraph 30 above). By contrast, the appellate court cited section 11(3)(1) of the Civil Procedure Law, which allows for closed hearings when they are “necessary for the protection of a State secret or a commercial secret”, without giving any further reasons (see paragraphs 39 and 53 above). The appeal on points of law was examined in written proceedings. Accordingly, the Court observes that no public hearing within the meaning of Article 6 § 1 was held in respect of the merits of the applicant’s case.", "128. However, the Court is unable to conclude that the exclusion of the public was demonstrated as being required in order to protect the public interests listed in Article 6 § 1 and that the domestic courts complied with their procedural obligation to carefully consider the necessity for such a measure. Firstly, the domestic courts did not invoke any grounds that would correspond to the exceptions laid down in the second sentence of Article 6 § 1 (compare Malhous, cited above, § 56). Secondly, they provided no explanation as to how the grounds that they did rely on related to the circumstances of the case. The mere reference to a “more efficient and successful administration of justice” made by a first-instance court without further elaboration is not sufficient to justify the exclusion of the public from trial proceedings. Moreover, the courts have not stated and the Government have not argued that the case concerned State secrets or commercial secrets; therefore, the appellate court’s reference to the need to preserve such secrecy as grounds for excluding the public cannot be sustained. The only document that did have “restricted” status indicated that the applicant had committed no breaches of security, and in any case had limited relevance to the dispute in question. It clearly could not serve as grounds for excluding the public.", "129. With respect to the argument advanced by LGS and reiterated by the Government to the effect that the case concerned sensitive information regarding flight safety, the Court notes that also this consideration was not analysed by the domestic courts to justify the closed hearing. The case concerned the question of whether the applicant as a trade union representative could be penalised for expressing the opinion that deficiencies in ATCOs’ employment and training conditions could affect flight safety in the future. The Court has not been presented with information demonstrating that in determining this question the domestic courts needed to examine sensitive information on flight safety justifying the exclusion of the public. On the other hand, the case dealt with a fundamental aspect of the trade union freedom. Not only did it directly affect the Trade Union that the applicant represented, it was also of great importance to other trade unions, which manifested their interest by requesting the appeal court to hold the hearing in public and by holding a public demonstration outside the courthouse (see paragraph 39 above). In the present case the specific nature of the subject matter rendered the need for public scrutiny particularly strong (compare Lorenzetti, cited above). Despite that, the domestic courts did not carry out an assessment on whether the exclusion of the public from the proceedings was necessary, and did not attempt to confine the measure to what was strictly necessary in order to attain the objective pursued.", "(ii) The right to the public delivery of judgments", "130. The Court observes that none of the judgments were pronounced publicly, with only the operative part of the appellate court’s judgment being read out in a public hearing (see paragraphs 32, 40 and 42 above). Hence, it has to be established whether the publicity of those judgments was sufficiently ensured by other means.", "131. Where public hearings have been held by lower instance courts the Court has deemed that the requirement of publicity was ensured if anyone who established an interest could consult the judgment or obtain a copy at the registry, coupled with the fact that decisions of special interest were routinely published (see Lorenzetti, cited above, §§ 37 ‑ 38, and the references cited therein). Where, however, dispensing with a public hearing was not justified, such means of rendering decisions public was not considered sufficient to have ensured compliance with the requirements of Article 6 § 1 (see Moser, cited above, § 103).", "132. In the present case, the full texts of the judgments were not available to the public owing to the fact that the case was examined in closed hearings. Even though the Government argued that requests could be lodged for anonymised copies of the judgments, interested persons had to provide sufficient justification for such a request, and the decision was left to the discretion of the president of the court in question. This option appeared to be primarily intended to accommodate requests lodged for research purposes, and the Government have not shown that there were rules or practice ensuring that requests were granted systematically. Seeing that the decisions to examine the instant case in closed hearings were not sufficiently justified, the available means for rendering the decisions public were not sufficient to meet the requirement that judgments be pronounced publicly.", "(iii) Conclusion", "133. In the present case, the object pursued by Article 6 § 1 – that of ensuring the scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial – was not achieved, as the reasoning that might have made it possible to understand why the applicant’s claims had been rejected was inaccessible to the public (compare Ryakib Biryukov v. Russia, no. 14810/02, § 45, ECHR 2008). There has accordingly been a violation of Article 6 of the Convention with respect to the failure to ensure the rights to both a public hearing and the public delivery of the judgments.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "134. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "135. The applicant claimed 103,446.98 euros (EUR) in respect of pecuniary damage. The claim was composed of EUR 5,335.43 regarding salary arrears from 14 May 2012 until 26 June 2012, when the applicant had been suspended without pay, plus an additional sum of EUR 98,111.55 regarding the income that she would have earned up until 31 March 2017 had she not been dismissed (minus the income that she had acquired after her dismissal from other sources). The applicant also claimed EUR 50,000 in respect of non ‑ pecuniary damage.", "136. The Government considered that a finding of a violation would constitute sufficient redress in respect of both pecuniary and non-pecuniary damage sustained. As to the calculation of the applicant’s unpaid salary during her suspension, they noted that the applicant’s calculation was based on her gross daily wage (EUR 172.11) and should rather be based on her basic net daily wage, which excluded all benefits and bonuses (EUR 127.65).", "137. The Court considers that the pecuniary damage sustained owing to the revocation of the applicant’s pay during the suspension period was the direct consequence of the violation of Article 11 found. The Court further observes that the applicant has submitted a calculation, issued by the LGS’ accountancy department on 16 July 2012, concerning her gross daily wage for the past six months prior to her suspension (120.96 Latvian lati or EUR 172.11, applying the fixed exchange rate), which according to the Latvian Labour Law had to be used when calculating compensation for unjustified suspension. The Court also notes that the benefits and bonuses formed an integral part of the applicant’s salary and there is no reason to assume that she would not have received those payments, had the violation of Article 11 not occurred.", "138. With respect to the remainder of the claims regarding pecuniary damage, the Court observes that they concern the income the applicant would have received had she not been dismissed. However, the applicant’s claim that she would have continued working on the same post and earned the same salary until 31 March 2017, that is, until the moment she formulated her just satisfaction claim sent to the Court on 4 April 2017, is speculative. Also, it would be speculative for the Court to assume that the full difference between the applicant’s salary before her dismissal and the income she earned after that was a direct consequence of her dismissal. Nonetheless, the Court considers that the applicant must have suffered pecuniary damage as a result of her dismissal. The Court also notes that owing to the domestic prescription periods (see paragraph 50 above) the applicant can no longer bring a claim concerning her unfair dismissal.", "139. The Court further finds that the applicant has suffered non ‑ pecuniary damage on account of the breaches of Article 6 § 1 and Article 11 of the Convention, read in the light of Article 10.", "140. Consequently, ruling on an equitable basis, the Court awards the applicant EUR 25,000, plus any tax that may be chargeable, with respect to both pecuniary and non-pecuniary damage.", "Costs and expenses", "141. The applicant also claimed EUR 4,607.62 for the costs and expenses incurred before the domestic courts and EUR 6,954.66 for those incurred before the Court.", "142. The Government agreed to the costs and expenses claimed with respect to the domestic proceedings, noting only that according to the official conversion rate the sum should be set at EUR 4,588.76. However, with respect to the costs and expenses incurred before the Court, the Government argued that there was no proof that those costs had been actually and necessarily incurred, as only invoices (but no proof of payment) had been submitted. They also argued that the costs claimed were exorbitant and unreasonable.", "143. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. A representative’s fees are actually incurred if the applicant has paid them or is liable to pay them (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017). In the present case, the invoices submitted by the applicant demonstrate her obligation to pay the legal fees charged by her British representatives with respect to the proceedings before the Court. Accordingly, regard being had to the documents in its possession and the above-noted criteria, the Court considers that the legal costs claimed by the applicant with respect to the domestic proceedings and the proceedings before the Court both were actually incurred and relate to the violations it has found. It does not agree with the Government that the claim for costs is excessive. Accordingly, the Court considers it reasonable to award the sum of EUR 11,562.28 covering costs under all heads, plus any tax that may be chargeable to the applicant.", "Default interest", "144. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The first applicant was born in 1951 and lives in Šiauliai. The second applicant was born in 1962 and lives in Vilnius.", "The facts of the case, as submitted by the parties, may be summarised as follows.", "A. The first applicant", "11. In 1974 the first applicant graduated from the Lithuanian Physical Culture Institute, qualifying as a certified sports instructor.", "12. From 1975 to 1986 he was an employee of the Lithuanian branch of the Soviet Security Service (the KGB). After Lithuania declared its independence in 1990, he found employment as a tax inspector at the Inland Revenue.", "13. On 31 May 1999 two authorities – the Lithuanian State Security Department and the Centre for Research into the Genocide and Resistance of the Lithuanian People – jointly concluded that the first applicant was subject to the restrictions provided under section 2 of the Law on the evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the present activities of former permanent employees of the organisation (“the KGB Act” – see paragraph 24 below). The conclusion confirmed that the first applicant had the status of a “former KGB officer” (see paragraphs 26- 27 below). On 2 June 1999 the first applicant was dismissed from the Inland Revenue on the basis of that conclusion.", "14. The first applicant brought an administrative action against the security intelligence authorities, claiming that he had been engaged only in counterintelligence and ideology work while employed by the KGB, and that he had not been involved in the violation of individual rights by that organisation. He argued that his dismissal under section 2 of the KGB Act and the resultant inability to find employment were therefore unlawful.", "15. On 9 September 1999 the Higher Administrative Court found that the conclusion of 31 May 1999 had been substantiated and that the first applicant was subject to the restrictions provided under section 2 of the KGB Act. In this respect, the court held that the applicant had the status of a “former KGB officer” within the meaning of the KGB Act, since he had occupied one of the positions mentioned in the list of 26 January 1999.", "16. On 19 October 1999 the Court of Appeal dismissed the first applicant ’ s appeal. It found that he had not occupied a KGB position dealing only with criminal investigations and could not therefore benefit from the exceptions listed under section 3 of the KGB Act.", "B. The second applicant", "17. On an unspecified date in the 1980s, the second applicant graduated from Vilnius University as a qualified lawyer.", "18. From 11 February 1991 he worked as a prosecutor at the Office of the Prosecutor General of Lithuania, investigating primarily cases of organised crime and corruption.", "19. On 26 May 1999 the Lithuanian State Security Department and the Centre for Research into the Genocide and Resistance of the Lithuanian People jointly concluded that from 1985 to 1991 the second applicant had been an employee of the Lithuanian branch of the KGB, that he had the status of a “former KGB officer” and that he was thereby subject to the restrictions provided under section 2 of the KGB Act. On 31 May 1999 the second applicant was dismissed from his job at the Office of the Prosecutor General on the basis of that conclusion.", "20. The second applicant brought an administrative action against the security intelligence authorities and the Office of the Prosecutor General. He claimed that from 1985 to 1990 he had merely studied at a special KGB school in Moscow and that from 1990 to 1991 he had worked in the KGB as an informer for the Lithuanian security intelligence authorities and should therefore be entitled to benefit from the exceptions under section 3 of the KGB Act. He claimed that his dismissal under the Act and his resultant inability to find employment were unlawful.", "21. On 6 August 1999 the Higher Administrative Court allowed the second applicant ’ s claim, quashed the conclusion of 26 May 1999 and ordered him to be reinstated. The court found that the period of the second applicant ’ s studies at the KGB school from 1985 to 1990 was not to be taken into account for the purposes of the KGB Act, that he had worked in the KGB for a period of five months in 1990-91, that he had not occupied a KGB position dealing with political investigations and that, in any event, he had been a secret informer for the Lithuanian authorities. The court concluded that the exceptions under section 3 of the KGB Act applied to the second applicant and that his dismissal had therefore been unlawful.", "22. Following an appeal by the security intelligence authorities, on 25 October 1999 the Court of Appeal quashed the judgment of 6 August 1999. It held that, although the first-instance court had properly found that the second applicant had worked at the KGB for only five months, it had not been established that he had worked there as a secret informer for the Lithuanian authorities. Accordingly, he could not benefit from the exceptions under section 3 of the KGB Act.", "23. The second applicant appealed against the Court of Appeal ’ s judgment. By a decision of 28 January 2000, the President of the Supreme Court allowed the appeal. However, by a final decision of 20 April 2000, the full Supreme Court refused to examine the appeal and discontinued the proceedings for lack of jurisdiction." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "24. The Law on the evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the present activities of former permanent employees of the organisation ( Įstatymas dėl SSRS valstybės saugumo komiteto (NKVD, NKGB, MGB, KGB) vertinimo ir šios organizacijos kadrinių darbuotojų dabartinės veiklos – “the KGB Act” ) was enacted on 16 July 1998 by the Seimas ( the Lithuanian parliament) and promulgated by the President of the Republic. The KGB Act reads as follows:", "Section 1 Recognition of the USSR State Security Committee as a criminal organisation", "“The USSR State Security Committee (NKVD, NKGB, MGB, KGB – hereinafter ‘ the SSC ’ ) is recognised as a criminal organisation which was responsible for war crimes, genocide, repression, terror and political persecution in the territory of Lithuania when occupied by the USSR. ”", "Section 2 Restrictions on the present activities of permanent employees of the SSC", "“ For a period of ten years from the date of entry into force of this Act, former employees of the SSC may not work as public officials or civil servants in government, local or defence authorities, the State Security Department, the police, the prosecution, courts or diplomatic service, customs, State supervisory bodies and other authorities monitoring public institutions, as lawyers or notaries, as employees of banks and other credit institutions, on strategic economic projects, in security companies (structures), in other companies (structures) providing detective services, in communications systems, or in the educational system as teachers, educators or heads of institutions[;] nor may they perform a job requiring the carrying of a weapon. ”", "Section 3 Cases in which the restrictions shall not be applied", "“ ( 1 ) The restrictions provided for in section 2 shall not be applied to former permanent employees of the SSC who, while working at the SSC, investigated only criminal cases and who discontinued their work at the SSC not later than 11 March 1990.", "( 2 ) The Centre for Research into the Genocide and Resistance of the Lithuanian People and the State Security Department may [recommend by] a reasoned application that no restrictions under this law be applied to former permanent employees of the SSC who, within three months of the date of the entry into force of this Law, report to the State Security Department and disclose all information in their possession ... about their former work at the SSC and their current relations with former SSC employees and agents. A decision in this respect shall be taken by a commission of three persons set up by the President of the Republic. No employees of the Centre for Research into the Genocide and Resistance of the Lithuanian People or the State Security Department may be appointed to the commission. The commission ’ s rules shall be confirmed by the President of the Republic. ”", "Section 4 Procedure for implementation of the Act", "“ The procedure for implementation of the Act shall be governed by [a special law]. ”", "Section 5 Entry into force of the Act", "“ This Act shall come into force on 1 January 1999 .”", "25. Following the examination by the Constitutional Court of the compatibility of the KGB Act with the Constitution (see paragraph 28 below), on 5 May 1999 section 3 of the KGB Act was amended to the effect that even those individuals who had worked for the KGB after 11 March 1990 could be eligible for the exceptions under section 3 of that Act.", "26. On 16 July 1998 a separate law on the implementation of the KGB Act was enacted. Under that law, the Centre for Research into the Genocide and Resistance of the Lithuanian People and the State Security Department were empowered to reach a conclusion on an individual ’ s status as a “former permanent employee of the KGB” (“former KGB officer”) for the purposes of the KGB Act.", "27. On 26 January 1999 the Government adopted a list (“the list”) of positions in various branches of the KGB on Lithuanian territory attesting to a person ’ s status as a “ former KGB officer” for the purposes of the KGB Act. A total of 395 different positions were listed in this respect.", "28. On 4 March 1999 the Constitutional Court examined the issue of the KGB Act ’ s compatibility with the Constitution. The Constitutional Court held in particular that the KGB Act had been passed in order to carry out “ security screening ” measures on former KGB officers, who were deemed to be lacking in loyalty to the Lithuanian State. The Constitutional Court decided that the prohibition on former KGB officers occupying public posts was compatible with the Constitution. It further ruled that the statutory ban on the holding by former KGB officers of jobs in various branches of the private sector was compatible with the constitutional principle of a free choice of profession in that the State was entitled to lay down specific requirements for persons applying for work in the most important economic sectors in order to ensure the protection of national security and proper functioning of the educational and financial systems. The Constitutional Court also held that the restrictions under the KGB Act did not amount to a criminal charge against former KGB officers.", "29. While the KGB Act does not specifically guarantee a right of access to a court to contest the security intelligence authorities ’ conclusion, it was recognised by the domestic courts that, as a matter of practice, a dismissal from employment in the public service on the basis of that conclusion gave rise to an administrative court action (and a further appeal) under the general procedure governing industrial disputes and alleged breaches of personal rights by the public authorities, under Articles 4, 7, 8, 26, 49, 50, 59, 63 and 64 of the Code of Administrative Procedure, Article 222 of the Civil Code and Article 336 of the Code of Civil Procedure ( as in force at the material time).", "III. PROVISIONS OF INTERNATIONAL LAW AND CERTAIN NATIONAL LEGAL SYSTEMS RELATING TO EMPLOYMENT RESTRICTIONS ON POLITICAL GROUNDS", "30. Restrictions have been imposed in many post-communist countries with a view to screening the employment of former security agents or active collaborators in the former regimes. In this connection, international human rights bodies have at times found fault with such legislation where it has lacked precision or proportionality, and have characterised it as discrimination in employment or the exercise of a profession on the basis of political opinion (see below). The possibility of appealing to the courts has been considered a significant safeguard, although not sufficient in itself to rectify shortcomings in the legislation.", "31. Article 1 § 2 of the European Social Charter provides:", "“With a view to ensuring the effective exercise of the right to work, the Parties undertake:", "...", "2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon[.]”", "This provision, retained word for word in the revised Charter of 1996 (which came into force with regard to Lithuania on 1 August 2001), has been consistently interpreted by the European Committee of Social Rights (ECSR) as establishing a right not to be discriminated against in employment. The non-discrimination guarantee is stipulated in Article E of the revised Charter in the following terms:", "“The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.”", "The question of the dismissal of public servants on account of their activities under totalitarian regimes has been addressed in the light of these provisions, at least as regards Germany. In its most recent examination of Germany ’ s compliance with Article 1 § 2 of the Charter (published in November 2002), the ECSR took note of the provisions of the reunification treaty that allow for the dismissal of public servants on the basis of their activities on behalf of the security services of the German Democratic Republic. It concluded that Germany was not complying with its obligations. This was expanded upon in the following terms:", "“The Committee observes that there is no precise definition of the functions from which individuals can be excluded, either in the form of a refusal to recruit or a dismissal, on the grounds of previous political activities or activities within the former GDR institutions competent in security matters.", "The Committee has examined the conformity of these provisions in the light of Article 31 of the Charter. Under this provision, restriction of a right enshrined in the Charter is permitted if it is prescribed by law, is necessary in a democratic society and serves one of the purposes listed in the Article. Whilst recognising that the provisions were prescribed by law within the meaning of Article 31 and served one of the purposes listed therein, namely the protection of national security, the Committee considered that they were not necessary within the meaning of Article 31 in that they did not apply solely to services which had responsibilities in the fields of law and order and national security or to functions involving such responsibilities. ”", "The ECSR adopted its conclusions in regard to Lithuania ’ s implementation of the revised Charter on 28 May 2004. They will be made public at a later date.", "32. The International Labour Organisation (ILO) has also adopted a number of relevant international legal instruments. The most pertinent text is ILO Convention no. 111 on Discrimination (Employment and Occupation) of 1958. In its 1996 General Survey, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) restated its interpretation of Convention no. 111, drawing upon examples taken from national law. Regarding Germany, the CEACR ’ s position was the following ( § 196):", "“The Committee does not accept the argument that in cases in which persons had been accused of having carried out political activities in the former German Democratic Republic, the more the person had, by the assumption of certain functions, identified himself or herself with that unjust regime, the more incriminated he or she was, and the less reasonable it was that this person hold a position in the current administration.”", "More recently, however, the CEACR has expressed satisfaction with the German courts ’ observance of the principle of proportionality in cases where civil servants challenge their dismissal (see paragraph 3 of the Individual Observation to Germany under Convention no. 111 in 2000).", "A 1996 survey identifies comparable provisions in the domestic law of a number of other European States.", "In Bulgaria, section 9 of the Preceding and Concluding Provisions of the Banks and Credit Activity Act of 1992 excluded persons who had served the previous regime in certain capacities from employment in banks. The Bulgarian Constitutional Court ruled in 1992 that this provision was in violation of the Constitution and of ILO Convention no. 111.", "In the former Czechoslovakia, the so-called Screening Act was passed in 1991, preventing persons who had served the previous regime in a number of capacities from taking up employment in the civil service or parts of the private sector. This legislation was declared unconstitutional by the Slovak Constitutional Court in 1996, which further found it to be incompatible with Convention no. 111. However, it remained in force in the Czech Republic, while the CEACR urged the Czech authorities to have due regard to the principle of proportionality in the application of the Act.", "In Latvia, the State Civil Service Act of 2000 and the Police Act of 1999 prohibit the employment of persons who worked for or with the KGB. In 2003 the CEACR expressed its dissatisfaction with the above texts in the following terms:", "“6. The Committee recalls that requirements of a political nature can be set for a particular job, but to ensure that they are not contrary to the Convention, they should be limited to the characteristics of a particular post and be in proportion to its labour requirements. The Committee notes that the above - established exclusions by the provisions under examination apply broadly to the entire civil service and police rather than to specific jobs, functions or tasks. The Committee is concerned that these provisions appear to go beyond justifiable exclusions in respect of a particular job based on its inherent requirements as provided for under Article 1 (2) of the Convention. The Committee recalls that for measures not to be deemed discriminatory under Article 4, they must be measures affecting an individual on account of activities he or she is justifiably suspected or proved to be engaged in which are prejudicial to the security of the State. Article 4 of the Convention does not exclude from the definition of discrimination measures taken by reason of membership of a particular group or community. The Committee also notes that in cases where persons are deemed to be justifiably suspected of or engaged in activities prejudicial to the security of the State, the individual concerned shall have the right to appeal to a competent body in accordance with national practice.", "7. In the light of the above, the Committee considers the exclusions from being a candidate for any civil service position and from being employed by the police are not sufficiently well defined and delimited to ensure that they do not become discrimination in employment and occupation based on political opinion ...”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14", "33. The applicants stated that the current ban under section 2 of the KGB Act on their finding employment in various branches of the private sector breached Article 8 of the Convention, taken alone and in conjunction with Article 14.", "Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14 states:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "34. The Government submitted that Article 8 was not applicable in the present case as that provision did not guarantee a right to retain employment or to choose a profession. They further stated that, in any event, the application of the KGB Act to the applicants served the legitimate purpose of protecting national security and was necessary in a democratic society. According to the Government, the KGB Act constituted no more than a justified security screening measure intended to prevent former employees of a foreign secret service from working not only in State institutions but also in other spheres of activity which were important to the State ’ s national security. The KGB Act itself did not impose collective responsibility on all former KGB officers without exception. It provided for individualised restrictions on employment prospects by way of the list of positions in the former KGB which warranted application of the restrictions under section 2 of the KGB Act (see paragraph 27 above). The fact that the applicants were not entitled to benefit from any of the exceptions provided for in section 3 of the KGB Act showed that there existed a well - founded suspicion that the applicants lacked loyalty to the Lithuanian State. Given that not all former employees of the KGB were affected by the KGB Act, Article 14 of the Convention was not applicable. Accordingly, there was no violation of Article 8 of the Convention, either taken alone or in conjunction with Article 14.", "35. The applicants contested the Government ’ s submissions. They complained in particular that they had been deprived of the possibility of seeking employment in various branches of the private sector until 2009 on the basis of their status as former KGB officers. They submitted that they had been given no opportunity under the KGB Act either to present their personal cases for evaluating and establishing their loyalty to the State or to avoid the application to them of the employment restrictions provided under section 2. In particular, the first applicant stressed that he had left the KGB in 1986 and the second applicant that he had left in 1990, thirteen and nine years respectively before the entry into force of the KGB Act. Furthermore, the first applicant contended that thereafter he had been actively involved in various activities promoting Lithuania ’ s independence. For his part, the second applicant submitted that he had been decorated as a prosecutor for his work in investigating various offences, including crimes against the State. However, none of those facts had been examined by the domestic courts, which had imposed restrictions on their future employment solely on the ground of their former employment in the KGB. Finally, the applicants submitted that as a result of the negative publicity caused by the enactment of the KGB Act and its application to them, they had suffered constant embarrassment on account of their past.", "A. Scope of the applicants ’ complaints", "36. The Court notes that the applicants ’ complaints under Article 8, taken alone or in conjunction with Article 14, do not concern their dismissal from their former employment as, respectively, a tax inspector and prosecutor. Furthermore, this part of the application is not directed against their inability to find employment as public servants. The applicants ’ complaints under Article 8 of the Convention, taken alone or in conjunction with Article 14, concern only the ban imposed on them until 2009 on applying for jobs in various branches of the private sector. This ban, effective since 1 999, relates to the following private sector activities listed in section 2 of the KGB Act: “ [work] as lawyers or notaries, as employees of banks and other credit institutions, on strategic economic projects, in security companies (structures), in other companies (structures) providing detective services, in communications systems or in the educational system as teachers, educators or heads of institutions[;] ... [work] requiring the carrying of a weapon.”", "37. The applicants complained that employment restrictions had been imposed on them on the basis of their former employment with the KGB. They essentially alleged discrimination in this respect. Therefore, the Court will first examine their complaints under Article 14 of the Convention taken in conjunction with Article 8, and will then examine their complaints under Article 8 alone.", "B. Applicability of Article 14", "38. The Court reiterates that Article 14 of the Convention protects individuals in similar situations from being treated differently without justification in the enjoyment of their Convention rights and freedoms. This provision has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable, it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see, mutatis mutandis, Inze v. Austria, judgment of 28 October 1987, Series A no. 126, p.17, § 36).", "39. The Court will therefore establish, firstly, whether there has been a difference in treatment of the applicants, and, if so, whether the facts of the case fall within the ambit of Article 8 of the Convention, in order to rule on the applicability of Article 14.", "1. Whether there has been a difference of treatment", "40. The Court observes that, according to the Government, the fact of the applicants ’ KGB history cannot give rise to a complaint under Article 14 because not all former KGB officers were subjected to restrictions under the KGB Act. The Government stated that the reason for the enactment of the KGB Act and the employment restrictions imposed on the applicants was the lack of loyalty to the State on the part of former KGB officers. The Court observes that the KGB Act did not restrict the employment prospects of all former collaborators of the Soviet Security Service. Firstly, only those persons who had occupied the positions mentioned in the list of 26 January 1999 were considered to have the status of “former KGB officers” (see paragraph 27 above). Secondly, even those persons deemed to have that status could benefit from the amnesty rule mentioned in section 3 of the KGB Act if they had been engaged only in criminal, as opposed to political, investigations during their time at the KGB (see paragraph 24 above). Thirdly, there was the option of applying to the special presidential commission within a three - month period following the KGB Act ’ s entry into force on 1 January 1999, asking the commission, in the exercise of its discretion, to lift any restrictions which may have been applied (see paragraph 24 above). Finally, it also appears from the impugned domestic proceedings in the instant case that the domestic courts took into consideration whether the applicants had been informers for the Lithuanian authorities immediately after the declaration of independence in 1990 as a possible ground for relieving them of the employment restrictions imposed on them (see paragraph 22 above).", "41. However, the fact remains that the applicants were treated differently from other persons 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. In addition, in view of the Government ’ s argument that the purpose of the KGB Act was to regulate the employment prospects of persons on the basis of their loyalty or lack of loyalty to the State, there has also been a difference of treatment between the applicants and other persons in this respect. For the Court, this is the appropriate comparison in the instant case for the purposes of Article 14.", "2. Whether the facts complained of fall within the ambit of Article 8", "42. It remains to be examined whether the applicants ’ inability to apply for various jobs in the private sector as a result of section 2 of the KGB Act has impinged on their “private life” as protected by Article 8 of the Convention.", "43. The Court has on a number of occasions ruled that “private life” is a broad term not susceptible to exhaustive definition (see, as a recent authority, Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003-I ). It has nevertheless also observed that Article 8 protects the moral and physical integrity of the individual (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, pp. 11-13, §§ 22-27), including the right to live privately, away from unwanted attention. It also secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his or her personality (see Brüggeman and Scheuten v. Germany, no. 6959/75, Commission ’ s report of 12 July 1977, Decisions and Reports 10, p.115, § 55).", "44. In Niemietz v. Germany ,(judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29), the Court stated in regard to the notion of “private life”:", "“ ... it would be too restrictive to limit the notion to an ‘ inner circle ’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.", "There appears, furthermore, to be no reason of principle why this understanding of the notion of ‘ private life ’ should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that ... it is not always possible to distinguish clearly which of an individual ’ s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.”", "45. In the recent case of Smirnova v. Russia ( nos. 46133/99 and 48183/99, §§ 96-97, ECHR 2003 -IX ), the Court examined the effect on an applicant ’ s “private life” of the seizure by the authorities of an official document (internal passport), even though no specific interference had been alleged by that applicant as a result of the seizure. The Court ruled that the absence of the passport itself caused a number of everyday inconveniences taken in their entirety, as the applicant needed the passport when performing such mundane tasks as exchanging currency or buying train tickets. It was also noted in particular that the passport was required by that applicant for more crucial needs such as finding employment or receiving medical care. The Court concluded that the deprivation of the passport in Smirnova had represented a continuing interference with that applicant ’ s “private life”.", "46. The Court has also ruled that lack of access to the civil service as such cannot be the basis for a complaint under the Convention (see Glasenapp and Kosiek v. Germany, judgments of 28 August 1986 (Series A no. 104, p.26, § 49, and no. 105, p.20, § 35); the above principle was also reiterated in Vogt v. Germany ( judgment of 26 September 1995, Series A no. 323, pp. 22-23, §§ 43 - 44). In Thlimmenos v. Greece, ( [GC], no. 34369/97, § 41, ECHR 2000-IV), where an applicant had been refused registration as a chartered accountant because of a previous conviction, the Court also stated that the right to choose a particular profession was not as such guaranteed by the Convention.", "47. Nevertheless, having regard in particular to the notions currently prevailing in democratic States, the Court considers that a far-reaching ban on taking up private sector employment does affect “private life”. It attaches particular weight in this respect to the text of Article 1 § 2 of the European Social Charter and the interpretation given by the European Committee of Social Rights (see paragraph 31 above) and to the texts adopted by the ILO (see paragraph 32 above). It further reiterates that there is no watertight division separating the sphere of social and economic rights from the field covered by the Convention (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26).", "48. Turning to the facts of the present case, the Court notes that, as a result of the application of section 2 of the KGB Act to them, the applicants have been banned from 1999 until 2009 from engaging in professional activities in various branches of the private sector on account of their status as “former KGB officers” (see paragraph 27 above). Admittedly, the ban has not affected the applicants ’ ability to engage in certain types of professional activity. The ban has, however, affected their ability to develop relationships with the outside world to a very significant degree and has created serious difficulties for them in terms of earning their living, with obvious repercussions on the enjoyment of their private lives.", "49. The Court also notes the applicants ’ argument that, as a result of the publicity caused by the adoption of the KGB Act and its application to them, they have suffered constant embarrassment as a result of their past activities. It accepts that the applicants continue to be burdened with the status of “former KGB officers” and that fact may in itself be considered an impediment to the establishment of contacts with the outside world – be they employment-related or other – and that this situation undoubtedly affects more than just their reputation; it also affects the enjoyment of their “private life”. The Court accepts that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one ’ s own actions such as, for example, the commission of a criminal offence. Furthermore, during the considerable period which elapsed between the fall of the former Soviet Union (and the ensuing political changes in Lithuania ) and the entry into force of the impugned legislation in 1999, it can reasonably be supposed that the applicants could not have envisaged the consequences their former KGB employment would entail for them. In any event, in the instant case there is more at stake for the applicants than the defence of their good name. They are marked in the eyes of society on account of their past association with an oppressive regime. Hence, and in view of the wide-ranging scope of the employment restrictions the applicants have to endure, the Court considers that the possible impediment to their leading a normal personal life must be taken to be a relevant factor in determining whether the facts complained of fall within the ambit of Article 8 of the Convention.", "50. In the light of the above, the Court considers that the impugned ban affected, to a significant degree, the applicants ’ ability 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 follows that Article 14 of the Convention is applicable in the circumstances of this case taken in conjunction with Article 8.", "C. Compliance with Article 14", "51. According to the Court ’ s case-law, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Inze, cited above, p.18, § 41).", "52. The Court considers that, as a matter of principle, States have a legitimate interest in regulating employment conditions in the public service as well as in the private sector. In this respect, it reiterates that the Convention does not guarantee as such the right to have access to a particular profession (see, mutatis mutandis, Vogt, cited above, pp. 22-23, § 43; see also Thlimmenos, cited above, § 41 ). In the recent Volkmer (no. 39799/98, 22 November 2001) and Petersen (no. 39793/98, ECHR 2001-XII) decisions concerning Germany, the Court also ruled in the context of Article 10 of the Convention that a democratic State had a legitimate interest in requiring civil servants to show loyalty to the constitutional principles on which the society was founded.", "53. The Court notes the decision of the Lithuanian Constitutional Court of 4 March 1999, which stated that the KGB Act restricting the employment prospects of former KGB officers was intended to ensure the protection of national security and proper functioning of the educational and financial systems (see paragraph 28 above). In their justification of this ban before the Court, the respondent Government have submitted that the reason for the imposition of employment restrictions under the KGB Act on the applicants was not their KGB history as such, but their lack of loyalty to the State as evidenced by their former employment with the KGB.", "54. The Court must have regard in this connection to Lithuania ’ s experience under Soviet rule, which ended with the declaration of independence in 1990. It has not been contested by the applicants that the activities of the KGB were contrary to the principles guaranteed by the Lithuanian Constitution or indeed by the Convention. Lithuania wished to avoid a repetition of its previous experience by founding its State, inter alia, on the belief that it should be a democracy capable of defending itself. It is to be noted also in this context that systems similar to the one under the KGB Act, restricting the employment prospects of former security agents or active collaborators of the former regime, have been established in a number of Contracting States which have successfully emerged from totalitarian rule (see paragraphs 30-32 above).", "55. In view of the above, the Court accepts that the restriction on the applicants ’ employment prospects under the KGB Act, and hence the difference of treatment applied to them, pursued the legitimate aims of the protection of national security, public safety, the economic well-being of the country and the rights and freedoms of others (see, mutatis mutandis, Rekvényi v. Hungary [GC], no. 25390/94, § 41, ECHR 1999-III).", "56. It remains to be established whether the impugned distinction constituted a proportionate measure. The applicants ’ principal argument before the Court was that neither the KGB Act nor the domestic proceedings in their cases established their actual loyalty to the Lithuanian State. They argued that the impugned restrictions were imposed in the abstract and that they were punished solely on the basis of their status as former KGB officers without any account being taken of the special features of their own cases. For the following reasons, however, the Court does not consider it necessary to rule on the question of whether the applicants were given an opportunity to provide evidence of their loyalty to the State or whether their lack of loyalty was indeed proved.", "57. Even assuming that their lack of loyalty had been undisputed, it must be noted that the applicants ’ employment prospects were restricted not only in the State service but also in various branches of the private sector. The Court reiterates that the requirement of an employee ’ s loyalty to the State is an inherent condition of employment with State authorities responsible for protecting and securing the general interest. However, there is not inevitably such a requirement for employment with private companies. Although the economic activities of private sector players undoubtedly affect and contribute to the functioning of the State, they are not depositaries of the sovereign power vested in the State. Moreover, private companies may legitimately engage in activities, notably financial and economic, which compete with the goals fixed for public authorities or State-run companies.", "58. In the Court ’ s view, State-imposed restrictions on a person ’ s opportunity to find employment with a private company for reasons of lack of loyalty to the State cannot be justified from the Convention perspective in the same manner as restrictions on access to their employment in the public service, regardless of the private company ’ s importance to the State ’ s economic, political or security interests.", "59. Furthermore, in deciding whether the measures complained of were proportionate, the Court cannot overlook the ambiguous manner in which the KGB Act deals with, on the one hand, the question of the lack of loyalty of former KGB officers such as the applicants – be it assumed on the basis of their KGB past or duly proved on the facts – and, on the other hand, the need to apply the restrictions to employment in certain private sector jobs. In particular, section 2 of the KGB Act lists very concisely the private sector activities from which the applicants, as persons deemed to be lacking in loyalty, should be excluded (see paragraphs 24 and 40 above). However, with the exception of references to “lawyers” and “notaries”, the KGB Act contains no definition of the specific jobs, functions or tasks which the applicants are barred from holding. The result is that it is 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 must be considered as lacking the necessary safeguards for avoiding discrimination and for guaranteeing adequate and appropriate judicial supervision of the imposition of such restrictions (see, inter alia, the conclusions pertaining to access to the public service reached in regard to similar legislation in Latvia by the ILO Committee of Experts on the Application of Conventions and Recommendations, referred to in paragraph 32 above).", "60. Finally, the Court observes that the KGB Act came into force in 1999, that is, almost a decade after Lithuania declared its independence on 11 March 1990; in other words, the restrictions on the applicants ’ professional activities were imposed on them thirteen years and nine years respectively after their departure from the KGB. The fact of the KGB Act ’ s belated timing, although not in itself decisive, may nonetheless be considered relevant to the overall assessment of the proportionality of the measures taken.", "61. In view of the above, the Court concludes that the ban on the applicants seeking employment in various branches of the private sector, in application of section 2 of the KGB Act, constituted a disproportionate measure, even having regard to the legitimacy of the aims pursued by that ban.", "62. There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8.", "D. The applicants ’ complaint under Article 8 taken alone", "63. The Court considers that since it has found a breach of Article 14 of the Convention taken in conjunction with Article 8, it is not necessary to consider whether there has been a violation of Article 8 taken alone.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14", "64. The applicants complained that their dismissal from their jobs in State institutions and the other restrictions imposed on their finding employment were in breach of Article 10 of the Convention, taken in conjunction with Article 14.", "Article 10 provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "65. The Government submitted that Article 10 was not applicable in the present case. In any event they stated that the application of the KGB Act to the applicants served the legitimate purpose of the protection of national security and was necessary in a democratic society in view of the applicants ’ lack of loyalty to the State. The applicants had not been punished for their views, be they views which they hold at present or views that they might have held in the past. The KGB Act had not imposed a collective responsibility on all former KGB officers without exception. The fact that the applicants were not entitled to benefit from any of the exceptions provided for in section 3 of the KGB Act showed that there had been a well-founded suspicion that the applicants had been lacking in loyalty to the Lithuanian State. Accordingly, there had been no violation of Article 10 of the Convention, either taken alone or in conjunction with Article 14.", "66. The applicants contested the Government ’ s submissions. They stated in particular that they had lost their jobs and had been deprived of all possibility of finding proper employment on account of their past views as reflected in their employment with the KGB. Their own loyalty to the Lithuanian State had never been questioned during the domestic proceedings; nor had they had the opportunity to submit arguments to the domestic courts proving their loyalty. The KGB Act had arbitrarily and collectively punished all former KGB officers regardless of their personal history. Their dismissal in the circumstances had been disproportionate to the attainment of any public - interest aim which might have been pursued by the KGB Act. Throughout their work as, respectively, a tax inspector and a prosecutor, they had been loyal to the idea of Lithuanian independence and to the democratic principles enshrined in the Constitution. The applicants concluded that their dismissal from their jobs and the current ban on their finding employment in various public and private sector activities had violated Articles 10 and 14 of the Convention.", "67. The issue of the applicability of Article 10 of the Convention is in dispute between the parties. The Court reiterates in this respect that lack of access to the civil service as such cannot be a basis for a complaint under the Convention (see Glasenapp and Kosiek, both cited above, p.26, § 49 and p.20 § 35; the above principle was also reiterated in Vogt ,cited above, pp. 22-23, §§ 43-44). In Thlimmenos, cited above, where an applicant had been refused registration as a chartered accountant because of his previous conviction, the Court also stated that the right to choose a particular profession was not as such guaranteed by the Convention ( ibid ., § 41).", "68. Admittedly, the Court has also held that the dismissal of a civil servant or a State official on political grounds may give rise to a complaint under Article 10 of the Convention (see Vogt, cited above; see also Volkmer and Petersen, cited above ). It notes, however, that the employment restrictions suffered by the applicants in those cases related to their specific activities as a member of the Communist Party in West Germany ( Vogt ) or as collaborators of the regime in the former German Democratic Republic ( Volkmer and Petersen ).", "69. By contrast, in the present case both applicants suffered employment restrictions not as a result of the outcome of ordinary labour law proceedings, but as a result of the application to them of special domestic legislation which imposed screening measures on the basis of their former employment with the KGB. Having regard to the domestic decisions given in their cases, it appears that the national courts were solely concerned with establishing the nature of the applicants ’ former employment with the KGB, rather than giving specific consideration to the particular circumstances of each of the applicants ’ cases, for example the views they held or expressed during or after their employment with the KGB.", "70. In addition, in the aforementioned cases against Germany, an interference with the right guaranteed by Article 10 was found as a result of the fact that those applicants had been dismissed from teaching posts, which by their nature involve the imparting of ideas and information on a daily basis. The Court is not convinced that the applicants ’ dismissal from their positions as, respectively, a tax inspector and a prosecutor, or their alleged inability to find employment in line with their academic qualifications as, respectively, a sports instructor and a lawyer, amount to a restriction on their ability to express their views or opinions to the same extent as in the above-mentioned cases against Germany.", "71. The Court does not find, therefore, that the application of the employment restrictions to the applicants under the KGB Act encroached upon their right to freedom of expression. It follows that Article 10 of the Convention is not applicable in the instant case.", "72. To the extent that the applicants ’ complaints relate to Article 14 of the Convention, the Court reiterates that that provision has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable, it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Thlimmenos, cited above, § 4 0 ). Since the Court has found that Article 10 does not apply in the present case, there can be no scope for the application of Article 14 in conjunction with the applicants ’ complaints under Article 10.", "73. There has therefore been no breach of Article 10 of the Convention, taken alone or in conjunction with Article 14.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "74. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "75. The first applicant claimed 257,154 litai (LTL), approximately 74,365 euros (EUR), for pecuniary damage as a result of being subjected to employment restrictions under the KGB Act. He also claimed LTL 500,000 ( approximately EUR 144,592) for non-pecuniary damage.", "76. The second applicant claimed LTL 201,508.54 ( approximately EUR 58,273) for pecuniary damage and LTL 75,000 ( approximately EUR 21,689) for non-pecuniary damage.", "77. The Government considered the claims to be exorbitant.", "78. The Court notes that it has found a violation of Article 14 of the Convention taken in conjunction with Article 8 as regards the employment restrictions that were imposed on the applicants under the KGB Act. It considers in this respect that they can be considered to have sustained a certain amount of pecuniary and non-pecuniary damage. Making its assessment on an equitable basis, the Court awards each of the applicants EUR 7,000 under this head.", "B. Costs and expenses", "79. The first applicant claimed LTL 40,000 ( approximately EUR 11,567) for costs and expenses in respect of the Convention proceedings. The second applicant claimed LTL 31,860 ( approximately EUR 9,213).", "80. The Government considered the claims to be exaggerated.", "81. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and are also reasonable as to quantum. In addition, legal costs are only recoverable in so far as they relate to the violation found (see The former King of Greece and Others v. Greece (just satisfaction) [GC], no. 25701/94, § 105, 28 November 2002 ).", "82. The Court notes that the applicants were granted legal aid under the Court ’ s legal aid scheme, under which the sum of EUR 2,318.63 has been paid to the first applicant ’ s lawyer, and the sum of EUR 2,225.95 to the second applicant ’ s lawyer, to cover the submission of the applicants ’ observations and additional comments, the lawyers ’ appearance at the hearing, and the conduct of the friendly - settlement negotiations.", "83. Making its assessment on an equitable basis, the Court awards each of the applicants EUR 5,000 for legal costs and expenses, less the sums already paid under the Court ’ s legal aid scheme (respectively, EUR 2,318.63 and EUR 2,225.95). Consequently, the Court awards the final amount of EUR 2,681.37 in respect of the first applicant ’ s costs and expenses, and EUR 2,774.05 in respect of the second applicant ’ s costs and expenses.", "C. Default interest", "84. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The first applicant", "6. The first applicant, Mr Juozas Sidabras, was born in 1951 and lives in Kaunas.", "7. He graduated from the Lithuanian Physical Culture Institute (currently the Lithuanian Sports University), qualifying as a sports instructor.", "8. From 1975 to 1986 he was employed by the Lithuanian branch of the USSR State Security Committee (the KGB). After Lithuania declared independence in 1990, he found employment as a tax inspector.", "9. On 31 May 1999 the Lithuanian authorities concluded that the first applicant was subject to the restrictions of Article 2 of the KGB Act (see paragraph 64 below). As a result, on 2 June 1999 he was dismissed by the tax authorities.", "10. The first applicant brought an administrative action against the security intelligence authorities, claiming that his dismissal under the KGB Act, and the ensuing inability to find employment, were unlawful. The domestic courts dismissed his claims (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, §§ 14-16, ECHR 2004 ‑ VIII ).", "11. On 29 November 1999 the first applicant submitted an application to the Court, alleging that he had lost his job and that his employment prospects had been restricted as a result of the application of the KGB Act, in breach of Articles 8 and 14 of the Convention.", "12. By a judgment of 27 July 2004 in the case of Sidabras and Džiautas (cited above), the Court found a violation of Article 14 of the Convention, taken in conjunction with Article 8. It concluded that the ban on the first applicant seeking employment in various branches of the private sector, in application of Article 2 of the KGB Act, constituted a disproportionate measure, despite the legitimacy of the aims pursued (see § 61 of the judgment). The Court ordered the State to pay the first applicant 7,000 euros (EUR) as compensation for pecuniary and non-pecuniary damage and costs.", "13. By a letter of 2 November 2004 the Court informed the Lithuanian Government that, as no request had been made under Article 43 of the Convention for the above-mentioned cases to be referred to the Grand Chamber, the judgment of 27 July 2004 had become final on 27 October 2004, in accordance with Article 44 § 2 of the Convention.", "14. In 2005 the Committee of Ministers of the Council of Europe discussed the question of whether the Court ’ s judgments in the cases of Sidabras and Džiautas v. Lithuania (cited above) and Rainys and Gasparavičius v. Lithuania (nos. 70665/01 and 74345/01, 7 April 2005) had been executed. As regards individual measures, the Government informed the Committee of Ministers that the sum awarded to the first applicant had been paid to him. As regards general measures, the Lithuanian Parliament was preparing amendments to the KGB Act, which would be adopted in the near future. Moreover, in order to prevent similar violations of the Convention, the Lithuanian courts and other institutions had been informed about the Court ’ s judgment and provided with a translation (see also paragraphs 61 - 63 below).", "15. On 8 December 2006 the first applicant started domestic court proceedings against the State of Lithuania, seeking 257,154 Lithuanian litai (LTL) in pecuniary damages, which he counted as ten years of his tax inspector ’ s salary, and LTL 500,000 in non-pecuniary damages, which he claimed to have suffered because of the continuing violation of his right to respect for his private life under Articles 8 and 14 of the Convention. The first applicant noted that since 1999 he had been unemployed and registered at the Šiauliai Employment Office ( Šiaulių darbo birža ), a State institution that provides assistance for job seekers. He argued that, even though he had not been in the service of the KGB for more than twenty years, owing to the restrictions imposed by the KGB Act he had been unable to gain employment in certain branches of the private sector as of 1999.", "16. The first applicant also maintained that the Republic of Lithuania had disregarded its obligations under international treaties and the Convention. Without referring to specific judgments of the Court, he considered that the common principles developed by the Court required that Lithuania execute the Court ’ s judgment in his case without undue delay. It was his view that the Court ’ s judgment in his case obliged Lithuania to amend the KGB Act. However, the Lithuanian Parliament had ignored the Court ’ s judgment and had been stalling any amendment of the KGB Act, which the Court had found to be incompatible with the Convention. He concluded that since 27 October 2004, when the Court ’ s judgment in his case had become final, the Republic of Lithuania had continued to violate his employment rights.", "17. On 21 February 2007 at the request of the first applicant, the Šiauliai Employment Office issued him with a document to the effect that he had been registered as a job seeker since 14 June 1999, and that between August 2004 and April 2006 he had been turned down a number of times for jobs proposed to him, “for justified reasons”. As it transpires from other documents presented to the Court, those justified reasons included: a lack of professional qualification or work experience for the posts of business manager at a factory producing television sets and at other local companies; another candidate had been chosen for the post of supervisor at a waste management facility; and a lack of English language skills for a job as a hotel manager.", "Without further explanation, it was also briefly noted in the document of 21 February 2007 that the first applicant “had not been employed because of applicable restrictions (he could not take up jobs which required him to manage people, pedagogical jobs or work in the security sector) ( bedarbis neįdarbintas dėl taikomų apribojimų: negali dirbti vadovaujantį, pedagoginį darbą, apsaugoje )”.", "18. On 13 March 2007 the Vilnius Regional Administrative Court dismissed the first applicant ’ s claims as unsubstantiated. It observed that the Strasbourg Court had awarded him compensation for the pecuniary and non-pecuniary damage he had sustained before the Court had adopted its judgment on 27 July 2004. The first-instance court then turned to the first applicant ’ s claim about the continued discrimination against him after the Court ’ s judgment. On this point, it observed that the Šiauliai Employment Office ’ s document of 21 February 2007 stated that he “had not been employed because of applicable restrictions”. Without elaborating any further on the facts, the Vilnius Regional Administrative Court merely observed that that particular document and other materials of the case file did not prove that the first applicant ’ s right to choose a particular private sector job had been infringed because Article 2 of the KGB Act had not been amended after the Court ’ s judgment. Accordingly, his claim for damages for the period after the Court ’ s judgment was dismissed.", "19. On 23 March 2007 the first applicant lodged an appeal with the Supreme Administrative Court. In addition to his previous arguments he further maintained that after the re-establishment of Lithuania ’ s independence, he had fully cooperated with the Lithuanian authorities and helped to disclose the identities of former KGB officers before they infiltrated the Lithuanian authorities. However, notwithstanding his loyalty to the independent Lithuania and the Court ’ s judgment in his favour, he had been banned from legal, pedagogical or other jobs because the KGB Act had remained in force. He had been unemployed since June 1999 and thus could not take care of his family.", "As it appears from his appeal on points of law, the first applicant did not mention any particular instance when he had been refused a job because of his status. Yet he reiterated his point of view that the principles of the Court required that States execute the Court ’ s judgments without undue delay and within the shortest time possible.", "20. On 14 April 2008 the Supreme Administrative Court upheld the lower court ’ s decision. It observed that the Convention formed an integral part of the Lithuanian legal system and that individuals could directly rely on its provisions before the national courts. Moreover, in the event of a conflict between the legal norms of the Convention and national laws, the Convention was to be given priority. The Supreme Administrative Court agreed with the lower court ’ s reasoning that the first applicant ’ s request for compensation for pecuniary and non-pecuniary damage sustained before 27 July 2004 (the date of the Strasbourg Court ’ s judgment in his case) had to be dismissed because an award had already been made by the Court and the applicant had been paid the sum of EUR 7,000.", "21. Regarding the first applicant ’ s claim in respect of the damage allegedly suffered since then, on the basis of the Court ’ s judgment in Scozzari and Giunta v. Italy ([GC] nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII), the Supreme Administrative Court noted that States undertook to take general and, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible its effects. The States were free to choose how to correct the breach of individual applicants ’ Convention rights, provided that the means chosen were compatible with the conclusions set out in the Court ’ s judgment. Restitutio in integrum was an important aspect of remedying the violation.", "22. That being so, even though the legislator had an obligation to ensure legal certainty and to reconcile domestic law with the norms of the Convention, legislative amendment was not the only way to implement the Court ’ s judgment. The fact that the KGB Act had not been amended had not in itself breached the first applicant ’ s rights. A person ’ s rights could also be secured by administrative decisions and domestic court practices. Both the KGB Act and the Strasbourg Court ’ s judgment were in force in Lithuania. For the Supreme Administrative Court, in the event of a conflict between them, priority was to be given to the Court ’ s judgment. Consequently, even though the KGB Act was still in force, a refusal to employ the first applicant in the private sector based on the restrictions contained in the KGB Act would be unlawful. Accordingly, the protection of a person ’ s rights through the direct application of the Court ’ s judgment and before any legislative amendments had been adopted was to be considered proper execution of the Court ’ s judgment.", "23. Regarding the facts of the case, the Supreme Administrative Court noted that the first applicant had attempted to obtain employment in the private sector. It observed that on 21 February 2007 the Šiauliai Employment Office had issued him with a document certifying that he had been registered as a job seeker since 14 June 1999 and had not been employed because of the restrictions applied to him (see paragraph 17 above). The appellate court noted that in response to its request to explain the reasons for the first applicant ’ s unemployment in more detail, on 28 December 2007 the Šiauliai Employment Office had provided the appellate court with another document stating that on 14 June 1999 an individual plan for the first applicant ’ s employment had been prepared with a view to employing him as a lawyer (in-house lawyer; juriskonsultas ), because he had more than ten years ’ work experience in different companies and institutions in the city of Šiauliai. From 1999 to 2004, more than thirty posts for in-house lawyers had been created in Šiauliai, for which a university degree in law was required and the salary was just higher than minimal salary. The advertisements for those posts had been shown to the first applicant, but he had not been given any of those jobs because the employers considered that he lacked the relevant qualifications. The Šiauliai Employment Office could therefore no longer offer the first applicant other in-house lawyer posts. To increase his chances of finding a job, at the end of 2003 the first applicant had attended computer literacy courses and courses for professional training in the field of administrative work. In 2004 a new individual plan had been compiled together with the first applicant, so that, because he so wished, he could obtain the job of business manager ( komercijos vadybininkas ). The Šiauliai Employment Office then named six companies which refused the first applicant the job of business manager, administrator and sales manager because other candidates had been chosen or because he lacked knowledge of the English language.", "24. The Supreme Administrative Court observed that those two documents were contradictory. The court deemed it proper to rely on the report of 28 December 2007 as it was more recent and, in the court ’ s opinion, more comprehensive and explanatory. It concluded that the restrictions which the KGB Act imposed on a person ’ s ability to find employment in certain areas of the private sector had not been applied to the first applicant. The existence of the KGB Act, as such, had not violated his rights and did not entitle him to compensation. The Supreme Administrative Court determined that there was no proof that, after the Court ’ s judgment of 27 July 2004, the first applicant had been prevented from obtaining a private sector job because of the restrictions related to the KGB Act. Furthermore, he had not provided any particular information as to who had refused to employ him on the basis of those restrictions and when. It followed that the first applicant had not managed to secure a job because of the local labour-market situation. Moreover, there was no information that he had attempted to find a job in another manner, that is to say not only relying on the assistance of the Šiauliai Employment Office, but had been refused a job because of the legislative restrictions. To give rise to a violation of the Convention, a breach of a person ’ s rights had to be real, and not hypothetical. Given that there was no proof that after the Court ’ s judgment of 27 July 2004 the first applicant could not obtain a job because the KGB Act remained unchanged, and having concluded that his right to work in the private sector could no longer be restricted because of the direct applicability of the Convention, the first applicant ’ s claim for damages had to be dismissed.", "25. On 18 April 2008, four days after the Supreme Administrative Court ’ s final decision in his case, the Šiauliai Employment Office suggested that the first applicant contact two specific private companies for a post as a business manager. On 6 May 2008 the first applicant came back to the Šiauliai Employment Office and stated that he had not taken the business manager ’ s job in one of those companies because he did not like the conditions offered. He planned to take part in the interview for the business manager ’ s job in the other company.", "Later in 2008 the first applicant was refused positions of business manager, insurance consultant and other jobs a number of times because he lacked foreign language skills, qualifications, or the relevant work experience. As it transpires from the documents in the Court ’ s possession, he turned other jobs down simply because he deemed that the salary offered was too low or the work place too far away.", "On 23 December 2008 the first applicant was appointed as a carer for his mother ( paskirtas motinos rūpintoju ). The Šiauliai Employment Office therefore discontinued its assistance to him.", "B. The second applicant", "26. The second applicant, Mr Kęstutis Džiautas, was born in 1962 and lives in Vilnius.", "27. On an unspecified date in the 1980s, he graduated from Vilnius University as a lawyer. From 11 February 1991 he worked as a prosecutor.", "28. On 26 May 1999 the Lithuanian authorities concluded that, from 1985 to 1991, the second applicant had been an employee of the Lithuanian branch of the KGB and that he was therefore subject to the restrictions provided for by Article 2 of the KGB Act. As a result, on 31 May 1999 he was dismissed from his job as prosecutor.", "29. The second applicant brought an administrative action against the authorities, claiming that his dismissal under the KGB Act, which made it impossible for him to find employment, was unlawful. The domestic courts dismissed his claims (see Sidabras and Džiautas, cited above, §§ 20-23 ).", "30. On 5 July 2000 the second applicant lodged an application with the Court. Like the first applicant, he alleged that Articles 8 and 14 of the Convention had been violated.", "31. By a judgment of 27 July 2004 in Sidabras and Džiautas v. Lithuania (cited above), the Court found a violation of Article 14 taken in conjunction with Article 8 of the Convention and awarded the second applicant EUR 7,000 in respect of pecuniary and non-pecuniary damage and costs.", "32. On 5 January 2005 the second applicant wrote to the Chairman of the Human Rights Committee of the Lithuanian Parliament, the Prime Minister and the Minister of Justice to enquire whether the State intended to amend the KGB Act and, if so, when. At the same time, he acknowledged that the Lithuanian authorities had already paid him a sum of money awarded to him by the Court.", "33. On 11 January 2005 the Government Agent before the Court informed the second applicant that the Ministry of Justice was working on amendments to the KGB Act.", "On 26 February 2005 the Chairman of the Human Rights Committee of the Seimas informed the second applicant that the Seimas had set up a working group that was also drafting legislative amendments.", "34. According to the Government, as of 29 March 2006 the second applicant was registered in the list of trainee lawyers ( advokato padėjėjas ), which is a precondition to becoming a lawyer. The Government also noted that the second applicant had submitted his traineeship report on 14 May 2009 and was going to take the Bar exam.", "35. On 20 October 2006 the second applicant sued the Republic of Lithuania for non-pecuniary damage. He claimed to have lost LTL 100,000 as a result of the State ’ s failure, since 27 July 2004 (the date of the Court ’ s judgment in his case), to amend the KGB Act. This in turn had restricted his prospects of finding employment in certain private sector areas. He argued that the common principles governing the execution of the Court ’ s judgments required the State to execute the judgment without undue delay.", "36. On 12 February 2007 the Vilnius Regional Administrative Court dismissed the second applicant ’ s claim. It noted that the judgment in the Sidabras and Džiautas case did not oblige the State to amend the KGB Act within a specific time-frame and that the Seimas was in the process of discussing the relevant legislative amendments. During the court hearing the second applicant submitted that he had contacted an insurance company and a commercial bank in order to check what the reaction of potential employers would be. He maintained that those employers had replied that they would be unable to employ him because to do so would breach the KGB Act. The first-instance court, however, noted that the second applicant had not provided any evidence to prove that he had actually applied for and been refused any particular job in the private sector. Accordingly, the court had no basis on which to hold that the second applicant had in reality addressed those two employers and that they had refused to hire him.", "37. The second applicant appealed. He pointed out in particular that he had not attempted to obtain employment in the private sector so as not to harm the employers, who would have faced administrative liability if they had employed him. That was the reason why he had no proof of having actually attempted to obtain a job barred to him by the KGB Act.", "38. On 18 April 2008 the Supreme Administrative Court dismissed the second applicant ’ s appeal. Its reasoning was similar to that of its decision of 14 April 2008 in the first applicant ’ s case (see paragraphs 20-22 above). It observed that the second applicant had based his claims for damages on the alleged non-execution of the Court ’ s judgment of 27 July 2004. However, referring to the cases of Scozzari and Giunta (cited above, § 249) and Vermeire v. Belgium (29 November 1991, § 26, Series A no. 214 - C), it observed that under Article 46 of the Convention, Contracting States were free to choose the appropriate individual and general measures to discharge their legal obligation to execute the Court ’ s decisions, albeit monitored by the Committee of Ministers. Moreover, given the abstract nature of the Convention norms, the domestic courts should follow the Strasbourg Court ’ s jurisprudence in order better to comprehend their content.", "39. As to the facts of the second applicant ’ s case, the Supreme Administrative Court observed that, because the Court ’ s judgment in Sidabras and Džiautas prevailed over the KGB Act, the restrictions on working in certain private sector areas could no longer be imposed on the second applicant. Thus, even though the KGB Act had not been amended, a refusal to employ him on the basis of the restrictions provided for in the KGB Act would be in violation of the Convention and consequently unlawful. It was also the court ’ s view that protecting a person ’ s rights by direct application of the Court ’ s judgments rather than by legislative amendments was an appropriate way to execute those judgments. It followed that, because of the direct applicability of the Convention and the Court ’ s judgments, the State had not failed to act, the latter being a precondition for the State ’ s civil liability.", "40. As to the second applicant, he had failed to prove that, after the Court ’ s judgment of 27 July 2004, he had attempted to obtain employment in the private sector and had been refused owing to the restrictions of the KGB Act. The Supreme Administrative Court stressed that “the mere existence of contradictions and ambiguities in the legal system did not in itself provide grounds for a violation of a person ’ s rights and did not harm that person”. Similarly, a mere hypothetical violation and a person ’ s idea that his rights had been breached, without any tangible facts, were not sufficient. The Supreme Administrative Court therefore dismissed the second applicant ’ s claim in respect of non-pecuniary damage.", "C. The third applicant", "41. The third applicant, Mr Raimundas Rainys, was born in 1949 and lives in Vilnius.", "42. From 1975 to October 1991 he was an employee of the Lithuanian branch of the KGB. Thereafter he found employment as a lawyer in a private telecommunications company, Omnitel.", "43. On 17 February 2000 the State Security Department informed Omnitel that the third applicant had been a KGB officer and was therefore subject to the restrictions provided for by Article 2 of the KGB Act. As a result, on 23 February 2000 Omnitel dismissed the third applicant from his job.", "44. After unsuccessful litigation before the Lithuanian courts for reinstatement in his job and for unpaid salary (see Rainys and Gasparavičius, cited above, §§ 11-13 ), the third applicant lodged an application with the Court, alleging that he had lost his job and that his employment prospects had been restricted as a result of the application to him of the KGB Act, in breach of Articles 8 and 14 of the Convention.", "45. In its judgment in the case of Rainys and Gasparavičius (cited above, § 36) the Court held that the third applicant ’ s inability to pursue his former profession as a lawyer in a private telecommunications company, and his continuing inability to find private-sector employment because of his “former permanent KGB employee” status under the KGB Act, constituted a disproportionate and thus discriminatory measure, despite the legitimacy of the aims pursued. The Court concluded that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention.", "46. By a letter of 15 July 2005, the Court informed the Lithuanian Government that, as no request had been made under Article 43 of the Convention for the above-mentioned cases to be referred to the Grand Chamber, the judgment of 7 April 2005 had become final on 7 July 2005, in accordance with Article 44 § 2 of the Convention.", "47. On 25 July 2005 the third applicant requested that the Supreme Administrative Court reopen the proceedings in his earlier case for unlawful actions and reinstatement in his job at Omnitel, on the basis of Article 153 § 2 (1) of the Law on Administrative Court Proceedings (see paragraph 65 below).", "48. On 23 February 2006 the Supreme Administrative Court noted that the proceedings in the domestic courts related to the dismissal of the third applicant from his position as a lawyer with a telecommunications company. It observed that the Court ’ s judgment gave reason to doubt the lawfulness of those domestic decisions. It therefore decided to reopen the proceedings which the third applicant had previously instituted against the State Security Department and his previous employer, the private telecommunications company, Omnitel.", "For reasons of jurisdiction, the case was subsequently remitted to the Vilnius Regional Court, a court of general jurisdiction, for a fresh examination.", "49. On 10 July 2007 the Vilnius Regional Court acknowledged that the third applicant had been dismissed from his previous job at Omnitel unlawfully. As to the question of his reinstatement, the court relied on Article 297 § 4 of the Labour Code (see paragraph 67 below) and noted that more than seven years had elapsed since the telecommunications company had dismissed the third applicant from his job. During that time the third applicant had worked in companies specialising in other fields, such as railways and television. Moreover, the activities of the telecommunications company had also evolved. In the court ’ s view, because he lacked appropriate qualifications and foreign language skills, after such a long time the third applicant would no longer be competent to work as a lawyer in that company. The court also noted that at that time the third applicant was working in another company, without specifying what that company was, and therefore had a source of income. The Regional Court also noted the continuing conflict between the third applicant and the company, which could be another reason not to reinstate him to his former job at Omnitel. Lastly, the court observed that the KGB Act was still in force. In the court ’ s view, should the third applicant be reinstated, the question of his dismissal could arise de novo, or his employer would face the risk of administrative penalties. In the light of those circumstances, the court dismissed the third applicant ’ s claim for reinstatement.", "50. The court then turned to the issue of compensation for lost earnings for the period of 23 February 2000 to 23 March 2007, indicated by the third applicant, for which he requested the sum of LTL 136,464. However, it was to be noted that the Court had already awarded him more than LTL 120,000 for both past and future pecuniary loss. Moreover, after his dismissal from Omnitel, the third applicant had worked in different jobs and had received more than LTL 90,000 in salary. Under Lithuanian law, an employee could be awarded no more than three years ’ unpaid salary. In the third applicant ’ s case the salary in Omnitel would amount to LTL 145,440 (LTL 4,040 a month for thirty-six months). Accordingly, the two sums he had already received (LTL 120,000 and LTL 90,000) amounted to more than the award requested. Lastly, the third applicant had acknowledged that since his dismissal from Omnitel, he had continued to receive a pension from another State for his work in the KGB, ranging from LTL 500 to 800 a month. It followed that the claim for pecuniary damage had to be dismissed.", "51. Both the third applicant and Omnitel appealed. At the hearing, the third applicant asked to be paid LTL 167,534 for lost earnings as compensation for the fact that he had still not been reinstated with Omnitel.", "52. On 11 February 2008 the Court of Appeal rejected both appeals. It upheld the lower court ’ s conclusion that the third applicant had been dismissed from his previous job unlawfully. Moreover, the circumstances mentioned in Article 297 § 4 of the Labour Code existed. Accordingly, the third applicant could not be reinstated in his former job with Omnitel. The court added that “the laws that provide for the prohibition on former [USSR] KGB employees from working in the telecommunications sector are still in force, so that if the [third] applicant were reinstated in his previous job, certain problems might arise”. Additionally, the applicant was working in another company and receiving a pension for his previous work with the KGB. He therefore had a source of income. The Court of Appeal also endorsed the lower court ’ s view that the third applicant had been compensated by the Strasbourg Court for the pecuniary damage he had suffered as a consequence of his unlawful dismissal. The sum he now asked for – LTL 167,534 – was lower than the awards of LTL 90,000 and 120,000 he had already received.", "53. The third applicant lodged an appeal on points of law, reiterating his claim for reinstatement and for compensation for lost earnings. He argued that Article 42 § 1 of the Law on the Employment Contract was an imperative legal norm and meant that once the court found that an employee had been dismissed unlawfully, that employee was to be reinstated in his or her previous job. It followed that the argument of the Court of Appeal that “if the [third] applicant were reinstated to his previous job certain problems might arise” was arbitrary.", "54. Omnitel argued that in 2000 it had dismissed the third applicant from his job merely following the letter of the KGB Act. Article 187 6 of the Code of Administrative Law Violations provided that an employer could be fined LTL 3,000 to 5,000 should he not comply with the KGB Act. This was all the more likely to happen since the Constitutional Court had recognised Article 2 of the KGB Act as constitutional in its ruling of 4 March 1999, that is before the third applicant was dismissed. Even though the Court had found a violation in the third applicant ’ s case, the KGB Act was still in force, and therefore the third applicant ’ s reinstatement was barred. Furthermore, in the judgment of 17 March 2005 the Court had not ordered Lithuania to amend the KGB Act. Nor had the Court ordered the Lithuanian courts to have the third applicant reinstated in his previous job. In his written reply to this last argument, the third applicant observed that the Republic of Lithuania, by not appealing against the Court ’ s judgment to the Grand Chamber, had shown its agreement with the interpretation and application of the Convention in the Rainys and Gasparavičius judgment. He therefore insisted that the Court ’ s judgment was sufficient legal basis for him to be reinstated in his former job at the private telecommunications company, Omnitel, notwithstanding the fact that Article 2 of the KGB Act had not been amended.", "55. Lastly, Omnitel maintained that the lower courts had been correct in referring to other circumstances why the third applicant could not be reinstated on the basis of Article 297 § 4 of the Law on the Employment Contract, namely, for economic, technological and organisational reasons, and the fact that it could lead to unfavourable conditions for him (see paragraph 49 above).", "56. On 20 June 2008 the Supreme Court held:", "“The European Convention on Human Rights is an international agreement, ratified by the Seimas. It is therefore an integral part of the legal system of the Republic of Lithuania... The European Court of Human Rights was established to guarantee the observance of the rights and fundamental freedoms guaranteed by the Convention. In ratifying the Convention, the Republic of Lithuania took an undertaking to execute the Court ’ s final judgments in every case in which it is a party. The Convention norms must be implemented in reality ( Konvencijos normos turi būti realiai įgyvendinamos ). The State itself establishes the manner in which it will ensure implementation of the Convention norms. One such method is the reopening of proceedings, provided for in Article 366 § 1 of the Code of Civil Procedure. Namely, a case which had been terminated by a final court decision may be reopened if the Court finds that the Lithuanian courts ’ decisions are in conflict ( prieštarauja ) with the Convention or its Protocols, to which Lithuania is a party.”", "57. As to the facts of the case, the Supreme Court noted that the third applicant had worked as a lawyer at Omnitel and had been dismissed on 23 February 2000 because of the restrictions provided for in Article 2 of the KGB Act. As the Constitutional Court had held on 4 March 1999, those restrictions were compatible with the Constitution.", "58. The Supreme Court nevertheless observed that on 7 April 2005 the Court had found that the third applicant had lost his job as a lawyer in the private telecommunications company on the basis of the application of the KGB Act which the Court had found to be discriminatory, in breach of Article 14 of the Convention, taken in conjunction with Article 8. The Court had also held that the third applicant ’ s inability to pursue his former profession and his continuing inability to find private sector employment because of his “former KGB officer” status under the Act constituted a disproportionate and thus discriminatory measure, even having regard to the legitimacy of the aims sought (paragraphs 36 and 45 of the Court ’ s judgment). The Supreme Court then held:", "“Accordingly, even though the KGB Act, which was the basis for dismissing the third applicant from his job, is in force and even acknowledged as being in conformity with the Lithuanian Constitution, the dismissal from his job on the basis of that Act in essence had been recognised as unlawful by the Court ’ s judgment, that is to say a violation of Article 14 of the Convention, taken in conjunction with Article 8, had been found. This circumstance is not to be questioned when resolving the dispute in the domestic court. Despite the fact that there was no fault in the actions of [the State Security Department or Omnitel ], which were implementing the obligations stemming from the KGB Act, the undertaking to implement the provisions of the Convention constituted a legal ground for the courts of the first and appellate instances to conclude that the applicant ’ s dismissal was unlawful. It must be emphasised that the ground for such a decision is not the provisions of the Law on the Employment Contract or the Labour Code, which regulate the issue of reinstatement, but the provisions of the Convention and the judgment of the European Court of Human Rights. At the same time it must be emphasised that, while the KGB Act, the compatibility of which with the Constitution had already been verified ( kurio konstitucingumas jau buvo patikrintas ) is still in force, the question of reinstating the third applicant to his job may not be resolved favourably. In the circumstances of this case the recognition of the fact that he had been dismissed from his job unlawfully is sufficient satisfaction for him ( atleidimo iš darbo pripažinimas neteisėtu šios bylos aplinkybių kontekste yra ieškovui pakankama satisfakcija ).”", "59. The Supreme Court noted that the third applicant had been awarded compensation by the Court for actual and future pecuniary damage. Given that he had been awarded EUR 35,000 [approximately LTL 120,000], the third applicant had already been fully compensated for the disproportionate and discriminatory measure – dismissal from his job at Omnitel. For the court of cassation, “there was no legal ground for repeatedly awarding compensation for the violation, which the Court had not found to be of a continuous nature ( pakartotinai priteisti žalos atlygimą už pažeidimą, kurio tęstinumo Europos Žmogaus Teisių Teismas savo sprendime nekonstatavo, nėra teisinio pagrindo )”.", "60. The Supreme Court thus fully upheld the lower court ’ s decisions. It also observed that “in the context of the [third applicant ’ s] case, other arguments by the parties in the appeals on points of law had no legal relevance for the lawfulness of the lower courts ’ decisions”.", "D. Execution of the Court ’ s judgments of 27 July 2004 and 7 April 2005", "61. On 9 February 2005 a working group of the Seimas was set up to prepare amendments to a number of laws, including Article 2 of the KGB Act. According to the documents submitted to the Court by the Government, as of January 2005, the Lithuanian Government submitted a number of reports to the Department for the Execution of Judgments of the Council of Europe, explaining individual and general measures regarding execution of the Court ’ s judgments in the applicants ’ cases. They noted, firstly, that the compensation awarded by the Court had been paid to the applicants. The Government also noted that the Court ’ s judgments and their translations into Lithuanian had been disseminated to the Lithuanian courts.", "62. The Government considered that appropriate execution of the Court ’ s judgments required setting up legal regulation giving access to employment in the private sector for the former KGB employees, which was in compliance with the Convention requirements. In that connection they indicated that amendments to Article 2 of the KGB Act had been registered in the Seimas and had been presented to its plenary on 14 June 2005. They expected that the law would be amended at the beginning of the Seimas ’ autumn session of 2005. The Government also considered that the draft law amending Article 2 of the KGB Act would guarantee the balance between the aims sought and interference with the right to respect for private life. The legislative amendments would also provide appropriate safeguards for avoiding discrimination as well as adequate judicial supervision of the employment restrictions imposed by the KGB Act.", "In February 2007 the Government informed the Department for the Execution of Judgments that the amendments to the KGB Act had been presented to the Seimas on 16 January 2007. However, voting in Parliament had failed because the necessary quorum had not been reached. They reiterated their previous statement about the importance of having the KGB Act amended and expected that the relevant amendments would be adopted in the spring of 2008. In October 2007 the Government wrote to the Department for the Execution of Judgments that a draft new law, amending the KGB Act in its entirety (not only its Article 2), was included in the Seimas ’ working programme for the autumn session.", "In September 2008 the Government informed the Department for the Execution of Judgments that the KGB Act had still not been amended and, to their regret, would most likely not be amended until the Seimas ’ elections in October 2008. However, a number of specific laws, for example, those regulating the professions of lawyers, bailiffs and notaries, had been amended, so that they no longer banned former KGB employees from taking up those professions. The Government also suggested that the judgments of the Court were directly applicable in the Lithuanian legal system. Therefore, the fact that the KGB Act had not been rectified had no legal consequences for former KGB employees as regards their opportunities to obtain employment in the private sector.", "By a letter of 22 January 2009, the Government informed the Department for the Execution of Judgments that as of 1 January of that year, even formal restrictions enshrined in the KGB Act had ceased to be valid.", "63. The KGB Act was never amended and is still a valid law." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "64. The Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Former Permanent Employees of the Organisation ( Įstatymas dėl SSRS valstybės saugumo komiteto (NKVD, NKGB, MGB, KGB) vertinimo ir šios organizacijos kadrinių darbuotojų dabartinės veiklos – (“the KGB Act”)) was enacted on 16 July 1998 and came into force on 1 January 1999. Article 2 of the KGB Act provided that former KGB employees would be banned from working in certain areas of the private sector for ten years from the date of entry into force of the Act. Thus, they were not allowed to work as lawyers ( advokatai ) or notaries, as employees of banks and other credit institutions, on strategic economic projects, in security companies (structures), in other companies (structures) providing detective services, in communications systems, or in the education system as teachers, educators or heads of institutions, nor could they perform a job requiring the carrying of a weapon (for the text of the KGB Act and the domestic law related to it, see the judgment in the case of Sidabras and Džiautas, cited above, §§ 24-29).", "65. Article 15 § 1 of the Law on Administrative Court Proceedings stipulates that administrative courts decide cases where the State or a public institution is one of the parties. Article 153 § 2 (1) of that Law allows domestic proceedings to be reopened in an administrative case if the European Court of Human Rights has found that the decision of the national court was contrary to the Convention or its Protocols. Article 366 § 1 (1) of the Code of Civil Procedure provides a similar rule in civil cases. Article 4 of the Code provides that, when applying the law, the lower courts take into consideration the Supreme Court ’ s case-law as to how interpret one or another legal issue.", "66. Article 26 § 1 (14) of the Law on the Employment Contract provides that an employment contract is to be terminated if it does not comply with the requirements of the law. Under Article 42 §§ 1 and 2, an employee who disagrees with his or her dismissal may appeal to a court. If the court finds that the employee has been unlawfully dismissed, the court reinstates the employee to his job and the employer must pay the employee compensation for lost earnings. The third paragraph of that article provides that when an unlawfully dismissed employee declares that, if reinstated, working conditions would be untenable, the court may, at that employee ’ s request, refrain from ordering reinstatement and award pecuniary compensation instead.", "67. Article 297 §§ 3 and 4 of the Labour Code, regulating disputes over employment contracts, provides that if an employee has been dismissed from his or her job without proper legal grounds, the court will reinstate him or her and order the payment of his or her salary from the time of the unlawful dismissal until the execution of the court ’ s decision. However, should the court establish that the employee may not be reinstated for economic, technological, organisational or similar reasons, or because he may find himself in unfavourable conditions, the court will declare the dismissal unlawful and award severance pay. This payment will depend on the employee ’ s length of service as well as the average salary for the period from dismissal until the court ’ s decision comes into force.", "68. Article 418 of the Code of Civil Procedure stipulates that if an employee has made one of the alternative demands provided for by law, the court of first instance, after establishing that there are no grounds for granting the demand made, may on its own initiative, if there is a reason for doing so, apply an alternative measure to protect the employee ’ s interests.", "69. Article 187 6 of the Code on Administrative Law Offences stipulates that an employer who has failed to comply with the requirement of the KGB Act to dismiss a “former KGB permanent employee” is liable to a fine of between LTL 3,000 and LTL 5,000.", "III. RELEVANT INTERNATIONAL MATERIALS", "70. The Rules adopted by the Committee of Ministers on 10 January 2001 at the 736 th meeting of the Ministers ’ Deputies for the application of Article 46, paragraph 2, of the European Convention on Human Rights, insofar as relevant, read as follows:", "Rule 3", "“Information to the Committee of Ministers on the measures taken in order to abide by the judgment", "a. When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46, paragraph 2, of the Convention, the Court has decided that there has been a violation of the Convention or its protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the State concerned to inform it of the measures which the State has taken in consequence of the judgment, having regard to its obligation to abide by it under Article 46, paragraph 1, of the Convention.", "b. When supervising the execution of a judgment by the respondent State, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine whether:", "- any just satisfaction awarded by the Court has been paid, including as the case may be default interest;", "and, if required, and taking into account the discretion of the State concerned to choose the means necessary to comply with the judgment, whether", "- individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention;", "- general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.”", "71. As examples of individual measures, the Rules name the striking out of an unjustified criminal conviction from the criminal records, the granting of a residence permit or the reopening of impugned domestic proceedings (on this last point see also Recommendation No. Rec(2000)2 of the Committee of Ministers to member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, adopted on 19 January 2000 at the 694 th meeting of the Ministers ’ Deputies).", "As examples of general measures, the Rules mention legislative or regulatory amendments, changes of case-law or administrative practice, or publication of the Court ’ s judgment in the language of the respondent State and its dissemination to the authorities concerned.", "72. Recommendation Rec(2004)6 of the Committee of Ministers to member States on the improvement of domestic remedies, adopted by the Committee of Ministers on 12 May 2004, insofar as relevant, reads as follows:", "The Convention as an integral part of the domestic legal order", "“7. A primary requirement for an effective remedy to exist is that the Convention rights be secured within the national legal system. In this context, it is a welcome development that the Convention has now become an integral part of the domestic legal orders of all states parties. This development has improved the availability of effective remedies. It is further assisted by the fact that courts and executive authorities increasingly respect the case-law of the Court in the application of domestic law, and are conscious of their obligation to abide by judgments of the Court in cases directly concerning their state (see Article 46 of the Convention). This tendency has been reinforced by the improvement, in accordance with Recommendation Rec(2000)2, of the possibilities of having competent domestic authorities re-examine or reopen certain proceedings which have been the basis of violations established by the Court.", "8. The improvement of domestic remedies also requires that additional action be taken so that, when applying national law, national authorities may take into account the requirements of the Convention and particularly those resulting from judgments of the Court concerning their state. This notably means improving the publication and dissemination of the Court ’ s case-law (where necessary by translating it into the national language(s) of the state concerned) and the training, with regard to these requirements, of judges and other state officials. Thus, the present recommendation is also closely linked to the two other recommendations adopted by the Committee of Ministers in these areas. ”", "73. Article 26 of, and the third paragraph of the Preamble to, the Vienna Convention of 23 May 1969 on the Law of Treaties, ratified by Lithuania on 15 January 1992, sets forth the principle of pacta sunt servanda :", "“ Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 8 AND 14, TOGETHER WITH ARTICLE 46 OF THE CONVENTION", "74. Relying on Article 46 of the Convention, the applicants complained that Lithuania ’ s failure to repeal the legislative provision banning former KGB employees from working in certain spheres of the private sector, notwithstanding the Court ’ s judgments of 27 July 2004 and 7 April 2005, was not consistent with the Court ’ s findings of a violation of Article 14 of the Convention, taken in conjunction with Article 8. The applicants also referred to Article 13 of the Convention; however, the Court considers that that complaint is absorbed by the principal complaint. Articles 8, 14 and 46 of the Convention read as follows:", "Article 8", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... other status.”", "Article 46", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.", "...", "4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.", "5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.”", "A. Admissibility", "1. The parties ’ submissions", "(a) The Government", "75. In the Government ’ s submission, the present cases were fundamentally different from that of Mehemi v. France (no. 2) (no. 53470/99, § 43 in fine, ECHR 2003 ‑ IV), in that they presented no new issue that had not already been settled by the Court in the judgments of Sidabras and Džiautas and Rainys and Gasparavičius (both cited above). The Government thus strongly believed that the cases at hand concerned purely issues of execution of the Court ’ s judgments for the purposes of Article 46 of the Convention, and therefore should be declared incompatible ratione materiae within the meaning of Article 35 § 3.", "76. The Government observed that individual as well as general measures concerning the execution of the above judgments had been implemented. In terms of individual measures, the Government had paid in due time the sums that the Court had awarded the applicants by way of just satisfaction. In terms of general measures, a number of specific laws had been amended, lifting the employment restrictions previously applicable in the private sector. Moreover, the Court ’ s judgments were directly applicable in Lithuania and the restrictions concerning employment possibilities in the private sector were thus considered unlawful. Additionally, as of 1 January 2009 the restrictions provided for in the KGB Act regarding the employment of former KGB agents were no longer in force, including in the public sector. The attention of the Committee of Ministers had also been drawn to the fact that both judgments of the Court had been translated, published and disseminated.", "77. Taking the above into account, the Government were of the view that the Court had no jurisdiction over the Committee of Ministers ’ supervision of the execution of its judgments where no new issue had occurred in the same case after a judgment (the Government referred to Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, ECHR 2009). The Government asserted that the applicants in the present cases had referred to the same factual circumstances and legal grounds, on account of which the Court had found a violation in its judgments of 27 July 2004 and 7 April 2005 and had awarded redress. The Government thus considered that within the context of the present applications, only the refusal to employ the applicants in those spheres of the private sector from which they were formally banned by the KGB Act and the subsequent failure by the domestic courts to defend their rights could be considered as a “new issue”. In the absence of such information substantiated by relevant evidence, the Court lacked jurisdiction over the matters, which were the subject of communication between the Lithuanian Government and the Committee of Ministers.", "78. It was also the Government ’ s opinion that the judgments should be considered as duly executed, even without waiting for a formal legislative measure, by virtue of the direct applicability and supremacy of the Convention and the Court ’ s judgments over conflicting provisions of national law. In respect of the first and second applicants, this view had been expressis verbis confirmed by the Supreme Administrative Court in the decisions of 14 and 18 April 2008, in which it had held that the refusal of a job on the same discriminatory grounds as those condemned by the Court ’ s judgment of 27 July 2004 would mean a new violation of the Convention and thus be unlawful. The necessity to implement the Convention provisions effectively and to execute the Court ’ s judgments had also been confirmed by the Supreme Court when examining the third applicant ’ s case.", "79. The Government thus maintained that, having regard to the translation, publication and dissemination of the Court ’ s judgments, the direct applicability and supremacy of the Convention and the Court ’ s case-law constituted a sufficient general measure with a view to preventing the occurrence of identical violations in the future. Steps to amend the KGB Act had been taken “without unjustified delay”. However, since those were legislative measures, they took more time than measures to be taken by other competent State authorities.", "(b) The applicants", "80. The first and second applicants did not dispute the fact that Lithuania had paid the amounts awarded to them by the Court in respect of non-pecuniary damage. They were of the view, however, that pecuniary compensation constituted just one of the measures involved in executing the Court ’ s judgment and that the finding of a violation of Articles 8 and 14 called for restitutio in integrum.", "81. Once the Court ’ s judgment in their case had become final, the Republic of Lithuania had been under an obligation to take all necessary measures, including making legislative amendments, to remove from the domestic law all the provisions that were in conflict with the Convention. To this end the two applicants noted that even though the Court had adopted the judgment on 27 July 2004, the KGB Act ’ s restrictions had remained in force until the very day of their expiry – 1 January 2009. They submitted that, when the State had good will, it was able to pass new laws or amend old ones within a few weeks. However, this was not so in their case. Moreover, the Government ’ s suggestion that their complaints were inadmissible ratione materiae because the execution procedure had been continuing ever since the Court ’ s judgment of 27 July 2004, was in contradiction with the principle ex iniuria ius non oritur, because it meant that the State could not rectify the violation found for a number of years and still be considered as acting lawfully or at least risk nothing.", "82. As to the execution of the Court ’ s judgments through judicial practice, the first applicant underlined that, in accordance with Article 15 § 1 of the Law on Administrative Court Proceedings, the administrative courts decided cases in which one of the parties was the State or a public institution. For that reason, the first applicant lodged complaints with the administrative courts in 2000, asking to be reinstated in the civil service. Similarly, in 2006, after the Court ’ s judgment in his favour, he had again sued the State for damages. In contrast, should a private sector employer refuse to hire a person, he or she would have to address the courts of general jurisdiction, beginning with a district court and, if need be, going up to the Supreme Court as the court of cassation. However, the Supreme Court ’ s position, as regards the rights of former KGB employees under Articles 8 and 14 of the Convention, after the Court ’ s judgment of 27 July 2004, was plain: while the KGB Act was still in force, the question of reinstating the third applicant to his job could not be resolved favourably (see paragraph 58 above). The first applicant had no knowledge of any Supreme Court case-law to the opposite effect. That being so, and taking into account that the lower courts of general jurisdiction were bound to follow the Supreme Court ’ s case-law and guidelines, the first applicant ’ s right to respect for his private life would not be defended in court.", "83. The third applicant submitted that the KGB Act had not been amended for political reasons.", "2. The Court ’ s assessment", "84. In the case of Verein gegen Tierfabriken Schweiz (VgT) (no. 2) (cited above), the Grand Chamber summed up as follows the criteria to be taken into account in cases of this kind:", "“61. The Court reiterates that findings of a violation in its judgments are essentially declaratory (see Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31; Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003 ‑ IX; and Krčmář and Others v. the Czech Republic (dec.), no. 69190/01, 30 March 2004) and that, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B).", "62. The Committee of Ministers ’ role in this sphere does not mean, however, that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment (see Mehemi v. France (no. 2), no. 53470/99, § 43, ECHR 2003-IV, with references to Pailot v. France, 22 April 1998, § 57, Reports 1998-II; Leterme v. France, 29 April 1998, Reports 1998-III; and Rando v. Italy, no. 38498/97, § 17, 15 February 2000) and, as such, form the subject of a new application that may be dealt with by the Court. In other words, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention (see Lyons and Others, cited above, and also Hertel v. Switzerland (dec.), no. 3440/99, ECHR 2002 ‑ I).", "63. Reference should be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it ‘ is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information ’. The Court must therefore ascertain whether the two applications brought before it by the applicant association relate essentially to the same person, the same facts and the same complaints (see, mutatis mutandis, Pauger v. Austria, no. 24872/94, Commission decision of 9 January 1995, DR 80-A, and Folgerø and Others v. Norway (dec.), no. 15472/02, 14 February 2006).”", "85. In the present case the Government have argued that the applicants ’ complaint about the continuous discrimination against them on the basis of the non-amended KGB Act related mainly to the issues already examined by the Court and was thus a matter for the Committee of Ministers under Article 46 § 2 of the Convention. The Court does not share that view and observes in this connection that under paragraph 2 of Article 32, “[i]n the event of dispute as to whether the Court has jurisdiction, the Court shall decide”. As it has previously found, the powers assigned to the Committee of Ministers by Article 46 are not being encroached on where the Court has to deal with relevant new information in the context of a fresh application (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, §§ 66 and 67; also see, most recently, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 33 and 34, 5 February 2015 ).", "86. In order to ascertain whether these are fresh applications which can be distinguished in essence, within the meaning of the above-cited case-law, from the applicants ’ initial applications to the Court, it is appropriate to refer to the proceedings that followed the judgments of 27 July 2004 and 7 April 2005. Further to those judgments, the first and second applicants lodged applications with the administrative courts claiming damages for arbitrary discrimination. In the wake of those administrative court proceedings, the Supreme Administrative Court unequivocally acknowledged that the Convention and the Court ’ s case-law could be directly relied upon when defending human rights at the domestic level, and that in the hierarchy of legal norms the Convention took priority over national laws.", "87. The third applicant also initiated new court proceedings, seeking reinstatement in his previous job at the private telecommunications company, Omnitel. Like the Supreme Administrative Court, the Supreme Court also recognised that the third applicant ’ s dismissal had been unlawful under the Convention. That being so, it unmistakably observed that because Article 2 of the KGB Act was still effective, the question of the third applicant ’ s reinstatement could not be resolved favourably (see paragraph 58 above). This, to the Court, constitutes a relevant new element, which the first applicant saw as manifestly contradicting the Court ’ s earlier judgments in the three applicants ’ cases.", "88. The Court therefore considers that, in the light of the continuous existence of the KGB Act, the elements referred to above and the contradictory conclusions of the highest courts of administrative and general jurisdiction, there was, within the meaning of Article 35 (2) (b) of the Convention, “relevant new information” concerning the rights of former KGB employees, such as the three applicants, under the Convention capable of giving rise to a fresh violation of Article 14, taken in conjunction with Article 8.", "89. It further observes that although the Committee of Ministers has begun its monitoring of the execution of the Court ’ s judgments in the applicants ’ cases, a final resolution has not yet been adopted in these cases (see Emre v. Switzerland (no. 2), no. 5056/10, § 42, 11 October 2011 ).", "90. Accordingly, the Court finds that the three applicants ’ complaints are compatible ratione materiae with the provisions of the Convention and its Protocols.", "91. The Court further considers that the complaints by the three applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are also not inadmissible on any other grounds. The complaints must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "92. The first applicant admitted that he had registered with the Šiauliai Employment Office, which had taken a number of steps to help him find a job. Even so, he had only been offered jobs, for example those of manager, which were not barred to him pursuant to the KGB Act. In other words, he was not offered the private sector jobs that had been barred to him before the Court ’ s judgment, because the prohibition on working in the sectors listed in Article 2 of the KGB Act remained effective. Accordingly, the Lithuanian institutions and in particular the Šiauliai Employment Office had not sought to implement the first applicant ’ s rights under Articles 8 and 14 of the Convention. Nor had their actions assisted in correcting the violation found by the Court. Lastly, he noted that he was a graduate of the Lithuanian Sports University and a qualified sports instructor, allowing him to work as a trainer in schools. However, such jobs at educational establishments were not and could not be offered to him until the very last day whilst the KGB Act-related restrictions remained in force.", "93. The second applicant admitted that he had been included in the list of trainee lawyers as of 29 March 2006. However, this was only one of the private sector professions in which he could theoretically have worked in accordance with his education and qualifications, but which remained barred to him because the KGB Act had not been amended.", "94. The third applicant submitted that the Lithuanian Supreme Court ’ s refusal to reinstate him in his job at Omnitel illustrated perfectly well that the restrictions contained in the KGB Act had applied to him even after the Court ’ s judgment in his favour, and thus had resulted in further discrimination. He disputed the Government ’ s argument that the provisions of the Lithuanian employment legislation were unfavourable to his reinstatement. Whilst acknowledging that States had the freedom to choose how to execute the Court ’ s judgments, the third applicant deemed it important to point out that that freedom did not allow them to suspend the application of the Convention while waiting for the relevant reform to be completed (he referred to Vermeire, cited above, § 26). Even though there were no objective reasons not to amend the KGB Act, the amendment had not been passed because of a lack of political will. The third applicant thus contended that his case was similar to another politically sensitive case, L. v. Lithuania (no. 27527/03, § 74, ECHR 2007 ‑ IV), in that the State had chosen to pay compensation instead of amending the legislation that was in breach of the Convention. The non-execution of the Court ’ s judgments in Lithuania had thus become systematic.", "(b) The Government", "95. Concerning the personal situation of the first applicant, the Government maintained that there was no evidence that the State ’ s failure to amend the KGB Act in due time had continuously violated his rights. The Supreme Administrative Court has found that the first applicant had not provided any specific information explaining who had refused him employment on account of the restrictions still formally contained in the KGB Act, and when. Nor had he submitted any evidence to the effect that he would fail to receive particular offers because of his KGB past. Above all, the first applicant had not challenged before the domestic courts any alleged refusal, if there were any, arguing that he had been prohibited from applying for a specific job. The Government also considered that the private companies that had refused the first applicant a job did not fall within those areas of the private sector mentioned in Article 2 of the KGB Act. On this last point, the Government also suggested that the first applicant had merely speculated on the basis of the non-amendment of the KGB Act. In reality, he himself had often refused various job offers. Lastly, he had terminated his employment search with the Šiauliai Employment Office several days before the formal restrictions ceased to be valid. Thus it could be presumed that he had sought to keep his unemployed status instead of genuinely searching for a job.", "96. With regard to the individual situation of the second applicant, he had not provided any evidence of having been discriminated against because of his KGB past. That fact had been confirmed by the Supreme Administrative Court. Furthermore, according to the Government, as of 29 March 2006 the second applicant had been included in the list of trainee lawyers, which was a precondition to becoming a lawyer, and faced no restrictions from the Lithuanian Bar Association. The Government maintained that on 14 May 2009 the second applicant had submitted the required two-year traineeship report, which had been confirmed by the Bar Association. He had then been put on the list of persons who were going to take the Bar exam. In addition, according to the information in the Government ’ s possession, during the relevant period he was receiving income from several private companies.", "97. The Government also considered that the Supreme Court ’ s refusal to reinstate the third applicant in his earlier job at the telecommunications company, Omnitel, after the Court ’ s judgment did not amount to a new violation of his rights. A conclusion to the contrary would have the effect of depriving the respondent State of the margin of appreciation to which it was entitled when executing the Court ’ s judgments as it would constitute a straightforward requirement to take particular measures, which did not follow from the Court ’ s judgment in Rainys and Gasparavičius (cited above). The reopening of the domestic proceedings thus stood as a means of properly executing the Court ’ s judgment.", "98. The Government also found it important to note that when deciding the third applicant ’ s case, the Supreme Court had emphasised the necessity of implementing the Convention provisions effectively, whilst noting that Lithuania had some discretion as regards the means of securing their proper implementation. For the Supreme Court, reopening the civil proceedings, in accordance with Article 366 § 1 of the Civil Code, was one such means. Above all, when modifying the reasoning of the lower courts, the Supreme Court had directly relied on the Court ’ s judgment of 7 April 2005 and acknowledged that the third applicant ’ s dismissal because of his status as a former KGB employee had been unlawful under the Convention (see paragraph 58 above).", "99. For the Government, that acknowledgement of the unlawfulness of the dismissal directly relying on the Court ’ s judgment, together with the payment of just satisfaction by the State, constituted proper implementation of the Court ’ s judgment as regards the individual situation of the third applicant. The Government also pointed out that the Court ’ s judgment in no way implied an obligation to reinstate the third applicant in his previous job in the private telecommunications company. On the contrary, the Court had awarded just satisfaction to the third applicant not only for unlawful dismissal, but also in respect of future pecuniary loss. Furthermore, under the domestic law there were two alternative means to remedy unlawful dismissal. If, following unlawful dismissal, reinstatement was not possible, Article 297 of the Labour Code provided for compensation. Both alternatives were considered to be equal and could be availed of when defending the employment rights of an unlawfully dismissed employee. To that end, the courts examining the case, when choosing between the alternatives, were not bound by the demands of the parties to the case. Under Article 418 of the Code of the Civil Procedure, the courts had the power to choose, on their own initiative, to apply the alternative means to defend the rights of the employee and to pay compensation instead (see paragraph 68 above). The Supreme Court even addressed the issue of compensation for the Convention violation, but given that that compensation had already been paid by the State following the Court ’ s judgment, there was no basis for making a second award on the same grounds.", "100. Lastly, the Government submitted that, as established by the court of first instance, at the time of the second set of proceedings the third applicant no longer possessed the qualifications necessary for the post of lawyer (see paragraph 49 above).", "2. The Court ’ s assessment", "(a) As to the three applicants ’ complaint under Article 46 of the Convention", "101. The Court recalls that the three applicants claimed that the State had not respected their rights, even after the Court had previously ruled in their favour, and had thus also violated Article 46 of the Convention.", "102. As to the three applicants ’ reference to Article 46 of the Convention, the Court observes that in its previous judgments of Sidabras and Džiautas and Rainys and Gasparavičius (cited above), the Court did not provide for any individual or general measures to be taken by the Government in its operative part or its reasoning. Furthermore, the Court has previously held, both in the reasoning and in the operative part, that there had been a violation of a substantive provision of the Convention – in that instance Article 8 – taken together with Article 46, in a follow-up case after the Court had previously found a violation in the same applicant ’ s case (see Emre v. Switzerland (no. 2), cited above). As in the present case, the solution adopted in Emre (no. 2) was in line with the Court ’ s Grand Chamber judgment in Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) (cited above), in so far as the Court found that it had jurisdiction to examine whether a decision delivered by a domestic court following the finding of a violation in Strasbourg satisfied the requirements of Article 46. However, it went further, since in the Verein gegen Tierfabriken Schweiz (VgT) case, the Grand Chamber did not formally find a violation of Article 46. The findings of the Court in Emre (no. 2) were made within the context of new proceedings at domestic level which directly confronted the national courts with interpreting and applying the Court ’ s previous judgment in the applicant ’ s case. The Court thus considered that “the most natural execution of its judgment, and that which would best correspond to the principle of restitutio in integrum, would have been to annul purely and simply, with immediate effect, the exclusion measure ordered against the applicant” (see Emre (no. 2), cited above, § 75).", "103. The Court notes that in its judgment in the case of The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2) (nos. 41561/07 and 20972/08, § 66, 18 October 2011), the Court observed that it is very doubtful whether Article 46 § 1 may be regarded as conferring upon an applicant a right that can be asserted in proceedings originating in an individual application. Although the Court can examine whether measures taken by a respondent State in execution of one of its judgments are compatible with the substantive clauses of the Convention (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, §§ 61 ‑ 68 and 78 ‑ 98), it has consistently ruled that it does not have jurisdiction to verify, by reference to Article 46 § 1, whether a Contracting Party has complied with the obligations imposed on it by one of the Court ’ s judgments (see Akdivar and Others v. Turkey (Article 50), 1 April 1998, § 44, Reports of Judgments and Decisions 1998 ‑ II; Mehemi (no. 2), cited above, § 43; Haase and Others v. Germany (dec.), no. 34499/04, 7 February 2008; Wasserman v. Russia (no. 2), no. 21071/05, § 31 in fine, 10 April 2008; Burdov v. Russia (no. 2), no. 33509/04, § 121, ECHR 2009; and Kafkaris v. Cyprus (dec.), no. 9644/09, § 74, 21 June 2011). So did the former Commission (see Times Newspapers Ltd. and Others v. the United Kingdom, no. 10243/83, Commission decision of 6 March 1985, Decisions and Reports (DR) 41, p. 123; Ruiz ‑ Mateos and Others v. Spain, no. 24469/94, Commission decision of 2 December 1994, DR 79 ‑ B, p. 141; and Oberschlick v. Austria, nos. 19255/92 and 21655/93, Commission decision of 16 May 1995, DR 81 ‑ A, p. 5). The new paragraphs 4 and 5, added to Article 46 by Article 16 of Protocol No. 14, seem to confirm that as well.", "104. Taking account of the facts of the present case, the Court considers the above approach adopted in the case of The United Macedonian Organisation Ilinden – Pirin and Others (no. 2) to be particularly relevant as regards the three applicants ’ complaint under Article 46. The Court observes that this case is materially different from Emre v. Switzerland (no. 2), (cited above), for two main reasons. Firstly, in contrast to the situation in Emre (no. 2), it is clear in the present case that the Government executed the previous judgments of the Court from 2005, as regards the three applicants, inasmuch as it concerns payment of compensation for pecuniary and non-pecuniary damage awarded by the Court under Article 41. Secondly, although the abrogation of the KGB Act of 1999 must have constituted the most appropriate general measure for the Government to remedy the domestic legal situation forming the basis of the Court ’ s judgments of 2004 and 2005, it is for the Committee of Ministers under Article 46 of the Convention to supervise the execution of such general measures.", "105. In view of these considerations, and noting that in any event the issues that might arise under Article 46 § 1 of the Convention are closely intertwined with those arising under Article 14, taken in conjunction with Article 8 of the Convention, the Court will examine the complaint solely by reference to the latter provisions (see, mutatis mutandis, The United Macedonian Organisation Ilinden – Pirin and Others (no. 2), cited above, § 67 ).", "(b) The legal principle as established in the previous case", "106. In paragraphs 36–38 of the judgment in the third applicant ’ s case of 2005 (see Rainys and Gasparavičius, cited above), the Court stated the following:", "“ 36. As to the justification of this distinction, the Government ’ s main line of argument was that the application of the Act was well balanced in view of the legitimate interest to protect national security of the State, the impugned employment restrictions being imposed on persons such as the applicants by reason of their lack of loyalty to the State. However, the Court emphasises that the State-imposed restrictions on a person ’ s opportunity to find employment with a private company for reasons of lack of loyalty to the State cannot be justified from the Convention perspective in the same manner as restrictions on access to their employment in the public service (see Sidabras and Džiautas, §§ 57-58). Moreover, the very belated nature of the Act, imposing the impugned employment restrictions on the applicants a decade after the Lithuanian independence had been re-established and the applicants ’ KGB employment had been terminated, counts strongly in favour of a finding that the application of the Act vis-à-vis the applicants amounted to a discriminatory measure (loc. cit., § 60). The respondent Government have thus failed to disprove that the applicants ’ inability to pursue their former professions as, respectively, a lawyer in a private telecommunications company and barrister, and their continuing inability to find private-sector employment on the basis of their “former KGB officer” status under the Act, constitutes a disproportionate and thus discriminatory measure, even having regard to the legitimacy of the aims sought after (see, mutatis mutandis, Sidabras and Džiautas, cited above, §§ 51-62).", "37. Consequently, there has been a violation of Article 14 of the Convention, taken in conjunction with Article 8.", "38. The Court considers that, since it has found a breach of Article 14 of the Convention taken in conjunction with Article 8, it is not necessary also to consider whether there has been a violation of Article 8 taken alone (ibid., § 63).”", "(c) Application of these principles to the instant case", "(i) As to the first and second applicants", "107. The Court notes that, as can be derived from the above-cited judgment in the third applicant ’ s first case (see Rainys and Gasparavičius, cited above, § 36), it is at the outset for the applicants claiming the discriminatory application of the KGB Act to plausibly demonstrate that a discriminatory act has occurred, either in the form of dismissal from a job previously held or by them being prevented from taking up a job on the basis of a refusal by a prospective employer in the private sector. If applicants succeed in plausibly demonstrating direct consequences of the Act for them, it is then for the Government to “disprove that the applicants ’ inability to pursue their former professions ... and their continuing inability to find private-sector employment on the basis of their “former KGB officer” status under the Act, constitutes a disproportionate and thus discriminatory measure, even having regard to the legitimacy of the aims sought after” (see ibid, § 36).", "108. On this basis, the Court will proceed to determine whether the first and the second applicants have plausibly demonstrated that the KGB Act has again had direct consequences for them by preventing them from obtaining private sector employment, so as to reverse the burden of proof and to require the Government to disprove the existence of a discriminatory measure in violation of Article 14, taken in conjunction with Article 8.", "109. Turning to the facts of the first applicant ’ s case the Court recalls that as of 1999 he received assistance from the Šiauliai Employment Office to re-train and seek other employment. The Court cannot overlook the fact that the first document issued by the Šiauliai Employment Office mentioned that the first applicant “had not been employed because of applicable restrictions” (see paragraph 17 above). That being so, the reasons for his unemployment were explained in more detail in the Šiauliai Employment Office ’ s 28 December 2007 written response to the Supreme Administrative Court. On the basis of that information the Supreme Administrative Court concluded that there was no proof that, after the Court ’ s judgment of 27 July 2004, the first applicant had in fact been prevented from obtaining a private sector job because of the restrictions contained in the KGB Act. Furthermore, the first applicant had not provided any particular information as to who had refused to employ him as a result of those restrictions, or when (see paragraphs 23 and 24 above). Having regard to the documents in its possession, the Court perceives nothing to contradict the conclusion of the domestic court to the effect that after August 2004, that is after the Court ’ s judgment in his case, the first applicant was unemployed for justified reasons, specifically because he lacked the necessary qualifications (see paragraphs 17 and 23 above). At this juncture it is also important to note that the applicant himself had turned down a number of job offers, thus further compounding his situation (see paragraph 25 above).", "110. With regard to the second applicant, he has acknowledged having been a trainee lawyer as of 2006. The Court therefore considers that the second applicant has failed to substantiate the claim that, after the judgment of 27 July 2004 in Sidabras and Džiautas case, he continued to be discriminated against on account of his status. Moreover, he himself acknowledged that he had never attempted to obtain other private sector jobs (see paragraph 37 above).", "111. In the light of the foregoing, the Court finds that the first and the second applicants have not plausibly demonstrated before the Court that they have been discriminated against after the Court ’ s judgments in their case.", "112. Accordingly, there has been no violation of Article 14 of the Convention, taken in conjunction with Article 8, with regard to these two applicants.", "(ii) As to the third applicant", "113. Turning to the judgment of the Supreme Court of 20 June 2008 in the third applicant ’ s case, the Court notes that the court of cassation acknowledged that the third applicant ’ s dismissal was unlawful under the Convention (see paragraph 58 above). The third applicant considered that the most natural execution of the Court ’ s judgment in his case, and that which would best correspond to the principle of restitutio in integrum, would have been simply to reinstate him in his former job at Omnitel.", "114. The Court observes that it is not for it to decide whether the provisions of the Law on the Employment Contract or those of the Labour Code were applicable to the third applicant ’ s case and whether, therefore, the Lithuanian courts erred in not reinstating him in his former job at Omnitel. However, the Court does not lose sight of the fact that the Supreme Court limited its analysis to the question of the place of the Convention and the Court ’ s judgments in Lithuanian law. Although the Government and Omnitel have insisted that the reasons for not reinstating the third applicant in his former job at the telecommunications company were economic, technological and organisational (see paragraphs 55 and 99 above), the Supreme Court not only left those other reasons unexamined, but even declared that the other arguments made by the parties in their appeals on points of law were legally irrelevant (see paragraph 60 above). Moreover, the Supreme Court stated explicitly that “while the KGB Act ... is still in force, the question of reinstating the third applicant to his job may not be resolved favourably” (see paragraph 58 above).", "115. In view of the foregoing, the Court reiterates its findings in the third applicant ’ s previous case that the application of Article 2 of the KGB Act to his situation, which excluded him from seeking private sector employment on the basis of his “former KGB officer” status, constituted a disproportionate measure in violation of Article 14, taken in conjunction with Article 8 (see Rainys and Gasparavičius, cited above, §§ 36 and 37).", "116. In the light of the aforementioned statement by the Supreme Court in the new domestic proceedings, examined in the present case, the Court finds that the Government have not convincingly demonstrated that the Supreme Court ’ s reference to the KGB Act was not the decisive factor forming the legal basis on which the third applicant ’ s claim for reinstatement was rejected. Accordingly, there has been a violation of Article 14, taken in conjunction with Article 8, in this case.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "117. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "118. The third applicant claimed 194,854 Lithuanian litai ( LTL; approximately 56,479 euros (EUR) ) in respect of pecuniary damage suffered as a result of not receiving his salary. The amount was calculated taking the number of months from his dismissal on 23 February 2000 to 23 October 2008, 104 months in total. He submitted a letter from Omnitel indicating that on the date on which his contract had been terminated, his salary had been LTL 4,040. The third applicant also claimed LTL 50,000 (approximately EUR 14,493) in respect of non-pecuniary damage, which he had suffered as a result of the Lithuanian courts ’ failure to reinstate him to Omnitel.", "119. The Government disputed the claim. They stated that the just satisfaction awarded to the third applicant by the Court ’ s judgment of 7 April 2005 had covered future pecuniary losses as well. They also noted that the third applicant was employed and had received income during the relevant period. Accordingly, his claims for pecuniary damage were groundless.", "Lastly, the Government submitted that there was no link between the non-pecuniary damage claimed and the violation of the third applicant ’ s rights under the Convention.", "120. The Court reiterates that it has found a violation of Article 14, taken in conjunction with Article 8 of the Convention. There is thus a clear causal link between the alleged pecuniary damage and the violation of the Convention it has found. However, having regard to paragraph 47 of the Rainys and Gasparavičius judgment, the Court observes that it has already awarded the third applicant just satisfaction in respect of both past and future pecuniary loss. That being so, the Court dismisses the third applicant ’ s claims under this head. However, the third applicant is entitled to claim that he has, again, suffered non-pecuniary damage in the new proceedings for reinstatement. Consequently, given the particular circumstances of the case, the Court, on an equitable basis, awards the third applicant EUR 6,000 under this head.", "B. Costs and expenses", "121. The third applicant claimed LTL 17,000 (approximately EUR 4,900) for legal expenses incurred before the Court.", "122. The Government argued that the above amount was excessive.", "123. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.", "C. Default interest", "124. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1961 and lives in Vilnius.", "10. On 1 November 1997 the applicant was recruited by the embassy of the Republic of Poland in Vilnius (“the embassy ” or “the Polish embassy” ), to the post of secretary and switchboard operator ( korespondentė-telefonistė ).", "11. The contract of employment provided in Article 1 that the applicant ’ s responsibilities and tasks were limited by the scope of her (secretarial and switchboard-related) duties. If the applicant agreed, she could be assigned other tasks not covered by this agreement. In such circumstances, a new contract would have to be signed. According to Article 6 of the contract, the applicant had to comply with Lithuanian laws, was liable for any damage she might cause to her employer and could be subjected to disciplinary action for failing to fulfil her professional obligations or to observe safety regulations at work. In return for extra work, the applicant could receive remuneration, bonuses, discretionary benefits or compensatory leave. Article 8 provided that any disputes arising under the contract were to be settled in accordance with the laws of Lithuania : the Constitution, the Employment Contracts Act, the Labour Remuneration Act, the Leave Act and the Employees ’ Social Security Act. Lastly, the contract could be terminated in accordance with sections 26, 27, 29 and 30 of the Employment Contracts Act ( enacted on 28 November 1991 with a number of subsequent amendments ).", "12. The applicant ’ s duties – as set out in a schedule to her employment contract – included the following:", "“1. Operating the switchboard of the embassy and Consulate- General and recording international telephone conversations.", "2. Typing texts in Lithuanian and Polish.", "3. Operating the fax machine.", "4. Providing information in Polish, Lithuanian and Russian.", "5. Helping to organise small receptions and cocktail parties.", "6. Photocopying documents.", "7. Performing other work at the request of the head of the mission. ”", "13. In 1999 the applicant lodged a complaint before the Equal Opportunities Ombudsman, alleging sexual harassment by one of her male colleagues, a member of the diplomatic staff of the embassy. Following an inquiry, the Ombudsman reported that the applicant was indeed a victim of sexual harassment. The applicant alleged that she had fallen ill because of the tension she was experiencing at work.", "14. The applicant was on sick leave from 1 September to 29 October 1999. On 29 October 1999 she went to work but was not authorised to enter the embassy building. On 22 November 1999 the applicant was again refused entry when she arrived for work. The same thing occurred again on 23 November 1999.", "15. On 26 November 1999 the applicant wrote a letter to the ambassador, informing her about the incidents. On 2 December 1999 the applicant was notified that she had been dismissed on the ground of her failure to come to work from 22 to 29 November 1999.", "16. The applicant brought a civil claim, requesting compensation for unlawful dismissal. She did not claim reinstatement. The Polish Minister for Foreign Affairs issued a note verbale claiming immunity from the jurisdiction of the Lithuanian courts. On 2 August 2000 the Vilnius Regional Court discontinued the proceedings for lack of jurisdiction. On 14 September 2000 the Court of Appeal upheld the decision. The final decision was taken by the Supreme Court on 25 June 2001.", "17. The Supreme Court established, inter alia, that the 1993 agreement on legal assistance between Lithuania and Poland had not resolved the question of State immunity, that Lithuania had no laws on the question, and that the domestic case-law in this area was only just being developed. The Supreme Court therefore considered it appropriate to decide the case in the light of the general principles of international law, in particular the 1972 European Convention on State Immunity.", "18. The Supreme Court observed that Article 479 of the Lithuanian Code of Civil Procedure, as then in force, established the principle of absolute State immunity, but that that provision had become inapplicable in practice. It noted that the prevailing international practice was to adopt a restrictive interpretation of State immunity, granting such immunity only for acts of sovereign authority ( acta jure imperii ), as opposed to acts of a commercial or private-law nature ( acta jure gestionis ). The Supreme Court further held, in particular, as follows :", "“... in the Supreme Court ’ s view, it is possible to apply the principle of restrictive immunity to the Republic of Poland. Having regard to the fact that Lithuania recognises that foreign nationals may bring actions in respect of private-law disputes, it must be accepted that, in order to defend their rights, individuals or entities from the Republic of Lithuania are entitled to take proceedings against foreign States.", "It is thus necessary to establish in the present case whether the relationship between the claimant and the Republic of Poland was one of a public-law nature ( acta jure imperii ) or a private-law nature ( acta jure gestionis ). Besides that, other criteria are applicable and should allow [the court] to determine whether the State concerned enjoys immunity ... in employment disputes. These criteria include, in particular, the nature of the workplace, the status of the employee, the territorial connection between the country of employment and the country of the court, and the nature of the claim.", "Regard being had to the plea of immunity by the Ministry of Foreign Affairs of the Republic of Poland ... it is possible to conclude that there was a public -service relationship governed by public law ( acta jure imperii ) between the claimant and the embassy of the Republic of Poland, and that the Republic of Poland may lay claim to immunity from the jurisdiction of foreign courts. This conclusion is supported by other criteria. With regard to the nature of the workplace, it should be noted that the main function of the embassy ... is directly related to the exercise of sovereignty of the Republic of Poland. With respect to the status of [the] employee ... while the parties had entered into a contract of employment, the very fact that the employee was a switchboard operator implies that the parties developed a relationship akin to that which characterises a public- service function ... The court was unable to obtain any information allowing it to establish the scope of the claimant ’ s actual duties. Thus, merely from the title of her position, it can be concluded that the duties entrusted to her facilitated, to a certain degree, the exercise by the Republic of Poland of its sovereign functions. ... It must also be established whether the country of employment is the country of the court, since a court in the country of employment is best placed to resolve a dispute that has arisen in that country. In this respect, it is to be recognised that the exercise of the sovereign powers of the forum State is severely restricted with regard to an embassy, even though it is not a foreign territory as such ( section 11 ( 2 ) of the Status of Diplomatic Missions of Foreign States Act). As to the nature of the claim ... it should be noted that a claim for recognition of unlawful dismissal and for compensation cannot be regarded as violating the sovereignty of [another] State, since such a claim pertains solely to the economic aspect of the impugned legal relationship[;] there is no claim for reinstatement ... However, by reason of this criterion alone, it cannot be unconditionally asserted that the Republic of Poland cannot invoke State immunity in this case. ... [The claimant ] has submitted no [other] evidence to confirm the inability for the Republic of Poland to enjoy State immunity (Article 58 of the Code of Civil Procedure).", "Against the background of the above criteria, [in view of] the aspiration of Lithuania and Poland to maintain good bilateral relations ... and respect the principle of sovereign equality between States ..., the chamber concludes that the courts [below] properly decided that they had no jurisdiction to entertain this case.", "...", "The Supreme Court notes that both the Regional Court of Vilnius and the Court of Appeal based the decision to apply jurisdictional immunity to the Republic of Poland merely on the fact that the latter had refused to appear in the proceedings. Those courts did not examine the question of the application of restrictive jurisdictional immunity in the light of the criteria developed by the Supreme Court. However, this breach of procedural rules does not constitute, in the Supreme Court ’ s view, a ground for quashing the decisions of the courts below. ...", "The application of jurisdictional immunity by the courts of the Republic of Lithuania does not prevent the claimant from taking proceedings before the Polish courts .”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "19. There is no special legislation governing the issue of State immunity in Lithuania. The question is usually resolved by the courts on a case-by-case basis, with reference to the provisions of various bilateral and multilateral treaties.", "20. Article 479 § 1 of the 1964 Code of Civil Procedure (applicable at the material time and in force until 1 January 2003) established the rule of absolute State immunity:", "“Adjudication of actions against foreign States, and adoption of measures of constraint and execution against the property of a foreign State, shall be allowed only with the consent of the competent institutions of the foreign State.”", "21. On 5 January 1998 the Supreme Court gave a decision in the case of Stukonis v. United States embassy, regarding an action for unlawful dismissal against the United States embassy in Vilnius. Article 479 § 1 of the 1964 Code of Civil Procedure was considered by the court to be inappropriate in the light of the changing reality of international relations and public international law. The Supreme Court noted the trend in international legal opinion to restrict the categories of cases in which a foreign State could invoke immunity from the jurisdiction of forum courts. It held that Lithuanian legal practice should follow the doctrine of restrictive State immunity. It found, inter alia, as follows:", "“State immunity does not mean immunity from institution of civil proceedings, but immunity from jurisdiction of courts. The Constitution establishes the right to apply to a court (Article 30) ... However, the ability of a court to defend the rights of a claimant, where the defendant is a foreign State, will depend on whether that foreign State requests the application of the State immunity doctrine ... In order to determine whether or not the dispute should give rise to immunity ... it is necessary to determine the nature of the legal relations between the parties ...”", "22. On 21 December 200 0 the plenary of the Supreme Court adopted a decision regarding “ Judicial Practice in the Republic of Lithuania in Applying Rules of Private International Law ” ( Teismų Praktika 2001, no. 14). It stated that while Article 479 of the Code of Civil Procedure established a norm whereby “foreign States [and] diplomatic and consular representatives and diplomats of foreign States enjoy [ ed ] immunity from the jurisdiction of Lithuanian courts ”, that rule guaranteed State immunity only for “legal relations governed by public law”. The Supreme Court pointed out that when deciding whether or not a case containing an international element fell within the jurisdiction of Lithuanian courts, the court in question had to consider whether its judgment would be recognised and enforced in the foreign State concerned or whether it would refuse to do so. If the case also fell within the jurisdiction of a foreign court, the forum court would be entitled to relinquish jurisdiction and instruct the claimant to take proceedings in the court of the foreign State where the judgment should be enforced.", "This interpretation by the Supreme Court had to be followed by the lower courts.", "23. On 6 April 2007 the Supreme Court delivered a judgment in a case that was very similar to that of the applicant, namely S.N. v. the embassy of the Kingdom of Sweden. It found that “ despite the fact that the Kingdom of Sweden had not enacted any legislation on State immunity, it could nevertheless be seen from the case-law of the domestic courts that Sweden recognised the doctrine of restrictive State immunity ”. In that case it was considered that the provisions of the United Nations Convention on Jurisdictional Immunities of States and their Property, adopted on 2 December 2004, could be taken into account, even though they were not binding, since they reflected a certain trend in international law in matters of State immunity. The Supreme Court further observed that the case-law of the courts of both States – Lithuania and Sweden – being based on common practice in international relations, confirmed that they had been adhering to a restrictive approach to State immunity, whereby a State could not claim immunity from jurisdiction if the dispute was of a private-law nature. In such cases Sweden could not therefore object to the case being heard by the Lithuanian courts. However, the Supreme Court held that the dispute between the parties had arisen from a public-law relationship and was not an employment relationship under private law.", "24. The Supreme Court further observed that there was no uniform international practice of States whereby the members of staff of foreign States ’ diplomatic missions who participated in the exercise of the public authority of the States they represented could be distinguished from other members of staff. As there were no legally binding international rules, it was for each State to take its own decisions in such matters.", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE", "25. The relevant provisions of the 1972 European Convention on State Immunity (“the Basle Convention”) read as follows :", "Article 5", "“1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum.", "2. Paragraph 1 shall not apply where:", "( a) the individual is a national of the employing State at the time when the proceedings are brought;", "( b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or", "( c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject matter. ... ”", "26. The Convention ’ s Explanatory Report indicates that “ [a] s regards contracts of employment with diplomatic missions or consular posts, Article 32 shall also be taken into account ”. That Article provides as follows:", "Article 32", "“Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.”", "27. Neither Lithuania nor Poland are parties to the Basle Convention.", "28. In 1979 the United Nations International Law Commission (ILC) was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. Lithuania never made any negative observation on those drafts. The Draft Articles that were used as the basis for the text adopted in 2004 dated back to 199 1. The relevant part of the text then read as follows:", "Article 11 – Contracts of employment", "“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.", "2. Paragraph 1 does not apply if:", "( a ) the employee has been recruited to perform functions closely related to the exercise of governmental authority;", "(b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;", "(c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded;", "(d) the employee is a national of the employer State at the time when the proceeding is instituted; or", "(e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding.”", "29. In the commentary on the ILC ’ s Draft Articles of 1991, it was stated that the rules formulated in Article 11 appeared to be consistent with the trend in the legislative and treaty practice of a growing number of States ( ILC Yearbook, 1991, Vol. II, Part 2, p. 44, paragraph 14).", "30. In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property. It was opened for signature on 17 January 2005. One of the major issues that had arisen during the codification work by the ILC related to the exception from State immunity in so far as it related to employment contracts. The final version of Article 11, as set out in the Convention, reads as follows:", "Article 11 – Contracts of employment", "“ 1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.", "2. Paragraph 1 does not apply if:", "( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority;", "( b ) the employee is:", "( i ) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;", "(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;", "(iii) a member of the diplomatic staff of a permanent mission to an international organisation or of a special mission, or is recruited to represent a State at an international conference; or", "(iv) any other person enjoying diplomatic immunity;", "( c ) the subject matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;", "( d ) the subject matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;", "( e ) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or", "( f ) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding.”", "31. Lithuania did not vote against the adoption of this text but has not ratified it either.", "32. The understandings with respect to Article 11 in the Annex to the United Nations Convention explain that the reference to the “security interests” of the employer State, in paragraph 2 (d), “is intended primarily to address matters of national security and the security of diplomatic missions and consular posts”.", "33. Article 1 of the 1961 Vienna Convention on Diplomatic Relations, which is appended to the Lithuanian Diplomatic Privileges Act 1964, provides the following definitions:", "Article 1", "“ ...", "(a) the ‘ head of the mission ’ is the person charged by the sending State with the duty of acting in that capacity;", "(b) the ‘ members of the mission ’ are the head of the mission and the members of the staff of the mission;", "(c) the ‘ members of the staff of the mission ’ are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;", "(d) the ‘ members of the diplomatic staff ’ are the members of the staff of the mission having diplomatic rank;", "(e) a ‘ diplomatic agent ’ is the head of the mission or a member of the diplomatic staff of the mission;", "(f) the ‘ members of the administrative and technical staff ’ are the members of the staff of the mission employed in the administrative and technical service of the mission;", "...”", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION", "34. The Government argued that, both in theory and in practice, the applicant could have taken proceedings in the Polish courts to complain about the termination of her contract with the Polish embassy in Vilnius, as the Lithuanian Supreme Court had in fact suggested. The Polish courts had jurisdiction to hear her case and would have applied Lithuanian substantive law. The applicant ’ s contract of employment actually contained a clause providing that any dispute arising under the contract was to be settled in accordance with the laws of Lithuania. Since Article 479 § 1 of the Code of Civil Procedure and the relevant case-law excluded the jurisdiction of the Lithuanian courts, following the Republic of Poland ’ s request to be granted State immunity, that clause covered the application only of the substantive provisions of Lithuanian law. Furthermore, by virtue of Lithuanian law, the applicant was not time-barred from taking proceedings in the Polish courts, which still had jurisdiction to examine her claims concerning the termination of her contract of employment.", "35. The Court observes that the present application was declared admissible on 2 March 2006. Even supposing that the above argument is to be regarded as an objection that the applicant failed to exhaust domestic remedies and that the Government are not estopped from raising it, the Court notes that Article 35 § 1 of the Convention refers in principle only to remedies that are made available by the respondent State. It does not therefore cover, in the present case, remedies available in Poland.", "36. Moreover, the Court notes that Article 8 of the contract of employment between the applicant and the Polish embassy provided that any disputes arising under it were to be settled in accordance with the laws of Lithuania, more specifically the Constitution, the Employment Contracts Act, the Labour Remuneration Act, the Leave Act and the Employees ’ Social Security Act. It could therefore be argued that, if the applicant had submitted her complaints to the Polish courts, they would have applied the substantive law chosen by the parties, that is to say Lithuanian law. However, the Court finds that such a remedy, even supposing that it was theoretically available, was not a particularly realistic one in the circumstances of the case. If the applicant had been required to use such a remedy she would have encountered serious practical difficulties which would have been incompatible with her right of access to a court, which, like all other rights in the Convention, must be interpreted so as to make it practical and effective, not theoretical or illusory (see, among other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports of Judgments and Decisions 1998 - I). The applicant was a Lithuanian national, recruited in Lithuania under a contract that was governed by Lithuanian law, and the Republic of Poland had itself agreed on this choice of law in the contract.", "37. Accordingly, the submission of the applicant ’ s complaint to the Polish courts cannot be regarded, in the circumstances of the present case, as an accessible or effective remedy.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "38. The applicant contended that, by granting the Polish government ’ s objection, the Lithuanian courts had deprived her of her right of access to a court, within the meaning of Article 6 of the Convention, of which the relevant part reads as follows:", "“ 1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. Applicability of Article 6 § 1", "39. Referring to the judgment given by the Court in Vilho Eskelinen and Others v. Finland ( [GC], no. 63235/00, § 62, ECHR 2007 - II ), and in particular to the two conditions that have to be fulfilled for Article 6 to be applicable in this type of case, the Government submitted that the application should be declared incompatible ratione materiae with the provisions of the Convention.", "40. In the Government ’ s view, it appeared from the case-law of the Lithuanian Supreme Court, and in particular from its judgments of 5 January 1998 and 6 April 2007, together with the judgment of 25 June 2001 in the applicant ’ s case, that all persons employed in the diplomatic mission of a foreign State, including staff in administrative and technical departments, had to be regarded as contributing in one way or another to the performance of duties relating to sovereign acts of authority by the State concerned and therefore as serving the public interests of that State. The type of duties that the applicant performed at the Polish embassy in Vilnius justified the application of State immunity in her case. She had actually had direct access to all official documents and activities of the embassy. Therefore, she had been much more than simply a member of the service staff.", "41. The applicant stated, for her part, that by bringing an action before the Lithuanian courts she had sought to challenge the legal basis for her dismissal in order to obtain compensation. She took the view that both her employment contract and her claim for wrongful dismissal were of a predominantly private-law nature.", "42. The Court reiterates its finding from the Vilho Eskelinen and Others judgment (cited above, § 62 ) that two conditions must be fulfilled in order for the respondent State to be able to rely before the Court on an applicant ’ s status as a civil servant in excluding him or her from the protection embodied in Article 6. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State ’ s interest.", "43. It should nevertheless be pointed out that the above-mentioned judgment concerned the relationship between a State and its own civil servants, whereas that is not the situation in the present case: the applicant, a Lithuanian national, was employed in the Polish embassy on the basis of a contractual relationship between her and, ultimately, the Republic of Poland. She could not therefore be regarded, before the Lithuanian courts, as a civil servant of Lithuania.", "44. However, even supposing that the Vilho Eskelinen and Others case-law is applicable, mutatis mutandis, to the present case, it could not reasonably be argued that the second condition has been fulfilled in the applicant ’ s case. It appears from the schedule to her employment contract that her duties at the Polish embassy consisted of operating the switchboard of the embassy and Consulate -General and of recording international telephone conversations; typing up texts in Lithuanian and Polish; sending and receiving faxes; providing information in Polish, Lithuanian and Russian; helping to organise small receptions and cocktail parties; and photocopying documents (see paragraph 12 above). In the Court ’ s view, the performance of such duties can hardly give rise to “ objective grounds [for exclusion] in the State ’ s interest ” within the meaning of the above-cited Vilho Eskelinen and Others judgment.", "45. It therefore remains for the Court to examine whether the dispute in question concerned a civil right within the meaning of Article 6 § 1 of the Convention. In this connection, the Court reiterates that Article 6 § 1 extends to “ disputes” ( “ contestations ” ) over civil “rights” ( “ droits ” ) which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are also protected under the Convention (see, among other authorities, Editions Périscope v. France, 26 March 1992, § 35, Series A no. 234 - B, and Zander v. Sweden, 25 November 1993, § 22, Series A no. 279 - B ). Such dispute may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be directly decisive for the right in question (see Vilho Eskelinen and Others, cited above, § 40).", "46. The Court finds that these conditions are fulfilled in the present case, as the applicant ’ s action before the Lithuanian Supreme Court concerned a compensation claim for wrongful dismissal.", "47. Article 6 § 1 of the Convention was therefore applicable to the proceedings before the Lithuanian courts.", "B. Compliance with Article 6 § 1", "1. The parties ’ submissions", "(a) The applicant", "48. The applicant submitted that no description of her official duties had ever been appended to her employment contract. The low-level post that she occupied did not include any tasks or functions which could justify considering the application of State immunity within the meaning of the relevant provisions of the Basle Convention or the United Nations Convention on Jurisdictional Immunities of States and their Property.", "(b) The Government", "49. The Government argued that the limitation imposed on the applicant ’ s right of access to a court pursued a legitimate aim, namely to promote respect for the independence and sovereign equality of States in accordance with domestic and public international law.", "50. As regards the proportionality of the restriction, the Government observed that international legal instruments and the case-law of a certain number of States considered that, in employment-related disputes, State immunity was not limited when the employer was a foreign embassy. Both in Lithuania and Poland, questions of State immunity were governed by customary international law, such questions not having been resolved by any bilateral agreements. In support of their argument, the Government relied on Article 32 of the Basle Convention, Article 38 § 2 of the Vienna Convention on Diplomatic Relations and Article 11 § 2 (c) of the United Nations Convention on Jurisdictional Immunities of States and their Property. They contended that States enjoyed a discretionary power of appointment to official posts. The same applied to the “dismissal” or “ termination of contract ” of civil servants after an inquiry or an investigation as part of the supervisory or disciplinary powers exercised by the employer State.", "51. In the present case, the reason why the Polish embassy had requested the application of State immunity in the applicant ’ s case was, in the Government ’ s submission, partly to do with the origin of the dispute – allegations of sexual harassment involving a member of the embassy ’ s diplomatic staff – that the Lithuanian courts could not have properly examined without questioning persons enjoying diplomatic immunity.", "52. Thus, the subject matter of the applicant ’ s claim before the courts would have involved investigation into the public and sovereign sphere of Poland. The Lithuanian Supreme Court had reached a reasonable conclusion, taking into consideration, inter alia, the fact that Poland, in invoking State immunity, considered that the dispute between the applicant and the Polish embassy was not an ordinary employment dispute.", "53. In any event, even if the Lithuanian courts had assumed jurisdiction to hear the applicant ’ s case and had dealt with it on the merits (for example, finding that the dismissal had been unlawful and awarding the applicant compensation), it would have been impossible to enforce the decision against the respondent State, namely Poland, which had indicated, by means of a diplomatic note, its formal refusal to appear in the proceedings as defendant.", "2. The Court ’ s assessment", "(a) General principles emerging from the Court ’ s case-law", "54. The Court reiterates that the right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the principle of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002 - IX ). Everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way, Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001 - VIII ).", "55. However, the right of access to a court secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention ’ s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation of the right of access to a court will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 - I; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 98, 10 May 2001; and Fogarty v. the United Kingdom [GC], no. 37112/97, § 33, 21 November 2001 ).", "56. Moreover, the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31 § 3 (c) of which indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must therefore be mindful of the Convention ’ s special character as a human rights treaty, and it must also take the relevant rules of international law into account, including those relating to the grant of State immunity (see Fogarty, cited above, § 35 ).", "57. It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1. Just as the right of access to a court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity (see Kalogeropoulou and Others v. Greece and Germany ( dec. ), no. 59021/00, ECHR 2002 - X, and Fogarty, cited above, § 36).", "58. Furthermore, it should be remembered that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Aït-Mouhoub v. France, 28 October 1998, § 52, Reports 1998 - VIII ). It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons (see Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294 - B ).", "59. Therefore, in cases where the application of the principle of State immunity from jurisdiction restricts the exercise of the right of access to a court, the Court must ascertain whether the circumstances of the case justify such restriction.", "(b) Application to the present case", "60. The Court must first examine whether the limitation pursued a legitimate aim. In this connection, it observes that State immunity was developed in international law out of the principle par in parem non habet imperium, by virtue of which one State could not be subject to the jurisdiction of another. The Court considers that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State ’ s sovereignty.", "61. In the Fogarty case (cited above), the applicant had successfully brought an initial action against the United States for sex discrimination after her dismissal from a post of administrative assistant at the United States embassy in London. Following a number of subsequent and unsuccessful applications for other employment at the embassy, the applicant had then commenced fresh proceedings before the United Kingdom courts claiming sex discrimination, but those proceedings were discontinued because the United States government claimed immunity from jurisdiction. It was this second set of proceedings that gave rise to the application to the Court and ultimately to the Fogarty judgment.", "62. The Court notes that the present case can be distinguished from that of Fogarty in that it does not concern recruitment but rather the dismissal of a member of the local staff of an embassy. In spite of that difference, the Court takes the view that its finding that the restrictions in the Fogarty case pursued a legitimate aim similarly applies to the present case. It should therefore now be examined whether the impugned restriction to the applicant ’ s right of access was proportionate to the aim pursued.", "63. The Court found, already in the Fogarty judgment, that there was a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes, with the exception, however, of those concerning the recruitment of staff in embassies (§§ 37-38).", "64. In this connection, the Court notes that the application of absolute State immunity has, for many years, clearly been eroded. In 1979 the International Law Commission (ILC) was given the task of codifying and gradually developing international law in the area of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. The Draft Articles it adopted in 1991 included one – Article 11 – on contracts of employment (see paragraph 28 above). In 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property (see paragraph 30 above).", "65. The 1991 Draft Articles, on which the 2004 United Nations Convention ( and Article 11 in particular) was based, created a significant exception in matters of State immunity by, in principle, removing from the application of the immunity rule a State ’ s employment contracts with the staff of its diplomatic missions abroad. However, that exception was itself subject to exceptions whereby, in substance, immunity still applied to diplomatic and consular staff in cases where: the subject of the dispute was the recruitment, renewal of employment or reinstatement of an individual; the employee was a national of the employer State; or, lastly, the employer State and the employee had otherwise agreed in writing.", "66. The report appended to the 1991 Draft Articles stated that the rules formulated in Article 11 appeared to be consistent with the emerging trend in the legislative and treaty practice of a growing number of States ( ILC Yearbook, 1991, Vol. II, Part 2, p. 44, paragraph 14). This must also hold true for the 2004 United Nations Convention. Furthermore, it is a well-established principle of international law that, even if a State has not ratified a treaty, it may be bound by one of its provisions in so far as that provision reflects customary international law, either “codifying” it or forming a new customary rule (see the judgment of the International Court of Justice in the North Sea Continental Shelf cases, ICJ Reports 1969, p. 41, § 71). Moreover, there were no particular objections by States to the wording of Article 11 of the ILC ’ s Draft Articles, at least not by the respondent State. As to the 2004 United Nations Convention, Lithuania has admittedly not ratified it but did not vote against its adoption either.", "67. Consequently, it is possible to affirm that Article 11 of the ILC ’ s 1991 Draft Articles, on which the 2004 United Nations Convention was based, applies to the respondent State under customary international law. The Court must take this into consideration in examining whether the right of access to a court, within the meaning of Article 6 § 1, was respected.", "68. The above finding is in fact confirmed by Lithuanian domestic law. Admittedly, Article 479 of the Code of Civil Procedure, as in force at the relevant time, enshrined the so-called absolute State immunity rule. However, on 21 December 2000 the plenary of the Lithuanian Supreme Court adopted a decision ( no. 28 ) regarding “ Judicial Practice in the Republic of Lithuania in Applying Rules of Private International Law”. It stated that while Article 479 of the Code of Civil Procedure established a norm whereby “foreign States [and] diplomatic and consular representatives and diplomats of foreign States enjoy [ed] immunity from the jurisdiction of Lithuanian courts ”, that rule guaranteed State immunity only for “legal relations governed by public law”. A contrario, that immunity rule did not apply to relations governed by private law. This conclusion confirmed the practice of the Supreme Court, which has abandoned the concept of absolute State immunity (see paragraph 22 above).", "69. The Court further notes that the applicant was not covered by any of the exceptions enumerated in Article 11 of the ILC ’ s Draft Articles: she did not perform any particular functions closely related to the exercise of governmental authority. In addition, she was not a diplomatic agent or consular officer, nor was she a national of the employer State. Lastly, the subject matter of the dispute was linked to the applicant ’ s dismissal.", "70. The Court observes in particular that the applicant was a switchboard operator at the Polish embassy whose main duties were: recording international telephone conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events. Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish government. While the schedule to the employment contract stated that the applicant could have been called upon to do other work at the request of the head of mission, it does not appear from the case file – nor have the Government provided any details in this connection – that she actually performed any functions related to the exercise of sovereignty by the Polish State.", "71. In its judgment of 25 June 2001, the Supreme Court stated that, in order to determine whether or not it had jurisdiction to hear employment disputes involving a foreign mission or embassy, it was necessary to establish in each case whether the employment relationship in question was one of a public-law nature ( acta jure imperii ) or of a private-law nature ( acta jure gestionis ). In the present case, however, the Supreme Court found that it had been unable to obtain any information allowing it to establish the scope of the applicant ’ s “ actual duties ”. It therefore referred solely to the title of her position, and to the fact that Poland had invoked immunity from jurisdiction, in concluding that the duties entrusted to her had “ facilitated, to a certain degree, the exercise by the Republic of Poland of its sovereign functions ” (see paragraph 18 above).", "72. As to whether the duties in question were of importance for Poland ’ s security interests – a criterion subsequently enshrined in Article 11 § 2 (d) of the 2004 United Nations Convention – the mere allegation that the applicant could have had access to certain documents or could have been privy to confidential telephone conversations in the course of her duties is not sufficient. On this point it should not be overlooked that the applicant ’ s dismissal and the ensuing proceedings arose originally from acts of sexual harassment that had been established by the Lithuanian Equal Opportunities Ombudsman, with whom the applicant had filed her complaint. Such acts can hardly be regarded as undermining Poland ’ s security interests.", "73. Lastly, as to any difficulties that the Lithuanian authorities may encounter in enforcing against Poland a Lithuanian judgment in favour of the applicant, such considerations cannot frustrate the proper application of the Convention.", "74. In conclusion, by upholding in the present case an objection based on State immunity and by declining jurisdiction to hear the applicant ’ s claim, the Lithuanian courts, in failing to preserve a reasonable relationship of proportionality, overstepped their margin of appreciation and thus impaired the very essence of the applicant ’ s right of access to a court.", "75. Accordingly, there has been a violation of Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "76. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "77. The applicant claimed 327,978.30 Lithuanian litai (LTL ) (approximately 94,988 euros (EUR)) in respect of the pecuniary damage she had allegedly sustained between 22 November 1999 and 30 June 2009. For non-pecuniary damage she sought LTL 350,000 (approximately EUR 101,367).", "78. The Government argued that the applicant ’ s claims, for both pecuniary and non-pecuniary damage, were excessive and had no causal connection with the alleged violation of the Convention.", "79. The Court first considers that, where, as in the instant case, an individual has been the victim of proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if he or she so requests, represents in principle an appropriate way of redressing the violation (see Sejdovic v. Italy [GC], no. 56581/00, § 126, ECHR 2006 - II; see also, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 - IV ). The Court further notes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6. While the Court cannot speculate as to the outcome of the trial had the position been otherwise, it does not find it unreasonable to regard the applicant as having been deprived of a real opportunity (see Colozza v. Italy, 12 February 1985, § 38, Series A no. 89, and Pélissier and Sassi v. France [GC], no. 25444/94, § 80, ECHR 1999 - II ). In addition, the applicant has sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. Ruling on an equitable basis, as required by Article 41, the Court awards the applicant EUR 10,000 for all heads of damage combined.", "B. Costs and expenses", "80. The applicant sought an “appropriate sum”, without evaluating it, to cover the costs and expenses incurred in to the proceedings before the Court.", "81. The Government argued that, as there had been no violation of Article 6 in the present case, the applicant ’ s claim should be dismissed.", "82. The Court notes that the applicant was granted legal aid for the proceedings before it. Her claim was not accompanied by any supporting documents showing that the sum paid to her by the Council of Europe by way of legal aid had not adequately covered all the costs and expenses incurred in connection with the proceedings before the Court.", "83. The Court therefore dismisses the applicant ’ s claim under this head.", "C. Default interest", "84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. Under a contract of indefinite duration dated 25 August 1980, the applicant was appointed by the State of Kuwait as accountant in the Kuwaiti embassy in Paris. He became head accountant on 17 April 1985, when a note by the Ambassador entitled “Organisation of Accounts Department at Kuwaiti Embassy in Paris ” set out the applicant ’ s duties as follows:", "“(a) To oversee all the work of the accounts department.", "(b) To supervise the staff working in that department in respect of the tasks assigned to them, and to ensure compliance with the rules governing working hours and the volume and distribution of work.", "(c) The above-mentioned accountant must sign all payment orders, accounting invoices and everything connected with that activity.", "(d) In addition the accountant is entrusted with the management of administrative tasks.", "(e) The accountant shall be accountable to his superiors for any shortcomings in respect of everything connected with the work of his department.”", "8. On 3 December 1999 some twenty employees of the Embassy signed a statement to the effect that the applicant had, since his appointment, unofficially assumed the role of staff representative, with the result that he had resolved all disputes between the staff and the diplomatic mission for the past nineteen years.", "9. A certificate of employment dated 19 January 2000 indicates that the applicant “is employed by the Embassy as Head Accountant”.", "10. On 27 March 2000 the applicant ’ s contract was terminated on the following economic grounds:", "“ The restructuring of all the Embassy ’ s departments, in accordance with general instructions from the Ministry of Foreign Affairs of the State of Kuwait.", "The Embassy is obliged to abolish your post as a result of the new regulations of the Ministry of Foreign Affairs of the State of Kuwait. ”", "11. Disagreeing with the reasons given for the termination, the applicant brought proceedings in the Paris Employment Tribunal ( conseil de prud ’ hommes ) seeking various sums in compensation for dismissal without genuine or serious cause.", "12. In a judgment of 29 November 2000, the Employment Tribunal began by refusing to allow the objection to admissibility raised by the State of Kuwait, finding as follows:", "“A plea of inadmissibility has been raised on grounds of jurisdictional immunity.", "Whilst Article 31 of the Vienna Convention provides that diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving State, and also from its civil and administrative jurisdiction, the latter immunity does not cover actions relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.", "Mr Farouk Sabeh El Leil was recruited and employed in France, under a contract of indefinite duration signed in Paris and performing [ sic ] in French territory.", "His pay statements bear a SIRET [registration] number.", "The letter summoning him to a preliminary meeting fully satisfies the provisions of Article L.122-14-4 of the Labour Code, indicating that Mr Farouk Sabeh El Leil was entitled to be assisted by a third party from the list kept by the préfecture.", "In the present case, the duties of head accountant entrusted to Mr Farouk Sabeh El Leil in an internal management context fell within the framework of an expressly private-law activity and the jurisdiction of the ordinary French courts, as the employer has acknowledged through the above-mentioned elements.”", "13. On the merits, the Employment Tribunal found that the termination of the applicant ’ s employment “which was decided abruptly after twenty years of irreproachable work without punishment or criticism”, had not been based on a genuine and serious cause. It awarded the applicant a sum representing twelve months of salary by way of compensation for dismissal without a genuine and serious cause, plus compensation in lieu of notice, together with sums in respect of unpaid overtime, time off in lieu that he had not been able to take, annual leave, and his inability to register with the ASSEDIC (“ Association for employment in industry and commerce”) from which he was entitled to receive unemployment benefit, amounting to a total of 539,358 francs (equivalent to 8 2,224.60 euros ). Moreover, the Employment Tribunal ordered the employer to issue the applicant with a certificate of employment and two pay statements, failing which it would be fined 1,000 francs per day.", "14. Disagreeing with the amount of the award, the applicant lodged an appeal against the judgment.", "15. In a judgment of 22 October 2002 the Paris Court of Appeal set aside that judgment, finding as follows:", "“ Admissibility of the claims", "The State of Kuwait argued that Mr Sabeh El Leil ’ s claims were inadmissible on account of its jurisdictional immunity.", "Mr Sabeh El Leil challenged the plea of inadmissibility, arguing that such immunity did not extend to proceedings concerning contracts of employment.", "He considers that his duties as head accountant fell expressly within the framework of a private-law activity rather than an activity of governmental authority.", "Mr Sabeh El Leil ’ s claims are directed against the State of Kuwait, represented by its embassy and its Ambassador in Paris and not against the embassy ’ s director himself.", "It must therefore be ascertained whether, in the present case, the State of Kuwait enjoys the jurisdictional immunity afforded to foreign States.", "Mr Sabeh El Leil ’ s last post was that of head accountant in the embassy ’ s accounts department.", "He also assumed certain additional responsibilities: responsibility for administrative matters, responsibility for legal affairs, responsibility for the payment and follow-up of financial contributions concerning the Kuwait Boundary Demarcation Commission, and responsibility for supervising the bank accounts of the Council of Arab Embassies [ sic ].", "Mr Sabeh El Leil, in view of his level of responsibility and the nature of his duties as a whole, did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service.", "He thus participated in acts of governmental authority of the State of Kuwait through its diplomatic representation in France.", "His claims against the State of Kuwait are thus inadmissible by virtue of the principle of jurisdictional immunity of foreign States.”", "16. The applicant appealed against that judgment to the Court of Cassation. In his full pleadings he challenged the finding that his claims against the State of Kuwait were inadmissible. He invoked a breach of Article 455 of the New Code of Civil Procedure, on the ground that the judgment had not given sufficient reasons, since the inadmissibility had been based :", "“ on the mere assertion that outside his accounting duties [he] assumed responsibilities in administrative matters, legal affairs ..., leading to the conclusion that in view of his level of responsibility and the nature of his duties as a whole, he did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service and participated in acts of governmental authority of the State of Kuwait ...”", "He developed his arguments as follows:", "“The judgment appealed against purportedly applied the principle whereby ‘ foreign States and bodies acting for them or on their behalf enjoy jurisdictional immunity not only for acts of governmental authority but also for acts performed in the interest of a public service ’ ...", "This principle implies, conversely, that the immunity of the foreign State from jurisdiction does not apply, in matters of employment contracts, where the employee had ‘ no particular responsibility in the performance of public service, such that his dismissal constituted an act of administration ’ ...", "That was precisely the situation of [the applicant ], who performed accountancy duties only.”", "17. On 23 March 2005 the Court of Cassation, ruling in the context of the preliminary admissibility procedure for appeals on points of law, as provided for by Article L. 131-6 of the Code of Judicial Organisation, held that the ground of appeal was “not such as to warrant admitting the appeal on points of law”." ]

[ "II. RELEVANT INTERNATIONAL LAW AND DOMESTIC LAW AND PRACTICE", "A. State immunity from jurisdiction", "1. International law", "18. State immunity from jurisdiction is governed by customary international law, the codification of which is enshrined in the United Nations Convention on Jurisdictional Immunities of States and their Property of 2 December 2004 (“the 2004 Convention”). The principle is based on the distinction between acts of sovereignty or authority ( acte jure imperii ) and acts of commerce or administration ( acte jure gestionis ).", "19. Article 11 (Contracts of employment) of the convention reads as follows:", "“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.", "2. Paragraph 1 does not apply if:", "( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority;", "( b ) the employee is:", "( i ) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;", "(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;", "(iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or", "(iv) any other person enjoying diplomatic immunity;", "( c ) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;", "( d ) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;", "( e ) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or", "( f ) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”", "20. In the Draft Articles on Jurisdictional Immunities of States and their Property, adopted by the International Law Commission at its forty-third session in 1991, and submitted to the General Assembly at that session, Article 11 read as follows:", "“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.", "2. Paragraph 1 does not apply if:", "( a ) the employee has been recruited to perform functions closely related to the exercise of governmental authority;", "(b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;", "(c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded;", "(d) the employee is a national of the employer State at the time when the proceeding is instituted; or", "(e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”", "21. In the commentary on that Article the Commission indicated as follows:", "“Paragraph 2 (b) is designed to confirm the existing practice of States in support of the rule of immunity in the exercise of the discretionary power of appointment or non-appointment by the State of an individual to any official post or employment position. ... So also are the acts of ‘ dismissal ’ or ‘ removal ’ of a government employee by the State, which normally take place after the conclusion of an inquiry or investigation as part of supervisory or disciplinary jurisdiction exercised by the employer State. This subparagraph also covers cases where the employee seeks the renewal of his employment or reinstatement after untimely termination of his engagement. The rule of immunity applies to proceedings for recruitment, renewal of employment and reinstatement of an individual only. It is without prejudice to the possible recourse which may still be available in the State of the forum for compensation or damages for ‘ wrongful dismissal ’ or for breaches of obligation to recruit or to renew employment.”", "22. The 2004 Convention on Jurisdictional Immunities of States and their Property was signed by France on 17 January 2007. The Bill authorising its ratification is currently being examined by the National Assembly, the Senate having approved the following text at First Reading on 22 December 2010:", "“Single Article", "The ratification of the United Nations Convention on Jurisdictional Immunities of States and their Property, adopted on 2 December 2004 and signed by France on 17 January 2007 is hereby authorised.”", "23. For a more comprehensive overview see Cudak v. Lithuania ([GC], no. 15869/02, § § 25 et seq ., ECHR 2010 ‑ ... ).", "2. Case-law of the Court of Cassation", "24. The Court of Cassation considers that a foreign State only enjoys jurisdictional immunity when the act giving rise to the dispute is an act of governmental authority or has been performed in the exercise of a public service ( Court of Cassation, First Civil Division, 25 February 19 69, no. 67 - 10243, Bull. I, no. 86). In other words it verifies, on a case-by-case basis, whether the act, by its nature or purpose, has contributed to the exercise of the foreign State ’ s sovereignty, as opposed to an act of administration ( Court of Cassation, Combined Divisions, 20 June 2003, appeals nos. 00-45629 and 00-45630, Bull. Ch. M. no. 4).", "25. Applying this criterion, the Court of Cassation found that jurisdictional immunity could not be granted in a dispute concerning an embassy employee who had no particular responsibility in the exercise of the public diplomatic service (Court of Cassation, First Civil Division, 11 February 1997, appeal no. 94-41871, Bull. I no. 49, for a caretaker; Court of Cassation, Employment Division, 10 November 1998, appeal no. 9 6 - 41534, Bull. V no. 479, concerning a nurse-medical secretary; and Court of Cassation, Employment Division, 14 December 2005, appeal no. 03-45973, in respect of a senior clerk in the national section of a consulate). The same principle applies where a State decides to close a consular mission: whilst it enjoys jurisdictional immunity as regards the assessment of the reasons for the closure decision, the French courts retain the power to verify the reality of the closure and to rule on the consequences of any redundancy caused thereby ( Court of Cassation, Employment Division, 31 March 200 9, appeal no. 07-45618, Bull. V no. 92).", "26. The assessment of that criterion, however, falls within the unfettered discretion of the Court of Appeal for the final decision on the facts and evidence ( Court of Cassation, Employment Division, 9 October 2001, appeal no. 98-46214, concerning a translator in the passport office).", "B. French Code of Civil Procedure", "27. The relevant provision of the Code of Civil Procedure reads as follows:", "Article 455", "“ Judgments shall set forth succinctly the respective claims of the parties and their grounds. Such presentation may take the form of a reference to the pleadings of the parties with an indication of their date. Judgments shall be reasoned.", "They shall state the decision in an operative paragraph.”", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION", "28. The Government raised a preliminary objection to the effect that domestic remedies had not been exhausted.", "A. The Chamber ’ s findings", "29. The Chamber declared the application admissible, after rejecting the Government ’ s objection that domestic remedies had not been exhausted, finding that the applicant had raised the complaint under Article 6 of the Convention in substance in his appeal on points of law, since he had challenged the Court of Appeal ’ s findings as to the exact scope of his duties and responsibilities and had argued that the principle of the foreign State ’ s jurisdictional immunity did not apply, in matters of employment contracts, when the employee, like himself, had no particular responsibility in the exercise of the public service.", "B. The parties ’ submissions", "1. The Government", "30. The Government reiterated their objection as to non-exhaustion of domestic remedies, since the applicant had not raised, in support of his appeal on points of law, the question of his lack of access to a court. They took the view that the single ground of appeal in his written submissions to the Court of Cassation had concerned a breach of the obligation to state reasons, not the actual principle of the State of Kuwait ’ s jurisdictional immunity.", "2. The applicant", "31. The applicant pointed out that, in his appeal on points of law, he had submitted arguments challenging the application to his case of the principle of jurisdictional immunity of a foreign State, and had thus precisely contested the infringement of his right to a fair hearing. He added that, in his pleadings before the Court of Appeal, he had already raised in substance his complaint about a violation of Article 6 § 1 of the Convention, since he had developed at length the argument that his employer could not be granted such immunity.", "C. The Grand Chamber ’ s assessment", "32. The Grand Chamber reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A; Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II; and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V ). Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24, and Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996 ‑ IV ). Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Cardot v. France, 19 March 1991, § 34, Series A no. 200, and Selmouni, cited above ).", "33. In the present case the Grand Chamber notes that, in his full pleadings in support of his appeal on points of law, the applicant challenged the findings of the Paris Court of Appeal as to the exact scope of his duties. His single ground of appeal criticised the Court of Appeal ’ s finding that he “ enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service and participated in acts of governmental authority of the State of Kuwait ”. Moreover, his arguments directly and expressly concerned the question of the foreign State ’ s jurisdictional immunity, challenging the application of this principle to his case.", "34. In those circumstances, the Grand Chamber takes the view, like the Chamber, that the complaint submitted to it was actually made in substance before the domestic courts. Accordingly, the Government ’ s preliminary objection must be dismissed.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "35. The applicant claimed that he had been deprived of his right of access to a court on account of the jurisdictional immunity invoked by his employer and upheld by the domestic courts. He relied on Article 6 § 1 of the Convention, of which the relevant part reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. Applicability of Article 6 § 1", "36. As regards the applicability of Article 6 § 1, the Government left the matter to the Court ’ s discretion.", "37. The applicant submitted that he unquestionably possessed a right which was the subject of a dispute ( contestation ), that his claims were civil in nature and that Article 6 was applicable.", "38. The Court refers to its finding in Vilho Eskelinen that in order for the respondent State to be able to rely before the Court on the applicant ’ s status as a civil servant in excluding the protection embodied in Article 6, two conditions must be fulfilled. First, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State ’ s interest (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ IV ). It should be pointed out, however, that that judgment concerned relations between the State and its own civil servants, thus differing from the present case.", "39. Moreover, it cannot reasonably be argued that the second condition has been fulfilled in the applicant ’ s situation. It can be seen from the documents before the Court that he was employed as an accountant, then as head accountant from 17 April 1985, in the Kuwaiti embassy. The Court is of the opinion that the performance of such duties cannot, in itself, justify an exclusion based on objective grounds in the State ’ s interest, within the meaning of the above-cited Vilho Eskelinen judgment.", "40. It remains to be examined whether the dispute in question concerned a civil right within the meaning of Article 6 § 1. In this connection the Court points out that Article 6 § 1 applies to disputes ( contestations ) concerning civil “rights” which can be said, at least on arguable grounds, to be recognised under domestic law, whether or not they are also protected by the Convention (see, in particular, Editions Périscope v. France, 26 March 1992, § 35, Series A no. 234 ‑ B, and Zander v. Sweden, 25 November 1993, § 22, Series A no. 279 ‑ B ). The dispute may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question (see Vilho Eskelinen, cited above, § 40). The Court has thus previously found Article 6 applicable in respect of a civil servant in the employ of a secondary school who had been appointed as accountant and did not participate in the exercise of powers conferred by public law (see Martinie v. France [GC], no. 58675/00, § 30, ECHR 2006 ‑ ... ). The Court reached the same conclusion as regards a former employee of a foreign embassy who was seeking compensation for unfair dismissal (see Cudak, cited above, § 46).", "41. The Court finds in the present case that the above-mentioned conditions are fulfilled, as the applicant ’ s action before the French courts concerned compensation for dismissal without genuine and serious cause.", "42. Accordingly, Article 6 § 1 of the Convention was applicable in the present case.", "B. Compliance with Article 6 § 1", "1. The parties ’ arguments", "(a) The applicant", "43. The applicant submitted that, according to the Court ’ s case-law, any restrictions on the right to a court based on immunity from jurisdiction must be subject to a strict review of proportionality between the actual interference with that right and the aim pursued. He took the view that his action was admissible under the relevant case-law of the Court of Cassation. In his submission, his application was particularly well-founded in the light of the Cudak judgment (cited above), in which the Court had found that Article 11 of the UN Convention on Jurisdictional Immunities of States and their Property was applicable to the respondent State. He understood that this convention, signed by France in 2007, was currently pending ratification by the Senate. He also indicated that the French Court of Cassation did not regard as absolute the international-law principle of jurisdictional immunity of foreign States. He had not performed any particular functions related to the exercise of governmental authority and his duties certainly did not have any bearing on the security interests of the State of Kuwait, within the meaning of Article 11 § 2 (d) of the above-mentioned Convention on Immunities. Lastly, he had been neither a diplomatic or consular agent nor a national of the State of Kuwait, and his dispute concerned labour law.", "(b) The Government", "44. The Government considered that the restriction on the applicant ’ s right of access to a court had pursued a legitimate aim and was proportionate to that aim, being consistent with the principles laid down in Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001 ‑ XI (extracts)), and Cudak (cited above ). They observed that in its Cudak judgment the Court had stated that it was necessary to take account of customary international law : in that context, it had therefore been for the Court of Appeal to determine whether the applicant ’ s duties were such that he participated in the exercise of the sovereignty of the State of Kuwait and thus whether the principle of immunity from jurisdiction was applicable. That principle had been upheld after an assessment of the facts by reference to the applicant ’ s duties as a whole, according to the realistic approach that must prevail in the implementation of the rules of international law. In view of his level of responsibility and of the nature of all his duties, it could not be considered that, by granting immunity to Kuwait, France had overstepped its margin of appreciation.", "45. The Government argued in this connection that there were a number of fundamental differences between the present case and that of Cudak : in the latter, the Lithuanian Supreme Court had inferred from the title of the applicant ’ s duties that she participated in the exercise of governmental authority, although that had not been demonstrated; and the applicant ’ s dismissal had originally arisen from her harassment by one of her colleagues, a member of the diplomatic staff. In the present case, by contrast, there had been no reprehensible conduct on the part of an embassy staff member directed against the applicant; he had been employed as head accountant, not as a switchboard operator; and the Court of Appeal had based its judgment on the duties actually performed, not on inferences, in the light of the documents produced. As regards those documents, the Government indicated that they had been returned to the parties following the close of the proceedings and that reference could thus only be made to the judgment of the Court of Appeal.", "2. The Court ’ s assessment", "(a) General principles", "46. The Court reiterates that the right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the principle of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002 ‑ IX ). Everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001 ‑ VIII ).", "47. However, the right of access to a court secured by Article 6 § 1 is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention ’ s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 ‑ I; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 98, ECHR 2001-V; Fogarty, cited above, § 33; and Cudak, cited above, § 55).", "48. Moreover, the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31 § 3 (c) of which indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. The Convention, including Article 6, cannot be interpreted in a vacuum (see Fogerty, cited above, § 35). The Court must therefore be mindful of the Convention ’ s special character as a human rights treaty, and it must also take the relevant rules of international law into account, including those relating to the grant of State immunity (see Loizidou v. Turkey (merits), 18 December 1996, § 43, Reports 1996 ‑ VI; Fogarty, cited above, § 35; and Cudak, cited above, § 56 ).", "49. It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to a court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the rule of State immunity (see Al- Adsani v. the United Kingdom [GC], no. 35763/97, § 56, ECHR 2001 ‑ XI; Kalogeropoulou and Others v. Greece and Germany ( dec .), no. 59021/00, ECHR 2002-X; Fogarty, cited above, § 36; and Cudak, cited above, § 57).", "50. Furthermore, it should be remembered that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Aït-Mouhoub v. France, 28 October 1998, § 52, Reports 1998-VIII). It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons (see Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B).", "51. Therefore, in cases where the application of the rule of State immunity from jurisdiction restricts the exercise of the right of access to a court, the Court must ascertain whether the circumstances of the case justified such restriction.", "52. The Court further reiterates that such limitation must pursue a legitimate aim and that State immunity was developed in international law out of the principle par in parem non habet imperium, by virtue of which one State could not be subject to the jurisdiction of another (see Cudak, cited above, § 60, and Al- Adsani, cited above, § 54 ). It has taken the view that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State ’ s sovereignty (ibid.).", "53. In addition, the impugned restriction must also be proportionate to the aim pursued. In this connection, the Court observes that the application of absolute State immunity has, for many years, clearly been eroded, in particular with the adoption of the Convention on Jurisdictional Immunities of States and their Property by the United Nations General Assembly in 2004 ( see Cudak, cited above, § 64). This convention is based on Draft Articles adopted in 1991, of which Article 11 concerned contracts of employment and created a significant exception in matters of State immunity, the principle being that the immunity rule does not apply to a State ’ s employment contracts with the staff of its diplomatic missions abroad, except in the situations that are exhaustively enumerated in paragraph 2 of Article 11 ( ibid., § 65 ).", "54. Furthermore, it is a well-established principle of international law that a treaty provision may, in addition to the obligations it creates for the Contracting Parties, also be binding on States that have not ratified it in so far as that provision reflects customary international law, either “codifying” it or forming a new customary rule ( ibid., § 66 ). Consequently, Article 11 of the International Law Commission ’ s 1991 Draft Articles, as now enshrined in the 2004 Convention, applies under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either (ibid., §§ 66-67).", "(b) Application of these principles to the present case", "55. The Court first observes that in the Cudak case, which concerned the dismissal of a member of the local staff of an embassy, it found that the restrictions on the right of access to a court pursued a legitimate aim ( ibid., § 62). It does not find any reason to reach a different conclusion in the present case.", "56. It should therefore now be examined whether the impugned restriction on the applicant ’ s right of access to a court was proportionate to the aim pursued.", "57. As the Court has pointed out (see paragraph 54 above), Article 11 of the International Law Commission ’ s 1991 Draft Articles, as now enshrined in the 2004 Convention, applies under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either ( see Cudak, cited above, §§ 66-67). For its part, France has not ratified it but has not opposed it: on the contrary, it signed the convention on 17 January 2007 and the ratification procedure is currently pending before the French Parliament (see paragraph 22 above).", "58. Consequently, it is possible to affirm that the provisions of the 2004 Convention apply to the respondent State, under customary international law (see Cudak, cited above, § 67), and the Court must take this into consideration in examining whether the right of access to a court, within the meaning of Article 6 § 1, was respected.", "59. As was the case in Cudak with Lithuanian law, this finding is confirmed by French domestic law. In its case-law, the Court of Cassation refuses to apply jurisdictional immunity in an absolute manner, taking the view that it is not applicable in the context of a dispute concerning an embassy employee who has no particular responsibility in the exercise of the public diplomatic service (see paragraph 25 above). That was the position it took, in particular, in a similar case, not concerning the restructuring of an embassy as in the present case, but the reorganisation by a State of its diplomatic mission. It found in that case that whilst the State enjoyed immunity from jurisdiction as to the assessment of the reasons for a decision to close a mission, the French courts retained the power to verify the reality of the closure and to rule on the consequences of any resulting redundancies (ibid.).", "60. Furthermore, the Court takes the view that the applicant, who was neither a diplomatic or consular agent of Kuwait, nor a national of that State, did not fall within any of the exceptions enumerated in Article 11 of the 2004 Convention. The Court observes that this Article enshrines the rule that a State has no jurisdictional immunity in respect of employment contracts, except in the situations exhaustively enumerated therein.", "61. The Court notes in particular that paragraph 2 (a) of Article 11 is clearly irrelevant to the present case, as the applicant was not employed to perform any particular duties in the exercise of governmental authority. As to paragraph 2 (d), which expressly concerns the dismissal of an employee, it cannot apply in the present case since it has not been established that there was any risk of interference with the security interests of the State: the judgment of the Paris Court of Appeal makes no reference to any claim by the State of Kuwait that the head of State, the head of Government or the Minister for Foreign Affairs ( the authorities enumerated in that provision ), were of the opinion that such a risk existed.", "62. The Court observes that the applicant, who was recruited in 1980 by the Kuwaiti embassy, performed the duties of accountant, then head accountant, until his dismissal in 2000 on economic grounds. On 17 April 1985, when he was promoted to the post of head accountant, an official note listed his tasks within the embassy ’ s accounts department, without mentioning any other tasks inside or outside that department (see paragraph 7 above). Similarly, a certificate of employment dated 19 January 2000 only indicates his post as head of the accounts department (see paragraph 9 above). Only a statement signed on 3 December 1999 by some twenty employees indicates that the applicant had also assumed another role, that of staff representative on an unofficial basis (see paragraph 8 above). Neither the domestic courts nor the Government, which indicated for their part that they had no choice other than to refer to the findings of the Court of Appeal, as they had not been a party to the proceedings, have shown how these duties could objectively have been linked to the sovereign interests of the State of Kuwait.", "63. Admittedly, the Court of Appeal ’ s judgment, enumerating a series of “additional responsibilities” that the applicant had supposedly assumed, infers from this that he did not perform mere acts of administration but had a degree of autonomy which meant that he carried out his activities in the interest of the public diplomatic service and thus participated in acts of governmental authority of the State of Kuwait (see paragraph 15 above).", "64. The Court notes, however, that the Court of Appeal merely asserted that such “additional responsibilities” existed, without justifying its decision by explaining on what basis – documents or facts brought to its attention – it had reached that conclusion.", "65. The Court of Cassation did not give any more extensive reasoning on that point, which was nevertheless an essential one with regard to the allegation of a breach of the right of access to a court. It confined itself to examining the case not according to the ordinary procedure but in the context of the preliminary admissibility procedure for appeals on points of law, under Article L. 131-6 of the Code of Judicial Organisation. Whilst that procedure is compliant per se with the provisions of Article 6 of the Convention (see Burg and Others v. France ( dec .), no. 34763/02, 28 January 2003, and Salé v. France, no. 39765/04, § 17, 21 March 2006 ), it nevertheless permits a level of legal consideration, concerning the merit of the appeal, that is substantially limited (see Salé, cited above, § 19).", "66. In addition, the Court notes that the Court of Appeal and the Court of Cassation also failed to take into consideration the provisions of Article 11 of the 2004 Convention, in particular the exceptions enumerated therein that must be strictly interpreted.", "67. In conclusion, by upholding in the present case an objection based on State immunity and dismissing the applicant ’ s claim without giving relevant and sufficient reasons, and notwithstanding the applicable provisions of international law, the French courts failed to preserve a reasonable relationship of proportionality. They thus impaired the very essence of the applicant ’ s right of access to a court.", "68. Accordingly, there has been a violation of Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "69. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "70. The applicant claimed 82,224.60 euros ( EUR ) in respect of pecuniary damage, covering the total amount awarded by the employment tribunal. He also sought EUR 2,000 euros in respect of non-pecuniary damage.", "71. The Government argued that the pecuniary damage alleged by the applicant was hypothetical and bore no direct causal link with the alleged violation. They took the view that the only possible award would arise from the non-pecuniary damage claimed, for the sum of EUR 2,000.", "72. The Court observes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6. Whilst the Court cannot speculate as to the outcome of the trial had the position been otherwise, it does not find it unreasonable to regard the applicant as having incurred a loss of real opportunities (see, among other authorities, Colozza v. Italy, 12 February 1985, § 38, Series A no. 89, and Cudak, cited above, § 79 ). In addition, the applicant has sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. Ruling on an equitable basis, as required by Article 41, the Court awards the applicant EUR 60 ,000 for all heads of damage combined.", "B. Costs and expenses", "73. The applicant indicated that he had been obliged to use the services of a number of lawyers and a translator in the domestic proceedings in order to seek redress for the breach of his rights under the Convention. He claimed EUR 11,984.73 on that basis, together with EUR 4,784 for the proceedings before the Court, representing a total of EUR 16,768.73, for which he produced all the invoices and fee notes.", "74. The Government, which merely referred back to their observations before the Chamber, argued that the applicant had substantiated his claim only by two invoices for EUR 3, 588 and EUR 1,196, the remainder not being justified and moreover appearing disproportionate. In their view, any sum that might be awarded to the applicant should not therefore exceed EUR 4,784.", "75. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, among many other authorities, E.B. v. France [GC], no. 43546/02, § 105, ECHR 2008 ‑ ... ., and Micallef v. Malta [GC], no. 17056/06, § 115, ECHR 2009 ‑ ... ). In the present case, regard being had to the above criteria and the documents in its possession, the applicant having substantiated before the Grand Chamber the full amount claimed, the Court finds the sum of EUR 16,768 reasonable and awards it to him.", "C. Default interest", "76. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1941 and lives in Vienna.", "A. Background", "6. The applicant had been an employee of the embassy of the United States of America in Vienna since March 1978. From January 1981 onwards she had a contract of indefinite duration and worked as a photographer at the embassy. Following an accident in 1983 the competent authority issued a decision stating that she qualified for protection under the Disabled Persons (Employment) Act ( Invaliden ­ einstellungs ­ gesetz ). Following a further accident, classified as work-related, the embassy dismissed her in September 1987.", "7. Her dismissal was declared void by the Vienna Labour and Social Court ( Arbeits- und Sozialgericht ) on the ground that it required the prior agreement of the competent authority under the Disabled Persons (Employment) Act. The court dismissed the argument submitted by the United States that it lacked jurisdiction on account of the United States’ immunity. It found that, while foreign States enjoyed immunity with regard to acta iure imperii, they came within the jurisdiction of the domestic courts with regard to acta iure gestionis. The conclusion and performance of an employment contract fell within the latter category. The Supreme Court ( Oberster Gerichthof ) upheld that judgment on 21 November 1990, noting that the United States had not maintained the objection of State immunity in the further course of the proceedings.", "8. As a result of the above proceedings, the applicant continued to have a valid employment contract with the United States embassy in Vienna. However, the latter refused to make use of her services. Instead, on 31 January 1991, they applied to the Vienna Committee for Disabled Persons requesting retroactive approval of the applicant’s dismissal or, alternatively, agreement to a future dismissal. The Committee refused to grant retroactive approval for the applicant’s dismissal of September 1987 but gave its approval for a future dismissal. The competent Federal Ministry upheld that decision. On 13 September 1994 the Administrative Court, ruling on a complaint by the applicant, set aside the decision to grant approval for the applicant’s future dismissal, finding that the authorities had failed to establish relevant facts and had not duly weighed the parties’ interests. The case was referred back to the Committee. On 16 January 1996 the United States withdrew its application, stating that it had always maintained that the application of the Disabled Persons (Employment) Act to employees of the embassy interfered with the country’s sovereignty.", "9. Meanwhile, the applicant brought proceedings against the United States requesting payment of her salary. In a first set of proceedings, concerning salary payments up to June 1995, the United States unsuccessfully raised an objection of jurisdictional immunity. Subsequently, the United States paid the applicant salary arrears of 3.7 million Austrian schillings (approximately 269,000 euros (EUR)). On the occasion of the payment, the lawyer who had represented the United States in the proceedings informed the applicant by a letter dated 16 October 1996 that the payment did not imply any acceptance of the Austrian courts’ judgments and that the United States considered her employment contract to be terminated and would, if she raised any further claims, “make use of its diplomatic rights and immunities”.", "10. Further proceedings relating to the payment of salary from July 1995 to August 1996 led to a final default judgment by the Vienna Labour and Social Court. However, the United States did not pay the amount awarded to the applicant.", "11. The applicant also unsuccessfully brought proceedings against the United States claiming reimbursement of the social security contributions which she had been ordered to pay by the Austrian authorities and a part of which the employer was, under her employment contract, obliged to refund. In those proceedings the United States authorities refused to serve the summons to attend the hearing. The Austrian courts dismissed the applicant’s request for a judgment in default. Their position was upheld by the Supreme Court’s judgment of 11 June 2001 (see below, paragraph 28).", "B. The proceedings giving rise to the present application", "12. On 29 December 1998 the applicant brought an action against the United States of America before the Vienna Labour and Social Court, claiming salary payments from September 1996 onwards. The court scheduled a first hearing for 20 October 1999.", "13. An attempt to serve the applicant’s action and the summons to the hearing on the United States through the Austrian Ministry of Foreign Affairs, under section 11(2) of the Service Act ( Zustellgesetz ), failed. According to the file a staff member of the Austrian embassy in Washington handed these documents over to a staff member of the United States Department of State. However, by letter of 25 January 2000 the Ministry of Foreign Affairs informed the Ministry of Justice, which in turn informed the Vienna Labour and Social Court, that the United States authorities had refused to serve the summons and had returned the documents at issue to the Austrian embassy in Washington. The letter was accompanied by a note from the United States Department of State informing the Austrian Ministry of Foreign Affairs that the United States wished to assert its immunity in any case brought by the applicant. In a letter of 4 February 2000 the Ministry of Foreign Affairs also informed the applicant accordingly.", "14. On 18 February 2000 the Vienna Labour and Social Court dismissed the applicant’s request for a judgment in default, noting that it had been impossible to summon the defendant. An appeal by the applicant to the Vienna Court of Appeal ( Oberlandesgericht ) was unsuccessful.", "15. The Supreme Court dismissed her appeal on points of law on 5 September 2001. Referring to its judgment of 11 June 2001 in a parallel case brought by the applicant (see paragraph 28 below), it noted that the summons had not been duly served on the defendant, namely the United States Department of Justice. Consequently, the conditions for giving a judgment in default were not fulfilled.", "16. By a decision of 29 October 2001 the Vienna Labour and Social Court held that the applicant’s action and the summons to the hearing had not been served on account of the manifest refusal of the United States to comply with the request for service. It followed that further attempts to summon the defendant did not have any prospects of success.", "17. Subsequently, the applicant requested that the summons be served by means of publication under Article 121 § 2 of the Code of Civil Procedure ( Zivilprozeßordnung ) or, alternatively, that it be served on a court-appointed representative ( Curator ) under Article 116 of the Code.", "18. By decision of 25 April 2002 the Vienna Labour and Social Court appointed a lawyer, Dr G., to represent the United States of America. It noted that the foreign authorities had refused to serve the summonses in any of the proceedings brought by the applicant. In the court’s view the United States had wrongly relied on its alleged immunity.", "19. On 18 November 2002 the Vienna Court of Appeal, following an appeal by Dr. G., quashed that decision. The relevant part of its decision reads as follows:", "“In acting on a request for service, the State to which the request is made is exercising sovereign powers. This applies even if the court documents in question are addressed to that State and the authority responsible for acting on the request for assistance (in this instance the Department of State) refuses to forward them to the authority empowered to represent the State in private-law proceedings (in this instance the Department of Justice). This is not a case of refusal to accept service (§ 20 of the Service Act) but rather a case of refusal to comply with a request for legal assistance. Such refusal is a sovereign right of the foreign State, against which a remedy can be sought only through diplomatic channels ...", "The Supreme Court endorsed this legal stance (8ObA 201/00t), stressing that, as international law currently stands, compliance or refusal to comply with a request for legal assistance is to be regarded as a sovereign act, irrespective of the subject-matter of the claim. The nature of the act is the defining factor. It is beyond doubt that the service of documents in court proceedings falls within the scope of so-called acta iure imperii and not acta iure gesionis, as a private individual cannot perform an act of this nature. Although negotiations have been in progress for some time on an international agreement concerning service of process on foreign States (which might make it sufficient for the action to be served on the country’s foreign ministry), no such agreement has to date been concluded, with the result that the issue remains unregulated by any treaty between Austria and the United States.", "In a commentary on this decision, which had been published in JBl 2002, 57, Hintersteininger observed, inter alia, that, while the restrictive theory of service of process applied by the Supreme Court might be appropriate for the purposes of avoiding disagreements between States, it was not a requirement under international law. The author concluded that section 11 of the Service Act – at least as currently applied to judicial proceedings instituted in Austria against foreign States – amounted to a “self-imposed shackle” as a result of which the standard of protection of individuals’ legal interests was subordinated to international-law considerations. Unless and until the Austrian courts saw fit to apply a different interpretation of the provision in question – the fact that the Supreme Court, in its 2001 ruling, continued to apply its case-law from 1963 indicated that this was unlikely – there was an urgent need for the legislature to enact amending legislation in order to provide a practical solution to the problem of service of process.", "Referring to Hintersteiniger’s international-law argument, the appellant raises the possibility of transmitting the action and an explanation of the legal circumstances, together with a translation into the country’s official language, to the US Department of State through diplomatic channels. In this case the defendant State would have no justification for returning the copy of the action at will; in the event of a refusal to accept service, it should be deemed to have received the request. This would make effective service possible and would remove the need to appoint a representative.", "The objection to this line of argument is that such a procedure – which from a general international-law perspective is possible – is incompatible with the applicable legal provisions in Austria. As clarified in 8 ObA 201/00t, the action has to be served on a competent body within the Department of Justice, which is the authority representing the United States in the present employment-related proceedings. It is not sufficient for the document to have somehow reached another authority which appears to be responsible for forwarding the request for service. Accordingly, it is incorrect to speak of a refusal to accept service if the document was never transmitted to the competent authority. In this connection the Supreme Court stressed that, conversely, it would not be sufficient, in order to institute legal proceedings, for an action against the Republic of Austria to be received by the Foreign Ministry if, for whatever reason, it was not forwarded to the Attorney-General’s Office as the competent authority representing the State in such matters. The first-instance court already acknowledged that a further request for service would have little prospect of success in view of the earlier comments of the US authorities.", "Nevertheless, the (definitive) refusal of the US Department of State to forward court documents concerning the appellant to the Department of Justice does not justify the appointment of a representative for the defendant in accordance with Article 116 of the Code of Civil Procedure. As the appellate court explained in detail in its decision 8 Ra 23/00t, cited above, service of process on a foreign State is (also) based on section 11(2) of the Service Act. Hence, for the purpose of performing it, recourse is to be had in any event to the Federal Ministry of Foreign Affairs. On the basis of this provision, which takes precedence, service via any means other than the diplomatic channels to which it refers – for instance, on a court-appointed representative – is ruled out. In view of the principle whereby a remedy against a refusal to comply with a request for legal assistance, which flows from the sovereign power of the foreign State, can be sought only through diplomatic channels (see SZ 36/26, EvBl 1963/210; for a critical perspective, see Schreuer, Die Durchsetzung zivilrechtlicher Ansprüche gegen ausländische Staaten, ÖJZ 1991, 41 et seq. [49]), the impugned decision lacks any legal basis.”", "20. On 7 May 2003 the Supreme Court dismissed an appeal on points of law by the applicant. It started by referring to its decision of 11 June 2001 (see paragraph 28 below) in a previous case brought by the applicant against the United States. It followed from that decision that the action brought by the applicant had to be served through diplomatic channels. It held that Article 121 § 2 of the Code of Civil Procedure, although it concerned the service of summonses abroad, was not applicable in a case like the present one in which the person or legal entity to be summoned relied on their immunity. The applicant’s interpretation of the provision in question would undermine the concept of immunity.", "21. Only section 11(2) of the Service Act was applicable. The applicant did not contest the fact that foreign States came within the scope of that provision as they enjoyed “privileges and immunities” under international law. In that context the Supreme Court went on to state as follows:", "“No agreement exists between Austria and the defendant concerning service of process from the perspective of State immunity from jurisdiction. In the absence of such agreement the generally recognised rules of international law (Article 9 of the Federal Constitution), together with section IX of the Introductory Act to the Austrian Jurisdictional Statute (EGJN) and the principles developed in this connection by the case-law and by legal commentators, must apply. On that basis it is unanimously agreed that foreign States enjoy immunity in the exercise of their sovereign powers and are to that extent exempt from the jurisdiction of the domestic courts (see, among other authorities, SZ 23/143; Herndl, JBl 1962, 15; JBl 1962, 43; Heß, JBl 1989, 285; ZfRV 1990, 300 [Seidl-Hohenveldern]; Schreuer, ÖJZ 1991, 41; Fischer, NZ 1991, 154; DRdA 1991/53 [Simotta]; Neuhold/Hummer/Schreuer, Österreichisches Handbuch des Völkerrechts Bd 1³ para. 834, 837; Seidl-Hohenveldern, Völkerrecht 9 paras. 1462 et seq.; Matscher, loc. cit, Art IX EGJN para. 2, 115 et seq., 196 et seq.; Mayr in Rechberger, ZPO² Art IX EGJN para. 3 et seq.). The service of process abroad, as a sovereign act, amounts – in the absence of an agreement between the States concerned governing the relevant procedure – to interference with the sovereign rights of the foreign State in question. For that reason it is a requirement in such cases to have recourse to the Federal Ministry of Foreign Affairs, which maintains close contact with the milieu concerned and is competent to take account of the relevant international-law considerations (RV 162 BlgNR XV.GP 10), as the appellant correctly points out. However, contrary to her assertion, exclusive recourse to the Federal Ministry of Foreign Affairs is not merely recommended, but is required by statute (the mandatory “shall” in section 32(3) of the Jurisdictional Statute and section 11(2) of the Service Act). The service of documents by any other means would be in breach of the law (Walter/Mayer, op. cit., section 11 Service Act, footnote 15).", "Although Hintersteininger, in her commentary on 8 ObA 201/00t (JBl 2002, 57) concludes that the “restrictive theory of service of process” is appropriate for the purpose of avoiding international disagreements, she nevertheless calls on the legislature to amend section 11 of the Service Act, as she sees evidence of a “self-imposed shackling” at least in the way in which that provision is applied. The legislature has not taken any action to date. It should further be observed that the strict approach to diplomatic immunity can be traced back to the Jurisdictional Statute, according to which the violation of immunity renders the proceedings in question null and void, in a manner which cannot be remedied even by the parties (except by a waiver of immunity) (§ 42 JN; Ballon, op. cit., § 42 JN para. 3, 14 et seq.; Mayr, op. cit., § 42 JN para. 2, 7).", "Contrary to the appellant’s assertion, her request for the action to be served on the defendant by publication or by the appointment of a representative does not fall in the present case within the “classic scenario” under Article 121(2) of the Code of Civil Procedure, but is governed by the exception thereto and undermines the defendant’s claim to diplomatic immunity. Accordingly it is not possible, precisely in this case, to proceed on the basis of that provision. On the contrary – in so far as the proceedings against the defendant in Austria are concerned – exclusive recourse must be had to diplomatic channels, as reasoned by the Supreme Court in case 8 ObA 201/00t.”", "22. The Supreme Court’s decision was served on the applicant’s counsel on 3 July 2003.", "C. Further developments", "23. In April 2002 the applicant reached pensionable age. She gave the United States embassy in Vienna notice of her intention to terminate her employment contract and applied to the competent Pensions Insurance Office for an old-age pension from 1 May 2002.", "24. Subsequently, the applicant extended her claim in the above-mentioned proceedings to salary payments from September 1996 to April 2002. She requested again that the defendant be summoned to a hearing. In that context she referred to the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (see paragraphs 30 to 34 below), and argued that, according to Article 22, transmission of the documents to the United States Department of State through diplomatic channels would be sufficient to effect service. The summons was handed over to a staff member of the United States Department of State but was again returned to the Austrian embassy in Washington with the remark that the United States wished to assert its immunity in any case brought by the applicant.", "25. On 17 July 2006 the Vienna Court of Appeal upheld the first-instance court’s decision refusing to give a default judgment. Referring to the Supreme Court’s case-law, it held that the refusal to serve a summons was an act of sovereign power. It noted, inter alia, that the Convention relied on by the applicant did not apply to proceedings which had been initiated before its entry into force and added that there were no rules of customary international law to indicate that States could not rely on immunity in the context of the service of a summons. No further appeal on points of law lay against this decision." ]

[ "II. RELEVANT DOMESTIC AND INTERNTIONAL LAW", "A. Domestic law and practice", "26. Section 11 of the Service Act ( Zustellgesetz ) deals with the service of official documents abroad and the service of official documents on foreign nationals and foreign States or international organisations enjoying privileges and immunities under international law. It provides as follows:", "“1. Service of process abroad shall be effected in accordance with existing international agreements or as provided for by the laws or other legal provisions of the State in which service is to be effected or by international custom, if necessary with the cooperation of the Austrian diplomatic authorities.", "2. Service of process on foreign nationals or international organisations which enjoy international privileges and immunities shall be effected through the intermediary of the Federal Ministry of Foreign Affairs, irrespective of where their place of residence or headquarters is located.”", "27. The relevant provisions of the Code of Civil Procedure ( Zivilprozeßordnung ) read as follows:", "Article 116", "“In the case of persons on whom process can only be served by publication because their address is unknown, the court shall appoint a representative (Article 9), on application or of its own motion, if the persons concerned would have to perform a step in the proceedings as a result of being served with the documents, and in particular if the documents to be served contain a summons.”", "Article 121", "“1. In the case of service on persons outside the country who do not fall into the categories of recipients referred to in section 11(2) and (3) of the Service Act, the Federal Minister of Justice, in agreement with the Federal Chancellor, may order service to be effected by post, using the system of advice of receipt customarily used for international postal deliveries, to countries in which service in accordance with section 11(1) of the Service Act is not possible or gives rise to difficulties.", "2. If no confirmation is received within a reasonable time that process has been served on an individual outside the country, the applicant party may request, depending on the circumstances, that service be effected by publication (section 25 of the Service Act) or by the appointment of a representative under Article 116. This shall also apply in cases where an unsuccessful attempt has been made to serve process abroad or where the request for service has no prospect of success owing to a manifest refusal by the authorities of the foreign State to comply with the request for legal assistance.”", "28. In a judgment of 11 June 2001 (8ObA 201/00) in a related case concerning claims for reimbursement of social security contributions brought by the applicant against the United States (see paragraph 11 above), the Supreme Court held as follows:", "“The appellate court was correct in taking the view that, as international law currently stands, the decision to comply with or refuse a request for legal assistance is a sovereign act, irrespective of the subject-matter of the request. The nature of the act is the defining factor. It is beyond doubt that the service of documents in court proceedings falls within the scope of acta iure imperii and not acta iure gesionis, as a private individual cannot perform an act of this nature (Seidl-Hohenfeldern, Völkerrecht 317 et seq., esp. paras. 1472-79; Neuhold/Hummer/Schreuer, Öster ­ reichisches Handbuch des Völkerrechts3, para. 837).", "The criticism of the current legal situation raised by the appellant, relying on Schreuer (ÖJZ 1991, 41 et seq. [esp. 48 et seq.], does not alter the fact that, although negotiations have been in progress for some time on an international agreement concerning service of process on foreign States (which might make it sufficient for the action to be served on the country’s foreign ministry), no such agreement has to date been concluded, with the result that the issue remains unregulated by any treaty between Austria and the United States. It is not disputed that, under American Federal law, the United States is represented by the Department of Justice in matters which are to be regarded as acta iure gestionis (compare 9 ObA 244/90 = SZ 63/206 with further references concerning the employment contract between the claimant and the defendant). The action must therefore be served – as correctly requested by the appellant herself – on a body within that authority. It is not sufficient – as the appellant has claimed in the appeal proceedings – for the document to have somehow reached another authority which is meant to be responsible for forwarding the request for service (the Department of State (Foreign Ministry)). Conversely, it would not be sufficient, in order to institute legal proceedings, for an action against the Republic of Austria to be received by the Foreign Ministry if, for whatever reason, it was not forwarded to the Attorney-General’s Office, which is the competent authority in such matters.”", "B. International law", "1. The 1972 European Convention on State Immunity", "29. The 1972 European Convention on State Immunity (“the Basle Convention”) entered into force on 11 June 1976 after its ratification by three States. It has been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kindgom) and signed by one State (Portugal). On 11 June 1976 it entered into force in respect of Austria, which had ratified it on 10 July 1974. The relevant provisions read as follows:", "Article 5", "“1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum.", "2. Paragraph 1 shall not apply where:", "a) the individual is a national of the employing State at the time when the proceedings are brought;", "b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or", "c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter. ... ”", "Article 16", "“1. In proceedings against a Contracting State in a court of another Contracting State, the following rules shall apply.", "2. The competent authorities of the State of the forum shall transmit", "the original or a copy of the document by which the proceedings are instituted;", "a copy of any judgment given by default against a State which was defendant in the proceedings,", "through the diplomatic channel to the Ministry of Foreign Affairs of the defendant State, for onward transmission, where appropriate, to the competent authority. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the defendant State.", "3. Service of the documents referred to in paragraph 2 is deemed to have been effected by their receipt by the Ministry of Foreign Affairs. ...”", "2. The 2004 United Nations Convention on Jurisdictional Immunities of States and their Property", "30. State immunity from jurisdiction is governed by customary international law, the codification of which is enshrined in the United Nations Convention on Jurisdictional Immunities of States and their Property of 2 December 2004 (“the 2004 Convention”). The principle is based on the distinction between acts of sovereignty or authority ( acta jure imperii ) and acts of commerce and administration ( acta jure gestionis ) (see Sabeh El Leil v. France [GC], no. 34869/05, §§ 18-23, 29 June 2011; see also Cudak v. Lithuania [GC], no. 15869/02, §§ 25-33, ECHR 2010).", "31. The Convention was opened for signature on 17 January 2005 and has not yet entered into force. Austria signed the Convention on 17 January 2005 and ratified it on 14 September 2006. The United States has not ratified the 2004 Convention, but did not vote against it when it was adopted in the General Assembly of the United Nations.", "32. The draft text of the Convention was prepared by the United Nations International Law Commission (ILC) which, in 1979, was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. The Draft Articles that were used as the basis for the text adopted in 2004 dated back to 1991. They were subsequently further revised by the Sixth Committee of the United Nations General Assembly. States were again given an opportunity to comment.", "33. Article 11 (contracts of employment) of the 2004 Convention reads as follows:", "“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.", "2. Paragraph 1 does not apply if:", "( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority;", "( b ) the employee is:", "(i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;", "(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;", "(iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or", "(iv) any other person enjoying diplomatic immunity;", "( c ) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;", "( d ) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;", "( e ) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or", "( f ) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”", "34. Article 22 (Service of process) of the 2004 Convention reads as follows:", "“1. Service of process or writ or other document instituting a proceeding against a State shall be effected:", "( a ) in accordance with any applicable international convention binding on the State of the forum and the State concerned; or", "( b ) in accordance with any special arrangement for service between the claimant and the State concerned, if not precluded by the law of the State of forum; or", "( c ) in the absence of such a convention or special arrangement:", "(i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or", "(ii) by any other means accepted by the State concerned, if not precluded by the law of the State of forum.", "2. Service of process referred to in paragraph (1) ( c ) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs.", "3. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned.", "4. Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs 1 and 3.”", "35. In the Draft Articles on Jurisdictional Immunities of States and their Property, adopted by the International Law Commission at its forty-third session in 1991, and submitted to the General Assembly at that session, Article 11 read as follows:", "“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.", "2. Paragraph 1 does not apply if:", "(a) the employee has been recruited to perform functions closely related to the exercise of governmental authority;", "(b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;", "(c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded;", "(d) the employee is a national of the employer State at the time when the proceeding is instituted; or", "(e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”", "36. In the commentary on the International Law Commission’s Draft Articles of 1991, it was stated that the rules formulated in Article 11 appeared to be consistent with the trend in legislative and treaty practice in a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, § 14).", "37. In the Draft Articles of 1991, Article 20 (service of process) read as follows:", "“1. Service of process or writ or other document instituting a proceeding against a State shall be effected:", "( a ) in accordance with any applicable international convention binding on the State of the forum and the State concerned; or", "(b) in the absence of such a convention:", "(i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or", "(ii) by any other means accepted by the State concerned, if not precluded by the law of the State of forum.", "2. Service of process referred to in paragraph 1 (b) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs.", "3. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned.", "4. Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs 1 and 3.”", "38. The International Law Commission’s commentary on that Article (ILC Yearbook, 1991, Vol. II, Part 2, p. 60, §§ 1-3), in so far as relevant in the present context, stated as follows:", "“(1) Article 20 relates to a large extent to the domestic rules of civil procedure of States. It takes into account the difficulties involved if States are called upon to modify their domestic rules on civil procedure. At the same time, it does not provide too liberal or generous a regime of service of process, which could result in an excessive number of judgments in default of appearance by the defendant State. The article therefore proposes a middle ground so as to protect the interests of the defendant State and those of the individual plaintiff.", "Paragraph 1", "(2) Paragraph 1 is designed to indicate the normal ways in which service of process can be effected when a proceeding is instituted against a State. Three categories of means by which service of process is effected are provided: first, if an applicable international convention binding upon the State of the forum and the State concerned exists, service of process shall be effected in accordance with the procedures provided for in the convention. Then, in the absence of such a convention, service of process shall be effected either (a) by transmission through diplomatic channels or (b) by any other means accepted by the State concerned. Thus, among the three categories of the means of service of process provided under paragraph 1, an international convention binding both States is given priority over the other two categories. The variety of means available ensures the widest possible flexibility, while protecting the interests of the parties concerned.", "Paragraphs 2 and 3", "(3) Since the time of service of process is decisive for practical purposes, it is further provided in paragraph 2 that, in the case of transmission through diplomatic channels or by registered mail, service of process is deemed to have been effected on the day of receipt of the documents by the Ministry of Foreign Affairs. Paragraph 3 further requires that the documents be accompanied, if necessary, by a translation into the official language, or one of the official languages of the State concerned. ...”", "In respect of Article 20 § 1 the commentary also gives numerous examples of relevant provisions in national legislation. In addition it refers to Article 16 §§ 1-3 of the European Convention on State Immunity.", "39. During the drafting process the United States commented on Article 20 of the 1991 Draft Articles (which became Article 22 of the 2004 Convention). It did not object to the rules enshrined in Article 22 (1) (c) (i) and Article 22 (2).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "40. The applicant complained that she had not had access to the Austrian courts in connection with her claim for payment of salary from September 1996 onwards arising out of her employment contract with the embassy of the United States of America in Vienna. She relied on Article 6 of the Convention, the relevant part of which reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "41. The Government contested that argument.", "A. Admissibility", "1. Compliance with the six-month rule", "42. The Government submitted that the proceedings concerning the applicant’s request for a judgment in default had been terminated by the Supreme Court’s judgment of 5 September 2001. In those proceedings the question of effective service of the summons on the United States had already been determined with final effect. Accordingly, the application, introduced on 15 December 2003, had been lodged outside the six-month time-limit.", "43. The applicant contested that view. She asserted that the proceedings concerning her claim for salary payments from September 1996 onwards had to be considered as a whole. It should not be held against her that, following the Supreme Court’s judgment of 5 September 2001, she had attempted to obtain a decision on the merits of her claim by other means, namely by requesting the appointment of a representative, before lodging her application with the Court. Those attempts had by no means been without prospects of success, as was shown by the fact that the first-instance court had granted her request. Moreover, there had been no case-law on the question whether it was possible to appoint a representative for a foreign State. That question had only been settled by the Supreme Court’s judgment of 7 May 2003, served on the applicant’s counsel on 3 July 2003.", "44. The Court notes that the proceedings at issue in the present application concerned the applicant’s claim for salary payments from September 1996 onwards against the United States of America. In both judgments the Supreme Court considered that the defendant had not been duly summoned. In its judgment of 5 September 2001 the Supreme Court concluded that a default judgment could therefore not be issued, and in its judgment of 7 May 2003 it found that the appointment of a representative was not admissible either. Consequently, the courts could not proceed with the applicant’s case. Thus, both judgments concerned the question of the applicant’s access to court. In sum, the Court considers that the proceedings have to be seen as a whole and that no issue of failure to comply with the six-month rule arises. It therefore dismisses the Government’s objection.", "2. Applicability of Article 6 § 1 of the Convention", "45. The Court observes that the Government did not contest the applicability of Article 6 § 1 to the present proceedings, which concerned claims for salary payments arising out of the applicant’s employment contract with the United States embassy in Vienna. The Court reiterates that in Cudak (cited above, §§ 39-47) and Sabeh El Leil (cited above, §§ 36-42) it applied, mutatis mutandis, the principles it had developed for establishing whether a dispute between a State and a national civil servant fell within the scope of Article 6 § 1 to a dispute between an employee of an embassy and a foreign State. According to these principles (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007 ‑ II, § 62), two conditions must be fulfilled in order for the respondent State to be able to rely before the Court on an applicant’s status as civil servant in excluding him or her from the protection embodied in Article 6. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest.", "46. It follows from the domestic court’s decisions in the previous set of proceedings relating to salary payments up to June 1995 (see paragraph 9 above) that the Austrian civil courts had jurisdiction over such claims. The applicant thus had, in principle, a right of access to court and it is therefore not necessary to examine whether the second condition was fulfilled. In any case, it has not been suggested that the nature of her post as a photographer was such as to justify excluding her from access to court. Nor has it been contested that the dispute in issue concerned the applicant’s “civil rights” within the meaning of Article 6 § 1 of the Convention. The Court therefore concludes that Article 6 § 1 was applicable to the proceedings at issue.", "3. Conclusion", "47. In conclusion, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicant", "48. The applicant asserted that the present case was comparable to Cudak (cited above). As in that case, the proceedings at issue concerned claims arising out of an employment contract with the embassy of a foreign State, in respect of which the State did not enjoy immunity. The domestic courts themselves had dismissed the United States’ objection of immunity in the previous set of proceedings brought by the applicant. It was also clear from that previous set of proceedings that Austrian law applied to the dispute at issue.", "49. Like in Cudak it followed from Article 11 of the 2004 Convention that the United States could not claim jurisdictional immunity with regard to the employment dispute at issue. Although that Convention had been adopted after the final decision in the present case, it must be considered to codify customary international law, which therefore applied as such at the time when the contested decisions had been given.", "50. The gist of the present case was that the Austrian courts, in accepting that the United States’ refusal to serve a summons on the United States Department of Justice was an act of sovereign power, had disregarded the fact that the United States could not rely on immunity in respect of the underlying claim. The Supreme Court, in adopting this approach, had relied on case-law which did not reflect the current state of international law.", "51. The Austrian courts should either have effected service according to section 11(1) of the Service Act on the grounds that the United States did not “enjoy immunity under international law” or, alternatively, if relying on section 11(2) of the Service Act and effecting service through diplomatic channels, should have considered that service had been duly effected as the United States Department of State had actually received the documents at issue.", "52. The Supreme Court’s view that effective service required service of the documents on the United States’ Department of Justice (as the authority competent to represent the State in civil proceedings) was not in line with the state of international law. On the contrary, it followed from Article 22 of the 2004 Convention and its predecessor provision, Article 20 of the International Law Commission’s 1991 Draft Articles, that service of process through diplomatic channels was deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs. As the United States Department of State had received the applicant’s action and the summons to a hearing, the Austrian courts should have proceeded on the basis that the defendant had been duly summoned. Consequently, they could and should have appointed a representative for the United States in order to proceed with an examination of the merits of the applicant’s claim.", "53. Although the limitation of the applicant’s right of access to court might be considered to have served a legitimate aim, namely guaranteeing comity and good relations between States, it had been disproportionate in her case. In fact the Austrian courts’ legal view did not reflect the state of international law. It had made it entirely impossible for the applicant to pursue her claim and had thus impaired the very essence of her right of access to court.", "(b) The Government", "54. For their part, the Government submitted that the present case had to be distinguished from Cudak (cited above). That case had concerned the question whether accepting a foreign State’s objection of State immunity in an employment-related dispute violated the right of access to court. By contrast, the present case raised the question whether the procedure of serving a summons in a civil action against a foreign State was as such to be qualified as a sovereign act.", "55. The Government stressed once more that the question of international law facing the Austrian courts had been how effective service of a civil action on the United States was to be carried out and to what extent the service procedure itself was to be considered as an act of sovereign power. According to the Supreme Court’s case-law, in particular its decision of 11 June 2001 (see paragraph 28 above), carrying out a request for service of a summons – or refusing it as in the present case – fell within the category of “ acta iure imperii ”. Consequently, it was irrelevant whether the objection of State immunity could be successfully relied on in relation to the claim at issue.", "56. In any case, the limitation of the applicant’s right of access to court had served a legitimate aim, namely compliance with the generally recognised rules of international law and the promotion of good relations between States. Section 11 of the Service Act, which had been applied in the present case, was a reflection of respect for the foreign State’s sovereignty as required by international law regarding service of process abroad. After the United States had made it clear that it wished to assert its immunity in any further case brought by the applicant, the service of the applicant’s action could only be effected through diplomatic channels under section 11(2) of the Service Act. Repeated attempts to do so had indeed been made but had been unsuccessful.", "57. The Supreme Court, in its decision of 7 May 2003, had thus proceeded on the assumption that the United States was entitled under international law to refuse to serve a summons, in the absence of any agreement between Austria and the United States which would have obliged it to agree to such service. Granting any of the measures requested by the applicant, namely effecting service by publication or appointing a representative in accordance with Article 116 of the Code of Civil Procedure was excluded as this would have undermined the principle of respect for another State’s sovereignty and would have negatively affected good relations between States.", "58. In short, in respecting the United States’ refusal to serve the summonses in the present proceedings, the Austrian courts had done no more than apply generally recognised rules of international law. There was thus no indication that they had overstepped their margin of appreciation and the limitation of the applicant’s right of access to court had therefore been proportionate.", "2. The Court’s assessment", "(a) General principles", "59. The Court has recently summarised the applicable principles in two Grand Chamber judgments, Cudak (cited above) and Sabeh El Leil (cited above). The relevant paragraphs of the Cudak judgment read as follows:", "“54. The Court reiterates that the right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the principle of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002 ‑ IX). Everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way Article 6 § 1 embodies the ‘right to a court’, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001 ‑ VIII).", "55. However, the right of access to a court secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation of the right of access to a court will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 ‑ I; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 98, ECHR 2001 ‑ V; and Fogarty v. the United Kingdom [GC], no. 37112/97, § 33, ECHR 2001 ‑ XI).", "56. Moreover, the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31 § 3 (c) of which indicates that account is to be taken of ‘any relevant rules of international law applicable in the relations between the parties’. The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must therefore be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account, including those relating to the grant of State immunity (see Fogarty, cited above, § 35).", "57. It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to a court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity (see Kalogeropoulou and Others v. Greece and Germany (dec.), no. 59021/00, ECHR 2002 ‑ X, and Fogarty, cited above, § 36).", "58. Furthermore, it should be remembered that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Aït-Mouhoub v. France, 28 October 1998, § 52, Reports 1998 ‑ VIII). It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons (see Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294 ‑ B).", "59. Therefore, in cases where the application of the principle of State immunity from jurisdiction restricts the exercise of the right of access to a court, the Court must ascertain whether the circumstances of the case justify such restriction.”", "60. In its subsequent judgment in Sabeh El Leil (cited above), the Court reiterated these principles and, summarising its further findings in Cudak, added the following:", "“52. The Court further reiterates that such limitation must pursue a legitimate aim and that State immunity was developed in international law out of the principle par in parem non habet imperium, by virtue of which one State could not be subject to the jurisdiction of another (see Cudak, cited above, § 60, and Al-Adsani, cited above, § 54). It has taken the view that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty (ibid.).", "53. In addition, the impugned restriction must also be proportionate to the aim pursued. In this connection, the Court observes that the application of absolute State immunity has, for many years, clearly been eroded, in particular with the adoption of the Convention on Jurisdictional Immunities of States and their Property by the United Nations General Assembly in 2004 (see Cudak, cited above, § 64). This convention is based on Draft Articles adopted in 1991, of which Article 11 concerned contracts of employment and created a significant exception in matters of State immunity, the principle being that the immunity rule does not apply to a State’s employment contracts with the staff of its diplomatic missions abroad, except in the situations that are exhaustively enumerated in paragraph 2 of Article 11 (ibid., § 65).", "54. Furthermore, it is a well-established principle of international law that a treaty provision may, in addition to the obligations it creates for the Contracting Parties, also be binding on States that have not ratified it in so far as that provision reflects customary international law, either ‘codifying’ it or forming a new customary rule (ibid., § 66). Consequently, Article 11 of the International Law Commission’s 1991 Draft Articles, as now enshrined in the 2004 Convention, applies under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either (ibid., §§ 66-67).”", "(b) Application of these principles to the present case", "61. The Court observes that Cudak and Sabeh El Leil (both cited above) concerned the dismissal of a member of the local staff of an embassy, a receptionist in the first case and a head accountant in the second. In both cases the applicants had raised complaints about lack of access to court after the domestic courts had dismissed their claims for compensation, upholding the foreign State’s objection based on State immunity.", "62. In the present case it is not in dispute that the United States could not validly rely on jurisdictional immunity in the proceedings at issue. The applicant, an Austrian national, had been employed as a photographer at the United States embassy in Vienna. In proceedings concerning the lawfulness of the applicant’s dismissal the United States had made an objection of State immunity but apparently did not maintain it (see paragraph 7 above). In a first set of proceedings relating to salary claims up to June 1995 the Austrian courts had dismissed the United States’ objection of State immunity (see paragraph 9 above). Subsequently, the applicant brought an action for further salary payments from September 1996 onwards. In those proceedings the applicant’s action and a summons to a hearing were transmitted to the United States Department of State via diplomatic channels. The latter returned the documents to the Austrian embassy in Washington together with the information that the United States wished to assert its immunity in any case brought by the applicant (see paragraph 13 above).", "63. As both parties pointed out, the issue raised by the present case is whether the Austrian courts’ acceptance of the United States’ refusal to accept the summonses and to serve them on the Department of Justice, which had authority to represent the State in civil proceedings, violated the applicant’s right of access to court. The courts’ acceptance of this refusal was based on their legal view that the service of a summons in a civil action against a foreign State was in itself a sovereign act. Consequently, the refusal had to be accepted, while the nature of the underlying claim was irrelevant. As a result, the applicant could not obtain an examination of the merits of her claim before the Austrian courts.", "64. The Court therefore has to examine whether the limitation of the applicant’s right of access to court served a legitimate aim and whether the impugned restriction was proportionate to the aim pursued. The Court has already found that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty (see Cudak, cited above, §§ 60-62, and Sabeh El Leil, cited above, § 55). Despite the difference between these cases and the present case, the Court takes the view that the Austrian courts’ acceptance of the United States’ refusal to serve the summonses issued to it also served that legitimate aim.", "65. The Court therefore has to examine the proportionality of the impugned restriction on the applicant’s right of access to court. It reiterates that in Cudak and Sabeh El Leil the domestic courts had dismissed claims by local employees of foreign embassies, accepting the defendants’ objection of State immunity. The Court noted the development in international law towards limiting State immunity in respect of employment-related disputes. That development was reflected in Article 5 of the 1972 European Convention on State Immunity and in Article 11 of the International Law Commission’s 1991 Draft Articles and is now enshrined in Article 11 of the 2004 Convention.", "66. Furthermore, the Court observed that according to a well-established principle of international law a rule enshrined in a treaty could be binding on a State as a rule of customary international law even if the State in question had not ratified the treaty, provided that it had not opposed it either (see Cudak, cited above, § 66, and Sabeh El Leil, cited above, §§ 54 and 57). In Cudak, the Court noted that Lithuania had not objected to the wording of Article 11 of the International Law Commission’s 1991 Draft Articles. Although it had not ratified the 2004 Convention it had not voted against it either. The Court therefore concluded that the rule contained in Article 11 of the International Law Commission’s 1991 Draft Articles applied to Lithuania under customary international law (see Cudak, cited above, § 67). Similarly, in Sabeh El Leil, the Court noted that France had not opposed the adoption of the 2004 Convention, and was in the process of ratifying it. It therefore found it possible to affirm that the provisions of the 2004 Convention applied to France under customary international law (see Sabeh El Leil, cited above, § 58). In both cases the Court found that this was a factor to be taken into account when examining whether the right of access to court, within the meaning of Article 6 § 1, had been respected (ibid.).", "67. In both cases the Court observed that the domestic law of Lithuania and France, respectively, had moved away from the doctrine of absolute State immunity. The Court then went on to examine, on the basis of the facts, whether the respective applicants could be considered to be covered by any of the exceptions enumerated in paragraph 2 of Article 11 of the International Law Commission’s 1991 Draft Articles. Finding that this was not the case, it concluded in both cases that in upholding the objection based on State immunity the domestic courts had failed to preserve a reasonable relationship of proportionality and had impaired the very essence of the applicant’s right of access to court (see Cudak, cited above, § 74, and Sabeh El Leil, cited above, § 67).", "68. The Court will examine whether a similar line of argument can be developed in relation to the issue arising in the present case. It notes that the International Law Commission’s 1991 Draft Articles contained a provision on service of process, namely Article 20. Article 20 § 1 (b) (i) provided that service of process or writ or other document instituting proceedings against a State was to be effected, in the absence of an applicable international convention, by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned. Furthermore, under Article 20 § 2, service of process referred to in paragraph 1 (b) (i) was deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs. Rules with the same content are contained in Article 22 § 1 (c) (i) and § 2 of the 2004 Convention (see also the similar provisions which are contained in Article 16 §§ 2 and 3 of the 1972 European Convention on State Immunity).", "69. The question therefore arises whether the rules embodied in Article 20 of the International Law Commission’s 1991 Draft Articles applied to Austria as rules of customary international law. In the Court’s view, the question is to be answered in the affirmative (see paragraph 38 above and the reference made in the commentary on Article 20 § 1 of the 1991 Draft Articles to Article 16 §§ 1 to 3 of the 1972 European Convention on State Immunity). Austria did not object to this provision of the 1991 Draft Articles. It did not vote against the adoption of the 2004 Convention and subsequently signed and ratified it. In addition, the Court notes that the United States did not object to the rules contained in Article 20 § (1) (b) (i) and § 2 of the 1991 Draft Articles either. While it has not signed or ratified the 2004 Convention, it did not vote against it.", "70. The Court observes furthermore that the Austrian courts were aware that, on the basis of developments in international law, service of process on the foreign ministry of another State might be sufficient (see in particular the Supreme Court’s judgment of 11 June 2001, paragraph 28 above, and the Vienna Court of Appeal’s judgment of 18 November 2002, paragraph 19 above). However, they limited themselves to stating that no treaty regulating the issue had been adopted, without examining whether the relevant rules might apply as rules of customary international law. Moreover, the domestic courts held that, although the view that service on the foreign ministry of the State concerned (in this instance the United States Department of State) was defendable under international law, it was not provided for under Austrian law. Consequently, they accepted the Department of State’s refusal to serve the summons on the Department of Justice as a sovereign act. Therefore, the domestic courts concluded that it had not been possible to duly summon the defendant and refused to proceed with a default judgment. They likewise found that the conditions for appointing a representative for the United States had not been fulfilled. As a result, it was impossible for the applicant to proceed with her case.", "71. In addition, the Court would reiterate that the applicant’s claim was not one in respect of which jurisdictional immunity could be relied on. According to the rule contained in Article 11 of the 2004 Convention (and Article 11 of the International Law Commission’s 1991 Draft Articles) State immunity does not apply to a State’s employment contracts with the staff of its diplomatic missions abroad, except in situations that are exhaustively enumerated in paragraph 2 of that Article and not relevant here (see also Article 5 of the 1972 European Convention on State Immunity).", "72. In conclusion, by accepting the United States’ refusal to serve the summonses in the applicant’s case as a sovereign act and by refusing, consequently, to proceed with the applicant’s case, the Austrian courts failed to preserve a reasonable relationship of proportionality. They thus impaired the very essence of the applicant’s right of access to court.", "73. There has accordingly been a violation of Article 6 § 1 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION AND ITS PROTOCOLS", "74. The applicant complained of a violation of Article 1 of Protocol No. 1 in that the Austrian courts’ decisions had made it impossible for her to assert her claims and constituted unjustified interference with her right to peaceful enjoyment of her possessions. Furthermore, she complained under Article 14 taken in conjunction with Article 1 of Protocol No. 1 or Article 6 of the Convention that she had been discriminated against as a disabled person.", "75. The Court reiterates that Article 1 of Protocol No. 1 only protects existing possessions, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, for instance Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 ‑ IX). The Court cannot find that salary claims against an employer which have not been granted by the domestic courts constitute “possessions” within the meaning of this provision. Consequently, Article 1 of Protocol No. 1 does not apply, nor does Article 14 taken in conjunction with Article 1 of Protocol No. 1.", "76. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.", "77. In so far as the applicant complains under Article 14 of the Convention taken in conjunction with Article 6, the Court finds that there is no indication that the applicant was treated differently in the proceedings at issue on account of her disability. The courts, in accordance with their case-law, considered that the United States’ refusal to serve the summonses in proceedings concerning the applicant’s salary claims was to be considered as an act of sovereign power and therefore made it impossible for them either to give a default judgment, to serve the summonses by any other means or to appoint a representative for the United States. There is nothing to suggest that they would have decided otherwise had the applicant not been disabled.", "78. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "79. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "80. The applicant claimed pecuniary damage in respect of her lawyer’s fees and her own expenses. The Court considers that this claim is in essence one for costs and expenses and will deal with it under that head.", "81. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage. She submitted in particular that she had suffered considerable stress and anxiety as a result of her lack of access to court. She argued that she had been a single mother, still financially responsible for her daughter, when she was unlawfully dismissed in 1987. She had a walking impairment following her accidents and had to live on a very low income, borrowing money and conducting complex legal proceedings from 1987 until October 1996, when she eventually received salary payments following the first set of proceedings. However, that sum had been considerably reduced by income tax and by her obligation to pay not only the employee’s but also the employer’s social security contributions. Against that background, the continuing insecurity caused by the fact that she could not obtain a judgment in respect of her salary claims for the period starting from September 1996 in the proceedings at issue had caused her considerable distress.", "82. The Government contended that the finding of a violation would in itself provide sufficient just satisfaction for any non-pecuniary damage suffered. In any case, the amount claimed was excessive.", "83. The Court accepts that the applicant has sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy (see Cudak, cited above, § 79 and Sabeh El Leil, cited above, § 72). Making its assessment on an equitable basis, it awards the applicant EUR 12,000 under this head, plus any tax that may be chargeable.", "B. Costs and expenses", "84. The applicant claimed EUR 54,586.98 in respect of costs and expenses incurred in the domestic proceedings. This sum includes her lawyer’s fees, amounting to EUR 27,090.50 and EUR 23,732.45, both including value-added tax (VAT), and EUR 3,764.03 for her own expenses. She explained that these were expenses incurred for translations and for contacting various authorities and organisations, lawyers and law professors in Austria and in the United States and for travelling to Washington in 1995.", "85. In addition the applicant claimed EUR 17,933.38, including VAT, for the Convention proceedings, composed of EUR 12,279.84 for the proceedings up to and including the first set of observations and EUR 5,653.54 for the further observations following continuation of the proceedings after the Grand Chamber’s judgment in Cudak (cited above).", "86. With regard to the costs incurred in the domestic proceedings, the Government asserted that it had not been shown that the amounts claimed under the head of lawyer’s fees had been incurred to prevent or redress the alleged violation. In any case, the fees claimed were not in line with the Austrian Lawyers’ Fees Act and were thus excessive. Moreover, it was clear from the applicant’s submissions that an amount of EUR 3,219.55 had been covered by her legal expenses insurance. This sum would have to be deducted in any event. Furthermore, the Government commented that the applicant had not shown that a causal link existed between the alleged violation and her own expenses. Moreover, she had not submitted sufficient evidence in support of the amount claimed, namely EUR 3,764.03.", "87. In the Government’s view the applicant’s claims in respect of costs incurred in the Convention proceedings were also excessive.", "88. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In respect of the costs claimed for the domestic proceedings, the Court notes that some of the lawyer’s bills submitted by the applicant relate to proceedings which pre-date the proceedings at issue in the present case. In so far as the bills actually relate to the present proceedings, not all the items listed concern costs which were necessarily incurred. The same applies to the costs incurred by the applicant herself. Furthermore, the Court considers that the costs claimed in respect of the Convention proceedings are excessive. Regard being had to the documents in its possession and the above considerations, the Court finds it reasonable to award the sum of EUR 15,000, plus any tax that may be chargeable to the applicant, covering costs under all heads.", "C. Default interest", "89. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1980 and lives in Athens.", "7. The applicant had been working for a jewellery manufacturing company since 2001. On 4 March 2003 he resigned from his post in order to carry out his military service. Afterwards he contacted S.K., the owner of the company, who hired him again on a full - time basis from 1 July 2004 on a monthly salary of 722.92 euros (EUR).", "8. In January 2005 the applicant told three of his colleagues – I.M., S.M. and O.G. – that he feared he had contracted the human immunodeficiency virus ( HIV ). On 11 February 2005, while he was on annual leave, that fear was confirmed by a test establishing that he was indeed HIV-positive. On 15 February his employer, S.K., received a letter from the three above-mentioned employees in which they told her that the applicant “ had Aids” and that the company should dismiss him before the end of his annual leave. All three colleagues had tested negative for Aids.", "9. In the meantime information about the applicant ’ s health condition had spread throughout the entire company of seventy employees. The staff started complaining to their employer about having to work with a colleague who was HIV-positive and demanded his dismissal. S.K. then invited an occupational -health doctor to come to the company premises and talk to the staff about HIV and how it could be transmitted. The doctor attempted to reassure the staff by explaining the precautions to be taken but they continued to demand the applicant ’ s dismissal. S.K. then considered transferring the applicant to another department at a different location, but the head of that department threatened to resign if the applicant joined his team. S.K. then offered to help the applicant set up his own business if he would tender his resignation. She also offered to pay for him to attend a training course in hairdressing. The applicant refused her offers however.", "10. On 21 February 2005 thirty-three employees of the company ( approximately half the total number of staff ) sent a letter to S.K. asking her to dismiss the applicant in order to “ preserve their health and their right to work ”, failing which the harmonious atmosphere in the company would, in their view, be liable to deteriorate. On 23 February 2005, two days before the applicant returned from leave, S.K. dismissed him and paid him the statutory compensation due under Greek law, namely, one month ’ s salary and EUR 843. 41 in respect of holiday leave.", "11. Shortly after his dismissal the applicant found another job in a private company.", "12. On 13 May 2005 the applicant brought proceedings in the Athens Court of First Instance. He complained that “ unacceptable social prejudices and outdated taboo considerations ” had prevailed over recognition of his contribution to the company where he had worked. He also claimed that he had been unfairly dismissed and that his dismissal was invalid because he had not been paid sufficient compensation. He alleged that he had been dismissed on the basis of “ despicable considerations ” which took no account of the “ human factor or his person ”, that his employer “ had remained manifestly indifferent to the fact that she had thus seriously harmed a hard-working and conscientious employee at the very time when basic humane considerations required that he be supported and had at the same time callously insulted him”, and that his employer had “ treated him with an unjustified and inhumane aversion for his serious health problem”.", "13. The applicant added that the only reason that had led S.K. to dismiss him had been (scientifically unfounded ) prejudice against HIV - positive persons and the alleged “ risk ” that they posed in their professional and social relations. It was therefore clear, in the applicant ’ s view, that S.K. ’ s conduct had brutally violated his personality rights, in particular the most intimate ones concerning sensitive personal details. The manner in which he had been dismissed had diminished unacceptably his value as a human being by reducing him to an “ object ” that could be handled according to “personal prejudices and obsessions”.", "14. The applicant asked the court to declare the termination of the contract unlawful, order the employer to continue employing him and paying him a salary, and to pay him EUR 9, 397 in unpaid salaries, EUR 1, 068. 62 in holiday bonuses and various other amounts calculated by him and, lastly, the sum of EUR 200, 000 for non-pecuniary damage.", "15. In a judgment of 13 June 2006 the court held that the dismissal was unlawful, as contrary to Article 281 of the Civil Code which prohibited the exercise of a right if it manifestly exceeded the limits imposed by good faith or morals. The court found that the sole ground for terminating the contract had been the applicant ’ s illness and awarded him EUR 6 ,339. 18, which corresponded to unpaid salaries since his dismissal. The court considered that the employer ’ s conduct, even taking account of the pressure exerted by her employees, had constituted an abuse of rights. It found that the employer had decided to dismiss the applicant in order to ensure that her company continued operating smoothly and to avoid protests and complaints, thus currying favour with the majority of her staff.", "16. However, the court rejected the applicant ’ s complaint that his dismissal had violated his personality rights because it had not been established that the dismissal had been motivated by reprehensible intent or an intention to defame the applicant. The court found, however, that S.K. had dismissed the applicant in order to preserve what she had wrongly believed to be an issue of peaceful working relations within the company. Lastly, the court held that it was not necessary to order the applicant ’ s reinstatement because he had found a new job in the meantime.", "17. On 26 February and 15 March 2007 respectively, S.K. and the applicant lodged an appeal against that judgment with the Athens Court of Appeal.", "18. In a judgment of 29 January 2008, the Court of Appeal dismissed S.K. ’ s appeal and upheld the applicant ’ s appeal on both grounds, namely, abuse of rights and violation of personality rights. Like the Court of First Instance, the Court of Appeal acknowledged that S.K. had dismissed the applicant after giving in to pressure from staff and in order to preserve a good working environment in the company. The Court of Appeal observed that the employees ’ fears were scientifically unfounded, as the occupational -health doctor had explained. Given the mode of transmission of the virus, there was no danger to their health. Accordingly, their fears were in reality based on prejudice rather than on an established risk; consequently, the applicant ’ s illness could not affect the future smooth operation of the company.", "19. The Court of Appeal weighed the need to maintain the smooth operation of the company, which was threatened by scientifically unfounded fears, against the applicant ’ s justified expectation of being protected during the difficult period he was experiencing. It noted that where an employee ’ s illness did not adversely affect work relations or the smooth operation of the company ( through absenteeism or reduced working capacity, for example ), it could not serve as an objective justification for terminating the contract. It noted that the applicant had not been absent from work and that no absence on the ground of illness was foreseeable in the immediate future. Moreover, the nature of the applicant ’ s job, which did not demand excessive effort, precluded the risk of a reduction in his capacity for work since, during the many years in which a person was merely HIV - positive, his or her working capacity was not substantially reduced.", "20. It observed that the applicant ’ s illness could not adversely affect the future smooth operation of the company, as none of the employees had left the company between the time when the applicant ’ s illness had been revealed and the termination of his employment contract. It concluded that the fact that S.K. “ had given in to the demands of her employees, dismissed the applicant and terminated his contract could not be justified on grounds of good faith or the employer ’ s interests within the proper meaning of the term ”.", "21. The Court of Appeal awarded the applicant the sum of EUR 6,339. 18 in unpaid salaries backdated to the date of his dismissal. It also held that the applicant ’ s personality rights had been infringed as his unfair dismissal had affected both his professional and social status, which were the two facets of an individual ’ s personality. It awarded him the further sum of EUR 1, 200 for non-pecuniary damage under that head.", "22. On 4 July 2008, S.K. appealed on points of law against the Court of Appeal ’ s judgment.", "23. On 16 October 2008 the applicant also lodged an appeal against the Court of Appeal ’ s judgment. He relied on Articles 180 (nullity of a legal act), 281 ( abuse of rights ) and 932 ( compensation for non-pecuniary damage ) of the Civil Code, on Article 22 ( right to work ) of the Constitution, and on the principle of proportionality regarding the amount of the compensation awarded. Relying on the case-law of the Court of Cassation, he also submitted that where a dismissal had been set aside by a judicial decision as unfair, the employer was under an obligation to reinstate the employee. More specifically, in his second ground of appeal, the applicant submitted that the Court of Appeal had wrongly rejected his request to be reinstated in the company, arguing that reinstatement was the rule in the event of a breach of Article 281, or in the event of an infringement of personality rights or of the right to personal development and participation in professional life.", "24. In judgment no. 676/2009 of 17 March 2009 ( finalised on 4 June 2009), the Court of Cassation quashed the Court of Appeal ’ s judgment on the ground, inter alia, that the court had wrongly construed and applied Article 281 of the Civil Code to the facts of the case. It found that termination of an employment contract was not unfair if it was justified by the employer ’ s interests “ in the proper sense of the term ”, such as the restoration of peaceful working relations between employees and the smooth operation of the company where these were liable to be disrupted by maintaining the dismissed employee in his or her post. The Court of Cassation held as follows :", "“ As the dismissal ... was not motivated by ill-will, revenge or any aggressivity on the part of [the employer] towards [the employee], the dismissal was fully justified by the interests of the employer, in the proper sense of the term [interests ], in that it was done in order to restore peace in the company and its smooth operation. The employees were seriously perturbed by the extremely serious and contagious illness of the [ applicant ], which aroused feelings of insecurity among them and fears for their health, prompting them to request – collectively and in writing – his dismissal and stress that if he were not dismissed the smooth operation of the company would be severely affected ... ”", "25. Lastly, the Court of Cassation dismissed the applicant ’ s appeal as devoid of purpose and remitted the case to the Court of Appeal.", "26. Neither the applicant nor his former employer took the initiative reserved to them by statute of applying to the Court of Appeal for a ruling on the case remitted to it." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Domestic law", "27. The relevant Articles of the Greek Constitution provide as follows.", "Article 9 § 1", "“ ... An individual ’ s private and family life is inviolable ...”", "Article 22 § 1", "“ Work constitutes a right and shall enjoy the protection of the State, which shall seek to create conditions of employment for all citizens and shall promote the moral and material advancement of the rural and urban working population. ... ”", "Article 25 § 1", "“ The rights of human beings as individuals and members of society and the principle of the constitutional welfare state are guaranteed by the State.", "All agents of the State shall be obliged to ensure the unhindered and effective exercise thereof. Where appropriate, these rights shall also apply to the relations between individuals. Restrictions of any kind which, according to the Constitution, may be imposed upon these rights, shall be provided for either directly by the Constitution or by statute ... and shall respect the principle of proportionality. ”", "28. Section 1 of Law no. 2112/1920 on dismissal and the termination of employment contracts in the private sector provides :", "“A private-sector employee recruited on a contract of indefinite duration who has been employed for more than two months cannot be dismissed without prior written notice of termination of the employment contract ... ”", "29. The relevant sections of Law no. 3304/2005 on equal treatment (race, nationality, religion, age, sexual orientation ) read as follows.", "Section 1 – object", "“ The object of the present Law is the adoption of a general regulatory framework in which to combat discrimination based on religion or other beliefs, disability, age or sexual orientation in the sphere of employment ... and to ensure that the principle of equal treatment is applied. ”", "Section 2 – principle of equality of treatment", "“ 1. Direct or indirect discrimination on one of the grounds referred to in section 1 shall be forbidden.", "2. Harassment ..., with the aim or effect of adversely affecting a person ’ s dignity and creating an intimidating, hostile, degrading, humiliating or aggressive environment, shall also be regarded as discrimination .”", "Section 10 – reasonable measures accommodating disabled persons", "“In order to comply with the principle of equal treatment of disabled persons, the employer must take all necessary measures required in the circumstances to ensure that disabled persons have access to a workstation, can carry on an activity and develop professionally, and take part in professional training, in so far as such measures do not impose an unreasonable burden on the employer ... ”", "Section 12 – positive action and special measures", "“ 1. It shall not be discriminatory to adopt or maintain special measures designed to prevent or compensate for disadvantages based on religious grounds or other beliefs, or grounds of disability, age or sexual orientation.", "2. It shall not be discriminatory to adopt or maintain measures protecting the health and safety of disabled persons in the workplace or measures creating or maintaining the conditions or facilities for preserving and promoting their integration in the activity and work. ”", "B. The National Commission for Human Rights", "30. On 27 January 2011 the National Commission for Human Rights drew up a report on “ issues relating to the protection of the rights of HIV- positive persons ”. The introduction to the report reads as follows.", "“ The National Commission for Human Rights has been prompted to examine issues relating to the protection of the rights of HIV- positive persons by the observed lack of enjoyment of fundamental rights by the said individuals, which is exacerbated by stigmatisation, manifestations of intolerance, violations of confidentiality and other forms of social discrimination to their detriment.", "The impetus for this was judgment no. 676/2009 of the Court of Cassation, in which that court actually upheld the lawfulness of the dismissal of an HIV-positive employee and endorsed the conditions in which he was dismissed. Having regard to the importance of that decision – which is the first judicial ruling of its kind in the judicial annals of the country – and to the fact that it highlighted a unique but important aspect of the problems facing HIV-positive persons, the Commission organised a consultation with several other organisations and institutions campaigning for the protection of the rights of such persons. A number of issues were raised during the discussion, but the ones considered to be the most important were the following : a) stigmatisation as a result of HIV/Aids, b) discriminatory treatment of persons infected with the virus, particularly in the workplace, c) access by such persons to health services, and d) protection of their private life. ”", "31. In its final considerations the Commission observed :", "“ There is a current and pressing need to protect the rights of HIV- positive persons and to institutionalise and apply the fundamental principles on which these rights are based, having regard to the fact that, according to the latest official statistics, the disease appears to have reached alarming levels in our country.", "The risks do not stem only from the disease itself and the fact that it is spreading, but also from the formation and consolidation of dangerous and scientifically unfounded misconceptions through court rulings which maintain that HIV-positive employees constitute a ‘ danger ’ in their workplace.", "Lastly, we should point out that the protection of the rights of HIV- positive persons does not concern them alone but public health in general, in that if these people are not protected they will hesitate to be tested ... which will undermine the efforts being made by public-health organisations to limit the spread of the disease.”", "III. RELEVANT EUROPEAN AND INTERNATIONAL INSTRUMENTS", "A. International Labour Organization ( ILO ) Recommendation concerning HIV and AIDS and the World of Work, 2010 (no. 200)", "32. This Recommendation is the first human rights instrument on HIV and Aids in the world of work. It was adopted, by a large majority, by government representatives, employers and workers of the member States of the ILO at the International Labour Conference in June 2010. It provides, inter alia, as follows.", "“ 3. ...", "( c) [T] here should be no discrimination against or stigmatization of workers, in particular jobseekers and job applicants, on the grounds of real or perceived HIV status or the fact that they belong to regions of the world or segments of the population perceived to be at greater risk of or more vulnerable to HIV infection;", "...", "9. Governments, in consultation with the most representative organizations of employers and workers, should consider affording protection equal to that available under the Discrimination (Employment and Occupation) Convention, 1958, to prevent discrimination based on real or perceived HIV status.", "10. Real or perceived HIV status should not be a ground of discrimination preventing the recruitment or continued employment, or the pursuit of equal opportunities consistent with the provisions of the Discrimination (Employment and Occupation) Convention, 1958.", "11. Real or perceived HIV status should not be a cause for termination of employment. Temporary absence from work because of illness or caregiving duties related to HIV or AIDS should be treated in the same way as absences for other health reasons, taking into account the Termination of Employment Convention, 1982.", "12. When existing measures against discrimination in the workplace are inadequate for effective protection against discrimination in relation to HIV and AIDS, Members should adapt these measures or put new ones in place, and provide for their effective and transparent implementation .”", "B. Texts of the Parliamentary Assembly of the Council of Europe", "33. The Parliamentary Assembly of the Council of Europe ( PACE ) has raised the question of HIV / Aids in a number of documents. In its Recommendation 1116 (1989) on Aids and human rights, it stated the following :", "“ 3. Noting that, although the Council of Europe has been concerned with prevention ever since 1983, the ethical aspects have been touched upon only cursorily;", "4. Considering nevertheless that it is essential to ensure that human rights and fundamental freedoms are not jeopardised on account of the fear aroused by Aids;", "5. Concerned in particular at the discrimination to which some Aids victims and even seropositive persons are being subjected;", "...", "8. Recommends that the Committee of Ministers:", "A. instruct the Steering Committee for Human Rights to give priority to reinforcing the non-discrimination clause in Article 14 of the European Convention on Human Rights, either by adding health to the prohibited grounds of discrimination or by drawing up a general clause on equality of treatment before the law; ... ”", "34. In its Resolution 1536 (2007) on HIV/Aids in Europe, PACE reaffirmed its commitment to combating all forms of discrimination against persons living with HIV / Aids :", "“9. While emphasising that the HIV/Aids pandemic is an emergency at the medical, social and economic level, the Assembly calls upon parliaments and governments of the Council of Europe to:", "9.1. ensure that their laws, policies and practices respect human rights in the context of HIV/Aids, in particular the right to education, work, privacy, protection and access to prevention, treatment, care and support;", "9.2. protect people living with HIV/Aids from all forms of discrimination in both the public and private sectors ... ”", "C. The International Covenant on Economic, Social and Cultural Rights", "35. Article 2 § 2 of the International Covenant on Economic, Social and Cultural Rights provides that the rights enunciated in the Covenant “ will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status ”. In its General Comment on Non- Discrimination ( No. 20, 2009), the United Nations Committee on Economic, Social and Cultural Rights expressly stated that the expression “ other status ” appearing at the end of Article 2 § 2 of the Covenant included health status, in particular HIV status :", "“ 33. Health status refers to a person ’ s physical or mental health. States parties should ensure that a person ’ s actual or perceived health status is not a barrier to realizing the rights under the Covenant. The protection of public health is often cited by States as a basis for restricting human rights in the context of a person ’ s health status. However, many such restrictions are discriminatory, for example, when HIV status is used as the basis for differential treatment with regard to access to education, employment, health care, travel, social security, housing and asylum ... ”", "D. Judgment of the South African Constitutional Court in the case of Hoffmann v. South African Airways", "36. In the case of Hoffmann v. South African Airways (CCT 17/00) of 28 September 2000, an application had been made to the Constitutional Court against a decision of the Witwatersrand High Court regarding discrimination in the employment of Mr Hoffmann as a cabin attendant for the airline company South African Airways on the ground that he was HIV-positive. The company relied on three arguments : the negative reaction of HIV-positive persons to the yellow fever vaccine; the risk of transmitting diseases to passengers and other members of the company; and the low return on investment in such staff as they had a lower life expectancy than the others.", "37. The Constitutional Court unanimously held that such discrimination had breached Mr Hoffmann ’ s constitutional rights.", "38. Firstly, it held that a distinction had to be made between HIV- positive persons and persons suffering from immune deficiency. It observed that Mr Hoffmann had been only HIV-positive at the time of his dismissal and the court ’ s decision. It added that the practice of other foreign airlines had no bearing on an examination of the constitutionality of the decision. Secondly, it recognised that a company ’ s commercial concerns were legitimate but considered that these should not serve as a pretext for denying elementary fundamental rights such as compassion and tolerance of others. Having regard to those overriding considerations, persons infected with HIV were in a particularly fragile situation which required full protection under the legal system. Accordingly, the court held that the violation of Mr Hoffmann ’ s rights required the airline to offer him a job forthwith and to bear the costs of the proceedings.", "IV. COMPARATIVE LAW MATERIAL", "39. A comparative study of the legislation of thirty member States of the Council of Europe on the protection provided under domestic law to HIV- infected persons from discrimination in the employment context shows that seven States – Albania, Azerbaijan, Italy, the Republic of Moldova, Romania, the United Kingdom and Russia – have passed specific legislation in this respect. In the twenty-three other States, which have not passed specific legislation, HIV -positive persons who face differences in treatment in the workplace can rely on the general provisions of domestic law governing non-discrimination. The decisions of the domestic courts and other bodies for human rights protection in some of these States show that they grant protection against dismissal to HIV-positive persons through the prohibition imposed on other grounds of discrimination, such as health or disability.", "40. In France, for example, on 6 September 2012 the Equal Treatment Commission ( the Human Rights Council since October 2012 ) found that the Law on equal treatment of persons suffering from a disability or chronic illness did not oblige an employee ( the case in question concerned the dismissal of an HIV-positive employee of a licensed bar ) to disclose his or her illness unless he or she would otherwise be unable to perform the work. The Commission also found that the supposed prejudice of customers towards HIV-positive persons did not justify terminating the contract.", "41. On 13 December 1995 the Pontoise Criminal Court, in France, sentenced an employer to five months ’ imprisonment, suspended, and ordered him to pay EUR 3,000 in damages for dismissing – purportedly on economic grounds – one of his employees, a veterinary assistant who was HIV-positive.", "42. Even before the enactment in Belgium of the Law of 10 May 2007 on combating certain forms of discrimination, the Dendermonde Labour Court had held, on 5 January 1998, that an employer had abused his right to terminate an employment contract by dismissing an employee solely on account of his HIV infection.", "43. The Swiss Federal Supreme Court ( judgment BGE 127 III 86) held that dismissal from work solely on account of HIV infection was discriminatory and unfair for the purposes of Article 336 of the Code of Obligations.", "44. On 18 October 2004 the Poltava Regional Court, in Ukraine, ordered the editor of a newspaper to pay compensation to a journalist who had been dismissed because he was HIV-positive.", "45. In Croatia, following the intervention of the Ombudsman, the Police Internal Rules, which had previously provided that an HIV-positive person could neither become nor remain a serving police officer, were amended.", "46. On 23 November 2009 the Polish Constitutional Court declared unconstitutional a provision of the Ministry of Interior ’ s Regulations according to which any police officer who was HIV-positive should automatically be declared unfit for service.", "47. On 26 April 2011 the Russian Supreme Court declared inoperative a provision of the Civil Aviation Regulations forbidding HIV-positive persons from working as pilots on any type of aircraft.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8", "48. The applicant complained of a violation of his right to private life, alleging that the Court of Cassation had ruled that his dismissal on the ground of his HIV status had been lawful. He also submitted that his dismissal had been discriminatory and that the Court of Cassation ’ s reasoning, according to which his dismissal had been justified by the need to preserve a good working environment in the company, was not a valid basis for differential treatment compatible with Article 14. He relied on Article 14 of the Convention taken in conjunction with Article 8. Those provisions are worded as follows :", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "1. The Government", "49. The Government conceded that any dismissal of an employee would doubtless have an impact on his or her private life. However, that did not suffice to render Article 8 applicable. According to the Court ’ s case-law, a dismissal did not raise a problem under Article 8 unless it entailed broader consequences for the employee, such as an inability to find another job, and not merely the loss of his or her post. The applicant ’ s dismissal had not had the effect of excluding him from the job market ( as had been the case in Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, ECHR 2004 ‑ VIII ), or of generally depriving HIV-positive persons of the right to employment. The applicant had found work shortly after he was dismissed. Article 8 protected the relations that both parties intended to forge, whereas in the applicant ’ s case his colleagues had not wanted to work with him. Lastly, the applicant ’ s employer had not misused information relating to the applicant ’ s health status.", "50. According to the Government, the applicant had not been a victim of discrimination either. His employer had dismissed him out of concern to protect the company ’ s interests and secure peaceful working relations, not because of prejudice against his HIV status. The fact that the Court of Cassation had recognised that he had been dismissed on that basis did not mean that it had been prejudiced or biased against the applicant. Its reasoning had not hinged on the fact that the applicant was HIV-positive. Furthermore, the applicant ’ s employer, S.K., had not been at an advantage before the Court of Cassation on account of not being HIV-positive.", "51. The Government submitted that the applicant ’ s health and his continued employment in the company had not been the subject of “ negotiation ” between the employer and the applicant ’ s colleagues. The employer had tried to find a solution which, without endangering the survival of her company, would take account of the applicant ’ s interests. She had examined the possibility of taking less radical measures than dismissal and had tried to help the applicant by offering him a training course in hairdressing or helping him to set up his own business. When all those attempts failed, the employer had put her personal interests – preserving the smooth operation of the company – above the applicant ’ s interests and had decided to dismiss him. The employer could not have ignored her employees ’ fears. Ensuring a harmonious working environment was not only a right of the employer but also an obligation towards his or her employees. The fact that an employer had put her personal interests above those of one of her employees and had not reacted in a “desirable” way – namely, by ignoring her employees ’ fears – and the fact that the Court of Cassation had not compelled that employer to do what would have been “desirable” did not amount to a violation of the Convention.", "52. The Government submitted that the cases of Obst v. Germany ( no. 425/03, 23 September 2010) and Schüth v. Germany ( no. 1620/03, ECHR 2010), relied on by the applicant, weighed more heavily in favour of a finding of no violation. In the latter judgment in particular the Court had attached special weight to the fact that the applicant ’ s dismissal might make it totally impossible for him to find employment, which was not the case in the present situation. As the applicant had been hired by another company shortly after his dismissal, it had not had the effect of stigmatising him or debarring him from professional or social life.", "53. The Government considered that the present case had to be distinguished from Kiyutin v. Russia ( no. 2700/10, ECHR 2011 ), in which the restrictions imposed on the applicant ’ s rights were the result of a State action. In the present case the alleged discriminatory treatment had been the act of an individual and the Court of Cassation had had the task of examining a dispute between individuals. Furthermore, the European consensus observed by the Court in Kiyutin had concerned the entry, stay and residence of HIV-positive persons in the member States of the Council of Europe; it had not concerned the degree of responsibility of individuals, nor had it compared their responsibility with that of the State.", "54. The Government pointed out that the Court of Cassation had not deemed the fears of the applicant ’ s colleagues worthy of protection. Its judgment had been neither arbitrary nor unreasonable even if the State ’ s margin of appreciation was considered to be limited on account of the fact that the applicant was HIV-positive. In the present case the Greek judicial system could not require more of the employer, given that she was only an individual, that she had tried both to avoid dismissing the applicant and to help him, and that the atmosphere in the company was particularly hostile towards him.", "55. The Government submitted that the applicant had not been treated unfavourably on account of his health either by the Court of Cassation or his employer. The latter had not compared the applicant ’ s state of health with that of her other employees; she had taken the decision to dismiss him not because he was HIV-positive but in order to restore peace in the company.", "56. The Government argued that neither Article 8, whether taken alone or in conjunction with Article 14, nor even Protocol No. 12 required member States to introduce legislation outlawing the dismissal of HIV-positive employees from a post in the private sector. Provision for such an obligation would lead to an extension of the State ’ s responsibility regarding relations between individuals, whereas according to the Court ’ s relevant case-law the States had a wide margin of appreciation in that area. They referred to the case of Evans v. the United Kingdom ( [GC], no. 6339/05, § 77, ECHR 2007 ‑ I ).", "57. In the Government ’ s submission, States were of course not prevented from passing legislation of that type but this could not be regarded as an obligation arising from Articles 8 and 14 of the Convention. The Greek State had in principle complied with its positive obligations regarding employment law, including in the areas in which questions could arise that affected the private life of the persons concerned. It afforded effective protection to HIV-positive employees through well-established provisions of employment law, civil law, civil procedure and provisions governing specific categories of employee ( Law no. 2643/1998 on employment protection for disabled persons and Law no. 3304/2005 incorporating Directive 2000/78/ EC of the Council of the European Union of 27 November 2000 establishing a general framework for equal treatment in employment and occupation ).", "58. The Government observed that, relying on the relevant provisions of civil law and employment law, the applicant had brought an action in the civil courts, which had examined his case according to the special procedure applicable to employment disputes. The fact that the lower courts had found in the applicant ’ s favour showed that the above-mentioned provisions provided a sufficient framework for the protection of HIV-positive employees. The effectiveness of that framework could not be challenged merely because the Court of Cassation had ultimately found in favour of the applicant ’ s employer.", "2. The applicant", "59. Relying on Sidabras and Džiautas, Obst and Schüth, all cited above; Palomo Sánchez and Others v. Spain ( [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, ECHR 2011 ); and Siliadin v. France ( no. 73316/01, ECHR 2005-VII), the applicant claimed that the fact that his complaint related to the circumstances of his dismissal did not render Article 8 of the Convention or the principle of positive obligations inapplicable per se. The factual circumstances showed that the attitude of his colleagues and of his employer had had an impact on his private life which could not be regarded as negligible. He had been the subject of immediate, direct and effective stigmatisation on the part of his colleagues and had been treated like a pariah who should no longer be entitled to work. Furthermore, his employer could, and should, have adopted a different attitude towards him and in particular insisted that his HIV status was not a ground for dismissal, rather than turning it into a subject for negotiation with her other employees. The applicant submitted that he had expressed his desire to keep his job despite the hostile reactions and social stigmatisation he had suffered. Employment was an important component of a person ’ s self- respect, which was essential to his or her ability to form social and private relations.", "60. The applicant also referred to a number of international instruments such as ILO Recommendation no. 200 and PACE Resolution 1536 (2007 ), (see paragraphs 32 and 34 above) which, in his submission, defined stigmatisation in the world of work and called for the protection of persons infected with the virus against any form of discrimination.", "61. The applicant submitted that the Court of Cassation had “ had an obligation”, in the circumstances of the case, to rule the dismissal unfair on the ground of discrimination. He considered that he had been treated less favourably than his colleagues on account of his health. If he had not contracted the virus, his colleagues would not have refused to work with him and his employer would not have dismissed him. If it were a well- established principle in Greece that an HIV- positive employee could not be dismissed, employees who harboured prejudice would know that they could not obtain a dismissal, would not disrupt the operation of the company, and would refrain from interfering in the professional and private life of the employee in question. In the present case the motives of the employees were inseparable from those of the employer and it could not be claimed that the dismissal was not discriminatory on the pretext that the employer ’ s motives, taken alone, constituted valid grounds for dismissal.", "62. The applicant maintained that if it were not recognised as unlawful to dismiss a member of a vulnerable group on the ground that his or her colleagues refused to work with him or her because of prejudice, this would lead to wide-scale discrimination and exclusion : persons prejudiced against others of a particular race, ethnic background or sexual orientation could simply refuse to work with them and their employers would accordingly dismiss them. If the courts did not intervene, the prejudices of third parties would have the effect of debarring members of a vulnerable group from the majority of private - sector jobs and establishing a form of segregation between companies which employed persons from that group and those which did not.", "63. The applicant submitted that, in the present case, the Court of Cassation had not weighed the need to protect HIV-positive employees from discrimination against the need for employers to protect their interests. Moreover, the Court of Cassation ’ s judgment was particularly succinct and had not really examined the question of the proportionality of the interference.", "64. The applicant submitted that there were a number of factors in the present case which would justify finding – as, moreover, the Court had done in Kiyutin ( cited above, § 63) – that the State had a narrower margin of appreciation. Those factors were : undeniable prejudice on the part of his colleagues towards HIV-positive individuals; the fact that the latter were part of a particularly vulnerable group, were victims of systematic discriminatory treatment and suffered from stigmatisation, social exclusion and marginalisation; and the fact that HIV-positive status was irreversible and often perceived as a sign of the sexual preferences of the person concerned. Where an HIV -positive employee was dismissed, the resulting stigmatisation was devastating. He or she had to face up not only to the illness but also to the detrimental effect of being dismissed on account of the disease. Such stigmatisation could make it impossible to find a new job.", "65. In support of his submissions, the applicant also relied on a number of judgments of the Supreme Courts of many countries which had ruled in favour of HIV-positive employees in the workplace, and particularly Hoffmann v. South African Airways of the South African Constitutional Court ( see paragraphs 36-38 above ) which held that prejudice against that category of persons did not constitute a legitimate professional interest.", "66. Relying on Bah v. the United Kingdom ( no. 56328/07, ECHR 201 1), the applicant submitted that States had to advance very weighty arguments to justify a difference in treatment based on medical conditions, such as HIV status. As the Court had stated in that judgment, a difference in treatment based on an immutable personal characteristic had to be explained in more detail than a difference in treatment based on a characteristic subject to an element of choice. In the applicant ’ s submission, HIV status was a condition which, once acquired, was unlikely to disappear.", "B. The Court ’ s assessment", "1. Applicability of Article 8 taken in conjunction with Article 14", "67. Regarding whether the facts of the case fall within the scope of Article 8, the Court reiterates that the notion of “private life” is a broad concept, not susceptible to exhaustive definition. It covers the physical and moral integrity of the person and sometimes encompasses aspects of an individual ’ s physical and social identity, including the right to establish and develop relationships with other human beings, the right to “personal development” or the right to self-determination as such ( see Schüth, cited above, § 53).", "68. As in Schüth, the applicant in the present case did not complain of a direct intervention by the national authorities resulting in his dismissal, but of a failure on their part to protect his private sphere against interference by his employer, which could engage the State ’ s responsibility ( see, mutatis mutandis, Palomo Sánchez and Others, cited above, § 60).", "69. The Court has already had the opportunity to rule, under Article 8, on cases of dismissal of employees on account of their private activities ( see Obst and Schüth, cited above ). Likewise, in a different context, the Court has decided that Article 8 applied in a situation where the authorities refused to grant a residence permit because the applicant was HIV-positive ( see Kiyutin, cited above ) or where the persons concerned were prohibited from working in the private sector on account of their previous employment ( see Sidabras and Džiautas, cited above ).", "70. It is therefore now established that both employment matters and situations involving HIV- infected persons fall within the scope of private life. The Court cannot but conclude thus, since the HIV epidemic cannot be considered only as a medical problem given that its effects are felt in every sphere of private life.", "71. Turning to the facts of the present case, the Court notes that there is a particularity which distinguishes it from all the above-mentioned cases : the dismissal from work of an HIV- positive employee. There is no doubt that while the stated ground for dismissing the applicant was to preserve a good working environment in the company, the triggering event was the announcement that he was HIV-positive. It was that event which prompted his colleagues to express their refusal to work with him, despite reassurances from the occupational -health doctor invited by the employer to explain the mode of transmission of the disease. It was that event which prompted the employer to attempt to persuade him to leave the company and the employees to openly threaten to disrupt the operation of the company as long as the applicant continued to work there.", "72. It is clear that the applicant ’ s dismissal resulted in the stigmatisation of a person who, even if they were HIV-positive, had not shown any symptoms of the disease. That measure was bound to have serious repercussions for his personality rights, the respect owed to him and, ultimately, his private life. To that must be added the uncertainty surrounding his search for a new job, since the prospect of finding one could reasonably have appeared remote having regard to his previous experience. The fact that the applicant did find a new job after being dismissed does not suffice to erase the detrimental effect of his dismissal on his ability to lead a normal personal life.", "73. Lastly, the Court reiterates that in Kiyutin, cited above (§ 57), it held that a person ’ s health status, including such conditions as HIV infection, should be covered – either as a form of disability or in the same way as a disability – by the term “other status” in the text of Article 14 of the Convention.", "74. It follows that Article 14 of the Convention taken in conjunction with Article 8 is applicable to the facts of the present case.", "2. Compliance with Article 14 taken in conjunction with Article 8", "( a) Whether the applicant was in an analogous situation to that of other employees of the company", "75. According to the Court ’ s established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008 ).", "76. As an employee of the company, the applicant could legitimately hope to continue working there as long as he did not commit an act capable of justifying his dismissal under domestic employment law. However, he was dismissed shortly after it was revealed that he had tested positive for HIV.", "77. The Court considers that the applicant ’ s situation should be compared to that of the other employees in the company because this is relevant to an assessment of his complaint based on a difference in treatment. It is clear that the applicant was treated less favourably than any of his colleagues and that this was solely because he was HIV-positive. The Court notes that the employer ’ s concern was admittedly to restore peace in the company, but that that concern was rooted in the situation created by the attitude of the applicant ’ s colleagues towards his HIV status.", "( b) Whether the difference in treatment in question was objectively and reasonably justified", "78. Once an applicant has shown that there has been a difference in treatment, it is incumbent on the respondent State to prove that the difference in treatment was justified. Such justification must be objective and reasonable or, in other words, it must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background ( see Kiyutin, cited above, § 62).", "79. In Kiyutin, the Court stated that if a restriction on fundamental rights applied to a particularly vulnerable group in society that had suffered considerable discrimination in the past, the State ’ s margin of appreciation was substantially narrower and it must have very weighty reasons for imposing the restrictions in question ( ibid. , § 63).", "80. HIV-positive persons have to face up to a whole host of problems, not only medical, but also professional, social, personal and psychological, and above all sometimes to deeply rooted prejudices even among the most highly educated people.", "81. The Court acknowledged this state of affairs in Kiyutin, cited above. It found that ignorance about how the disease spreads had bred prejudices which, in turn, had stigmatised or marginalised those infected with the virus. It added that, consequently, people living with HIV were a vulnerable group and that the State should be afforded only a narrow margin of appreciation in choosing measures that singled out this group for differential treatment on the basis of their HIV status ( ibid. , § 64).", "82. Additionally, the Court observes that a comparative study of the legislation of thirty member States of the Council of Europe on the protection from discrimination in the employment context afforded to HIV - infected persons showed that seven States had enacted specific legislation to that end. However, in the twenty-three other States, which had not passed legislation to that end, HIV- positive persons who suffered differences in treatment in the workplace could rely on the general anti -discrimination provisions of domestic law. The decisions of the domestic courts and other human rights protection bodies in some of those States showed that they granted protection against dismissal to persons living with HIV by subsuming this into other prohibited grounds of discrimination, such as health or disability ( see paragraph 39 above ).", "83. It would therefore appear that even if not all the member States of the Council of Europe have enacted specific legislation in favour of persons living with HIV, there is a clear general tendency towards protecting such persons from any discrimination in the workplace by means of more general statutory provisions applied by the courts when examining cases of dismissal of HIV-positive employees in both the public and private sectors ( see paragraphs 40-47 above ).", "84. Moreover, the Court notes that the provisions governing non-discrimination contained in various international instruments grant protection to HIV- infected persons. In that context the United Nations Committee of Economic, Social and Cultural Rights has recognised HIV-positive status as a prohibited ground of discrimination. Furthermore, a growing number of specific international instruments contain provisions concerning HIV-positive persons, including in particular a prohibition on discrimination in employment, such as ILO Recommendation no. 200 concerning HIV and AIDS and the World of Work (see paragraph 32 above).", "85. On the facts of the case the Court observes that the applicant ’ s employer terminated his contract owing to the pressure exerted on her by her employees, who had learnt that the applicant was HIV-positive and feared for their own health. It also notes that the employees of the company had been informed by the occupational -health doctor that their working relations with the applicant did not expose them to any risk of infection.", "86. The lower courts weighed the need to protect the smooth operation of the company against the applicant ’ s justified expectation that he would be protected during the difficult period he was experiencing. They found that the scales tipped in favour of the applicant. In particular, the Court of Appeal found that the threat of disruption to the company in the present case, as a result of the overwhelming reaction of the employees, was based on a scientifically unfounded response. It observed that where an employee ’ s illness did not adversely affect working relations or the smooth operation of the company ( through absenteeism or a reduction in working capacity, for example ), it could not serve as an objective justification for terminating the contract. Moreover, the nature of the applicant ’ s job, which did not demand excessive effort, precluded the risk of a reduction in his capacity for work since, during the many years in which a person was merely HIV-positive, his or her working capacity was not substantially reduced.", "87. In the present case the Court of Appeal expressly recognised that the applicant ’ s HIV status did not affect his capacity to do his job and there was no indication that he would be unable to perform his contract properly, which would have justified its immediate termination ( see paragraph 19 above ). The Court of Appeal also recognised that the company ’ s very existence was not threatened by the pressure exerted by the employees ( see paragraph 20 above ). Supposed or expressed prejudice on the part of employees could not be relied on as a pretext for terminating the contract of an HIV-positive employee. In such cases the need to protect the employer ’ s interests had to be balanced very carefully against the need to protect the interests of the employee, who was the weaker party to the contract, particularly where the latter was HIV-positive.", "88. However, the Court of Cassation did not weigh up all the competing interests as carefully and thoroughly as the Court of Appeal. On rather cursory grounds, having regard to the importance and unusual nature of the questions raised by the case, it held that the dismissal was entirely justified on the ground of the employer ’ s interests, in the proper sense of the term, because the measure had been imposed in order to restore peace in the company and ensure that it continued to operate smoothly. Although the Court of Cassation did not contest the fact that the applicant ’ s infection did not adversely affect his ability to perform his employment contract, it nonetheless based its decision, justifying the employees ’ fears, on a manifestly inaccurate premise, namely, that the applicant ’ s illness was “contagious”. In doing so, the Court of Cassation ascribed to the smooth operation of the company the same meaning that the employees wished to give it, thus aligning that definition with the employees ’ subjective perception.", "89. The Court does not share the Government ’ s view that a ruling by the Court of Cassation in the applicant ’ s favour would not have solved the problem because the employer would then have had to bear the cost of extended disruption to the company while the applicant would still have been faced with a hostile environment. The stakes involved for the applicant before the Court of Cassation were limited to obtaining compensation – which the Court of Appeal had awarded him – as his initial claim ( for reinstatement in the company ) had been dismissed both by the Court of First Instance and the Court of Appeal. Moreover, there could be no speculation about what the attitude of the company employees would have been if the Court of Cassation had upheld the decision of the lower courts, still less if legislation or well-established case-law existed in Greece protecting HIV-positive persons in the workplace.", "90. In sum, the Court considers that the Court of Cassation did not adequately explain how the employer ’ s interests prevailed over those of the applicant and that it failed to weigh up the rights of the two parties in a manner required by the Convention.", "91. It follows that the applicant was discriminated against on the basis of his health, in breach of Article 14 of the Convention taken in conjunction with Article 8. There has therefore been a violation of those provisions.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "92. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "93. The applicant claimed 6, 339. 18 euros (EUR) in respect of pecuniary damage, which was the amount awarded him by the Court of Appeal. He also claimed statutory interest accrued from the date of the Court of Appeal ’ s judgment. He claimed a further EUR 20, 000 in respect of non-pecuniary damage caused by the stigmatisation and discriminatory dismissal to which he had been subjected.", "94. The Government asked the Court to dismiss the claims in respect of pecuniary damage on the ground that they concerned an economic aspect of employment and not the right to respect for private life guaranteed by Article 8. With regard to non-pecuniary damage, the applicant ’ s allegation that he had been stigmatised and discriminated against was unfounded since, shortly after being dismissed, he had found another job. If the Court were to conclude that there had been a violation of the Convention, that finding would be sufficient just satisfaction.", "95. The Court reiterates that it has found a violation of Article 14 of the Convention taken in conjunction with Article 8 on account of the fact that the Court of Cassation failed to weigh up the rights of the two parties in a manner required by the Convention. It observes that the Court of Appeal had determined the amount to be awarded to the applicant in unpaid salaries at EUR 6, 339. 18, and awards him that sum in respect of pecuniary damage. It also considers that he should be awarded EUR 8, 000 in respect of non-pecuniary damage.", "B. Costs and expenses", "96. The applicant claimed EUR 6, 000 in fees for the two lawyers who had represented him before the Court ( sixty hours ’ work at EUR 100 per hour ).", "97. The Government asked the Court to dismiss the claim because it had not been submitted together with the necessary supporting documents.", "98. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum ( see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI ). The Court observes that the applicant did not submit the necessary documents in support of his claim for costs and expenses. Accordingly, the claim is rejected.", "C. Default interest", "99. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1960 and lives in Szekszárd.", "6. The applicant, a retired senior police officer, was at the material time the chairperson of Tettrekész Police Trade Union. Between May 2007 and July 2009 she published a number of writings on the Trade Union’s website, which was effectively under her editorial control, concerning outstanding remunerations due to police staff, alleged nepotism and undue political influence in the force, as well as dubious qualifications of senior police staff.", "7. The applicant was indicted for instigation to insubordination. On 29 April 2010 the Military Bench of the Budapest Regional Court found her guilty as charged and sentenced her to a fine and demotion. The court did not sustain the applicant’s defence according to which the publication of such allegations belonged to the core of a trade union’s activities. It held that those allegations were capable of causing insubordination and as such were hardly or not at all susceptible to any proof of their veracity.", "8. The Regional Court based its judgment inter alia on the following statements published by the applicant on the Internet:", "(1) “The staff are regularly required to work overtime without remuneration...” “For years, clearly due allowances have not been paid to low-ranking staff...” “Currently it is almost a prerequisite of becoming a senior police officer to have a political background or to be a relative or a descendant of other senior police officers.” “The senior police officers’ obvious violations of the law set a bad example for the force.” “This is typical of senior police officers: they commit violations and infringements, and then, if we point this out, their reaction is striking back without any principles, suing and accusing of incitement in order to counter our suggestions to renew and clean up the force.” “Why are we wondering at the infringements of police officers if law-breaking and tyrannising senior police officers go unpunished?”", "(2) “The uninhibited infringements of the law committed by senior police officers placing themselves above the law go unpunished, and what is more, they are even decorated when, on order of the political authority in power, thousands, tens of thousands of discontented and underprivileged people are beaten by jaded police officers on the streets.” “The ‘ Tettrekész ’ Police Trade Union commiserates with those Hungarian citizens whose human dignity and human rights were violated and affronted by acts of a prostituted leadership and of our criminal ‘colleagues’ and apologises for that.”", "(3) “Police staff are getting more and more underprivileged and humiliated by their own leaders.” “Some senior police officers are active in trying to obtain that average citizens be punished rather than ‘served and protected’ by the police officers on the streets.” “Some well-paid senior police officers unprofessionally incite ordinary citizens and police officers against each other.” “We constantly request the review of the often unprofessional selection procedure of senior police officers, but to no avail, because there is apparently no need for a citizen-friendly police.”", "(4) “The senior police officers again demonstrated that they were incapable of upholding the public order in a party-neutral and politically neutral way... It is proven again that the Hungarian Police’s primary objective is first and foremost not to maintain public order for the taxpaying citizens but to uphold the reign of current political leaders who have led Hungary into economic and moral distress.” “The reputation of the Police has reached previously unseen depths because of the acts of the unprofessional and anti-national senior police officers non-complying with the spirit of the police oath.” “It is obvious that the Police’s core leadership is, in an unacceptable way, politically committed to the government of the country and that of the capital.”", "(5) “The Head of the National Police Department is demonstrating every day that he is much more able to write obscene poems than to lead the Police; moreover, he is considerably much better in being an obstacle to the work of ‘ Tettrekész’ Police Trade Union and in managing a police pop band than in cooperating with a representative trade union of the Police with the highest number of police officer members.” “A chaotic and highly unprofessional leadership is ruining the rest of the Police’s reputation from day to day.”", "9. On 8 December 2010 the Military Bench of the Budapest Court of Appeal upheld the applicant’s conviction under section 357 of the Criminal Code. It held that the publication of the documents by the applicant had gone beyond her freedom of expression, given the particularities of the armed body to which she belonged. In the court’s opinion, the views contained in the documents constituted one-sided criticism whose truthfulness could and should not be proven." ]

[ "II. RELEVANT DOMESTIC LAW", "10. Act No. XX of 1949 on the Constitution (as in force at the material time) provides as follows:", "Article 59", "“(1) In the Republic of Hungary everyone shall have the right to good reputation, the inviolability of his home, and the protection of privacy and personal data.”", "Article 61", "“(1) In the Republic of Hungary everyone shall have the right to freedom of expression and to receive and impart information of public interest.”", "11. Act no. XLIII of 1996 on the Service of Members of Professional Staff of the Armed Forces provides as follows:", "Section 18 – Freedom of expression", "“(1) Members of professional staff of the police force and of the civilian national security services shall not be members of a political party and shall not engage in political activities.", "(2) Members of professional staff shall not hold a position in a political party and shall not undertake public appearance in the name or interest of a political party, apart from standing as a candidate in parliamentary, European or municipal elections.", "(3) Members of professional staff shall not engage in political activities at the place of service or while performing service tasks.", "(4) Except for the case regulated under section 69, members of professional staff shall not criticise, or express an opinion about, a measure or order received unless they do so within the scope of their activities securing rights and interests; moreover, they shall not make statements injurious to the order and discipline of the service and shall not express a private opinion in official proceedings by using media publicity.", "(5) Members of professional staff shall not produce or disseminate publications harmful to the order and discipline of the service and shall not place such posters, announcements or emblems anywhere.", "(6) Announcements of the professional members’ representation organisations falling within their scope of activities may be published in the locally customary manner. ...”", "Section 29", "“(1) For the purposes of this Act, “trade union” shall mean any representation organisation – irrespective of its actual designation – of members of professional staff, whose aim is the representation and protection of the service-related interests of members of professional staff.", "(2) The trade union shall be entitled to", "a) operate within the armed forces and to involve its members in its activity;", "b) provide information for the members of professional staff about their rights and duties affecting their financial, social, cultural, living and service conditions;", "c) represent its members vis-à-vis the organisational unit or before state organs in respect of issues affecting their service relationship or – upon authorisation – before a court or other authority or body in respect of issues affecting their living- and service conditions.", "(3) The trade union shall have the right to exercise the following rights vis-à-vis the organisational unit:", "a) may request information on any issues related to members of professional staff’s service-related financial, social and cultural interests;", "b) may communicate its position and opinion on the commander’s (head’s) measure (decision) concerning an issue falling under point a) to the commander in charge of the unit and may initiate consultations in such matters;", "c) may, during official working hours or – in justified cases – in service hours check observance of the rules governing service and working conditions – including healthy and safe service performance – and may request information and data on the implementation of those rules, which information and data shall be provided for the trade union. Such checks may not endanger or hinder the performance of the service tasks.", "(4) The trade union may draw the attention of the head of the organ in charge of the implementation of the rules to the shortcomings and omissions perceived in the course of the check. If the head fails to take the necessary action in due time, the trade union may institute appropriate proceedings. The body having conducted the proceedings shall be obliged to inform the trade union of the findings of the proceedings.", "(5) The rights specified under subsections (3)-(4) shall, in respect of issues falling into the supervisory bodies’ scope of direction, be vested in the representative trade union within the given organisation. ...”", "Section 69", "“(1) While performing their service, members of professional staff shall be obliged to execute the orders of a supervisor or the instructions of a superior officer, unless they would commit a criminal offence thereby.", "(2) Except for the case specified in subsection (1), members of professional staff may not refuse the execution of an unlawful order. Where, however, the unlawful nature of the order was recognised, it shall immediately be drawn to the superior officer’s attention. If the supervisor upholds his order or the superior officer upholds his instruction, it must – upon request – be given in writing. Liability for the execution of an unlawful order or provision shall be borne solely by the issuer of the order or the instruction. ...”", "Section 194 – Service complaint", "“(1) Members of professional staff or – upon their authorisation and on their behalf– a representation organisation or an attorney at law may file a service complaint if they find prejudicial a service-related decision, measure or their omission, not regulated under section 195 of this Act.", "(2) A service complaint against an employer’s measure in connection with the termination of the service relationship, establishment of conflict of interest, or the unilateral modification of the service relationship by the armed forces affecting the member’s position, shall be filed by the member of professional staff within 15 days from the communication of the employer’s measure. In other cases service complaints shall be filed within the period of limitation applicable to the enforcement of the claim at issue.", "(3) The complaint shall be filed with the supervisor who took (omitted to take) the decision and who shall – in case he fails to grant it – transfer the case, together with the case files, to the supervisor-commander without delay. Unless specified otherwise under the law, the supervisor-commander shall decide on the complaint within 30 days and shall communicate his decision to the complainant. This time limit may be extended on one occasion for another 30 days.", "(4) No person shall be restricted in exercising his right to file a complaint. No complainant shall suffer any detriment in case his complaint is found ill-founded, except where intentional infringement of discipline, regulatory offence, or a criminal offence has been committed.", "(5) The exercise of the right of complaint specified in another law shall not be affected by this Act.”", "Section 195 – Complaint and appeal against a decision", "“(1) A first instance decision related to the service relationship and taken in proceedings conducted within the armed forces may – unless this Act provides otherwise – be challenged by a member of professional staff by filing a complaint ... or an appeal ... against the decision within 15 days from its service.", "(2) Appeal against a decision brought in relation with the service obligations of a deceased member of professional staff may be lodged by a close relative.", "(3) The complaint or appeal shall – unless this Act provides otherwise – be determined within 30 days by the service supervisor or the organ designated by the minister. This time-limit may be extended on one occasion for another 30 days.”", "12. Act No. IV of 1978 on the Criminal Code provides as follows:", "Section 357 – Incitement", "“(1) Anyone who incites discontent among soldiers towards a", "superior, a command or in general towards the order of service or discipline, is guilty of a misdemeanour punishable by imprisonment of up to one year.", "(2) The punishment shall be imprisonment for up to three years if:", "a) the incitement is committed in the course of the performance of service;", "b) the incitement entails considerable disadvantage for the service or discipline.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 READ IN THE LIGHT OF ARTICLE 11 OF THE CONVENTION", "13. The applicant complained that the criminal proceedings conducted against her on account of some statements which she had published on the Internet, as part of her trade-union activity, amounted to a breach of her right to freedom of expression as provided in Article 10 of the Convention.", "The Court considers that – against the background that the applicant is a trade-union leader – this complaint falls to be examined under Article 10 which will be interpreted in the light of Article 11 of the Convention (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 52 in fine, ECHR–2011).", "Article 10 provides as relevant:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Article 11 provides as relevant:", "“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ... for the protection of health or morals or for the protection of the rights and freedoms of others ...”", "14. The Government contested the applicant’s arguments.", "A. Admissibility", "15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Arguments of the parties", "a. The Government", "16. The Government did not contest that there had been an interference with the applicant’s freedom of expression. However, they pointed out that according to Article 10 § 2 of the Convention, this right might be subject to certain limitations. Section 18 of the Act on the Service of Members of Professional Staff of the Armed Forces restricted the freedom of expression of the armed forces’ professional staff. Decision no. 8/2004. (III.25.) AB of the Constitutional Court had found this limitation to be in compliance with the Constitution. That court argued that orders and instructions might be criticised by lodging a service complaint (section 194 of the Service Act) or through a representative organisation (section 29). The assessment of criticism should be different depending on the type of service within the armed forces and whether it had occurred in an armed conflict, state of danger or emergency, or in peace. Thus, the limitation on the right to freedom of expression was necessary to ensure the undisturbed performance of tasks of the armed forces, and could not be regarded as disproportionate in view of the specific nature of the service relationship.", "17. The Government further observed that according to the Court’s case-law, States had the possibility to impose restrictions on freedom of expression where there was a real threat to military discipline. However, proposals for reforms must be tolerated in the army of a democratic State.", "18. As established by the domestic courts, in the present case the applicant’s opinion had not been expressed in connection with the trade union’s operation. The incriminated statements had gone beyond the limits of freedom of expression provided in section 29(2)(c) of the Service Act and had not concerned any proposals for reform. The domestic courts examined them thoroughly and found the incriminated statements to be devoid of factual basis and sometimes even defamatory and libellous. No intention to identify or remedy problems or anomalies had been detected in the applicant’s statements; on the other hand, they had been likely to disrupt military discipline.", "19. Moreover, the application of a criminal punishment could not be considered as disproportionate in the circumstances. In order to establish incitement, not only should the statement be injurious to the order and discipline of the service, but must also incite discontent among soldiers. In light of the ultima ratio character of criminal law, not all conduct injurious to the order and discipline of the service was sanctioned by criminal punishments. Conduct that did not reach the criminally relevant threshold of dangerousness to society was handled through disciplinary law. However, the applicant’s case was different.", "20. Lastly, the domestic courts had referred to the Court’s case law on the matter and examined the human rights aspects of the case. They had come to the conclusion that the use of criminal sanctions in the instant case had not been disproportionate. The Government could not but endorse this view.", "b. The applicant", "21. The applicant submitted that she had not been active as a police officer but had only been in charge of representing the trade union in question. The impugned statements had been made exclusively in this context; and although they had been uttered in order to draw attention to issues of improving the working and living conditions of the trade union members, they could in no way be seen as offensive, defamatory or inciting to insubordination. Nevertheless, she had never been given the opportunity to prove their veracity before any competent body.", "2. The Court’s assessment", "a. Whether there has been an interference", "22. The Court notes that this issue has not been in dispute between the parties. It concludes that the applicant’s conviction represented an interference with her right to freedom of expression.", "Such an interference will represent a violation of the applicant’s right to freedom of expression, unless it was “prescribed by law”, pursued a legitimate aim and was necessary in a democratic society.", "b. Prescribed by law", "23. The Court observes that the applicant’s conviction was based on section 357 of the Criminal Code and is therefore satisfied that it was “prescribed by law”.", "c. Legitimate aim", "24. The Court notes that the applicant’s prosecution reflected the domestic courts’ conviction that her utterances had been capable of instigation to insubordination. It therefore finds that the interference pursued the legitimate aim of “prevention of disorder or crime”, that is, of preserving order in the armed forces (see Engel and Others v. the Netherlands, 8 June 1976, § 98, Series A no. 22; Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, 19 December 1994, § 32, Series A no. 302).", "d. “Necessary in a democratic society”", "i. General principles", "25. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204). As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.", "Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see Uj v. Hungary, no. 23954/10, § 20, 19 July 2011).", "The same is true when the persons concerned are members of the armed forces, because Article 10 applies to them just as it does to other persons within the jurisdiction of the Contracting States. However, the proper functioning of the armed forces is hardly imaginable without legal rules designed to prevent servicemen from undermining the requisite discipline, for example by writings (see Engel and Others, cited above, § 100; Hadjianastassiou v. Greece, 16 December 1992, § 39, Series A no. 252; Vereinigung demokratischer Soldaten Österreichs and Gubi, cited above, § 36).", "26. Consequently, account must be taken of the need to strike the right balance between the various interests involved. Because of their direct, continuous contact with the realities of the country, the national courts are in a better position than an international one to determine how, at a given time, the right balance can be struck. For this reason, in matters under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by that Article (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001-I, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 68, ECHR 2004-XI).", "27. However, that margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see, mutatis mutandis, Peck v. the United Kingdom, no. 44647/98, § 77, ECHR 2003-I, and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004-X). The Court’s task in exercising its supervisory function is not to take the place of the national authorities but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation can be reconciled with the Convention provisions relied upon (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 60, ECHR 1999-III; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 41, 21 September 2010; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith. The Court looks at the interference complained of in the light of the case as a whole, including the content of the statement held against the applicant and its context (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I).", "In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”, and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Csánics v. Hungary, no. 12188/06, § 37 in fine, 20 January 2009).", "28. Furthermore, the members of a trade union must be able to express to their employer their demands by which they seek to improve the situation of workers in their company. A trade union that does not have the possibility of expressing its ideas freely in this connection would indeed be deprived of an essential means of action. Consequently, for the purpose of guaranteeing the meaningful and effective nature of trade union rights, the national authorities must ensure that disproportionate penalties do not dissuade trade union representatives from seeking to express and defend their members’ interests (see Palomo Sánchez and Others, cited above, § 56). Furthermore, there is little scope for restrictions on debates on matters of public interest (see Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V; Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999 ‑ IV).", "29. In the present case, the Hungarian authorities were required to balance the applicant’s right to freedom of expression, as guaranteed by Article 10 of the Convention, against her obligations in the context of a service relationship. As pointed out above, Article 10 of the Convention does not guarantee an unlimited freedom of expression; and the prevention of disorder within the armed forces constitutes a legitimate aim permitting a restriction of that freedom of expression. If the reasoning of the domestic courts’ decisions concerning the limits of freedom of expression in cases involving the prevention of disorder – in the present case, the prevention of insubordination inside the police force – is sufficient and consistent with the criteria established by the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see, mutatis mutandis, Palomo Sánchez and Others, cited above, § 57; and MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011).", "30. The Court would add that in order to assess the justification of the statements in question, a distinction needs to be made between statements of fact and value judgments, in that, while the existence of facts can be demonstrated, the truth of value judgements is not susceptible of proof. The requirement to prove the truth of a value judgment is generally impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, for example, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103; Oberschlick v. Austria (no. 1), cited above, § 63). The classification of a statement as a fact or a value judgment is a matter which, in the first place, falls within the margin of appreciation of the national authorities, in particular the domestic courts (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004 ‑ XI). However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it may be excessive (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001–II).", "ii. Application of those principles to the present case", "31. The Court notes that, in some statements published on the website under her effective editorial control, the applicant brought up labour issues, such as outstanding remunerations, which concerned servicemen including trade union members (see paragraph 8 above, quotation 1). However, she also uttered, repeatedly, critical views about the manner in which police leaders managed the force, and accused them of disrespect of citizens and of serving political interests in general (see paragraph 8 above). For the Court, these latter views overstepped the mandate of a trade union leader, because they are not at all related to the protection of labour-related interests of trade union members. Therefore, those statements, being made outside the legitimate scope of trade union-related activities, must be considered from the general perspective of freedom of expression rather than from the particular aspect of trade union-related expressions. In this connection, the Court would reiterate that paragraph 2 in fine of Article 11 indicates that the State is bound to respect the freedom of association of its employees, subject to the possible imposition of lawful restrictions on the exercise by members of its armed forces, police or administration of the rights protected in that Article; however, the restrictions imposed on the three groups mentioned are to be construed strictly and should therefore be confined to the “exercise” of the rights in question, that is, these restrictions must not impair the very essence of the right to organise (see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 96-97, ECHR–2008). The Court will apply the same approach in the context of Article 10 and stresses that the right to freedom of expression pertains to all, including members of the armed forces.", "32. In its analysis of the proportionality of the punitive measures curtailing the applicant’s right to express critical views, the Court will consider the extent to which the right to freedom of expression of a member of the police force can be restricted in order to prevent disorder within the police, a hierarchically organised body where discipline is quintessential for the carrying out of its functions. For the Court, some of the impugned statements (concerning in particular outstanding remunerations) are clearly related to trade union activities and their sanctioning therefore appears difficult to reconcile with the prerogatives of a trade union leader. Moreover, the attack on the Head of the National Police Department is a pure value judgment and enjoys as such a high level of protection under Article 10.", "The Court also notes that in regard to some other utterances the domestic courts, rather surprisingly, refused to accept evidence (see paragraph 7 above), which fact alone would have cast doubt on the legitimacy of the sanction imposed on the applicant, had that sanction been applied for that sole reason.", "However, in any event, the Court shares the views of those courts regarding the nature of the views expressed about the practice of senior police management. It accepts that those allegations – in particular the ones accusing senior police management of political bias and agenda, transgressions, unprofessionalism and nepotism – were, even if representing predominantly value-judgments, indeed capable of causing insubordination since they might discredit the legitimacy of police actions, all the more so since the applicant did not provide any clear factual basis for those statements. It is true that she was barred from submitting evidence in the domestic proceedings – a matter of serious concern – however, in her attacks concerning the activities of police leadership, she failed to relate her offensive value judgments to facts.", "The Court finds that the protection of loyalty and the trust in the constitutionality of police leaders’ actions is not a matter of administrative convenience. The applicant, as a senior police officer, had considerable influence on trade union members and other servicemen, among other things by controlling the trade union’s website. As a high-ranking officer and trade union leader she should have had to exercise her right to freedom of expression in accordance with the duties and responsibilities which that right carries with it in the specific circumstances of her status and in view of the special requirement of discipline in the police force (see also Rekvényi v. Hungary [GC], no. 25390/94, § 43 in fine, ECHR 1999 ‑ III) – and this even in the face of the general interest attached to enabling criticism as to transparency, professionalism and law-abiding within the police force. The Court notes that, by entering the police, the applicant should have been aware of the restrictions that apply to staff in the exercise of their rights. Moreover, the limitations on the applicant’s right to freedom of expression did not require her to exercise her profession in violation of fundamental convictions of her conscience.", "In view of the margin of appreciation applicable in such cases (see paragraph 26 above), the maintenance of discipline by sanctioning accusatory opinions which undermine the trust in, and the credibility of, the police leadership represents a “pressing social need”, and the reasons adduced by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30), especially in view of the relatively mild sanction imposed on the applicant – demotion and a fine – which cannot be regarded disproportionate in the circumstances.", "33. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 10 read in the light of Article 11 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "34. The applicant also complained under Articles 6, 13 and 17 of the Convention that the proceedings had not been fair.", "35. In so far as the applicant’s complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). In the present case, there is no appearance that the domestic courts lacked impartiality or that the proceedings were otherwise unfair or arbitrary.", "It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1963 and lives in Balassagyarmat.", "5. The applicant is a television journalist. From 15 February 2001 he was employed by the State television company ( Magyar Televízió Zrt. ). Following an amendment of his work contract on 10 July 2002, he was appointed for an indeterminate period. At the material time, he was chairman of the Trade Union of Public Service Broadcasters ( Közszolgálati Műsorkészítők Szakszervezete ), active within the television company.", "The applicant was in charge, as editor and presenter, of a periodical cultural programme called Éjjeli menedék (Night Shelter) which involved interviews with various figures of cultural life.", "6. According to point 10 of his work contract, the applicant was bound by professional confidentiality. He was obliged not to reveal any information acquired in connection to his position the disclosure of which would be prejudicial to either his employer or any other person. According to the labour contract, he also took note of the fact that a breach of this obligation would lead to the immediate termination of his employment.", "7. Following the appointment of a new cultural director the applicant had apparently contacted the television company ’ s president, since he had perceived the new director ’ s conduct in modifying and cutting certain contents of Éjjeli menedék as censorship. He had received no response to his complaint.", "8. On 6 June 2003 the editor-in-chief of Éjjeli menedék addressed a letter to the board of Magyar Televízió Zrt. stating, amongst other things, that the appointment of the new cultural director had led to censorship of the programme by his suggesting modifications to, and the deletion of, certain contents.", "On 19 June 2003 an article appeared in the online version of a Hungarian daily ( Magyar Nemzet Online ) [1], containing the editor-in-chief ’ s letter as well as a statement of Magyar Elektronikus Újságírók Szövetsége (Hungarian Union of Electronic Journalists), inviting the board to end censorship in the television company.", "9. In 2004 the applicant published a book entitled “ Az antifasiszta és a hungarista – Titkok a Magyar Televízióból” (The Antifascist and the Hungarista - Secrets from the Hungarian Television). Each chapter of the book contained an extract from different interviews recorded in 2003, which had not been broadcast in the cultural programme, apparently on the basis of the instructions of the cultural director in question. Along with the extracts, the applicant included numerous in-house letter exchanges between the cultural director and the editor-in-chief concerning the suggested changes in the programme. Moreover, the chapters contained a short introduction or summary of the events, reflecting the applicant ’ s personal opinion. The preface of the book said that it would contain documentary evidence of censorship exercised in the State television company. It called on the readers to decide whether the documents indicated the cultural director ’ s legitimate exercise of his supervisory functions or an interference with the broadcaster ’ s freedom of expression.", "10. On 11 November 2004 the television company dismissed from employment the applicant and the editor-in-chief of Éjjeli menedék, with immediate effect. The reason for the applicant ’ s summary dismissal was that, by publishing the book in question, he had breached the confidentiality clause contained in his labour contract.", "11. The applicant challenged his dismissal in court. He argued, inter alia, that he had received the in-house letter-exchange in connection with his position as the chairman of the trade union, in order for him to take steps against the alleged censorship at the television company, and that he had published the impugned book in that capacity.", "12. In its judgment of 8 April 2008 the Budapest Labour Court dismissed the applicant ’ s action, stating that he had breached his obligations under point 10 of his work contract by publishing information about his employer without its consent. The court also found that the applicant ’ s position as chairman of the trade union did not exempt him from the duty of confidentiality.", "13. The applicant appealed, arguing that the publication of the book had not in any way prejudiced his employer or any other person and that he had not acquired the published information in connection with his position but in his capacity as trade union chairman. In that position, and in representation of the interests of his colleagues, he was obliged to act against the censorship within the television company. Thus, according to the applicant, the conditions of dismissal, as stipulated in point 10 of his labour contract, had not been fulfilled.", "14. On 13 February 2009 the Budapest Regional Court dismissed the appeal on the same grounds as the Labour Court, adding that the publication of the book might have had a certain detrimental effect on the television company ’ s reputation. Furthermore, in the Regional Court ’ s opinion, the impugned measure had not constituted an abuse of rights on the employer ’ s side, since the applicant had voluntarily agreed to the restriction of his freedom of expression by signing his labour contract.", "15. The applicant pursued a petition for review before the Supreme Court. He argued that he had been unlawfully dismissed in that his conduct, namely to inform the public about censorship at the State television company in a book – which was a last-ditch option given that his efforts vis-à-vis the management to have the matter investigated had been to no avail – should have been regarded as an exercise of his freedom of expression rather than an unlawful breach of his labour contract, especially in view of the fact that the allegation of censorship had not been refuted.", "16. On 26 May 2010 the Supreme Court found against the applicant. Referring to the applicant ’ s submission concerning freedom of expression, it held that the scope of the case did not extend beyond the examination of the applicant ’ s breach of his labour obligations. In the court ’ s view, the applicant had indeed breached the contract by means of the unauthorised publication of internal documents of his former employer. The court expressly excluded from its scrutiny the question whether or not the applicant ’ s freedom of expression justified, in the circumstances, a formal breach of his labour contract.", "This decision was served on 13 July 2010." ]

[ "II. RELEVANT DOMESTIC LAW", "17. Article 61 of the Constitution, as in force at the material time, provided as follows:", "“1. In the Republic of Hungary everyone shall have the right to freely express his opinion and to access to and to disseminate information of public interest.”", "Section 96 of Act no. XXII of 1992 on the Labour Code, as in force at the material time, read as follows:", "“(1) An employer or employee may terminate an employment relationship by summary dismissal /resignation in the event that the other party:", "a) wilfully or by gross negligence commits a grave violation of any substantive obligations arising from the employment relationship ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "18. The applicant complained that his dismissal from the State television company on the ground of publishing a book including internal documents of his employer amounted to a breach of his right to freedom of expression and in particular his right to impart information and ideas to third parties. He relied on Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "The Government contested this view.", "A. Admissibility", "19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "20. The applicant submitted that his right to freedom of expression had been breached in that he had been dismissed from employment because of a publication. As a journalist and chairman of the trade union at the public television broadcaster he had had the right and obligation to inform the public about alleged censorship at the television company.", "He emphasised that the statements in his book had never been refuted and that he had acted in good faith, in compliance with the ethics of his profession.", "21. He further submitted that no consideration had been given to his rights under the Convention by the domestic courts reviewing his dismissal. He pointed to the fact that the domestic courts had formally accepted that freedom of expression might be lawfully limited in labour relations, regardless of the nature and the circumstances of the case.", "22. The Government submitted that the applicant, as an employee at the State television company, had been bound by a labour contract and in particular by a duty of confidentiality. The fact that he was the chairman of a trade union had not exempted him from complying with the obligations flowing from the employment contract. By publishing the impugned book without prior authorisation and revealing confidential information, he had breached his duties, leading to his summary – and justified – dismissal.", "23. The Government further argued that the applicant had published the statements and correspondence of persons identified by name. Any disclosure of such personal data would have required prior authorisation of the persons concerned, which the applicant had failed to obtain.", "24. The Government also contended that there had been no interference with the applicant ’ s freedom of expression, since his book about the presumed censorship at the State television had actually been published and its content had become accessible to anyone. The applicant contested this view.", "2. The Court ’ s assessment", "a. Existence of an interference", "25. The Court observes that the decision to dismiss the applicant from the television company was prompted by the publication of his book, without further examination of the applicant ’ s professional ability. Accordingly, the measure complained of essentially related to the exercise of freedom of expression (see Wille v. Liechtenstein [GC], no. 28396/95, § 50, ECHR 1999 ‑ VII, and Kudeshkina v. Russia, no. 29492/05, § 79, 26 February 2009).", "26. The Court reiterates that the protection of Article 10 of the Convention extends to the workplace in general. It notes at this juncture that the applicant was at the service of the State-owned television company, albeit under a Labour Code statute. In this regard, the Court recalls that Article 10 of the Convention applies not only to employment relationships governed by public law, but also those under private law. In addition, in certain cases, the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000).", "27. The Court considers that the disciplinary measure dismissing the applicant for publishing a book containing confidential information about his employer, as endorsed by the Hungarian courts, constituted an interference with the exercise of the right protected by Article 10 of the Convention", "28. An interference with the applicant ’ s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve those aims.", "b. Whether the interference was “prescribed by law”", "29. The Court observes, and it is common ground between the parties, that the applicant was dismissed on the basis of section 96(1) of the Labour Code for having breached his obligations under point 10 of his labour contract.", "c. Whether the interference pursued a legitimate aim", "30. The Court accepts that the legitimate aim pursued by the impugned measure was the prevention of the disclosure of confidential information as well as “ the protection of the reputation or rights of others ” within the meaning of Article 10 § 2.", "d. Whether the interference was necessary in a democratic society", "i. The principles established by the Court ’ s case-law", "31. The central issue which falls to be determined is whether the interference was “necessary in a democratic society”. The fundamental principles in that regard are well established in the Court ’ s case-law and have been summarised as follows (see, among other authorities, Vogt v. Germany, 26 September 1995, § 52, Series A no. 323; Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998 ‑ VI; and Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II):", "( α ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any exceptions must be convincingly established.", "( β ) The adjective “necessary”, within the meaning of Article 10 § 2 implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.", "( γ ) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it is “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts.", "32. The Court also observes that the present case bears a certain resemblance to the cases Fuentes Bobo ( cited above) and Wojtas-Kaleta v. Poland ( no. 20436/02, 16 July 2009) in which it found violations of Article 10 in respect of journalists who had publicly criticised the public television broadcaster. Likewise, in the present case, the applicant, a journalist, wrote a book in criticism of the conduct of his supervisors and employer. Therefore this case also raises the problem of how the limits of loyalty of journalists working for such companies should be delineated and, in consequence, what restrictions can be imposed on them in public debate.", "In this context the Court is also mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see Vogt v. Germany, 26 September 1995, § 53, Series A no. 323; and Ahmed and Others v. the United Kingdom, 2 September 1998, § 55, Reports 1998 ‑ VI). Accordingly, the measure by which the applicant was dismissed from his position for the breach of confidence is not as such incompatible with the requirements of Article 10 of the Convention.", "33. For the Court, the position of the applicant in the present case – that is, him being a journalist employed by the State television company under the general labour law – might be distinguishable from that of an employee in the public sector proper signalling illegal conduct or wrongdoing in the workplace in a situation where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Marchenko v. Ukraine, no. 4063/04, § 46, 19 February 2009; Heinisch v. Germany, no. 28274/08, §§ 63-64, ECHR 2011 (extracts); and Bucur and Toma v. Romania, no. 40238/02, § 93, 8 January 2013). However, there is no need to decide on whether the applicant, an employee of the State television company which plays a crucial role in societal communication, falls into the same category, from the perspective of Article 10, as civil servants. This is so because the public interest attaching to the transparent editing of programs of the State television would have required in any case a domestic scrutiny of the proportionality of the impugned measure.", "34. Where the right to freedom of expression of a person bound by professional confidentiality is being balanced against the right of employers to manage their staff, the relevant criteria have been laid down in the Court ’ s case-law as follows (see Guja v. Moldova [GC], no. 14277/04, §§ 74-78, ECHR 2008): (a) public interest involved in the disclosed information; (b) authenticity of the information disclosed; (c) the damage, if any, suffered by the authority as a result of the disclosure in question; (d) the motive behind the actions of the reporting employee; (e) whether, in the light of duty of discretion owed by an employee toward his or her employer, the information was made public as a last resort, following disclosure to a superior or other competent body; and ( f ) severity of the sanction imposed.", "35. Moreover, in order to assess the justification of an impugned measure, it must be borne in mind that the fairness of proceedings and the procedural guarantees afforded (see, mutatis mutandis, Steel and Morris, cited above, § 95 ) are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10. The absence of an effective judicial review of the impugned measure may also lead to a violation of Article 10 (see Saygılı and Seyman v. Turkey, no. 51041/99, §§ 24-25, 27 June 2006, and Lombardi Vallauri v. Italy, no. 39128/05, §§ 45-56, 20 October 2009). If the reasoning of the national court demonstrates a lack of sufficient engagement with the general principles of the Court under Article 10 of the Convention, the degree of margin of appreciation afforded to the authorities will necessarily be narrower. Indeed, as the Court has previously held in the context of Article 10, “the quality of ... judicial review of the necessity of the measure is of particular importance in this respect, including the operation of the relevant margin of appreciation” (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)).", "ii. Application of the above principles in the present case", "36. The applicant argued in his book that the changes suggested by the cultural director of the television company did not sit well with the principles of journalistic freedom. He expressed the opinion that the modifications and cuts put through by the cultural director regarding his programme constituted censorship. The introduction of the book called on readers to decide whether they perceived the published documents as pieces of evidence of censorship or as a supervisor ’ s valid instructions to his colleagues.", "37. In such circumstances, and also bearing in mind the importance of the independence of public service broadcasters, the Court considers that even if the book contained information on third persons (see the Government ’ s related submission in this respect in paragraph 23), it essentially concerned a matter of public interest. It is to be observed in this context that there is no information in the case file as to any claims or complaints formulated by any third party about the impugned publication.", "38. The Court notes the applicant ’ s submission that he as a journalist and chairman of the trade union had the right and obligation to make public the documents in question and to comment on matters of public interest, notwithstanding the fact that his labour contract contained a confidentiality clause.", "39. The Court is of the view that the applicant ’ s combined professional and trade-union roles must be taken into consideration for the purposes of examining whether the interference complained of was necessary in a democratic society. It considers that, having regard to the role played by journalists in society and to their responsibilities to contribute to and encourage public debate, the obligation of discretion and confidentiality constraints cannot be said to apply with equal force to journalists, given that it is in the nature of their functions to impart information and ideas.", "Furthermore, in the particular context of the applicant ’ s case, his obligations of loyalty and restraint must be weighed against the public character of the broadcasting company he worked for (see Wojtas-Kaleta, cited above, §§ 45-47 ).", "40. Given the presence of these elements in the applicant ’ s situation, the Court considers that the domestic authorities should have paid particular attention to the public interest attached to the applicant ’ s conduct.", "41. As to the criterion of accuracy, it was not asserted by the employer or later established by the courts that the documents published by the applicant were not authentic or were distorted or that his comments had been devoid of factual basis. Moreover, some of the applicant ’ s statements amounted to value judgments, the truth of which is not susceptible of proof (see, for instance, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103).", "42. Regarding the question as to whether the publication could be considered detrimental, the Court is mindful of the Regional Court ’ s judgment referring to the potential damage to the television company ’ s reputation which the book might have caused (see paragraph 14 above).", "43. Nonetheless, the issue arises as to whether there was any need to prevent the disclosure of information that was already available to the public (see Weber v. Switzerland, 22 May 1990, § 51, Series A no. 177; and Vereniging Weekblad Bluf! v. the Netherlands, 9 February 1995, § 41, Series A no. 306-A) and might already have been known to a large number of people. The Court notes that on 9 June 2003, before the publication of the applicant ’ s book, an article appeared in an online newspaper containing information about the alleged censorship (see paragraph 8 above). Thus, although the publication of the documents in the impugned book was a breach of confidentiality – an element which brings into play the notion of “duties and responsibilities” within the meaning of paragraph 2 of Article 10 of the Convention – their substance in general had already been made accessible through an online publication and was known to a number of people.", "44. In so far as the motives for making the impugned documents public may be relevant, the applicant ’ s assertion is that he acted in good faith, in order to draw public attention to censorship at the State television. For the Government, this course of action was nothing more than a wilful breach of employment obligations.", "45. An act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see Kudeshkina, cited above, § 95 ).", "46. In the instant case, the Court notes that the applicant ’ s account of his motives was not called into question before the domestic courts. Nor was it suggested that he had included the confidential documents in the book with any other intention than to corroborate his arguments on censorship. There was no appearance of any gratuitous personal attack, either.", "47. Furthermore, for the Court, the applicant ’ s decision to make the impugned information and documents public was based on the experience that neither his complaint to the president of the television company nor the editor-in-chief ’ s letter to the board had prompted any response (see paragraphs 7 and 8 above). Thus, the Court is satisfied that the publication of the book took place only after the applicant had felt prevented from remedying the perceived interference with his journalistic work within the television company itself – that is, for want of any effective alternative channel.", "48. The Court also notes that a rather severe sanction was imposed on the applicant, namely the termination of his employment with immediate effect.", "49. Finally, as to the manner in which the applicant ’ s labour case was reviewed, the domestic courts found that the mere fact that the applicant had published the book was sufficient to conclude that he had acted to his employer ’ s detriment. However, they paid no heed to the applicant ’ s argument that he had been exercising his freedom of expression in the public interest, and limited their analysis to finding that he had breached his contractual obligations. Moreover, the Supreme Court ’ s judgment explicitly stated that the subject matter of the case was limited to an employment dispute and did not concern the applicant ’ s fundamental rights (see paragraph 16 above). As a result, they did not examine whether and how the subject matter of the applicant ’ s book and the context of its publication could have affected the permissible scope of restriction on his freedom of expression, although it is such an approach that, in principle, would have been compatible with the Convention standards (see Sokołowski v. Poland, no. 75955/01, § 47, 29 March 2005; and Ungváry and Irodalom Kft. v. Hungary, no. 64520/10, § 57, 3 December 2013).", "50. Being mindful of the importance of the right to freedom of expression on matters of general interest, of the applicant ’ s professional obligations and responsibilities as a journalist on the one hand, and of the duties and responsibilities of employees towards their employers on the other, and having weighed the different interests involved in the case, the Court concludes that the interference with the applicant ’ s right to freedom of expression was not “necessary in a democratic society”.", "51. Accordingly, there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "52. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "53. The applicant claimed 32,250 euros (EUR) in pecuniary damage. This sum comprises compensation for lost income which would have been awarded to him in case of success in the domestic proceedings.", "He moreover claimed EUR 10,000 in respect of non-pecuniary damage.", "54. The Government contested these claims.", "55. The Court considers that the applicant must have suffered some pecuniary and non-pecuniary damage as a result of his dismissal. Making its assessment on the basis of equity, it awards him EUR 5,000 under both heads combined.", "B. Costs and expenses", "56. The applicant claimed EUR 1,440 for the costs and expenses incurred before the domestic courts. This amount corresponds to the court fees incurred on three levels of judicial instances and the legal expenses paid to the respondent.", "57. The Government contested these claims.", "58. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the full sum claimed in respect of the proceedings before the domestic courts incurred in an attempt to prevent the violation, that is, EUR 1,440.", "C. Default interest", "59. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1978 and lives in Podgorica. She was represented by Mr D. Lalićević, a lawyer practising in Podgorica.", "3. The Government were represented by their Agent, Ms V. Pavličić.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The applicant worked as a prison guard in the Institute for the Execution of Criminal Sanctions (“the IECS”; Zavod za izvršenje krivičnih sankcija ) in Podgorica as of September 1998. At the relevant time she was covering the position of head of shift in the women’s prison ( šef smjene Kazneno popravnog doma za žene ).", "The incidents and the ensuing events", "6. In January 2013 the applicant reported five of her colleagues for indecent behaviour at work on New Year’s Eve. As established later in disciplinary proceedings, some of the male guards had entered the women’s prison and one of them had had “physical contact” with two inmates there, which had been tolerated by some of the female guards (see paragraph 13 below).", "7. On 12 January 2013 the applicant had a telephone conversation with another colleague, N.R. He told her that she should not have reported the other colleagues unless they had killed somebody, and that it was her fault that they would get fired. He also said that a large number of colleagues were against her, that from then on she should be prepared for anything and that she should take care of what she was doing.", "8. In the night of 13 January 2013 the front windscreen of the applicant’s car was broken in front of the building where she lived. On 14 January 2013 an on-site inspection ( uviđaj ) took place and the State prosecutor was informed.", "9. On 17 January 2013 the applicant filed a complaint at the police station about her conversation with N.R. and the incident with the car. She also attached video footage taken by a camera from a neighbouring building, in which apparently the perpetrator could be seen damaging the windscreen and planting something underneath the car. The same day the police interviewed N.R. and informed the deputy State prosecutor accordingly. According to the official police records the prosecutor considered that the elements of a criminal offence subject to public prosecution or of a misdemeanour were lacking in the situation involving N.R.", "10. On 18 February and 3 October 2013 the applicant requested the Ministry of the Interior and the Police Directorate respectively to deal with her complaint.", "11. Between 26 and 28 February 2013 she allegedly reported some other irregularities at work, but without receiving any response whatsoever. There are no more details in the case file in this regard.", "12. On 8 March 2013 a prison driver, M.Ž., who was taking some female colleagues to their homes, refused to take the applicant, and instead left her in another part of town. When she explained that it was not where she lived, he replied: “What do you expect, you’re known for your sharp tongue and behaviour”. After a short argument, he drove her home.", "13. On 20 March 2013 the colleagues who had been reported for indecent behaviour on New Year’s Eve were found guilty in disciplinary proceedings. It was established that one male guard had allowed two other male guards to enter the women’s prison on New Year’s Eve, and that one of them, A.V., had talked with two inmates and had “physical contact” with them. Two female guards had allowed this. One of these two female guards was also found to have talked and danced with some of the inmates. The applicant’s colleagues were fined between 20% and 30% of their salaries for between two and three months. During the proceedings A.V. was also temporarily suspended from work and received 60% of his salary.", "14. On 24 June 2013 the applicant allegedly came across A.V., who told her: “Here is the stinking bitch. If she would only lose 50 kilos she might look acceptable” (“ Evo je smrdulja smrdljiva, da barem smrša 50 kilograma ličila bi na nešto ”), and spat next to her. The applicant reported the incident to Ra.S., head of the prison’s security unit. After having enquired with him the next day, Ra.S. told the applicant that A.V. had denied her allegations but that they would both be summoned by the governor of the IECS.", "15. As she was not summoned by the governor, the applicant turned to the IECS assistant governor, S.R. He said that he would talk to A.V., but that as of September she would be transferred to a remand prison. When the applicant enquired if she had done something wrong or if she was being punished for something, he replied that he wanted it that way (“ da je to njegova volja ”) and that even if the Minister of Justice were to call him, the applicant would no longer be head of shift of the women’s prison.", "16. Two or three days later the governor of the IECS, M.R., confronted the applicant with A.V, who denied the applicant’s allegations. The applicant suggested that they look at the video footage of the place where the encounter had taken place, but M.R. replied that the cameras were not functioning. The applicant enquired with the relevant officer and was told that the cameras were in fact functioning.", "17. The applicant submitted that between January and August 2013: (a) the head of the penitentiary facility had forbidden her to organise duty shifts; (b) some of her colleagues had kept ignoring her, and had failed to perform specific tasks allocated by her, without facing any sanctions; (c) her report on the illicit actions of one of the prisoners had never been dealt with; the same prisoner had said that she was not worried about the report as she had been told that the applicant would soon be “out of there” (“ leti sa posla ”); (d) she had been ordered to make coffee twice a day for one of the prisoners, and had complained about it to the assistant governor. She submitted that, on an unspecified date thereafter, the governor of the IECS asked her what had given her the right to complain to the assistant governor about that.", "18. On 16 August 2013 the applicant requested her employer to initiate proceedings for her protection against bullying (“ za zaštitu of mobinga ”), and described all of the above incidents. She complained of continuous insults and humiliation at work which were causing health problems.", "19. On 26 August 2013 the applicant went on holiday, and on 10 September 2013 she went on sick leave.", "20. Between 12 September and 30 October 2013 she asked the inspection authority ( Uprava za inspekcijske poslove ), the prison management and the mediator (the officer in charge of proceedings for bullying in the employer company; see paragraph 48 below) to deal with her request.", "21. On 6 November 2013 the mediator dismissed her request as unfounded ( odbacuje se kao nesonovan ). He considered, in substance, that even assuming that her allegations were true, the conduct complained of had not been continuous. The incidents with N.R. and the damage to her car had taken place outside of the workplace and thus were not within the IECS’s sphere of responsibility, and her transfer to another position had been due to her failing to do her job properly.", "22. On 20 November 2013 the applicant instituted civil proceedings against her employer. She described the above events and maintained that her personal and professional integrity had been violated as a result. She also submitted that no decision on her appointment had been issued as of November 2013 and that her salary was being calculated on the basis of a lower coefficient.", "23. During the proceedings an expert witness found that the applicant had psychological problems related to conflict at work and that her capacity to function was permanently reduced by 20% ( trajno umanjenje životne aktivnosti ) owing to post-traumatic stress disorder and an adjustment disorder with episodes of reactive psychosis.", "24. On 10 February 2015, at about 9.15 p.m., just over a week before the domestic court was due to rule in the ongoing civil proceedings (see paragraph 28 below), the applicant was assaulted in a car park where she was collecting her daughter after her classes. The attacker approached her from behind and inflicted several blows on the back of her neck and the lower part of her back, and around the left elbow and the thighs. When leaving the attacker told her: “Be careful what you’re doing”.", "25. The same evening the applicant was examined by a doctor in the emergency ward of the clinical centre ( Urgentni centar ), who noted a haematoma of about 3 cm in diameter on the back of her neck, pain in the left shoulder and significantly reduced mobility of the left arm. The doctor also notified a police officer on duty in the emergency ward that the applicant had been assaulted. The police officer talked to the applicant and advised her to file a complaint the next morning.", "26. The next morning, on 11 February 2015, the applicant filed a complaint with the police and attached a medical report. She submitted that the attacker had been “rather short”, and described his clothing.", "27. It transpires from the official police records of 16 February 2015 that the State prosecutor was informed of this and ordered the police to take action to identify the attacker. A police officer made an on-site inspection and spoke to people living in the building in front of which the incident had taken place, but neither measure enabled the attacker to be identified. There was no video surveillance at the scene either. The State prosecutor ordered that the police keep working on the identification of the perpetrator.", "28. On 19 February 2015 the Court of First Instance ( Osnovni sud ) in Podgorica ruled against the applicant in civil proceedings (see paragraph 22 above). The court considered her submissions to be true, and observed that the respondent party had offered no evidence to the contrary. It found, on the basis of the expert witness opinion, that the applicant’s psychological problems were related to conflict at work. However, it considered, in substance, that the events complained of did not amount to bullying as they had lacked the necessary frequency. In particular, bullying was a form of systematic psychological ill-treatment, rather than being sporadic and individual, and as such required repetition of the actions over a certain period. According to most academics in this field, that meant at least once a week for at least six months. That position was also accepted in the domestic case-law, notably in judgments P.br.2226/11 and P.br.768/11 (see paragraphs 60-61 below).", "29. The court examined, in particular, the incidents of 13 January, 8 March and 24 June 2013. The conversation with N.R. had not amounted to psychological ill-treatment, and even assuming that the incident with M.Ž. could be considered as such, it had taken place on 8 March 2013 and the applicant had gone on holiday on 26 August 2013; therefore it had not lasted for six months, nor had it occurred once a week. The events involving the assistant governor and M.R. did not amount to bullying either, especially given that, in accordance with the systematisation of jobs, the applicant had in any event not met the criteria for the position she had been covering at the time. The court considered that these incidents taken together did not amount to bullying either, and that there had been no behaviour aimed at violating the applicant’s dignity and integrity, causing fear or creating a hostile, degrading or insulting environment, worsening her working conditions or leading to her isolation and making her resign of her own accord.", "30. The court also held that the fact that no decision had been made on the applicant’s appointment after November 2013, and the fact that her salary was calculated on the basis of a different coefficient, did not constitute bullying either. If she considered that she had received a lower salary than she was entitled to she could have filed a compensation claim in that regard, and she would be informed of the new decision on appointment on her return from sick leave.", "31. The court did not examine the following submissions: that one of the applicant’s subordinates had failed to perform the allocated tasks; that the governor of the prison had forbidden the applicant to organise duty shifts, which she had done previously; that the applicant had been ordered to make coffee for one of the prisoners twice a day; that a report concerning the search of one prisoner’s rooms had never been dealt with and that the prisoner in question had said that she was not worried about the report as the applicant would soon be fired.", "32. The applicant appealed. She submitted that the court had had all the right evidence before it, but that its assessment of that evidence had been incorrect, as had its interpretation of the relevant legislation. She also submitted that on 10 February 2015 she had been assaulted (see paragraph 24 above).", "33. On 13 November 2015 and 15 June 2016 the first-instance judgment was upheld by the High Court ( Viši sud ) and the Supreme Court ( Vrhovni sud ) respectively. The High Court confirmed that for actions to constitute bullying it was necessary for them to be repeated over a longer period and continuously. In the applicant’s case there had been three incidents in about six months, which could not be considered as amounting to bullying. The court also held that the fact that there had been no new appointment decision and that the applicant’s salary had been calculated on the basis of the lower coefficient did not amount to bullying either. The expert witness’s finding that the applicant had suffered from stress had reflected her subjective feelings about the said events. The court further found that the assault against the applicant was irrelevant given that she had not proved that it had been related to the respondent party’s actions. The Supreme Court held, inter alia, that “bullying, as a form of discrimination, [could] constitute discrimination only if the treatment [was] based on personal characteristics of the employee or of a group of employees”.", "34. On 2 August 2016 the applicant lodged a constitutional appeal. She complained of a violation of her dignity, honour and reputation and of her personal and professional integrity. She also complained of a lack of an effective remedy. She referred to all of the above-mentioned incidents, and submitted that the two incidents in respect of which she had filed criminal complaints were related. She referred, inter alia, to Articles 20 and 28 of the Constitution, Article 3 of the Convention and Article 1 of Protocol No. 12.", "35. On 15 November 2017 the Constitutional Court dismissed the applicant’s constitutional appeal. The court examined it under Articles 28 and 32 of the Constitution, Articles 6 and 14 of the Convention, and Article 1 of Protocol No. 12. It found, in substance, that there were no grounds to find that the applicant had been bullied at work, and that the Supreme Court’s judgment was in accordance with the legislation, providing sufficient, relevant and constitutionally acceptable reasons. The Constitutional Court made no reference to the criminal complaints filed by the applicant and the alleged failure of the domestic authorities to act on them. This decision was served on the applicant on 5 January 2018.", "The applicant’s employment", "36. The applicant worked in the IECS between September 1998 and May 2016.", "37. Between 1 February 2005 and 1 June 2012 she was a State employee in the women’s prison.", "38. Between 1 June 2012 and 1 December 2013 she was temporarily appointed as an adviser, covering the position of the head of shift. The appointment was extended on a monthly basis, with the relevant decisions specifying that this was to ensure the smooth and successful functioning of the security unit.", "39. Between 10 September 2013 and May 2016 the applicant was on sick leave.", "40. Until 1 December 2013 her salary was calculated on the basis of a coefficient of 5.01, and after that on the basis of a coefficient of 3.77.", "41. In May 2016 the applicant retired owing to a complete loss of working capacity caused by illness. The Pension Fund Disability Commission ( Prvostepena invalidska komisija ) specified in its findings that the applicant’s psychological problems had appeared for the first time during 2013 after a stressful situation at work, after which she had received continuous outpatient psychiatric treatment. The Government submitted that these were the data the Commission had obtained from the applicant, and not the Commission’s own findings.", "Other relevant facts", "42. On 2 September 2014 the Ombudsman’s office, acting on the applicant’s complaint, informed her that it did not consider her rights to have been violated.", "43. On 18 February 2020 the Council for Civic Control of the Police, acting at the applicant’s request, found that the legislation did not set a time-limit within which an assault needed to be reported, but that it went without saying that it should be reported as soon as possible. It found that in this particular case the applicant had reported the assault in the shortest time possible, following the advice of the police officer on duty in the hospital (see paragraphs 24-26 above)." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Relevant domestic lawConstitution of Montenegro 2007 ( Ustav Crne Gore; published in the Official Gazette of Montenegro – OGM – nos. 01/07 and 038/13)", "Constitution of Montenegro 2007 ( Ustav Crne Gore; published in the Official Gazette of Montenegro – OGM – nos. 01/07 and 038/13)", "Constitution of Montenegro 2007 ( Ustav Crne Gore; published in the Official Gazette of Montenegro – OGM – nos. 01/07 and 038/13)", "44. Article 28 guarantees everyone’s dignity and personal security, the inviolability of his or her physical and psychological integrity, and his or her privacy and personal rights. It also prohibits torture and inhuman and degrading treatment.", "45. Articles 20 and 32 provide for the right to a legal remedy and the right to a fair trial respectively.", "Labour Act ( Zakon o radu, published in OGM nos. 049/08, 026/09, 088/09, 026/10, 059/11, 066/12, 031/14, 053/14 and 004/18)", "46. Section 8a of the Labour Act prohibits every form of ill-treatment at work (bullying), that is, any behaviour towards an employee or a group of employees at work which is repeated and is aimed at violating, or represents a violation of, the dignity, reputation, personal or professional integrity or status of the employee, or which causes fear or creates a hostile, humiliating or insulting environment, worsens working conditions or makes the employee isolate himself or herself or prompts him or her to terminate the employment relationship. The same section provides that other details relating to prevention of and protection from bullying are further specified in a separate statute.", "Prohibition of Ill-treatment at Work Act ( Zakon o zabrani zlostavljanja na radu, published in OGM nos. 030/12 and 054/16)", "47. Section 2 defines bullying as any active or passive behaviour at work or related to work in respect of an employee or a group of employees which is repeated and is aimed at violating, or represents a violation of, the dignity, reputation or personal and professional integrity of the employee, or which causes fear or creates a hostile, humiliating or insulting environment, worsens working conditions or makes the employee isolate himself or herself or makes him or her terminate the employment relationship or another contract. Bullying also encompasses inciting or persuading others to this behaviour. A perpetrator of bullying may be an employer who is a physical person, a person in a position of responsibility with an employer that is a legal entity, an employee or a group of employees at work or another person with whom an employee or an employer comes into contact when performing his or her work.", "48. Section 9 provides, inter alia, that an employer with more than thirty employees must designate one or more persons who will mediate between the parties in cases of bullying (“the mediator”).", "49. Section 12 provides that an employee is entitled to protection from bullying.", "50. Sections 15-24 describe the procedure for protection from bullying. In particular, an employee who considers himself or herself to be a victim of bullying must request in writing that a mediator initiate proceedings for protection from bullying. The mediation proceedings are treated as urgent and the mediator must initiate them within three days of receiving a written request. The mediation proceedings must be completed within eight days of their initiation, either by: (a) the parties reaching a written agreement; (b) the mediator issuing a decision that mediation has failed; or (c) the parties waiving further proceedings. The time-limit for completing the mediation proceedings may, in exceptional cases, be extended to thirty days at most. If the parties in dispute fail to reach an agreement the mediator must serve the person who requested the proceedings with notification that the mediation has not been successful, within three days from the expiry of the above time-limit.", "51. Section 25 provides that an employee who is not satisfied with the outcome of mediation proceedings may, inter alia, file a civil claim before the courts.", "52. Section 27 provides that if during the proceedings the claimant makes out an arguable case that there was bullying within the meaning of section 2, the burden of proving that there was no bullying shifts to the respondent party.", "Criminal Procedure Code 2009 ( Zakonik o krivičnom postupku; published in OGM nos. 057/09, 049/10, 047/14, 002/15, 035/15, 058/15 and 028/18)", "53. Article 256 provides that a criminal complaint is to be submitted to the relevant State prosecutor. A complaint submitted to the police will be accepted and immediately transmitted to the relevant State prosecutor.", "54. Article 256a provides that the State prosecutor must issue a decision within three months at the latest. By way of exception, in complex cases, the decision may be issued within six months at the latest (except in cases involving secret surveillance measures). The prosecutor may request in writing an extension for another month.", "55. Article 271 provides that the State prosecutor must dismiss the complaint on procedural grounds by a reasoned decision if, inter alia, the offence at issue is not a criminal offence, or it is not a criminal offence subject to public prosecution. The person who lodged the complaint and any other injured party must be informed about this decision, and must also be informed that they may file an objection against it.", "56. Article 59 § 1 provides that when a State prosecutor finds that there are no grounds for public prosecution he or she must inform the injured party accordingly within eight days and serve him or her with the decision in that regard, while informing him or her of the possibility of taking over the prosecution.", "Internal Affairs Act ( Zakon o unutrašnjm poslovima, published in OGM nos. 044/12, 036/13, 001/15 and 087/18)", "57. Sections 16 and 17, taken together, provide that a person who considers that his or her rights and freedoms have been violated by police actions may file an objection or initiate court proceedings and seek compensation.", "IECS Rules on Internal Organisation and Job Systematisation ( Pravilnik o unutrašnjoj organizaciji i sistematizaciji Zavoda za izvršenje krivičnih sankcija )", "58. The 2004 IECS rules on job systematisation provided that candidates for the position of adviser required, inter alia, a specific college degree and had to have passed the examination for senior guards supervisor. The position of State employee required a high school diploma.", "59. Under the 2006 IECS rules on job systematisation, candidates for the position of adviser required a specific college degree and had to have passed the examination for guards supervisor.", "Domestic case-law", "60. On 26 November 2012 and 10 May 2013 respectively the Court of First Instance in Podgorica ruled in two cases against claimants alleging that they had been victims of bullying (P.br. 768/11 and P.br. 2226/11 respectively). The court found in both cases that in order for ill-treatment to amount to bullying, most academics considered that it needed to be repeated at least once a week for at least six months. In one of the two cases the court also held that besides the frequency, in order to amount to bullying the impugned behaviour had to place the person in question in an unequal position on one of the grounds set out in section 2(2) of the Prohibition of Discrimination Act. In both cases the single judge deciding the case was the same one who later ruled in the applicant’s case before the Court of First Instance.", "61. Between 15 September 2017 and 24 May 2019 the Courts of First Instance in Cetinje and Podgorica respectively ruled in two cases in favour of claimants and found that they had been victims of bullying. In the first case the claimant had been a victim of bullying between June 2012 and June 2015, and in the second one between January 2013 and April 2017. Both judgments were upheld by the High Court in Podgorica, on 18 May 2018 and 6 September 2019 respectively. None of those decisions included a requirement that in order to amount to bullying the ill-treatment needed to have been repeated at least once a week for at least six months.", "Relevant international material", "62. Part I of the European Social Charter (Revised) provides that the Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which a number of rights and principles, including the right to dignity at work, may be effectively realised. Part III provides, inter alia, that each of the Parties undertakes to consider Part I as a declaration of the aims which it will pursue by all appropriate means.", "63. Article 26 provides for the right to dignity at work. Paragraph 2, in particular, provides that, with a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organisations, to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct.", "64. Montenegro has ratified the European Social Charter (Revised), declaring itself legally bound to accept a number of its provisions, although Article 26 § 2 is not amongst them.", "65. On 21 June 2019 the United Nations International Labour Organisation (ILO) adopted a Convention concerning the elimination of violence and harassment in the world of work. The Convention entered into force on 25 June 2021. Montenegro has not ratified it.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "66. The applicant complained under Articles 3 and 6 of the Convention of a violation of her psychological integrity caused by continuous active and passive bullying at work, and of the failure of the domestic bodies to protect her from it.", "67. The Government contested the applicant’s complaint.", "68. The Court reiterates that the scope of a case referred to it in the exercise of the right of individual application is determined by the applicant’s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018).", "69. The Court considers that the complaint in the present case falls to be examined under Article 8 of the Convention (see Sandra Janković v. Croatia, no. 38478/05, § 27, 5 March 2009, and Dolopoulos v. Greece (dec.), no. 36656/14, §§ 35-37, 17 November 2015). Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "The parties’ submissionsThe Government", "The Government", "The Government", "70. The Government submitted that the present application was manifestly ill-founded or, alternatively, that there had been no violation of Article 8. In particular, the applicant had referred to only a few situations at work, in which there had been no element of bullying. Her colleagues’ comments had been at most inappropriate, and in any event had lacked the necessary frequency to amount to systematic psychological ill-treatment. The decisions issued in that regard, both by the mediator and by the courts, had been duly reasoned, with the latter also referring to the existing case-law. The applicant had only a high school diploma and thus had not met the conditions for the position of adviser. She had been appointed to that position only temporarily, owing to a lack of staff. As she had been on sick leave continuously as of September 2013 until her retirement she could not have been appointed to a specific post, pursuant to the relevant statutory provisions, and her salary had therefore been calculated in accordance with her permanent position as a State employee.", "71. The stress that the applicant had suffered had been her subjective experience ( doživljaj ) of the events in question, and the fundamental condition for the respondent’s party responsibility, namely a causal relationship between the harm the applicant had suffered and the respondent party’s actions, was not met. This had also been recognised by the Ombudsman.", "72. The damage to the applicant’s car and the assault on her had been isolated incidents, unrelated to each other, and the latter was also unrelated to her claims that she had been a victim of bullying at work. In general, the relevant criminal-law mechanisms in Montenegro were satisfactory. In particular, the applicant’s complaint about the assault had been duly processed. Even assuming that the prosecutor had not acted entirely in accordance with the Criminal Procedure Code in terms of the formal actions taken, these had been only technical shortcomings and oversights which should not be viewed with excessive formalism. The applicant, for her part, should have indicated more concretely and in more detail the facts of the assault. The fact that she had not filed a complaint until the next day was also suspicious. Finally, if she had been dissatisfied with the police actions she could have complained in that regard (see paragraph 57 above).", "73. The Pension Fund Commission’s statement that the first psychological problems had appeared during 2013 after a stressful situation at work was actually based on data obtained from the applicant, and not on the findings of the Commission itself (see paragraph 41 in fine above).", "The applicant", "74. The applicant reaffirmed her complaint. In particular, the ill-treatment at work had violated her dignity, honour and reputation as well as her personal and professional integrity, which was how bullying was defined in the relevant legislation. It had caused her considerable mental, social and psychosomatic problems which had ultimately led to a permanent loss of working capacity, as established by the Pension Fund, and as a result of which she had had to retire at the age of 37.", "75. Despite this, the State bodies had failed to protect her. In particular, the proceedings before her employer had not been in compliance with the relevant legislation (see paragraph 50 above). The conversation with S.R. had not been a professional exchange indicating the criteria provided for in the rules on job systematisation, and the finding that she had not been performing her duties satisfactorily had been unfounded (see paragraph 38 in fine above). The courts had failed to take into account a number of situations at work (see paragraph 31 above) and instead had believed her employer, who had not been happy that she had been reporting irregularities at work, not only by her colleagues but by her superiors too.", "76. The relevant State bodies had not acted in compliance with the relevant legislation in dealing with her two criminal complaints either. She had reported the assault immediately the next morning, following the advice of the police officer on duty in the hospital, and had provided all the necessary details. The fact that she had not complained about the work of the police officer in charge did not deprive her of her right to have her complaint dealt with.", "77. The Ombudsman had ruled only on the basis of her employer’s submissions, without summoning and hearing the applicant and the persons to whom the complaint related; this was not in compliance with the relevant legislation either.", "78. She had been temporarily appointed as adviser also between 1 September and 1 December 2013, that is, when on sick leave. Finally, the first domestic judgments ruling in favour of victims of bullying had been issued after she had already lodged her constitutional appeal.", "The Court’s assessmentAdmissibility", "Admissibility", "Admissibility", "(a) Applicability of Article 8 of the Convention", "79. While the Government made no comment as to the applicability of Article 8, this being a matter that goes to the Court’s jurisdiction and which it must establish of its own motion (see, for instance, Jeanty v. Belgium, no. 82284/17, § 58, 31 March 2020), the Court finds it important to note the following.", "80. The Court has previously held, in various contexts, that the concept of private life is a broad term not susceptible to exhaustive definition. It includes a person’s physical and psychological integrity (see Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018, and Remetin v. Croatia, no. 29525/10, § 90, 11 December 2012), and extends to other values such as well-being and dignity, personality development and relations with other human beings (see N.Š. v. Croatia, no. 36908/13, § 95, 10 September 2020, with further references).", "81. In order for Article 8 to come into play, however, an attack on a person must attain a certain level of seriousness and be made in a manner causing prejudice to the personal enjoyment of the right to respect for one’s private life (see Beizaras and Levickas v. Lithuania, no. 41288/15, § 109 in fine, 14 January 2020). Not every act or measure which may be said to affect adversely the moral integrity of a person necessarily gives rise to such an interference (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 128, 25 June 2019, and the authorities cited therein).", "82. In the instant case, the applicant felt distress as a result of the impugned incidents allegedly imputable to her colleagues, including both her subordinates and her superiors, and complained that the State had failed to protect her. The expert’s opinion issued in the course of the domestic civil proceedings, which was not disputed either in the domestic proceedings or by the Government, confirmed that the incidents in question had had an adverse impact on the applicant’s moral integrity and had left long-lasting effects on her well-being. In particular, the expert established that the applicant had psychological problems related to conflict at work and that her capacity to function was permanently reduced by 20% owing to post-traumatic stress disorder and an adjustment disorder with episodes of reactive psychosis (see paragraph 23 above). The Court considers that, in such circumstances, the causal link between the incidents in question and the alleged deficient reaction of the relevant authorities, on the one hand, and the applicant’s psychological problems, on the other hand, can be regarded as clearly established. In addition, there was a concrete act of physical violence in February 2015 in the applicant’s case, which could not necessarily be detached from the other incidents complained of given its proximity to the pending civil proceedings in her regard (see, mutatis mutandis, Sandra Janković, cited above, § 31; see, conversely, Hajduová v. Slovakia, no. 2660/03, § 49, 30 November 2010, in which the Court found that the State had breached its positive obligations under Article 8 even in a situation where the threats against the applicant had not materialised).", "83. In these circumstances, the Court finds that the treatment complained of by the applicant reached the threshold of applicability of Article 8.", "(b) The Court’s assessment", "84. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "(a) General principles", "85. The relevant principles in this regard are set out, for example, in Nicolae Virgiliu Tănase, cited above, §§ 125-28). In particular, while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective respect for private life, which may involve the adoption of measures in the sphere of the relations of individuals between themselves (ibid., § 125; see also Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013).", "86. Whether a case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 or an “interference by a public authority” to be justified in accordance with paragraph 2, the applicable principles are broadly similar (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 111, ECHR 2008). In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see, for example, Burlya and Others v. Ukraine, no. 3289/10, § 162, 6 November 2018).", "87. The Court has previously held, in various contexts, that the concept of private life includes a person’s physical and psychological integrity. Under Article 8 States have a duty to protect the physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Isaković Vidović v. Serbia, no. 41694/07, § 59, 1 July 2014, and the authorities cited therein), including in the context of harassment at work (see Dolopoulos, cited above, §§ 56-57).", "88. In the context of attacks on the physical integrity of a person, such protection should be ensured through efficient criminal-law mechanisms (see Remetin v. Croatia (no. 2), no. 7446/12, § 70 in fine, 24 July 2014, and the authorities cited therein). Where attacks on physical integrity come from a private individual, the Convention does not necessarily require State ‑ assisted prosecution of the attacker in order to secure the applicant’s Convention rights (see Sandra Janković, cited above, § 50). In such instances, it is conceivable under the Convention for domestic law to afford the applicant a possibility to pursue the prosecution of his attacker, either as a private prosecutor or as the injured party in the role of a subsidiary prosecutor (see M.S. v. Croatia, no. 36337/10, § 75, 25 April 2013). In each case, however, irrespective of whether the prosecution remained in the hands of the domestic authorities or the applicant availed himself of the possibility to pursue the prosecution of his attacker, the Court must examine the relevant criminal-law mechanisms and the manner in which they were implemented (see Remetin, cited above, §§ 95-96, and the authorities cited therein).", "89. As regards less serious acts between individuals which may violate psychological integrity, an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection (see X and Y v. the Netherlands, 26 March 1985, §§ 24 and 27, Series A no. 91; Söderman, cited above, § 85; Tolić v. Croatia (dec.), no. 13482/15, §§ 94-95, 4 June 2019; and Noveski v. the Former Yugoslav Republic of Macedonia (dec.), nos. 25163/08 and 2 others, § 61, 13 September 2016).", "90. The Court has also considered, albeit in the context of Article 10, that whistle-blowing by an applicant regarding alleged unlawful conduct on the part of his or her employer requires special protection in certain circumstances (see Guja v. Moldova [GC], no. 14277/04, §§ 72 and 77, ECHR 2008; Langner v. Germany, no. 14464/11, § 47, 17 September 2015; and Heinisch v. Germany, no. 28274/08, § 63, ECHR 2011 (extracts)).", "(b) Application of these principles", "91. The issue before the Court is not whether the remedies used by the applicant led to a result favourable to her but whether they were sufficient and accessible and applied a standard of protection that secured in principle effective defence of the applicant’s Article 8 rights.", "92. Furthermore, the Court’s task is not to substitute itself for the competent domestic authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The Court will therefore examine whether the domestic authorities, in handling the applicant’s case, were in breach of their positive obligation under Article 8 of the Convention (see, mutatis mutandis, Isaković Vidović, cited above, § 60).", "93. The Court observes that the domestic law provided for possibilities for the applicant to seek protection against harassment at work. In her particular case those possibilities included mediation, administrative complaints to her managers and the authorities responsible for managing the prison system, and civil proceedings for damages. There is no indication that those possibilities, as set out under the relevant law, were inherently inadequate or insufficient to provide the requisite protection against incidents of harassment. It is also important, however, that the available remedies should function in practice.", "94. The Court observes that the applicant first initiated proceedings before her employer and then before the civil courts. The mediation proceedings before the applicant’s employer were not in compliance with the relevant legislation in that they were neither initiated nor completed within the statutory time-limits. More importantly, the mediator examined whether the applicant’s request was well-founded (see paragraph 21 above), thereby overstepping his statutory competence since there was nothing in the legislation authorising him to do so (see paragraph 50 above).", "95. After the mediation proceedings the applicant lodged a civil claim. It is undisputed that the civil courts considered the applicant’s submissions in respect of the incidents at work to be true and found that there was at least some causal link between those incidents and the applicant’s illness and psychological suffering (see paragraph 28 above). Regardless of that, however, the applicant did not receive protection because the courts required proof of incidents occurring every week for six months. Despite the margin of appreciation enjoyed by Contracting States in devising protection mechanisms in respect of acts of harassment at work, the Court finds it difficult to accept the adequacy of such an approach in the instant case. The Court considers that complaints about bullying should be thoroughly examined on a case-by-case basis, in the light of the particular circumstances of each case and taking into account the entire context. In other words, there may be circumstances in which such incidents are less frequent than once a week over a period of six months and still amount to bullying, or circumstances in which such incidents are more frequent and yet do not amount to bullying.", "96. The Court also notes that the relevant case-law in Montenegro is scarce and not settled in relation to, in particular, the element of frequency of occurrence of bullying needed to trigger the application of the Prohibition of Ill-treatment at Work Act. Only four domestic judgments have been provided by the Government (see paragraphs 60-61 above). Two of them found in favour of the claimants and two against the claimants, and only the latter two required bullying to occur at least once a week for a period of six months, whereas the former two contained no such requirement. The Court further notes that, when interpreting bullying, the judge ruling in the applicant’s case referred to two earlier domestic judgments, in which he had also been the ruling judge.", "97. Although the workplace incidents examined in the applicant’s case may indeed not have amounted to bullying, the courts examined only some of them, while a number of the incidents complained of remained completely unexamined (see paragraph 31 above). The courts made no attempt to establish how often these other incidents had been repeated and over what period, or to examine them individually and taken together with the other incidents. They also failed to consider the context and the alleged background to the incidents, notably the applicant’s reporting some of her colleagues for their conduct on the New Year’s Eve, conduct which led to disciplinary proceedings and sanctions. The Court cannot overlook the applicant’s allegation that the acts of harassment to which she was subjected were in reaction to her reporting the alleged illegal activities of some of her colleagues and were aimed at silencing and “punishing” her. In the Court’s view, States’ positive duty under Article 8 to effectively apply in practice laws against serious harassment takes on a particular importance in circumstances where such harassment may have been triggered by “whistle-blowing” activities.", "98. Admittedly, the applicant did not pursue some other possible remedies such as challenging the unfavourable calculation of her salary before the courts. However, she did try to obtain protection via an appropriate path in the circumstances since her complaints did not relate to an employment dispute of a pecuniary nature.", "99. In addition to the incidents at work there were two other incidents which took place outside of the applicant’s workplace, which she considered to be related and in respect of which she filed criminal complaints. Specifically, the applicant’s car was damaged in January 2013 and she was assaulted in February 2015.", "100. The Court has already held that the relevant domestic criminal legal framework in Montenegro provides sufficient protection in respect of such assaults (see Milićević v. Montenegro, no. 27821/16, § 57, 6 November 2018). It observes, however, that, contrary to the relevant legal provisions (see paragraphs 53-56 above), the State prosecutor did not issue any official decision whatsoever for more than eight and six years respectively in response to the applicant’s complaints, thereby effectively preventing her from taking over the investigation as a subsidiary prosecutor, or a private prosecutor as the case might be, and consequently denying her the ability to bring proceedings before a court of competent jurisdiction. The applicant raised before the Constitutional Court the issue concerning the State prosecutor’s failure to deal with her criminal complaints, but that court made no reference to it whatsoever (see paragraph 35 above). While it might have been established that neither the damaging of the applicant’s car nor the assault against her were in any way related to the incidents at work, the Court cannot but note the above failures of the domestic bodies in dealing with the applicant’s criminal complaints in that regard (see Remetin (no. 2), cited above, §§ 111-12).", "101. In view of the above the Court considers that the manner in which the civil and criminal-law mechanisms were implemented in the particular circumstances of the applicant’s case, in particular the lack of assessment of all the incidents in question and the failure to take account of the overall context, including the potential whistle-blowing context, was defective to the point of constituting a violation of the respondent State’s positive obligations under Article 8 of the Convention. There has accordingly been a violation of that Article.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "102. The Government were also given notice of a complaint under Article 13 of the Convention, which reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "103. The Government contested the applicant’s submissions in this regard.", "104. Given that the applicant’s complaint under Article 13 is effectively the same as her complaint already considered under Article 8, and having regard to its finding in respect of the latter (see, in particular, paragraph 101 above), the Court declares the former complaint admissible but considers that it need not be examined separately on its merits (see Isaković Vidović, cited above, § 66, and the authorities cited therein).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "105. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "106. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.", "107. The Government contested the claim as unfounded and excessive.", "108. The Court awards the applicant EUR 4,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "109. The applicant also claimed EUR 1,000 in total for the costs and expenses incurred before the domestic courts and the Court. She submitted as proof a copy of a payment slip certifying that she had paid the specified amount to her representative for her representation before the Constitutional Court and the Court.", "110. The Government contested the claim as unfounded and excessive, and insufficiently itemised.", "111. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the entire sum claimed covering costs under all heads, plus any tax that may be chargeable to the applicant.", "Default interest", "112. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1954 and lives in Rijeka.", "6. On 10 December 1995 the applicant ’ s employment as an unqualified worker was terminated as a result of her employer becoming insolvent. At that time she had twenty - four years and ten months of service ( radni staž ) recorded in her “ employment book ” ( radna knjižica ).", "7. The medical documentation submitted by the applicant shows that since 1993 she has been suffering from a psychiatric condition – depression and neurosis. The medical documents from various dates show her continuous incapacity of working.", "A. Administrative proceedings", "8. On 5 November 1996 the Regional Office of the Croatian Employment Bureau in Rijeka ( Hrvatski zavod za zapošljavanje, Područna služba u Rijeci, hereinafter “the Rijeka Employment Bureau”) granted the applicant unemployment benefits in the amount of 410. 89 Croatian kunas (HRK – about 55 euros (EUR)) for 468 days, starting from 11 December 1995. There was no appeal, so that decision became final.", "9. On 17 June 1997 the applicant lodged an application with the Rijeka Employment Bureau for the extension of the duration of unemployment benefits due to her ongoing temporary inability to work. She submitted a medical certificate that she had been ill and thus temporarily incapable of working.", "10. On 27 June 1997 the Rijeka Employment Bureau, relying on section 25( 1 ) (2) of the Employment Act, renewed her entitlement to unemployment benefits until further notice. She was to receive HRK 4 41 (about EUR 5 9) per month. This entitlement was to continue unless any legally prescribed conditions for withholding the payments occurred before the entitlement period expired, or until her right to compensation ceased to exist.", "11. In December 1997 two additional pensionable years of service ( staž osiguranja ) were entered into the applicant ’ s employment book. However, that did not mean that the applicant was actually employed, but only that contributions for her pension and invalidity insurance had been paid. Such contributions are regularly paid by employers. However, since the applicant was not employed, these contributions were paid by the Croatian Employment Bureau.", "12. On 2 6 May 1999 the Rijeka Employment Bureau provided the applicant with an “employment benefit card” ( kartica korisnika novčane naknade ).", "13. On 27 March 2001 the Rijeka Employment Bureau terminated the applicant ’ s entitlement to unemployment benefits with effect from 10 June 1998. It held that the deadline prescribed in section 25( 1 ) (2) of the Employment Act had expired on 9 June 1998.", "14. On 3 April 2001 the Rijeka Employment Bureau established that the applicant was to repay it the amount of HRK 19,451.69 (about EUR 2,600).", "15. The applicant lodged appeals against both decisions with the Central Office of the Croatian Employment Bureau ( Hrvatski zavod za zapošljavanje, Središnja služba, hereinafter “the Central Employment Bureau”). She argued that she had the right to unemployment benefits until she retired. She also relied on her family circumstances and submitted that she was married and that her husband ’ s pension was HRK 1400 (about EUR 188), and that they had a child of school age and an older son who was employed. However, that body dismissed both her appeals as unfounded on 11 May 2001 and 15 May 20 0 1. It held that she had been entitled to unemployment benefits for as long as she had been unable to work, but subject to a limit of twelve months.", "16. On 25 July 2001 the applicant then lodged two administrative actions with the Administrative Court, seeking the annulment of the Central Employment Bureau ’ s decisions of 11 and 15 May 2001. She claimed that she had twenty-seven years of service, and as such was entitled to unemployment benefits until she was next employed or until she retired.", "17. On 22 September 2004 the Administrative Court dismissed the claim concerning the decision of 11 May 2001 upholding the decision of 27 March 2001 ( see paragraph 10 above) as ill- founded, endorsing the arguments and conclusions of the lower bodies.", "18. In a separate judgment of the same day the Administrative Court quashed the decision of 15 May 2001 which upheld the decision of 3 April 2001 by which the applicant had been ordered to repay the sum of HRK 19,451.69 ( see paragraph 1 4 above). It instructed the parties to seek relief in civil proceedings before a competent municipal court.", "19. On 25 March 2005 the Rijeka Employment Bureau contacted the applicant by letter, proposing to reach an out-of-court settlement within fifteen days regarding the repayment of the unemployment benefits which she had received between 9 June 1998 and 27 March 2001, in total HRK 19,451.69. She was cautioned that the Rijeka Employment Bureau would otherwise be compelled to institute civil proceedings against her for repayment of the amount claimed.", "20. The applicant replied that she was in poor health, unemployed and without any income, and that in these circumstances she could not accept the obligation to repay the money sought.", "21. On 14 April 2009 the applicant lodged an application with the Rijeka Employment Bureau, seeking to overturn its 27 March 2001 decision to terminate her entitlement to unemployment benefits. It was dismissed on 29 June 2009 and this decision was upheld on appeal on 10 July 2009 as well as by the High Administrative Court on 5 July 2012.", "22. A subsequent constitutional complaint by the applicant was declared inadmissible on 19 December 2012.", "B. Civil proceedings", "23. On 3 August 2005 the Rijeka Employment Bureau brought a civil action against the applicant for unjust enrichment, seeking repayment of HRK 19,451.69, together with statutory interest, on the basis of the unemployment benefits she had received between 10 June 1998 and 27 March 2001.", "24. On 16 November 2005 the applicant responded to the civil action, alleging, inter alia, that the Rijeka Employment Bureau ’ s actions violated her human rights. She also submitted medical documentation demonstrating her fragile state of health, numerous health problems caused by her difficult personal situation due to long-term unemployment, the poverty in which she and her family lived, and her inability to work. She also brought a counterclaim against the Rijeka Employment Bureau, seeking payment of unemployment benefits from 31 January 2011 to the date of her future retirement, in the amount of HRK 55,680.15.", "25. On 26 June 2006 the Rijeka Municipal Court ( Općinski sud u Rijeci ) dismissed the Rijeka Employment Bureau ’ s claim as unfounded, relying on section 55 of the Employment Mediation and Unemployment Rights Act ( see paragraph 36 below). It held that the applicant could not be held responsible for the bureau ’ s errors and negligence, particularly bearing in mind that she had not concealed any fact or misled it. The same court also rejected the applicant ’ s counterclaim, given that a final and binding decision on her entitlement to unemployment benefits had already been adopted in the administrative proceedings, and that such a decision could not be contested in the context of civil proceedings.", "26. Both the applicant and the Rijeka Employment Bureau lodged appeals against the first ‑ instance judgment.", "27. On 25 February 2009 the Rijeka County Court ( Županijski sud u Rijeci ) dismissed the applicant ’ s appeal and upheld the first-instance judgment with regard to her counterclaim. It also allowed the Rijeka Employment Bureau ’ s appeal and, relying on section 210 of the Civil Obligations Act, reversed the first-instance judgment in respect of the unjust enrichment claim, and ordered the applicant to pay HRK 19,451.69 plus statutory interest running form 3 August 2005 (the date of lodging the claim against the applicant) to the Rijeka Employment Bureau. It held that the applicant was obliged to return the amount in dispute in view of the fact that a legal basis for the unemployment benefits had ceased to exist on 10 June 1998.", "28. The applicant then lodged both an appeal on points of law and a constitutional complaint.", "29. On 28 April 2010 the Supreme Court declared her appeal on points of law inadmissible. The applicant then lodged a constitutional complaint against that decision.", "30. On 14 March 2013 the Constitutional Court dismissed both of her constitutional complaints as unfounded. It served its decision on the applicant ’ s representative on 27 March 2013.", "31. Meanwhile, on 5 December 2012 the applicant had replied to the Rijeka Employment Bureau ’ s letter offering her an out-of-court settlement for the amount owed to be reimbursed in sixty instalments. She had stated that she was not able to repay the amount due because she was unemployed, in ill health and had no income. She asked the Rijeka Employment Bureau for debt relief.", "C. Enforcement proceedings", "32. On 2 2 April 20 13, before the Rijeka Municipal Court, the Rijeka Employment Bureau lodged an application to enforce the Rijeka County Court ’ s judgment of 25 February 2009 against the applicant.", "33. On 20 June 2013 the Rijeka Municipal Court issued a writ of execution in respect of the applicant ’ s bank account(s).", "34. On 26 June 2013 the first-instance court ordered the applicant to pay court fees in the amount of HRK 540 (about EUR 72), on account of the enforcement application and the writ of execution.", "35. By a letter of 14 August 2013 the Financial Agency (FINA) informed the first-instance court that there were no records of the applicant ’ s active bank accounts.", "36. By a conclusion ( zaključak ) of 30 September 2013 the Rijeka Municipal Court informed the Rijeka Employment Bureau about the Financial Agency ’ s letter and ordered it to give the court information about the applicant ’ s bank account or make a further proposal.", "37. On 22 October 2013 the Rijeka Employment Bureau lodged an application to change the object of the enforcement ( prijedlog za promjenu predmeta i sredstva ovrhe ), and requested enforcement in relation to the applicant ’ s movable property, given that she was unemployed and had no income, real property or motor vehicle.", "38. By a decision taken on 8 December 2014 the Rijeka Municipal Court declared the application of 22 October 2013 inadmissible on the basis that it was premature, since changing the object of enforcement is not possible before a writ of execution becomes final.", "39. The enforcement proceedings are still ongoing." ]

[ "II. RELEVANT DOMESTIC LAW", "40. The relevant part of the Employment Act ( Zakon o zapošljavanju, Official Gazette no. 59/1996), as in force at the material time, provided :", "Section 23", "“ ...", "(3) An unemployed person (a man) who was employed for thirty years, or an unemployed person (a woman) who was employed for twenty-five years, is entitled to unemployment benefits until [he or she is] next employed ...", "... “", "Section 25", "“ The duration of the right to unemployment benefit ... shall be extended in respect of the unemployed person ... :", "...", "2. during the period of temporary incapacity to work, within the meaning of health insurance regulations, while this incapacity is ongoing, but for no longer than twelve months;", "... ”", "41. The relevant part of the Employment Mediation and Unemployment Rights Act ( Zakon o posredovanju pri zapošljavanju i pravima za vrijeme nezaposlenosti, Official Gazette no. 32/2002, with its subsequent amendments ), as in force at the material time, provided:", "Section 55", "“(1) An unemployed person granted an allowance to which he or she was not entitled ... shall pay this back if:", "1) [ all or part of the allowance was] granted on the basis of false or inaccurate data which he or she knew or ought to have known to be false or inaccurate, or [granted] in some other unlawful manner;", "2) he or she was granted an allowance because he or she failed to report a change affecting [his or her entitlement] or the scope of the entitlement, and he or she knew or ought to have known about this change.", "... ”", "42. The relevant part of the Employment Mediation and Unemployment Rights Act as amended in 2017 ( Zakon o posredovanju pri zapošljavanju i pravima za vrijeme nezaposlenosti, Official Gazette no. 16 /20 17) reads as follows:", "Section 65", "“(1) An unemployed person granted an allowance at the expense of the [Employment] Bureau to which he or she was not entitled shall pay this back to the [Employment] Bureau on the basis of unjust enrichment.", "... ”", "43. The relevant part of the Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999), as in force at the material time, provided :", "UNJUST ENRICHMENTGENERAL RULE", "Section 210", "“ (1) When a part of the property of one person passes, by any means, into the property of another person, and such a transfer has no basis in a legal transaction or law, the acquirer shall return that property. If this is not possible, the acquirer shall provide compensation for the value of the benefit received.", "(2) The transfer of property also includes any benefit obtained by someone performing an action.", "(3) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not exist or which subsequently ceased to exist. ”", "RULES OF REIMBURSEMENT", "When a reimbursement may not be requestedSection 211", "“ A person who has made payment knowing that he was not obliged to pay is not allowed to seek reimbursement, unless he has retained a right to seek reimbursement or has made payment in order to avoid duress.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION", "44. The applicant complained that the Rijeka County Court ’ s judgment of 25 February 2009 ordering her to repay HRK 19,451.69 with interest to the Rijeka Employment Bureau had resulted in her being deprived of her possessions. She relied on Article 1 of Protocol No. 1 to the Convention, which reads :", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Scope of the case", "45. As to the scope of the case, the Court considers it appropriate to point out at the outset that the applicant ’ s communicated complaint does not concern the Employment Bureau ’ s decision to terminate her entitlement to unemployment benefits and administrative proceedings related to that decision. Rather, it refers to the domestic civil courts ’ judgments which characterized the amounts she had received after her right to employment benefits ceased as unjust enrichment and obliged her to repay that money together with interests to the State.", "46. The Court notes, however, that the administrative proceedings concerning the applicant ’ s right to unemployment benefits ran in part concurrently with the civil proceedings for unjust enrichment instituted against her by the State. The administrative proceedings were terminated by the Constitutional Court ’ s decision of 19 December 2012. At that point, the civil proceedings were still ongoing and were finally concluded by the Constitutional Court ’ s decision of 14 March 2013, served on the applicant on 27 March 2013. The two proceedings were to a certain extent interrelated. In the administrative proceedings, her right to receive the employment benefits was terminated retroactively. However, no final court decision as to whether the applicant was obliged to return the payments made to her after the date when her right to unemployment benefits ceased was adopted in these proceedings since the issue of unjust enrichment falls under the jurisdiction of civil courts ( see paragraph 1 8 above). Only after the civil proceedings were finally concluded was the applicant ’ s position as to her obligation to repay the money she had received finally decided at national level.", "47. Thus, in order to assess whether the applicant ’ s obligation to repay the State the money she should not have received satisfied the requirements of Article 1 of Protocol No. 1 the Court must look at all circumstances surrounding that issue.", "B. Admissibility", "1. The parties ’ submissions", "48. The Government argued that the applicant had not had a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention, because the amount she had been ordered to pay back had been the possession of the State. Further to this, section 25(1)(2) of the Employment Act had been publicly available, clear and precise, and the applicant should have been aware that, upon the expiry of the twelve-month period, her right to unemployment benefits would end. In addition, the applicant could not have had “legitimate expectations” of keeping those amounts.", "49. The applicant argued that she had received the unemployment benefits on the basis of the Rijeka Employment Bureau ’ s final decision of 27 June 1997.", "2. The Court ’ s assessment", "(a) General principles", "50. The Court reiterates at the outset that the concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (see, among many authorities, Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II, and Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010).", "51. Although Article 1 of Protocol No. 1 applies only to a person ’ s existing possessions and does not create a right to acquire property in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1 (see, among many authorities, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I; and Béláné Nagy v. Hungary [GC], no. 53080/13, § 74, ECHR 2016 ).", "52. A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition. Further, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant ’ s submissions are subsequently rejected by the national courts. The mere fact that a property right is subject to revocation in certain circumstances does not prevent it from being a “possession” within the meaning of Article 1 of Protocol No. 1, at least until it is revoked ( see Béláné Nagy, cited above, § 75; Beyeler v. Italy [GC], no. 33202/96, § 105, ECHR 2000 ‑ I; and Krstić v. Serbia, no. 45394/06, § 83, 10 December 2013 ).", "53. The Court recalls that in each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 ( see Depalle, cited above, § 62, with further references).", "(b) Application of these principles in the present case", "54. The question whether the circumstances of the present case come within the scope of application of Article 1 of Protocol No. 1, i.e. whether the applicant ’ s right to peaceful enjoyment of her possessions is engaged, must be assessed with a view to the fact that between 10 June 1998 and 27 March 2001 the applicant had received payments on the basis of an administrative decision granting her unemployment benefits ( see paragraph 10 above). In other words, the competent administrative authority had made regular disbursements of money (cash), which the applicant had obtained the effective enjoyment of in reliance on the underlying administrative decision in her favour. Subsequently, however, the domestic courts made a finding to the effect that the payments had taken place without a legal basis and ordered the applicant to refund the respective amounts as unjust enrichment ( see paragraph 2 7 above). The Court therefore finds that the issue of whether Article 1 of Protocol No. 1 is applicable ratione materiae should be analysed by considering whether, under those specific circumstances, the applicant can be said to have had a legitimate expectation, within the autonomous meaning of the Convention, of being able to retain the funds already received as unemployment benefits without her entitlement to those past disbursements being called into question retrospectively.", "55. The Court notes that the grant of the benefit in question depended on various statutory conditions, the assessment of which was the sole responsibility of the social security authority. In the present case, the competent authority had taken a decision to extend the applicant ’ s entitlement to unemployment benefits ( see paragraph 10 above) and subsequently continued to make the respective payments beyond the date on which such an entitlement was, according to the applicable statutory limit, due to expire.", "56. In this respect, the Court considers that an individual should in principle be entitled to rely on the validity of a final (or otherwise enforceable) administrative decision in his or her favour, and on the implementing measures already taken pursuant to it, provided that neither the beneficiary nor anyone on his or her behalf has contributed to such a decision having been wrongly made or wrongly implemented. Thus, while an administrative decision may be subject to revocation for the future ( ex nunc), an expectation that it should not be called into question retrospectively ( ex tunc) should usually be recognised as being legitimate, at least unless there are weighty reasons to the contrary in the general interest or in the interest of third parties (compare Kopecký v. Slovakia [GC], no. 44912/98, § 47, ECHR 2004 ‑ IX; Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § § 34 and 39, Series A no. 332 ).", "57. The Court has held that, as a rule, a legitimate expectation of being able to continue having peaceful enjoyment of a possession must have a “sufficient basis in national law” ( see ibid., § 52; see also Depalle, cited above, § 63). It has, however, also held that the fact that the domestic laws of a State do not recognise a particular interest as a “right” is not always decisive, in particular in circumstances where the lapse of time justifies concluding that the individual ’ s interest in the “status quo” had become vested in a sufficiently established manner for being recognised as capable of engaging the application of Article 1 of Protocol No. 1 (see, mutatis mutandis, Depalle, cited above, § 68).", "58. In the present case, the Court considers that although the domestic courts found that as a matter of domestic law, the applicant had no protection against the authorities ’ reclaim of the funds already received, which according to them constituted unjust enrichment ( see paragraph 2 7 above), several circumstances speak in favour of recognising the applicant ’ s legal position as protected by a “legitimate expectation” for the purposes of the application of Article 1 of Protocol No. 1.", "59. Firstly, there is no indication or even allegation that the applicant had in any way contributed to the impugned situation, namely that the disbursement of the benefits had been continued beyond the applicable statutory time-limit. The Government accepted that payment of the unemployment benefits beyond the prescribed time-limit was the sole responsibility of the authorities ( see paragraph 7 0 below).", "60. Secondly, the applicant ’ s good faith in receiving the contested unemployment benefits is not contested.", "61. Thirdly, the administrative decision in reliance on which the applicant had received the payments had not contained any express mention of the fact that under the relevant statutory provisions the entitlement would expire on a certain date, i.e. after twelve months.", "62. Fourthly, there was a long lapse of time, amounting to over three years, after the expiry of the statutory time-limit during which the authorities failed to react while continuing to make the monthly payments.", "63. The Court finds that these circumstances were capable of inducing in the applicant a belief that she was entitled to receive those payments (compare Chroust v. the Czech Republic (dec.), no. 4295/03, 20 November 2006).", "64. Moreover, the Court considers that, taking into account in particular the nature of the benefits as current support for basic subsistence needs, the question of whether the situation was capable of giving rise to a legitimate expectation that the entitlement was duly in place must be assessed with a view to the situation prevailing at the time when the applicant was in receipt of the payments and consumed the proceeds. The fact that the administrative courts subsequently established that the payments had taken place without a legal basis in domestic law is under these circumstances not decisive from the point of view of determining whether at the time when the payments were received for the purpose of covering the applicant ’ s living costs she could entertain a legitimate expectation that her presumed entitlement to those funds would not be capable of being called into question retrospectively (see, mutatis mutandis, Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no. 222; and Stretch v. the United Kingdom, no. 44277/98, § 35, 24 June 2003).", "65. The Court therefore concludes that in the circumstances of the present case, the applicant had a legitimate expectation of being able to rely on the payments she had received as rightful entitlements and that Article 1 of Protocol No. 1 is applicable ratione materiae to her complaint.", "3. Conclusion as to the admissibility", "66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "1. The parties ’ submissions", "(a) The applicant ’ s submissions", "67. The applicant alleged that the Rijeka Employment Bureau had adopted a decision granting her unemployment benefits “until further notice”. Moreover, on 26 May 1999, that is one year after her right to unemployment benefits had allegedly ceased, the Rijeka Employment Bureau had provided her with an “unemployment benefit card”, which had stated that she was entitled to unemployment benefits until 31 December 2010. She alleged that she had had no reason to doubt that the payments were legitimate. In her opinion, she had received the unemployment benefits legally, and there was no legal basis for repaying the amount at issue, as had been established by the Rijeka Municipal Court. Moreover, section 211 of the Civil Obligations Act had been totally disregarded by the courts ( see paragraph 43 above). The Rijeka Employment Bureau had known that she would not be entitled to the unemployment benefits after 10 June 1998, because it had stated that in its decision of 27 March 2001. Therefore, the Rijeka Employment Bureau had not retained its right to seek reimbursement.", "68. As to the Government ’ s allegations that she had failed to respond to the Rijeka Employment Bureau ’ s proposals regarding repayment of the amount due in sixty instalments, the applicant argued that this was not true, because it could be seen from the documents she had submitted to the Court that she had replied and informed the Rijeka Employment Bureau about her difficult economic and health situation. In this connection, the applicant maintained that dividing the burden between the Rijeka Employment Bureau, whose negligence and misconduct had created the situation, and herself, an unemployed person with no income and in poor health, would not be fair, and would impose a burden on her as a result of the State organ ’ s error.", "(b) The Government ’ s submissions", "69. The Government argued, were the Court to find that the applicant had possession, that the interference with the applicant ’ s rights under Article 1 of Protocol No. 1 was lawful. The judgment ordering the applicant to repay the unemployment benefits had had its legal basis in section 210 of the Civil Obligation Act, which had been clear, foreseeable and publicly available. Further to this, it had been in the general interest for the unduly received benefits to be paid back.", "70. In conclusion, the Government stated that depriving the applicant of the amount at issue had been necessary for the protection of State ’ s finances and the principle of rule of law, and had not imposed an excessive individual burden on her because she had been not entitled to this amount. They pointed out that, just as it could not be expected that the mistakes of the State would be remedied at the expense of citizens, it was not fair to allow the unlawful acquisition of property by citizens as a result of those mistakes. In this context, the Government pointed out that the Rijeka Employment Bureau had been fully aware of its own mistake. That is why the Rijeka Employment Bureau had proposed an agreement whereby the applicant would repay the amount due in sixty individual instalments, in order to share the burden of the situation. However, the applicant had failed to respond to this proposal. In view of the foregoing, the Government were of the opinion that there had been no violation of the applicant ’ s rights protected by Article 1 of Protocol No. 1 to the Convention.", "2. The Court ’ s assessment", "( a ) As regards the issue of the existence of an interference", "71. The Government does not contest that the impugned judgment adopted in the civil proceedings against the applicant amounted to an interference with her rights under Article 1 of Protocol No. 1, and the Court sees no reason to hold otherwise.", "72. In the circumstances of the present case, the Court considers that the applicant ’ s complaint should be examined under the general rule enunciated in the first sentence of the first paragraph of Article 1 of Protocol No. 1, especially as the situations envisaged in the second sentence of the first paragraph and in the second paragraph are only particular instances of interference with the right to peaceful enjoyment of property as guaranteed by the general rule set forth in the first sentence ( see Beyeler, cited above, § 106; and Perdigão v. Portugal [GC], no. 24768/06, § 62, 16 November 2010 ). The Court will now assess whether that interference was prescribed by law, whether it pursued a legitimate aim, and whether there was a reasonable relationship of proportionality between the means employed and the aim pursued ( see Broniowski v. Poland [GC], no. 31443/96, §§ 147-151, ECHR 2004 ‑ V).", "( b ) Whether the interference was based in law", "73. The Court reiterates that any interference by a public authority with the peaceful enjoyment of possessions must be lawful. In particular, the second paragraph of Article 1 of Protocol No. 1, while recognising that States have the right to control the use of property, subjects their right to the condition that it be exercised by enforcing “laws”. Moreover, the principle of lawfulness presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, Konstantin Stefanov v. Bulgaria, no. 35399/05, § 54, 2 7 October 2015).", "74. The parties ’ views differed as to whether the interference with the applicant ’ s property right was lawful ( see paragraphs 49 and 68 above).", "75. The Court notes that the Rijeka County Court ’ s judgment relied on section 210 of the Civil Obligations Act related to unjust enrichment ( see paragraphs 28 and 44 above). However, it did not give any explanation as to why section 55 of the Employment Mediation and Unemployment Rights Act was not to be applied in the applicant ’ s case since that rule appears to be a more specific one as regards the applicant ’ s situation. That provision obliged an unemployed person granted an allowance to which he or she had not been entitled to pay this back if it had been granted on the basis of false or inaccurate data which he or she had known to be false or inaccurate, or if it had been granted in some other unlawful manner ( see paragraph 4 1 above). This question can nevertheless be left open, as in the present case it is more essential to decide on the proportionality of the interference.", "( c ) Whether the interference pursued a legitimate aim", "76. The Court reiterates that the domestic court ’ s judgment in this case was based on the general rules of civil law governing unjust enrichment and not on the legislation governing unemployment benefits. The Court considers therefore that the interference pursued a legitimate aim since it is in the public interest that property received on a basis which does not exist or which has ceased to exist should be returned to the State. In particular, the interference was aimed at correcting a mistake of the social security authority.", "( d ) Whether the interference was proportionate", "77. The Court must examine whether the interference struck the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the applicant ’ s right to the peaceful enjoyment of her possessions, and whether it imposed a disproportionate and excessive burden on the applicant (see, among other authorities, Béláné Nagy, cited above, § 115 ).", "78. The Court finds it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, and will respect the legislature ’ s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (ibid., § 113). However, that margin may be narrower in cases such as the present one, where the mistake is attributable solely to the State authorities.", "79. The Court has held, in the context of the discontinuation of a social benefit, that bearing in mind the importance of social justice, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. Holding otherwise would be contrary to the doctrine of unjust enrichment. It would also be unfair to other individuals contributing to the social security fund, in particular those denied a benefit because they failed to meet the statutory requirements. Lastly, it would amount to sanctioning an inappropriate allocation of scarce public resources, which in itself would be contrary to the public interest ( see Moskal v. Poland, no. 10373/05, § 73, 15 September 2009).", "80. The present case, however, stands to be distinguished from the situation prevailing in Moskal, because unlike the latter case, what is at issue now is not the discontinuation of the applicant ’ s unemployment benefit but an obligation imposed on her to repay benefits already received in reliance on an administrative decision. In the present context, it is therefore more pertinent to recall the Court ’ s case-law to the effect that mistakes solely attributable to State authorities should in principle not be remedied at the expense of the individual concerned, especially where no other conflicting private interest is at stake (see, mutatis mutandis, Platakou v. Greece, no. 38460/97, § 39, ECHR 2001 ‑ I; Radchikov v. Russia, no. 65582/01, § 50, 24 May 2007; Freitag v. Germany, no. 71440/01, §§ 37-42, 19 July 2007; Gashi, cited above, § 40; and Šimecki v. Croatia, no. 15253/10, § 46, 30 April 2014). The Court has also held that where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner ( see Tunnel Report Limited v. France, no. 27940/07, § 39, 18 November 2010, and Zolotas v. Greece (no. 2), no. 66610/09, § 42, ECHR 2013 (extracts) ).", "81. In assessing compliance with Article 1 of Protocol No. 1, the Court must carry out an overall examination of the various interests in issue ( see Perdigão, cited above, § 68), bearing in mind that the Convention is intended to safeguard rights that are “practical and effective” (see, for example, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999 ‑ III). It must look behind appearances and investigate the realities of the situation complained of ( see Broniowski, cited above, § 151; Hutten-Czapska v. Poland [GC], no. 35014/97, § 168, ECHR 2006 ‑ VIII; and Zammit and Attard Cassar v. Malta, no. 1046/12, § 57, 30 July 2015). That assessment may involve the conduct of the parties, including the means employed by the State and their implementation. In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State ’ s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner ( see Tunnel Report Limited v. France, no. 27940/07, § 39, 18 November 2010, and Zolotas v. Greece (no. 2), no. 66610/09, § 42, ECHR 2013 (extracts) ).", "82. As to the applicant ’ s conduct, the Court notes that the applicant has not been alleged to have contributed to the receipt of benefits beyond her legal entitlement by false submissions or other acts which would not have been in good faith.", "83. As the competent authority had taken a decision in the applicant ’ s favour and continued to make the respective payments, the applicant had a legitimate basis for assuming that the payments received were legally correct. While it is true that section 25 of the Employment Act clearly provides that a woman employed for less than twenty-five years has the right to unemployment benefits in respect of a temporary incapacity to work, for a maximum period of twelve months ( see paragraph 41 above), the decision issued to the applicant had not contained any express mention of that time-limit, and the applicant was thus not put on notice of it. Moreover, given that two additional years of service had been entered into the applicant ’ s employment book ( see paragraph 11 above), it appears that she, as an unqualified worker, was not without grounds for believing that she met the requirements set out in section 23(3) of the Employment Act ( see paragraph 4 0 above). Under these circumstances, the Court does not find it reasonable to conclude that the applicant was required to realise that she was in receipt of unemployment benefits beyond the statutory maximum period.", "84. As to the conduct of the authorities, the Court notes at the outset that, in the context of property rights, particular importance must be attached to the principle of good governance. In the instant case, the Court considers that the authorities failed in their duty to act in good time and in an appropriate and consistent manner ( see Moskal, cited above, § 72).", "85. It is established that the Rijeka Employment Bureau made a mistake when it did not define the period during which the applicant was entitled to further unemployment benefits in its decision of 27 June 1997. That mistake was further perpetuated when unemployment benefits were paid to the applicant for a period of almost three years following the expiry of the maximum period set out in section 25(2)(1) of the Employment Act.", "86. The Court also notes that, even though the unemployment benefit payments which the applicant should not have received were entirely the result of an error of the State, the applicant was ordered to repay the overpaid amount in full, together with statutory interest. Therefore, no responsibility of the State for creating the situation at issue was established, and the State avoided any consequences of its own error. The whole burden was placed on the applicant only.", "87. The Court acknowledges that the applicant was offered to repay her debt in sixty instalments. However, the fact remains that the sum the applicant was ordered to repay to the State which included the statutory interests as well represented a significant amount of money for her given that she was deprived of her only source of income at the same time as well as her overall financial situation ( see paragraphs 1 5, 24 and 3 1 above).", "88. As to the applicant ’ s personal situation, the Court notes that the sum she received on account of unemployment benefits is a very modest one and as such has been consumed for satisfying the applicant ’ s necessary basic living expenses, that is to say for her subsistence.", "89. The national courts in deciding on unjust enrichment did not take into consideration the applicant ’ s health and economic situation. She has been suffering from a psychiatric condition since 1993 and has become incapable of working. She has been unemployed for a long period of time, since 1995. At the time her employment was terminated as a result of her employer becoming insolvent she was only two months short of qualifying for unemployment benefits until next employment or retirement under Section 23 of the Employment Act ( see paragraphs 6 and 4 0, see also mutatis mutandis Béláné Nagy, cited above, § 123). The information from the enforcement proceedings suggests that she has no bank accounts, no income of any sort, and no property of any significance. In these circumstances paying her debt even in sixty instalments would put at risk her subsistence.", "90. In view of the above considerations, the Court finds that under the circumstances of the present case, the requirement imposed on the applicant to reimburse the amount of the unemployment benefits paid to her in error by the competent authority beyond the statutory maximum period entails an excessive individual burden on her.", "91. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "92. The applicant complained that the national authorities had violated her right to respect for her private life as provided for in Article 8 of the Convention, which reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "93. The Government contested that argument.", "94. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible.", "95. Having regard to the fact that the arguments advanced by the parties are the same as those examined in the context of Article 1 of Protocol No. 1 to the Convention, the Court does not consider it necessary to examine this complaint separately.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "96. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "97. The applicant claimed HRK 83, 801. 69 (about 11,150 euros (EUR) ) in respect of pecuniary damage. According to her, this figure was equivalent to the sum of HRK 19, 451. 69 (about EUR 2, 600 ) with accrued default interest from 3 August 2005 until the date of payment, and the sum of HRK 64, 350. 00 (about EUR 8,560) in respect of lost employment benefits between April 2001 and December 2010, with accrued default interest on each instalment of HRK 550 (about EUR 75) from the month when compensation had to be paid until the date of payment. She also claimed HRK 435,650.00 (about EUR 57, 70 0) in respect of non-pecuniary damage.", "98. The Government contested these claims.", "99. As regards pecuniary damage, it appears from the documents submitted by the parties that the applicant has not paid the amount she was ordered to pay to the Rijeka Employment Bureau, and that the enforcement proceedings are still ongoing ( see paragraphs 3 2 - 39 above ). As to the sum of HRK 64,350.00 in respect of lost employment benefits between April 2001 and December 2010, the Court finds no causal link between the amount claimed and the finding of a violation ( see also paragraph 4 5 above). It therefore rejects the claim in respect of pecuniary damage.", "100. In respect of non-pecuniary damage, having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,6 00 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.", "B. Costs and expenses", "101. The applicant also claimed HRK 18, 906. 25 for costs and expenses incurred before the domestic courts and HRK 9, 875. 00 for those incurred before the Court.", "102. The Government contested this claim.", "103. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 830 for costs and expenses incurred in the proceedings before the Constitutional Court, and EUR 1,300 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant.", "C. Default interest", "104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant was born in 1927 and lives in Nicosia.", "11. From the establishment of the Republic of Cyprus in 1960 and up to his dismissal from the public service, the applicant worked as Governor of the Department of Co - operative Development of the Public Service in Nicosia. On 28 July 1982 the Public Service Commission instituted disciplinary proceedings against him and decided to dismiss him retrospectively by reason of the fact that on 8 April 1981 he had been found guilty by the Nicosia District Court of stealing, breach of trust and abuse of authority. He had been sentenced to eighteen months'imprisonment. His appeal against both conviction and sentence had been dismissed by the Supreme Court on 16 October 1981.", "12. The Public Service Commission held that the applicant had managed the resources of the above-mentioned department as if it were his private property and spent them for purposes other than those of the department. The disciplinary sanction of dismissal also resulted in the forfeiture of the applicant's retirement benefits, including his pension, in accordance with section 79(7) of the Public Service Law ( no. 33/67 ), from the date of his conviction by the District Court. In Cyprus, pensions are part of the overall employment contract offered to public servants. The pension scheme is non-contributory.", "13. On 8 October 1982 the applicant filed an application with the Supreme Court requesting that the decision to dismiss him from the public service be declared null and void. The applicant's main argument was that the decision had been taken in excess or abuse of power in that the sanction of dismissal, with the consequent forfeiture of retirement benefits, was disproportionate to the gravity of the offence. He also contended that the forfeiture was contrary to Article 12 § 2 of the Constitution, which guarantees the right not to be tried or punished twice. He alleged that the forfeiture of his pension rights and the sentence of imprisonment amounted to a double punishment for the same act.", "14. By a judgment delivered on 12 June 1991, the Supreme Court rejected the applicant's application and confirmed the Public Service Commission's decision. In particular, the Supreme Court held:", "“It has been established by case- law that the Supreme Court does not have the authority to intervene on the subject of the sanction imposed unless it is evident that the disciplinary body has exceeded the limits of its discretionary power.", "The Supreme Court's powers in such issues bear no resemblance to its powers while exercising its jurisdiction over the appeal of the district courts'judgments, on which it has the authority to intervene when the decision on the sentence is either incorrect from the outset, evidently excessive or insufficient.", "The assessment of the severity of such a disciplinary sanction is outside the limits of this Court's authority (see, among others, Cristofides v. CY.T. A. , (1979) 3 C.L.R. 99, and Papacleovoulou v. the Republic, (1982) 3 C.L.R. 187, 196-197).", "It has been repeatedly established ... in a series of judgments that an administrative court, during the judgment of an appeal against the imposition of a disciplinary sanction, does not as a rule have the authority to intervene in the essential judgment and assessment of the facts by the competent body. ...", "Section 79(1) of Law no 33/67 enumerates a limited number of disciplinary sanctions that can be imposed under the provisions of the same Law. These sanctions include the sanction of dismissal, which, according to section 79(7) of Law no 33/67, results in the loss of all the entitlements upon discharge.", "Having carefully examined the case file, as well as the relevant verbatim record, where the ratio decidendi and the statement of reasons are included in detail, I judge that the Public Service Commission imposed the sanction of dismissal on the applicant justly and lawfully, without exceeding the limits of its discretionary power. The Public Service Commission, as it is explicitly reported in the relevant transcript (see Appendix 8 of the Plea) took into account the applicant's various mitigating circumstances before reaching a decision. The Public Service Commission's discretionary power was not related to pension issues, but only to the matter of the sanction. The sanction imposed on the applicant entailed, according to the same Law, the forfeiture of all his entitlements upon discharge.", "The judgment in Makrides v. the Republic, 2 R.S.C.C. 8, which the applicant's lawyer cited in order to support his submission that the provisions concerning the deprivation of an employee's pension rights are unconstitutional with respect to Article 23 §§ 1 and 2 of the Constitution, does not apply to the present case.", "The submission by the applicant's lawyer that there is a contradiction with Article 28 of the Constitution remains unproved .”", "15. The Supreme Court stated that it could review neither the severity of the sanction imposed by a disciplinary body, save if the latter had exceeded the limits of its margin of appreciation, nor the manner in which the body had assessed the facts of the case. It held that the discretion of the Public Service Commission only concerned the nature of the sanction, the loss of retirement benefits being the normal consequence of the particular sanction imposed by the commission.", "16. On 18 July 1991 the applicant appealed on points of law to the Supreme Court sitting as a court of appeal. Five grounds were included in the notice of appeal. The fifth ground challenged the finding of the Supreme Court sitting as a first - instance court that the loss of retirement benefits was not contrary to Article 23 §§ 1 and 2 of the Constitution.", "17. On 6 December 1996 the applicant filed an application for amendment of his grounds of appeal. The Supreme Court granted the application on 17 January 1997. Amended grounds 3 to 5 read as follows:", "“ ( 3) The finding of the first-instance court that the sanction that was imposed on the applicant by the Public Service Commission was not excessively onerous and disproportionate to the gravity of the offence committed and/or that the Public Service Commission took fully into account the mitigating circumstances during the consideration of the sanction and/or did not exercise its discretionary power in breach of procedure in determining the sanction is erroneous.", "According to Article 12 § 3 of the Constitution, the law cannot provide for a penalty that is disproportionate to the gravity of the offence. The above constitutional requirement introduces in Cyprus the principle of proportionality, according to which there must be a connection (reasonable relation) between the measure taken and the intended purpose; the measure is proportionate only if it is necessary in relation to the facts of the case.", "Despite the fact that during the assessment of the penalty the criminal court as well as the administrative body took into account and accepted a series of mitigating circumstances, and in particular that the applicant did not obtain any material gain, the sanction which was finally imposed on him is the heaviest sanction provided by law.", "This is a sufficiently serious breach of the principle of proportionality, which was introduced by Article 12 § 3 of the Constitution and is applied in Cypriot jurisprudence and the practice of law itself, particularly in the interpretation of Article 23 of the Constitution. It also constitutes an act beyond the extreme limits that define the framework of actions of the administration when exercising its discretionary power.", "( 4) The finding of the court that the Public Service Commission imposed the sanction of dismissal on the applicant correctly and lawfully and without exceeding the limits of its discretion is erroneous.", "The principle of a sanction that is not disproportionate to the gravity of the offence and the principle of proportionality during the assessment of the sanction in administrative proceedings certainly define the framework and/or limits of the administrative authority of the administrative body.", "The fact that the administrative body adopted and/or took into account the serious mitigating circumstances in favour of the applicant during the assessment of the sanction, but did not avoid imposing the heaviest sanction provided for by law, is an act that lies beyond the extreme limits of the exercise of its discretionary power.", "( 5) The finding of the first - instance court that the loss of the applicant's pension rights is not contrary to Article 23 §§ 1 and 2 of the Constitution is erroneous.”", "18. In his opening address on 14 September 1998, the applicant's lawyer, Mr Efstathiou, stated that he would only deal with the third and fourth grounds of the appeal. In particular, according to the verbatim record of the hearing on that date, the following exchange took place between the applicant's lawyer and the Supreme Court:", "“ Mr Efstathiou : ...", "I will be very brief. Essentially, I will only deal with grounds 3 and 4 of the appeal.", "Judge Chrysostomis : Do you withdraw the others?", "Mr Efstathiou : Indeed, I do.", "The Court : The remaining grounds of appeal are dismissed and we shall hear your position on grounds 3 and 4.", "Mr Efstathiou : I will not deal with these grounds, because ground 1 is badly worded, while ground 2 is covered by grounds 3 and 4.", "...", "The penalties that can be imposed by the court are listed in section 79(1) of Law no. 33/67. These penalties go from (a) to ( j ), which means that ten different disciplinary sanctions can be imposed according to the gravity of the offence, each one more severe than the previous one, while the maximum sanction is dismissal. Section 79(7) states that dismissal entails the loss of all entitlements upon discharge.", "I shall deal with the amended grounds 3 and 4, and thus ground 5 emanating from them.", "Judge Chrysostomis : Will you deal with grounds 3 and 4 as a whole?", "Mr Efstathiou : As a whole and the consequences thereof.", "...", "We cannot, therefore, and with all due respect to the court that delivered the judgment, accept that this Court cannot, in fact, intervene in the decisions of the Public Service Commission, when these deal with issues of sanction. It would, indeed, be extraordinary if this Court were competent to address the decisions of criminal courts, but not competent to address and examine whether the commission, which is a disciplinary court, exceeded the limits of its discretionary power. Not only would this be completely alien to the organisation and construction of the jurisprudence, it would also be extraordinary, because a court could intervene – and I am not saying that it would intervene on appeal, no it is not that. Given that the Court intervenes, why shouldn't it – even more so – intervene there?", "...", "Judge Chrysostomis : On the issue of disciplinary sanctions.", "Mr Efstathiou :", "...", "When you examine the case, I plead with you to take into account the fact that the dismissal of the appellant resulted in forfeiture of his pension rights. This means that the consequence of his dismissal entailed the additional misfortune of the loss of his pension rights, which were a result of twenty years of contributions to the State. This service of twenty years and more, I submit with respect, creates for the appellant parallel rights to receive a pension, autonomous rights which are based on a legal framework that is independent and autonomous in comparison to other legislative regulations. The creation of public servants'pension funds is regulated separately and is created through deducting part of their emoluments. Thus, by imposing this sanction on the appellant, other parallel and autonomous rights were infringed, which should not escape the attention of the Supreme Court of Cyprus. These are acquired rights to which an employee is entitled to for every month of offering his service to the State, in parallel with the right to acquire the payment of a salary. For every month of work, he receives his salary and also has another entitlement, which is preserved in order to be given to him when he is discharged, and which at the same time constitutes an autonomous right. This is the right every employee has to a pension as part of his emoluments. He has another benefit, secret, hidden, but'activated'from the day he leaves the service.", "Consequently, the imposed sanction of dismissal has the following direct consequences, which are all contrary to constitutional rights and the fundamental principles of law and jurisprudence. [ Firstly, it ] renders the sanction particularly onerous and reinforces the argument that it was disproportionate to the gravity of the offence, which apart from constituting an abuse of discretionary power, violates Article 12 § 3 of the Constitution, which states that a penalty shall not be disproportionate to the gravity of the offence.", "Secondly, it denies the applicant's right of property by which he is entitled to a pension for which he was has contributed part of his salary. The new Law no. 1/90 contains a revised section 79, which represents a somewhat incomplete regulation of this issue. Namely, when a public servant is dismissed, a pension is paid to his dependants as though he had died. This is unpleasant, but represents a solution that was found and agreed upon at the time.", "... ”", "Judgment was reserved.", "19. In the meantime, one of the members of the bench hearing the case was appointed Minister of Defence, and the Supreme Court decided to reopen the proceedings. The appeal was heard for a second time on 9 July 1999. The verbatim record of the hearing reads as follows:", "“ Mr Efstathiou : Your Honours, the facts of this case are, in simple terms, as follows:", "...", "I will deal with grounds 3 and 4 of the appeal and grounds 5 and 3 emanating from them. I will deal with all of them ...", "Ms Koursoumba : In the previous court session, grounds 1, 2 and 5 were withdrawn.", "Mr Efstathiou : Indeed, as I have said.", "...", "Judge Konstantinidis : For the sake of order, I see in the transcript of the previous hearing that you have withdrawn all the grounds of appeal, apart from 3 and 4.", "Mr Efstathiou : Indeed.", "...", "In closing, we conclude that the appellant's twenty and more years of service have brought about pension rights – independent rights that are based on a legal structure which is independent and autonomous compared to other legislative regulations. Everyone contributes to the creation of the capital of the pension; the government also contributes; it is part of the employee's emolument. This sanction ... according to section 79( 7 ) [ entails the loss of all retirement benefits].", "Therefore, the imposition of the sanction of dismissal, the direct consequence of which is the forfeiture of pension rights, has legal consequences that violate constitutional principles, essential rights and the case-law. The sanction is therefore particularly onerous.", "Judge Konstantinidis : You also clarified it last time, but we must bring up the subject once more. We must realise that there is no issue of constitutionality of the law itself but that the subject is being discussed within the framework of the position you are advocating, that it was not reasonably permissible to impose such a sanction.", "Mr Efstathiou : Because this is also a consequence of that. It is so. The imposition of the sanction exceeded the limits of the exercise of discretionary power and violated the constitutional principle of Article 12 § 3 that the penalty should not be disproportionate to the gravity of the offence. Thus, the principles of law, the principles of proportionality, the principles of not exceeding the extreme limits of discretionary power and of respect for the appellant's vested rights have been violated. I have told you all this before.”", "20. Judgment was delivered on 20 July 1999, dismissing the appeal. The Supreme Court held as follows:", "“ ...", "The first-instance court held that the sanction of dismissal imposed on the appellant by the Public Service Commission was just and lawful and within the bounds of its discretion. Also, it stated that the commission had considered the various mitigating circumstances in favour of the applicant before it reached a decision, and that its discretionary power did not concern the issue of the appellant's pension, but only the matter of the sanction. The forfeiture of the appellant's entitlements following discharge was, under the same Law, a consequence of the sanction imposed on him.", "In the end, the appeal was limited to two grounds, which are stated in the amended notice of appeal and which are the following:", "' (1) The court's finding that the sanction imposed on the appellant by the Public Service Commission was not excessively onerous and disproportionate to the gravity of the offence and/or that the Public Service Commission did take the mitigating circumstances into account in their consideration of the sanction and/or that it did not exercise its discretionary power in breach of procedure in determining the sanction is erroneous.", "(2) The court's finding that the sanction of dismissal imposed on the appellant by the Public Service Commission was just and lawful and within the limits of its discretionary power is erroneous.'", "The position of the appellant's lawyer is that the principles of law relevant to criminal proceedings are implemented analogously in disciplinary proceedings. Whilst the commission accepted the existence of mitigating circumstances in the case under examination, such as the appellant's long service in the Cypriot struggle for liberation and the Co-operative Movement, and the fact that there was no material gain for him personally, it nevertheless imposed the heaviest sanction on him, rather than a sanction of, for example, compulsory retirement, which would also have resulted in his removal from service. The appellant stated that the sanction of dismissal was excessively onerous and disproportionate to the gravity of the offence and claimed that the principle of proportionality had been infringed, and thus argued that the commission had exceeded the extreme limits of its margin of discretion. In clarifying this position, he stated that he did not request the Court to change the case-law and interfere with the sanction imposed, but to declare the decision null and void on the ground that it exceeded the extreme limits of the commission's margin of discretion.", "The respondent's lawyer contended that the judgment of the first-instance court was just and challenged the claims of the appellant's lawyer by arguing that the Supreme Court does not have the authority to interfere in matters of sanction, unless the disciplinary body had clearly exceeded the extreme limits of its margin of discretion. She also stated that the assessment of the facts and the severity of the sanction were beyond the jurisdiction of the Supreme Court.", "We concur with the opening address of the respondent's lawyer. In fact, it has been established, under Article 146 of the Constitution, that the Administrative Court is not competent, amongst other things, to determine the severity of a disciplinary sanction.", "...", "The first-instance court, on examining the issue of the discretionary power of the commission, stated the following on page 9 of its judgment:", "' Having carefully examined the case file, as well as the relevant verbatim record, where the ratio decidendi and the statement of reasons are included in detail, I judge that the Public Service Commission imposed the sanction of dismissal on the applicant justly and lawfully, without exceeding the limits of its discretionary power. The Public Service Commission, as it is explicitly reported in the relevant transcript (see Appendix 8 of the Plea) took into account the applicant's various mitigating circumstances before reaching a decision. The Public Service Commission's discretionary power was not related to pension issues, but only to the matter of the sanction. The sanction imposed on the applicant entailed, according to the same Law, the forfeiture of all his entitlements upon discharge.'", "This conclusion of the first-instance court is correct. The commission chose to impose the severest sanction. This decision was within its jurisdiction. It has not been demonstrated that the commission did not act within the extreme limits of its margin of discretion, either due to the fact that it acted irrationally or due to the fact that it acted in breach of the principles of good administration, the latter including the principle of proportionality, on which the appellant's lawyer has essentially based his case.", "The fact that the Public Service Commission imposed the severest sanction provided for by the relevant law even though it had established the existence of mitigating circumstances does not demonstrate that it did not act within the extreme limits of its margin of discretion. Evidently, as shown by its decision, it deemed that, despite the existence of mitigating circumstances, the seriousness and the effects of the offence were such that it was justified in imposing the severest sanction provided for by law. This follows from the commission's decision, in which, while highlighting the seriousness of the offences, it also referred to parts of the decision of the criminal court. Below is a quote from the Public Service Commission's decision:", "' The Commission has no other choice but to consider the offences, on the grounds of which the public servant in question was sentenced to prison, as being of the gravest nature. As the judge who tried the case aptly said:", "“ The one and only aim of his actions was to promote himself as a person who could easily solve all of the problems on the island due to the financial strength of the Co-operative Movement, which he claimed to have founded himself. I should, at this point, underline the fact that he was managing the resources of the Mutual Fund as though they were his private property. However, he had no right to use the Fund's resources for purposes other than those for which the Co-operative Institutions had entrusted him with significant sums of money.", "His bad faith is also evident, amongst other things, in the fact that he took great care to conceal the source of the funds whenever he made payments for purposes other than those for which he had been entrusted with the money. He viewed the Fund an inexhaustible source of resources that allowed him to be popular with those in positions of power as well as his friends.", "The fact that large sums of money were given away to charities does not exonerate the defendant from responsibility for his actions. Philanthropic acts using funds provided by others do not constitute charity at all, but are merely acts of exploitation and self-promotion. ”'", "Following this and prior to reaching a decision on the sanction to be imposed, the commission also stated the following:", "' A high-ranking official who shows such disregard for his responsibilities and duties as in the present case and who, additionally, so openly violates the law and /or the regulations of service in order to promote himself as a benefactor of society places himself out of the public service.'", "For all the above reasons, the appeal is dismissed with all expenses to be paid by the appellant.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "21. At the material time, the relevant parts of section 79 of the Public Service Law ( no. 33/67 ) read as follows:", "“1. In accordance with the present Law, the following disciplinary penalties may be imposed: ...", "(a) reprimand", "(b) severe reprimand", "(c) disciplinary transfer", "(d) interruption of annual salary increase", "(e) suspension of annual salary increase", "(f) pecuniary penalty which cannot exceed three months'salary", "(g) reduction in the salary scales", "(h) reduction to the ranks", "(i) compulsory retirement", "(j) dismissal.", "...", "7. Dismissal entails the loss of all retirement benefits.”", "22. A revised version of section 79(7) of the Law is now in force in Cyprus and provides as follows:", "“Dismissal entails the loss of all retirement benefits. It is understood that a pension is paid to the wife or dependent children, if any, of a public servant who was dismissed as though he had died on the date of his dismissal and which will be calculated on the basis of his actual years of service.”", "23. Under the provisions of the Public Service Law, the duties and responsibilities for posts in the public service are set out in the relevant “ schemes of service”, approved by the Council of Ministers. According to the scheme of service for the post of Governor of the Department of Co-operative Development held by the applicant, the duties and responsibilities were as follows:", "“Management of the Department of Co-operative Development and responsibility for the promotion, development and orderly operation of the Co-operative Movement in the island. Exercise of the power and duties provided by the relevant laws and regulations. Adviser to the Minister of Finance on co-operative matters. Represents the Co-operative Department in various committees and bodies. Performance of any other duties which may be assigned to him.”", "24. A public servant's entitlement to a pension is governed by the Republic's Pensions Law, Chapter 311. Section 6 of this Law, which was in force at the time of the applicant's dismissal, provided that no pension, gratuity or other allowance shall be granted except upon retirement from the public service in one of the cases specifically enumerated. Section 6(f) referred to “the case of termination of employment in the public interest as provided in this Law”, that is section 7 of the Law, which in turn provided as follows:", "“Where an officer's service is terminated by the Council of Ministers on the ground that, having regard to the conditions of the public service, the usefulness of the officer thereto and all the other circumstances of the case, such termination is desirable in the public interest, and a pension, gratuity or other allowance cannot otherwise be granted to him under the provisions of this Law, the Council of Ministers may, if they think fit, grant such pension, gratuity or other allowance as they think just and proper, not exceeding in amount that for which the officer would be eligible if he retired from the public service in the circumstances described in paragraph (e) of section 6 of this Law.”", "25. Until 1967, section 5(1) of Chapter 311 provided as follows:", "“No officer shall have an absolute right to compensation for past services or to pension, gratuity or other allowance; nor shall anything in this Law affect the right of the Crown to dismiss any other officer at any time and without compensation.”", "This section was repealed by Law no. 9/1967, which came into force on 1 April 1967.", "Furthermore, section 3(1) of the same Law, which read:", "“Pensions, gratuities and other allowances may be granted by the Governor in accordance with the regulations contained in the Schedule to this Law to Officers who have been in the service under the Government of Cyprus ... ”", "was amended by Law no. 9/1967 by replacing the word “may” with the word “shall”.", "Regulation 4, issued under Chapter 311, which provided:", "“Subject to the provisions of the Law and of these Regulations, every officer holding a pensionable office under the Government of Cyprus, who has been in the service under the Government of Cyprus in a civil capacity for ten years or more, may be granted on retirement a pension at the annual rate of one six-hundredth of his pensionable emoluments for each complete month of his pensionable service.”", "was also amended by Law no. 9/1967 by replacing the word “may” with the word “shall”.", "26. Article 166 § 1 of the Constitution reads as follows:", "“There shall be charged on the Consolidated Fund, in addition to any grant, remuneration or other moneys charged by any other provision of this Constitution or law", "(a) all pensions and gratuities for which the Republic is liable ...”", "27. Article 169 § 3 of the Constitution reads as follows:", "“Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto.”", "28. The relevant parts of Article 23 of the Constitution read as follows:", "“ 1. Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right. The right of the Republic to underground water, minerals and antiquities is reserved.", "2. No deprivation or restriction or limitation of any such right shall be made except as provided in this Article.", "3. Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals, or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others, may be imposed by law on the exercise of such a right.", "Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property; in case of disagreement, such compensation is to be determined by a civil court.", "4. Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic, or by a municipal corporation or by a Communal Chamber for educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from the persons belonging to its respective community, or by a public corporation or a public utility body on which such a right has been conferred by law and only –", "(a) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution;", "(b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition;", "(c) upon payment in cash and in advance of just and equitable compensation, to be determined in case of disagreement by a civil court.", "... ”", "29. The relevant parts of Article 146 of the Constitution read as follows:", "“1. The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or an omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.", "2. Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission.", "3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse.", "4. Upon such a recourse the Court may, by its decision", "(a) confirm, either in whole or in part, such decision or act or omission; or", "(b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or", "(c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed.", "5. Any decision given under paragraph 4 of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned.", "... ”", "30. The applicant attached to his further observations on the merits (dated 8 January 2002 ) in reply to the Government's observations a document established by the Pancyprian Public Employees'Trade Union on 7 January 2002, in which the following is specified:", "“It is a well-known fact that the pension constitutes an integral part of the employment contract that the Cyprus government offers to all of its employees, namely civil servants.", "This is a hard- earned right that the unions have secured over the years and the government has undertaken to pay such a pension as part of the employment contract. This can also be seen from the schemes of service that the government has.", "A civil service position is accompanied by a compulsory retirement scheme, which consists of receiving certain retirement benefits at the end of one's employment, which include a monthly pension and a lump sum.", "This is part of the overall employment package the government undertakes to provide, and civil servants contribute with their years of service and by having a certain amount deducted from their salary by way of taxes. This package is based on the employment relationship and the government has undertaken to finance it and provide it at the end of an employee's career. ”", "THE LAW", "I. SCOPE OF THE GRAND CHAMBER'S JURISDICTION", "31. The applicant submitted that the power to refer a case to the Grand Chamber in accordance with Article 43 of the Convention was limited. Such a referral was an exceptional procedural step, and the Court's jurisdiction had to be exercised carefully. In the present case, only one of the three grounds relied on by the Government for referring the case qualified for review under Article 43 § 2, namely the ground regarding the Court's jurisdiction ratione temporis. In effect, he contended, it was clear from the emphasis the Government put on the three points in their request for referral that the most important one was that of the jurisdiction ratione temporis. This was the only ground which raised a question affecting the interpretation or application of the Convention or that could be said to raise a serious issue of general importance for the purposes of Article 43 of the Convention.", "32. The Court considers that it is now well - established case-law that “ the case” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in “ the case” being limited only by the Chamber's decision on admissibility. This does not mean, however, that the Grand Chamber may not also examine, where appropriate, issues relating to the admissibility of the application in the same manner as this is possible in normal Chamber proceedings, for example by virtue of Article 35 § 4 in fine of the Convention (which empowers the Court to “reject any application which it considers inadmissible ... at any stage of the proceedings”), or where such issues have been joined to the merits or where they are otherwise relevant at the merits stage ( see K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001-VII, and Perna v. Italy [GC], no. 48898/99, §§ 23-24, ECHR 2003- V ). Thus, even at the merits stage and subject to Rule 55 of the Rules of Court, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention ( see, mutatis mutandis, Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003-III).", "33. This being so, the scope of the case before the Grand Chamber is not limited in the way suggested by the applicant.", "II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS", "Non-exhaustion of domestic remedies", "1. The Government's submissions to the Grand Chamber", "34. In their request for the referral of the case to the Grand Chamber and, subsequently, in their observations, the Government reiterated the objection they had pleaded before the Chamber as to the non-exhaustion of domestic remedies. They underlined that the applicant expressly withdrew the allegation of a violation of a property right which was never raised, argued or adjudicated upon, even in the remotest way. The applicant referred to the retirement benefits only in the context of challenging dismissal as a disproportionate sanction. Thus, the Supreme Court did not in substance deal with or have the opportunity of dealing with an alleged property violation. However, before the Supreme Court, constitutional matters must be specifically raised and pleaded by the party concerned; they are not examined by the court proprio motu. The Chamber appeared to have misunderstood the nature of the proceedings in the domestic courts. The issue of non-exhaustion was a real question of admissibility and the Court was empowered under Article 35 § 4 to deal with it at this stage.", "2. The applicant's submissions to the Grand Chamber", "35. The applicant maintained that the question of exhaustion of domestic remedies had already been settled by the Chamber in its final decision on admissibility of 19 June 2001. The Government had failed to raise it again at the merits stage before the Chamber and it was doubtful that they even could have done so. Thus, they were estopped from doing so before the Grand Chamber.", "3. The Chamber's decision", "36. In its admissibility decision of 19 June 2001, the Chamber held that by challenging the legality of the decision of the Public Service Commission to impose the sanction of dismissal, the applicant had also contested, albeit implicitly, the forfeiture of his retirement pension. The Chamber noted that the Supreme Court, sitting as a first - instance court, had held that the discretionary power of the commission concerned only the nature of the sanction, the loss of retirement benefits being the normal consequence of that particular sanction. The Supreme Court, sitting as a court of appeal, had upheld that conclusion. Finally, the Chamber noted that the applicant's lawyer had expressly stated before the Supreme Court that he maintained the third and fourth grounds of appeal, which, in the Chamber's view, also covered the fifth ground.", "4. The Court's assessment", "37. As in Odièvre, cited above, the Grand Chamber is not precluded from examining the Government's objection of non-exhaustion of domestic remedies since, in accordance with Rule 55 of the Rules of Court, they duly raised this objection at the admissibility stage before the Chamber.", "38. While in the context of machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999- I ).", "The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities ) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000- XI ). In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument of violation of the Convention right, it is that remedy which should be used. If the complaint presented before the Court (for example, unjustified interference with the right of property) has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient that the applicant may have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies ”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument ( see Van Oosterwijck v. Belgium, judgment of 6 November 1980, A Series no. 40, pp. 16-17, § § 33-34 ).", "39. The Court notes that the Convention forms an integral part of the Cypriot legal system, where it takes precedence over any contrary provision of national law (Article 169 § 3 of the Constitution – see paragraph 27 above ). It further notes that Article 1 of Protocol No. 1 is directly applicable within the Cypriot legal system. The applicant could therefore have relied on that provision in the Supreme Court or on arguments to the same or like effect based on domestic law, namely, Article 23 of the Constitution which guarantees the right of property (see paragraph 28 above), and complained of a violation thereof in his case.", "40. However, the applicant did not cite Article 1 of Protocol No. 1 before the Supreme Court sitting as a court of appeal. Even if in the fifth ground of the notice of appeal to the Supreme Court it was pleaded that the forfeiture of the retirement benefits upon the applicant's disciplinary dismissal violated the right of property under Article 23 of the Constitution, counsel for the applicant expressly withdrew that ground, along with two others, at the first hearing of the appeal on 14 September 1998. The Supreme Court immediately dismissed the withdrawn grounds and proceeded to hear counsel on the remaining two grounds only, namely the third and fourth, in which it was maintained that, by imposing the sanction of dismissal which involved the forfeiture of the applicant's pension, despite the mitigating circumstances in favour of the applicant, the Public Service Commission had not lawfully exercised its discretionary power (see paragraphs 17- 18 above). At the second hearing of the appeal on 9 July 1999, the Supreme Court explicitly enquired of the applicant's counsel whether he was arguing unconstitutionality, and counsel thereupon reaffirmed that he had withdrawn the first, second and fifth grounds at the first hearing and was only arguing the third and fourth (see paragraph 19 above). It transpires from the records of the hearings before the Supreme Court that, in both hearings, the applicant's counsel referred to the forfeiture of retirement benefits in order to show that the sanction of dismissal was disproportionately severe in the circumstances and that a lighter sanction should have been imposed instead. It was for this reason that the Supreme Court never ruled on whether the applicant's dismissal violated his property right to a pension.", "41. In sum, the applicant did not provide the Cypriot courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, among other authorities, Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, p. 2 6 ‑ 2 7, § 72, and Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 19, § 36). The objection that the relevant “effective” domestic remedy was not used by Mr Azinas in the instant case is therefore well-founded.", "42. Consequently, the application must be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4 in fine of the Convention.", "43. In view of this conclusion, it is not necessary for the Court to examine the various arguments submitted to it concerning the Government's objection that the subject-matter of the application was outside the Court's jurisdiction ratione temporis, and in particular the Government's argument that it was open to the Court to entertain this objection despite the fact that they waited until filing their observations on just satisfaction before raising it for the first time (see Rule 55 of the Rules of Court)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born on 30 August 1949 and lives in Nicosia.", "A. Background to the case", "6. The applicant was employed at the Department of Lands and Surveys on 1 December 1971. On 1 January 1996 he was promoted to the position of assistant officer and on 2 February 1998 he was authorised by the director of the department to sign payment orders as authorising officer. On 13 May 2002 a complaint was made by the director following an irregularity in a compulsory acquisition case. It emerged from the investigation that a series of cheques had been issued as alleged compensation to owners of land that had been compulsorily acquired, but that the cheques had never reached the payees named on them.", "7. A number of criminal proceedings were brought against the applicant and an accomplice. It also appears that a third person was charged but those proceedings were terminated following the filing of a nolle prosequi by the Attorney ‑ General. The proceedings against the applicant involved a total of 223 criminal charges.", "8. On 18 January 2005 the applicant received concurrent sentences ranging from two to five years ’ imprisonment from the Nicosia Assize Court (no. 18115/02) on a plea of guilty, following a plea bargain to twenty-", "four charges concerning a number of offences. These included, inter alia, obtaining the amount of 225,643.67 Cyprus pounds (CYP) (approximately 390,000 euros) by false pretences, issuing false documents, forging cheques, abuse of office, and concealment. Part of the agreement reached between the parties was that the applicant would repay the sum of CYP 150,000 (approximately 255,000 euros), and a confiscation order for that sum was issued in respect of his property. In imposing the sentences the Assize Court also took into consideration another eight cases pending against the applicant before it as well as the District Court of Nicosia.", "9. The applicant lodged an appeal with the Supreme Court against his sentence (criminal appeal no. 22/05).", "10. Following the applicant ’ s conviction, and having received the Attorney-General ’ s advisory opinion that the offences committed involved dishonesty or moral turpitude, the PSC instituted disciplinary proceedings against the applicant. Similar proceedings were also instituted against his accomplice, on whom the PSC imposed compulsory retirement pursuant to section 79(1)(i) of the Public Service Law of 1990 (Law 1/1990; hereinafter “the Public Service Law”; see paragraph 43 below).", "11. By a letter dated 13 April 2005 the PSC informed the applicant of the Attorney-General ’ s opinion and invited him to appear before it on 17 May 2005 and to make representations before proceeding with the imposition of a disciplinary penalty.", "12. The PSC convened on 17 May 2005. The applicant ’ s lawyer requested a month to prepare his pleadings, as he had only recently been appointed and in view of the special nature of the case. The PSC granted the request.", "13. On 13 June 2005, the applicant, who was represented by a lawyer, was heard by the PSC. He put forward a number of mitigating factors, which included his dire financial situation following suspension from his duties, the fact that he had paid off most of the sum agreed upon with the authorities, the conviction and sentence he had received from the Assize Court, his significant years of service, and the less severe punishment imposed on his accomplice. He also submitted a socio-economic report by the Department of Social Welfare Services.", "14. On 13 June 2005 the PSC decided to dismiss the applicant. In its decision the PSC observed that this case had been one of the most serious cases it had been faced with. The conception and planning of the crimes committed showed a well-set-up fraud which had dealt a blow to the prestige and credibility of the procedures of the Department of Lands and Surveys and also to the image of the Public Service in general. The PSC noted that the offences of which the applicant had been convicted included some of the most serious offences against property, as well as abuse of office and concealment. The gravity of the offences was evident from the severity of the sentences applicable under the law, the substantial sum the applicant had secured through his unlawful actions, and the fact that eight more cases pending against him concerning similar offences had been taken into account by the Nicosia Assize Court when imposing sentence. The PSC also pointed out that the applicant had faced 223 charges in total, which was unprecedented for Cyprus and which disclosed the seriousness and the magnitude of the case.", "15. In reaching its decision the PSC observed that it had taken into account the circumstances and conditions under which the applicant had committed the offences. He had been authorised to sign payment orders and had been entrusted by the Republic with the important post of promoting cases concerning compulsory acquisition and serving citizens involved in these cases. The applicant, however, did not live up to his responsibilities, exploited his position, and developed his criminal activities with unprecedented effrontery and recklessness. He had been the mastermind, instigator and main executor of the criminal activities.", "16. The PSC also noted that it had taken into consideration what had been said by the applicant ’ s counsel in mitigation, in particular, the applicant ’ s personal and family circumstances, as well as the fact that he had undertaken to compensate for the damage and/or part of the damage suffered by the Republic as a consequence of his criminal acts. Further, the PSC pointed out that he had been the main protagonist and this had been stressed by the Assize Court when distinguishing the sentence passed on him from that passed on his co-accused.", "17. Pursuant to section 79(7) of the Public Service Law (see paragraph 43 below), the disciplinary penalty of dismissal resulted in the forfeiture of the entire applicant ’ s public service retirement benefits (hereinafter “retirement benefits”). This entailed the loss of a retirement lump sum and a monthly pension.", "18. Lastly, the PSC decided that the part of the applicant ’ s salary that had been withheld during the period of his suspension from service would not be returned to him.", "19. Up to the date of his dismissal the applicant had worked for thirty-three years in the public service.", "20. On 23 March 2006 the applicant withdrew his appeal.", "21. Pursuant to section 79(7) of the Public Service Law (see paragraph 43 below), his wife received a widow ’ s pension. This amounted to 15,600 euros (EUR) per year.", "B. Judicial review proceedings", "1. The first-instance proceedings", "22. On 26 August 2005 the applicant brought a recourse before the Supreme Court (revisional jurisdiction) under Article 146 of the Constitution, seeking the annulment of the PSC ’ s decision to dismiss him from the Public Service and of the consequent forfeiture of his pension rights (recourse no. 994/2005).", "23. The applicant claimed that the forfeiture of his retirement benefits had been in breach of Article 23 of the Constitution and Article 1 of Protocol No. 1 to the Convention. In this respect the applicant argued that his pension rights constituted a “possession”, and that their automatic forfeiture consequent to his dismissal was disproportionate.", "24. On 2 April 2007 the Supreme Court, in an ex tempore decision, held that the recourse was admissible. The court observed that the case concerned the discretion of the PSC in deciding on the dismissal, taking into account all relevant parameters and, in particular, the consequences dismissal would have for the applicant. Therefore, the decision on the penalty and the consequences were very closely linked, bringing to the forefront the principle of proportionality as the main aspect of the PSC ’ s discretion. It was obvious from the PSC ’ s decision that in exercising its discretion when choosing the penalty to be imposed it had taken into account the automatic, as it considered, by law, loss of retirement benefits. As a result the court concluded that the extreme severity of the case justified, despite its grave repercussions on the applicant ’ s retirement rights, the penalty of dismissal. If in the end the court were to accept the applicant ’ s claims, the setting aside of the penalty of dismissal could not be excluded. The Supreme Court therefore concluded that it could continue to examine the merits of the recourse.", "25. On 7 May 2007 the Supreme Court dismissed the recourse, but did not award costs against the applicant in view of the nature of the legal issues raised.", "26. The Supreme Court, after having ruled that the retirement benefits of a public servant in Cyprus constituted a possession under Article 1 of Protocol No. 1, went on to examine whether or not there had been a violation of the applicant ’ s rights under this provision. Drawing guidance from the Court ’ s case-law, and in particular the judgments in the case of Azinas v. Cyprus (no. 56679/00, 20 June 2002, and [GC], no. 56679/00, ECHR 2004 ‑ III), and the decision in the case of Banfield v. the United Kingdom ((dec.), no. 6223/04, ECHR 2005 ‑ XI), the Supreme Court first pointed to those factors which justified the deprivation of the right to property in this case. One such main factor in the court ’ s view was the gravity of the offences committed. It considered in this respect that the characterisation of the case by the PSC as one of the most serious in its history did not appear to be an exaggeration. The impression given by the offences was such that not only did they entail a well-organised fraud but they also, most importantly, as the PSC asserted, dealt a blow to the prestige and trustworthiness of the administration. The court considered that sentencing the applicant to five years ’ imprisonment, as well as dismissing him, did not necessarily exhaust the limits of the discretion of the State to put things right. Besides, as in Azinas, the non-deprivation of pension benefits in the case of a pension plan to which the employee did not make contributions would amount to rewarding the applicant.", "27. At the same time, the serious consequences of the applicant ’ s punishment - a sentence of five years ’ imprisonment and dismissal - had also to be considered, particularly the financial difficulties arising from the deprivation of the said rights as an additional “punishment” for the applicant and his family. The court observed that this was an important factor to be taken into account, according to the circumstances of each case. If the deprivation had not been automatic but discretionary within the framework of enacted procedures, as in England, it would have been possible to examine whether there should be a deprivation and to what extent. The court noted in this respect that it would indeed be good for the State to consider seriously the prospect of an amendment to the law so as to make the system more flexible and fairer in each case. Moreover, there was also the fact that the applicant had to a great extent returned the money he had embezzled, a fact which, although the PSC had said that it had taken it into account, did not appear to have affected its decision, since the punishment imposed on the applicant was, of the ten forms provided for, the extreme one of dismissal instead of choosing the second most serious form of punishment, that of compulsory retirement, which would not have entailed the loss of retirement rights.", "28. In the end, however, the Supreme Court considered that the fact that the case in question arose and was heard on the basis of a different statutory regime from that in Azinas as regards the consequences of dismissal entailing the loss of pension rights, tilted the scales, albeit slightly, in favour of the Republic. The proviso in section 79(7) that the applicant ’ s pension from the day of his dismissal would be paid to his wife and dependent children as if he had died on that date reduced for the family the hardship resulting from the dismissal. Despite this, the court observed that it was likely that there would be cases with even more dire consequences for the dismissed employee, such as when there was no wife or dependent children, or their relationship was such that the dismissed employee could not reasonably expect to benefit through them. Nothing, however, had been said to include the present case among those cases, except for the theoretical possibility that his wife could die before the applicant. The court stated that, if matters were otherwise, it was likely that it would have ruled differently.", "29. Finally, the Supreme Court stressed that the competent bodies should seriously study the possibility of amending the statutory framework on the basis of the law in force in England, so that deprivation of retirement rights was not automatic but could be looked at with the help of enacted procedures and with the exercise of discretion in order that the PSC might determine, by means of a reasoned decision, the extent to which it was just to forfeit, if at all, in any particular case, according to the individual ’ s special circumstances and needs. The Supreme Court considered that both the rule of law and the modern conception of individual justice demanded this.", "2. Appeal proceedings", "30. On 5 June 2007 the applicant lodged an appeal with the Supreme Court (appellate revisional jurisdiction; appeal no. 78/2007). He first challenged the first-instance finding concerning section 79(7) of the Public Service Law. He submitted that this section was contrary to Article 23 of the Cyprus Constitution and Article 1 of Protocol No. 1 to the Convention, as the forfeiture of his retirement benefits had been automatic, without the exercise of any discretionary power. In this respect he argued that the first-instance court had applied the proportionality principle incorrectly during the examination of the penalty imposed by the PSC, and therefore had been wrong when it decided that the measure was proportionate and in line with the Convention. Secondly, the applicant claimed that the finding of the first-instance court that the consequences of this decision were reduced because he was married and thus his wife and dependent children would receive a pension, was discriminatory on the ground of marital status and thus in violation of Article 28 of the Constitution.", "31. On 12 June 2007 the respondent Government also appealed (appeal no. 81/2007) challenging the first-instance findings (a) that in the present case the retirement benefits could be considered a “possession”; (b) that in the disciplinary dismissal of a public servant there was no enacted framework providing for the exercise of discretion as to whether the retirement benefits would be granted; and (c ) that the payment of the pension to the applicant ’ s wife was the only essential factor which tilted the scales in favour of the Republic.", "32. On 18 May 2010 the Supreme Court dismissed both appeals without awarding costs, in view of the importance of the matter raised. It agreed with the first-instance court ’ s finding that the right to a pension and its conditions constituted a possession of the employee. This right was created by the appointment of the employee. The fact that a pension was given to the wife and dependent children suggested that pension benefits were considered as “property” which could be transferred. In this respect the court referred to its judgment in the case of Pavlou v. the Republic (revisional appeal no. 161/2006, (2009) 3 CLR 1402; see paragraph 46 below) and the Court ’ s judgment in the case of Apostolakis v. Greece ( no. 39574/07, 22 October 2009 ).", "33. The court went on to find, however, that the deprivation of the applicant ’ s retirement benefits had been justified. In this respect, the court noted that the PSC had chosen the penalty of dismissal under section 79(7) of the Public Service Law, after exercising its discretion and after considering the consequences and the fact that such a penalty was in the public interest. The first-instance court had examined whether the imposition of the penalty of dismissal, which brought about the automatic forfeiture of retirement benefits, was disproportionate. It had examined whether the PSC, when exercising its discretion, had applied the principle of proportionality in deciding on the penalty of dismissal, which itself resulted in the automatic deprivation of retirement rights. In this respect it held that the PSC had exercised its discretion when deciding to impose the penalty of dismissal. The PSC had had a variety of available penalties at its disposal, such as compulsory retirement, which did not bring about the forfeiture of the pension. It decided, however, in view of the offences committed by the applicant, that such deprivation was justified.", "34. The Supreme Court pointed out that the European Court of Human Rights had acknowledged that the administration had wide discretion in deciding on such matters.", "35. It went on to agree with the first-instance court that the deprivation of the applicant ’ s retirement benefits had been justified in view of the seriousness of the offences, which had dealt a blow to the trustworthiness and credibility of the administration. The relevant domestic law provision was aimed at discouraging public servants from committing serious offences and at protecting the smooth running of the administration. Section 79(7) of the Public Service Law was not contrary to Article 1 of Protocol No. 1, since the deprivation of retirement benefits was not a punishment on its own, but a consequence of the imposition of the penalty of dismissal.", "36. The court went on to distinguish the applicant ’ s case from that of Apostolakis, in which the forfeiture had been automatic following a criminal conviction and had entailed deprivation of both pension and social security rights and therefore of all means of subsistence. In the present case, although the applicant had been deprived of his retirement benefits as a public servant, he had been entitled to receive benefits from the Social Insurance Fund, which were calculated on the basis of contributions made by the employer and the employee. Referring to the Court ’ s judgment in the case of Wieczorek v. Poland ( no. 18176/05, 8 December 2009 ), it found that the applicant had not been deprived of all means of subsistence.", "37. As to the question of discrimination due to marital status, raised by the applicant, the Supreme Court held that the first-instance court ’ s comments on the matter did not support the applicant ’ s claim of discrimination. The comments in question had been made on a hypothetical basis and did not apply to the present case.", "38. Lastly, the Supreme Court dealt with the remaining grounds of appeal put forward by the Government. It observed that the first-instance decision was to the effect that in the event of dismissal the law did not provide for a procedure concerning the exercise of discretion for forfeiting retirement rights, but it did not say that it was not possible to exercise discretion on the matter, since it recognised that there was a choice between dismissal entailing forfeiture of rights and compulsory retirement, which did not. Finally, it pointed out that the first-instance court had set out in its decision all the facts which it had taken into account in deciding on the proportionality of the forfeiture, and had rightly concluded that the payment of the pension to the wife meant that the deprivation was not disproportionate. The court did not award costs in view of the important issues raised.", "C. Other relevant information", "39. The applicant has been receiving a social security pension from the Social Insurance Fund since 31 August 2012, when he reached the age of sixty-three. The pension therefore received by his wife pursuant to section 79(7) of the Public Service Law was then reduced by the complementary sum received by him from the Social Insurance Fund. According to a letter dated 28 November 2012 sent to her by State ’ s Treasury, her pension was reduced by EUR 854,94 per month." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Retirement benefits and disciplinary punishments", "40. A public servant ’ s entitlement to retirement benefits is governed by the Pensions Law, Law 97(1)/97, as amended. The relevant sections, as applicable at the time, provide as follows:", "Section 4 (Granting of retirement benefits)", "“(1) Any pension, lump sum or gratuity, and other allowances, is granted to state officers of the Cyprus Republic in accordance with the provisions of the present Act.", "(2) Any pension, lump sum or gratuity granted under this Act shall be calculated in accordance with the provisions in force on the actual date of the state officer ’ s retirement.”", "Section 5 (charging the Consolidated Fund)", "“The Consolidated Fund of the Republic shall be charged with every pension, lump sum, gratuity or other allowance/benefit for which the Republic is liable on the basis of the law”", "Section 7 (exemption from income tax)", "“ Any gratuity and lump sum granted on the basis of the provisions of the Law are exempted from the imposition of income tax.”", "41. Furthermore, section 8 of the Pensions Law provides the computation formula for pensions and lump sum payments. The following are the cases specified in section 9, as applicable at the time, which entitled a state employee to, inter alia, a pension and lump sum payment. These were: (a) on reaching the age of compulsory retirement or at any time thereafter; (b) on reaching the age of fifty-five; (c) on the abolition of his/her post; (d) on his/her retirement, to facilitate the organisational improvement of the service to which he/she belongs, which may thus achieve more effective operation of the service, or savings; (e) in case the employee was unable to perform his/her duties by reason of a mental or physical incapacity which was likely to be permanent; (f) in the event of termination of the employee ’ s services on specialised grounds of public interest in accordance with the relevant applicable law; (g) in the event of his retirement on account of inadequacy or unfitness; (h) in the event of imposition by the competent disciplinary organ of the disciplinary penalty of compulsory retirement; (i) on retirement for reasons of public interest to take some other public office which is incompatible with his/her office or post; (j) on retirement for reasons of public interest to be appointed to a public benefit organisation or local authority; and (k) in the event of voluntary early retirement.", "42. Section 45 of the Pensions Law provides for reduction of a pension provided under the provisions of the Law by the equivalent complementary amount which is being paid to a pensioner or in this respect by virtue of the Social Security Laws with regard to insurance payments on which contributions were made after 6 October 1980. For the purposes of sections 5(1) and 88(1) of the Social Security Laws the employee is regarded, with reference to any service other than the service which is taken into consideration in calculating the maximum amount of pension and the amount of gratuity, as not covered by a professional pension scheme.", "43. Furthermore, the relevant sections of the Public Service Law (Law 1/1990), as applicable at the time, governing retirement benefits and disciplinary punishment read as follows:", "Section 56 (retirement benefits)", "(1) The retirement benefits of permanent and pensionable officers are those prescribed by the Pensions Law or any law amending or substituted for the same and any Regulations made thereunder.", "(2) The retirement benefits of a monthly-paid officer, who does not belong to the permanent public service and is not serving on contract, shall be prescribed by Regulations made under this Law.”", "Section 79 (disciplinary punishments)", "“1. In accordance with the present Law, the following disciplinary penalties may be imposed:", "(a) reprimand", "(b) severe reprimand", "(c) disciplinary transfer", "(d) interruption of annual salary increase", "(e) suspension of annual salary increase", "(f) pecuniary penalty, which may not exceed three months ’ salary", "(g) reduction in salary scales", "(h) reduction in rank", "(i) compulsory retirement", "(j) dismissal.", "...", "7. Dismissal entails the loss of all retirement benefits.", "It is provided that a pension is paid to the wife or dependent children, if any, of a public servant who was dismissed as though he had died on the date of his dismissal and it shall be calculated on the basis of his actual years of service.”", "44. It is noted that section 79(1) and (7) of the earlier law, namely, the Public Service Law of 1967 (Law 33/1967), applicable at the time of the applicant ’ s employment, was the same as that contained in Law 1/1990, save for the last paragraph of section 79(7), which provides for payment of a pension to the dismissed public servant ’ s family. This amendment was introduced by Law 1/1990.", "B. Relevant Constitutional provisions and case-law", "45. The relevant Constitutional provisions read as follows:", "Article 23", "“1. Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such right. The right of the Republic to underground water, mineral and antiquities is reserved.", "2. No deprivation or restriction or limitation of any such right shall be made except as provided in this Article.", "3. Restrictions or limitations which are absolutely necessary in the interest of public safety, health or morals, or the town and county planning or the development and utilisation of any property to the promotion of the public benefit or for the protection of the rights of others may be imposed by law on the exercise of such right ... .”", "Article 166 (1)", "“There shall be charged on the Consolidated Fund, in addition to any grant, remuneration or other moneys charged by any other provision of this Constitution or law -", "(a) all pensions and gratuities for which the Republic is liable; ...”.", "Article 169 (3)", "“Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto.”", "46. The Supreme Court, in the case of Pavlou v. the Republic (Revisional appeal no. 161/2006, (2009) 3 CLR 1402), which concerned the reduction of the State pension upon receipt of an old-age pension from the Social Insurance Fund, held that a pension constituted property and was consequently an individual right that required legal protection.", "III. RELEVANT INTERNATIONAL MATERIAL", "47. The preamble of the Council of Europe ’ s Criminal Law Convention on Corruption of 27 January 1999 reads, in so far as relevant, as follows:", "“Preamble", "The member States of the Council of Europe and the other States signatory hereto,", "...", "Emphasising that corruption threatens the rule of law, democracy and human rights, undermines good governance, fairness and social justice, distorts competition, hinders economic development and endangers the stability of democratic institutions and the moral foundations of society;", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION", "48. The applicant complained that the forfeiture of his retirement benefits following his dismissal from the public service breached Article 1 of Protocol No. 1 to the Convention, which reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. The parties ’ submissions", "1. The Government", "49. The Government submitted that the determining question in the case, in the light of the Court ’ s case-law concerning similar complaints on forfeiture or loss of pension, was whether a fair balance had been struck between the demands of the general interest of the community and the requirement of the protection of the individual ’ s fundamental rights. They noted that, in line with the Court ’ s case-law, the forfeiture of a retirement pension fell to be considered under the first sentence of the first paragraph of Article 1 of Protocol No. 1, since it acted neither as a control of use nor as a deprivation of property. In the Government ’ s view the required fair balance had not been exceeded.", "50. The Government, relying on the Court ’ s decision in the case of Banfield (cited above) pointed out that the State ’ s entitlement to bring disciplinary proceedings against the applicant in addition to criminal proceedings was not in question: the criminal proceedings related to the breaches of criminal law and the disciplinary proceedings to the applicant ’ s breach of the relationship of trust which must exist between all employees and their employer. They observed in this respect that the situation in the present case had been the same as in Banfield : the applicant had benefited from procedural protection, and the penalty imposed on him had been a discretionary one.", "51. First of all, the disciplinary procedure had commenced following the conclusion of the criminal proceedings. The PSC had transmitted the Assize Court ’ s judgment to the Attorney-General for an opinion as to whether the offences of which the applicant had been convicted entailed dishonesty and moral turpitude. After receiving the Attorney-General ’ s opinion, the PSC had afforded the applicant the right to be heard before deciding on the disciplinary penalty.", "52. Secondly, the PSC ’ s decision to dismiss the applicant had been discretionary. This had been evident from both the Supreme Court ’ s ex tempore decision of 2 April 2007 and its judgment on appeal (see paragraphs 24 and 33 above). The present case was therefore distinguishable from that of Apostolakis (cited above), in which the conviction itself had led to the automatic forfeiture of the pension. Further, unlike in the case of Azinas (cited above), the PSC had taken into account a number of issues when deciding on the penalty, such as the mitigating factors cited by the applicant ’ s lawyer. These had included his difficult financial situation - a socio-economic report by the Department of Social Welfare Services had been submitted by the applicant - and the fact that his co-accused had received the lighter penalty of compulsory retirement. In exercising its discretion, the PSC had taken account of the fact that the applicant had been the main protagonist and the brains behind the offences committed. Soon after he had been entrusted with the task of signing authorisations for the payment of compensation to members of the public for compulsory acquisitions of their property, he had systematically, over a period of two years, used his position to defraud public funds of substantial amounts for his own personal gain. He had planned the whole scheme, and had executed it with the aid of his co-accused. As a result 223 criminal charges had been brought against him, and the offences of which he had been convicted and sentenced had been very serious. The Government considered that it could be assumed that the applicant had caused considerable damage to the public ’ s trust in the proper functioning of the Public Service and the honesty of State employees in administering State funds. The PSC had therefore decided to impose the penalty of dismissal, which was the most severe provided by the Public Service Law, as it carried the loss of all retirement benefits specified in section 56 of that Law, as applicable at the time. The Government stressed in this respect that in the case of Banfield (cited above) the Court had stated that it was not inherently unreasonable for provision to be made even for total forfeiture of a pension in suitable cases.", "53. Thirdly, the applicant ’ s retirement pension and lump sum had been entirely publicly funded, the applicant having made no contributions. The forfeiture related to the State ’ s funding of the pension scheme. No issue therefore arose of forfeiture of contributions made by the applicant. Relying on the case of Klein v. Austria (no. 57028/00, § 57, 3 March 2011), the Government submitted that this was an important factor to take into account. The payment by the Republic of a public service retirement pension without any contribution by its civil servants constituted the employee ’ s reward for faithful service. If the applicant had received this reward, or part of it, public confidence would have been further shaken. The Government pointed out in this respect that at the time of his dismissal the applicant had been covered by an occupational pension scheme applicable to all State employees. This scheme provided State employees with benefits upon their retirement or resignation from service. In the event of their death the benefits were given to their dependents. The applicant, upon retirement, would have been entitled to an annual pension and a lump sum payment computable in accordance with the provisions of the Pensions Law, as applicable at the time. That law provided that the Republic was obliged to pay those benefits, which were charged to the account of the Republic ’ s consolidated fund. This was the fund into which, by virtue of the Constitution, all revenues and monies raised or received by the Republic were paid. Had the applicant theoretically retired voluntarily on 13 June 2005, pursuant to section 8 of the Pensions Law (see paragraph 41 above), he would have been entitled to an annual pension amounting to EUR 17,161.65; the lump sum came to EUR 80,087.82.", "54. However, in contrast to the Apostolakis case (cited above), the applicant ’ s loss of retirement benefits had not entailed loss of his social insurance rights, nor had he been deprived of all means of subsistence. At all material times the applicant, like all State employees, had also been compulsorily insured under the Republic ’ s general Social Insurance Scheme, which covered all employees and entitled them to the payment of a social security pension from the Social Insurance Fund. This pension was funded by employee contributions as well as employer contributions, and its level depended on the amounts that had been contributed. The right to benefits payable from the Social Insurance Fund was not affected in the event of dismissal. Consequently, since 2012, when the applicant reached the age of sixty-three, he had been receiving a social security pension from the Social Insurance Fund amounting to EUR 1,363.98 per month. Although the Government admitted that this amount was slightly less than what he would have been entitled to under the Pensions Law if he had retired voluntarily on 13 June 2005, unlike the applicant in the case of Apostolakis, at the age of fifty-six the applicant still had employment potential.", "2. The applicant", "55. The applicant submitted, firstly, that it was clear from the domestic judgments and was also common ground between the parties that his pension amounted to a possession within the meaning of Article 1 of Protocol No. 1 and that its deprivation constituted an interference with his right to the peaceful enjoyment of his possessions. It was the applicant ’ s position that this interference was unjustified. In this respect he argued that a pension constituted an integral part of the employment contract that the Government offered to all of its employees, namely civil servants. This was evident from the schemes of service provided by the Government. Employment in the civil service came with a general undertaking and a corresponding legitimate expectation that a pension was payable as an integral part of the conditions of service. It was part of the overall employment package which the Government undertook to finance and pay at the end of one ’ s employment. Consequently, when the applicant ’ s employment was terminated by the Government he was entitled to his pension.", "56. The applicant submitted that the automatic forfeiture of his retirement benefits upon the imposition of the penalty of dismissal had not been in the public interest and could not be considered justified or proportionate. The applicant had pleaded guilty to twenty-four charges in the criminal proceedings and had been sentenced to five years ’ imprisonment. The Assize Court when sentencing the applicant had taken into account the seriousness of the offences and had explained why a custodial sentence was appropriate and why it could not be suspended. Despite the fact that the penalty provided by the domestic law ranged from three years ’ imprisonment to life imprisonment, as part of the arrangement reached with the Government the applicant had received a five year sentence, which he had served. The applicant had also repaid the amount taken as part of the deal. The PSC had then through disciplinary proceedings decided to impose the strictest punishment provided by the law, namely dismissal. In the applicant ’ s view the above had constituted an adequate response to his misconduct and had been commensurate to the damage to public confidence. However, as a result of the dismissal he had also been automatically deprived of all his retirement benefits, including his pension which had been earned during his thirty-three years of employment as a civil servant. This could have been avoided if the PSC had imposed compulsory retirement, which would not have affected his retirement rights. Consequently, even though the applicant had repaid his debt to society having been convicted by a criminal court, served a prison sentence, reimbursed the amount due, and lost his job, all his retirement benefits were forfeited, exposing him to great financial and emotional hardship. The applicant had been subjected to a triple punishment, which was contrary to the principles of international law and the spirit of the Convention, as no one should be punished more than once for the same offence. Furthermore, the punishment was of a continuing nature: the longer the applicant lived the harsher the punishment was, as he remained without a pension.", "57. The applicant argued that just as in the case of Apostolakis (cited above ) the imposition of the penalty of forfeiture of his retirement benefits was automatic and therefore sui generis disproportionate. In the above case the Court had also ruled that the fact that domestic law provided for the pension to be transferred to the family was insufficient to compensate Mr Apostolakis for his loss.", "58. The applicant pointed out that the Government had not provided full and detailed information about the public service pension scheme. Furthermore, their observations were misleading, for a number of reasons. First of all, during the criminal proceedings the Government had not insisted on the maximum penalty provided by the domestic law, but had agreed to reach an arrangement in the case. How could they now argue before the Court that the imposition of a lesser disciplinary penalty would have been wrong? Secondly, the Government had attempted to create the impression that there was a clear distinction under domestic law between what was designated as the public service retirement pension and the social security pension, but that was not the case, as these pensions were treated as one. This was the reason why when a person reached retirement he was entitled only to one pension, and the pension granted under the Pensions Law was reduced by the corresponding amount granted as a pension from the Social Insurance Fund. The Government had failed to mention this. When the applicant had turned sixty-three and started receiving a social security pension, the pension received by his wife pursuant to section 79(7) of the Public Service Law was reduced by the complementary amount received by him from the Social Insurance Fund. Thirdly, it was misleading to argue that the payment of the non-contributory pension constituted a reward for faithful service. The pension could not be construed as a reward by the Government to the employee, but as part of his/her entitlements. It was therefore not subject to a work performance review. He lastly submitted, relying on the dissenting opinion of Judge Ress in the Grand Chamber judgment in Azinas (cited above), that it would be arbitrary to place the dividing line under the property aspect between those public servants who were working within a system of social security contracts where contributions were formally paid and those whose contributions were from the very beginning indirectly deducted from their salaries and therefore paid by the State.", "B. The Court ’ s assessment", "1. General principles", "59. The principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to pensions (see Stummer v. Austria [GC], no. 37452/02, § 82, 7 July 2011, and Andrejeva v. Latvia [GC], no. 55707/00, § 77, 18 February 2009). Thus, that provision does not guarantee the right to acquire property (ibid.). Nor does it guarantee, as such, any right to a pension of a particular amount (see, among many other authorities, Andrejeva, cited above, and Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 84, 2 5 October 2011 ). However, where a Contracting State has in force legislation providing for the payment as of right of a pension – whether or not conditional on the prior payment of contributions – that legislation has to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for individuals who satisfy its requirements (see, among other authorities, Pejčić v. Serbia, no. 34799/07, § 55, 8 October 2013; Stummer, cited above, § 82; Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 64-65, ECHR 2010; and Banfield, and Apostolakis, § 29, both cited above ). The reduction or the discontinuance of a pension may therefore constitute an interference with peaceful enjoyment of possessions that needs to be justified (see, among other authorities, Grudić v. Serbia, no. 31925/08, § 72, 17 April 2012, and Valkov and Others, cited above).", "60. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful and that it should pursue a legitimate aim “in the public interest” (see, among many authorities, The Former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 79 and 83). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions (see, among other authorities, Stefanetti and Others v. Italy, nos. 21838/10, 21849/10, 21852/10, 21822/10, 21860/10, 21863/10, 21869/10, and 21870/10, § 52, 15 April 2014 ). Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation (see, among other authorities, The Former King of Greece and Others, cited above, § 87 ).", "61. Any interference must also be reasonably proportionate to the aim pursued. In other words, a “fair balance” must be struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. The requisite balance will not be found if the person or persons concerned have had to bear an individual and excessive burden (see, among many other authorities, The Former King of Greece and Others, cited above, §§ 89-90 ).", "2. Application to the present case", "(a) Admissibility", "62. The Court notes that it was common ground between the parties that the retirement benefits of a civil servant in Cyprus constituted a possession under Article 1 of Protocol No. 1. Indeed, in the light of its case-law (see paragraph 58 above), the Court finds that the applicant, when entering the civil service, acquired a right which amounted to a “possession” and that therefore this provision is applicable in the present case.", "63. The Court further notes this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "(b) Merits", "64. The parties agreed that the forfeiture of the applicant ’ s retirement benefits amounted to an interference with his right to the peaceful enjoyment of his possessions. Furthermore, it was not in dispute that the interference, which was based on the unambiguous wording of section 79(7) of the Public Service Law, was lawful in terms of both domestic and Convention law. The Court, taking into account its relevant case-law, sees no reason to hold otherwise.", "65. The Court notes in this respect that the reduction or forfeiture of a retirement pension acts neither as a control of use nor a deprivation of property, but that it falls to be considered under the first sentence of the first paragraph of Article 1 (see Klein, § 49, and Banfield, both cited above).", "66. Accordingly, it is the issue of proportionality which lies at the heart of the case. This being so, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights.", "67. The Court has no doubt that it was appropriate for the national authorities to bring disciplinary proceedings against the applicant in addition to the criminal ones and, given the applicant ’ s reprehensible misconduct and the nature and gravity of the offences, to opt for the most serious penalty, namely dismissal. Indeed, this is acknowledged by the applicant (see paragraph 5 6 above), whose grievance is concentrated rather on the automatic forfeiture of all his retirement rights upon his dismissal.", "68. In this connection, the Court reiterates that in the case of Banfield (cited above) it held that, having regard to the margin of appreciation allowed to States in making appropriate provision for its civil servants ’ pensions, it did not consider it inherently unreasonable for provision to be made for reduction or even total forfeiture of pensions in suitable cases. More recently, the Court has observed in general (see Da Silva Carvalho Rico v. Portugal ((dec.), no. 13341/14, 1 September 2015) and Stefanetti and Others, cited above, § 59, 15 April 2014 ), that the deprivation of the entirety of a pension was likely to breach Article 1 of Protocol No. 1 (see, for example, Apostolakis, cited above, and Kjartan Ásmundsson v. Iceland, no. 60669/00, ECHR 2004 ‑ IX ) and that, conversely, the imposition of a reduction which it considers to be reasonable and commensurate would not (see, for example, among many other authorities, Da Silva Carvalho Rico, and Valkov and Others, both cited above; Arras and Others v. Italy, no. 17972/07, 14 February 2012; Poulain v. France (dec.), no. 52273/08, 8 February 2011; and, a contrario, Stefanetti and Others, cited above). It is evident, however, from the relevant case-law, that whether or not the right balance has been struck will very much depend on the circumstances and particular factors of a given case which may tip the scales one way or the other.", "69. In the present case, the applicant, after pleading guilty to a number of very serious offences which included obtaining a substantial amount of money by false pretences, forging cheques, concealment and abuse of office (see paragraph 8 above), was sentenced to five years ’ imprisonment (criminal case no. 18115/02). In passing sentence the Nicosia Assize Court took into account another eight similar criminal cases pending against the applicant. A total of 223 criminal charges against the applicant were involved.", "70. Following the applicant ’ s conviction in the above case and, after receiving the Attorney-General ’ s advisory opinion that the offences committed involved dishonesty or moral turpitude, the PSC initiated disciplinary proceedings against the applicant. The applicant was able to make representations before the PSC before the decision on the disciplinary penalty was taken. In particular, through his lawyer, the applicant put forward a number of mitigating factors and submitted a report by the Department of Social Welfare Services on his financial situation (see paragraph 13 above). Thereafter, the decision of the PSC was reviewed by the Supreme Court at two levels of jurisdiction. In addition, unlike in the case of Apostolakis (cited above), there were disciplinary proceedings which were separate from the criminal proceedings, and the applicant ’ s personal position was considered in depth before the PSC decided on the penalty to be imposed. The Court finds, and indeed the parties do not contest, that the applicant benefited from extensive procedural guarantees (see Banfield, cited above).", "71. The Court observes that it was open to the PSC to impose any of the ten penalties provided for by section 79(1) of the Public Service Law. In the circumstances, it was inevitable that the penalty imposed on the applicant would be at the more severe end of the sliding scale of penalties, and after hearing the applicant ’ s counsel, the PSC chose the most severe penalty, namely dismissal. As a result, section 79(7) of the above Law applied, that is, the applicant forfeited his retirement benefits.", "72. In practice, and again differently from the case of Apostolakis, that did not leave the applicant without any means of subsistence. In this respect the Court notes that the forfeiture concerned the applicant ’ s public service retirement benefits, that is, a retirement lump sum and a monthly pension (see paragraph 17 above). He remained eligible to receive, and did receive from August 2012, a social security pension from the Social Insurance Fund to which he and his employer had contributed (see paragraph 39 above).", "73. Furthermore, a widow ’ s pension was paid to his wife pursuant to section 79(7) of the Public Service Law (a provision which was not applicable in the case of Azinas; see the Grand Chamber judgment, cited above, §§ 21-22), which ensured that his family immediately received a pension based on the assumption that he had died rather than been dismissed. It is true that the Court found, in the Apostolakis case, that the fact that a pension had been transferred to Mr Apostolakis ’ s family did not suffice to offset the loss of his own pension, as it considered that in future he could lose all means of subsistence and all social cover, for example, if he became a widower or divorced ( see Apostolakis, cited above, § 40). The Court finds, however, that this reasoning cannot be applied in the present case as the applicant has not claimed that during the seven year period between his dismissal and the date when he became eligible and started to receive a social security pension, he was unable to benefit for any reason from the pension paid to his wife and family. Following that, he began to receive his social security pension in full; his public service retirement pension would in any event have been set off against the amount of the social security pension (see paragraph 5 8 above). In addition his wife continued and continues to receive a part of the widow ’ s pension (see paragraphs 39 and 5 8 above).", "74. Weighing the seriousness of the offences committed by the applicant against the effect of the disciplinary measures (see, inter alia, paragraph 47 above) and taking all the above factors into consideration, the Court finds that the applicant was not made to bear an individual and excessive burden.", "75. It follows that there has been no violation of Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 12 AND ARTICLE 1 OF PROTOCOL No. 1 TAKEN IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "76. The applicant complained that the deprivation of his retirement benefits, on the ground that his wife and dependents would still benefit from it, had been discriminatory on the basis of his marital status, and therefore contrary to Article 1 of Protocol No. 12 as well as Article 14 of the Convention taken together with Article 1 of Protocol No.1. Article 14 and Article 1 of Protocol No. 12 read as follows:", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 12", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "77. The Government contested that argument.", "78. The Court notes that the applicant ’ s complaint as to discrimination is triggered by the findings made by the Supreme Court, at first instance, and in particular, the weight that the court gave to the payment of a widow ’ s pension to his wife from the day of his dismissal pursuant to section 79(7) of the Public Service Law.", "79. The Court notes that the clear aim of section 79(7) of the Public Service Law was to ensure that the effects of deprivation of a pension affected the person against whom disciplinary proceedings had been brought, and not his or her family. This provision benefited the applicant ’ s family and did not adversely affect him in any way.", "80. Accordingly, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "81. Lastly, the applicant complained that he had been unable to contest the legality of the decision of the PSC, that the decision had become unassailable, and that he had been deprived of effective access to court. He relied on Article 13 of the Convention. This provision reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "82. The Court notes that the applicant ’ s complaint under this provision is in effect a complaint about right of access to court under Article 6 § 1 of the Convention. The Court observes, however, that the applicant was able to challenge the decision of the PSC before the Supreme Court. The Supreme Court examined the merits of the applicant ’ s arguments at first instance and on appeal, but he was unsuccessful, as it was ruled at both levels that the forfeiture of his retirement benefits resulting from his dismissal had been proportionate. In these circumstances it cannot be said that the applicant was deprived of his right of access to court. The mere fact that the outcome of the proceedings was not favourable to the applicant is not equivalent to depriving him of this right.", "83. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant was born in 1953 and lives in Budapest.", "11. He had been employed as a police officer when, having reached an age when he was entitled to do so, he took early retirement and started receiving a “service pension” ( szolgálati nyugdíj ) from 1 January 2000, when he was nearly 47 years old. The applicant, however, continued to work: he was employed in the private sector between 2000 and 2012 and from 1 July 2012 until 31 March 2015 he worked, as a civil servant, as the head of the Road Maintenance Department of the Budapest XIII District Municipality. The applicant paid the statutory contributions to the State old-age pension scheme from the first day of his employment (1 August 1973) until 31 March 2015.", "12. On 28 November 2011 Parliament enacted Act no. CLXVII, which entered into force on 1 January 2012. According to section 5(1) of that law, service pensions like that of the applicant were converted into a “service allowance” ( szolgálati járandóság ), provided that the person concerned was born in or after 1955. Pursuant to section 3(2 ) ( b) of the same Act, for recipients of a service pension who, like the applicant, were born in or before 1954, the service pension was to be converted into an old-age pension.", "13. On 1 January 2013 an amendment to Act no. LXXXI of 1997 on Social-Security Pensions (hereafter “the 1997 Pensions Act”) entered into force, according to which the disbursement of those old-age pensions whose beneficiaries were simultaneously employed in certain categories within the civil service would be suspended from 1 July 2013 onwards for the duration of their employment (see also paragraphs 23 - 28 below). No such restriction was put in place in respect of those who were in receipt of an old-age pension while being employed within the private sector.", "14. On 18 February 2013 the National Pensions Administration ( Országos Nyugdíjbiztosítási Főigazgatóság ) sent a letter to the applicant in his capacity as the recipient of an old-age pension, informing him of the amended legislation and instructing him to make a declaration as to whether he was employed in the civil service, in one of the categories concerned by the amendment of 1 January 2013. By a letter of 29 April 2013 the applicant notified the National Pensions Administration of his employment situation. Subsequently, on 2 July 2013, the National Pensions Administration informed the applicant that the disbursement of his pension had been suspended as of 1 July 2013. At that time his pension amounted to 162,260 Hungarian forints (HUF; at that time approximately 550 euros (EUR)) per month.", "15. On 15 July 2013 the applicant lodged an administrative appeal with the National Pensions Administration (see paragraph 21 below) against the suspension of his pension payments in which he argued that his pension constituted an acquired right and that he was being discriminated against since pensioners working in the private sector continued to receive their pensions.", "16. The National Pensions Administration sought further information from the applicant on 23 July 2013. The applicant elaborated on his appeal on 1 August 2013, referring, inter alia, to an application filed by the Ombudsman with the Constitutional Court in May 2013 (AJB-726/2013). In that application the Ombudsman set out the complaints which had been made to his Office about the amendment of the 1997 Pensions Act and raised the issue of a difference in treatment between pensioners employed in the civil service and those employed in the private sector. As far as the Court is aware, this case is currently still pending before the Constitutional Court.", "17. On 27 September 2013 the National Pensions Administration discontinued the proceedings concerning the applicant ’ s appeal, holding that the applicant had failed to provide the information sought from him on 23 July 2013.", "18. The applicant ’ s employment with the Budapest XIII District Municipality came to an end on 31 March 2015. On 24 April 2015 the competent authority decided that the disbursement of his pension would be resumed. His pension was increased to HUF 177,705 (at that time approximately EUR 585).", "III. COMPARATIVE -LAW MATERIAL", "31. The Court conducted a comparative study of the legislation of 36 member States [1] of the Council of Europe.", "A. Possibility of simultaneous receipt of a State pension and a salary", "32. In almost all of the 36 States surveyed it is possible, in one way or another, to receive a State pension and a salary simultaneously. Only in the former Yugoslav Republic of Macedonia is the State pension suspended, without exception, if the person continues to work and receive a salary.", "33. However, in the vast majority of States, some form of reduction or suspension of the pension is applied in various situations. These can broadly be divided into the following categories.", "1. Beneficiaries of an early - retirement pension", "34. Many States ’ legislation distinguishes between people who retire early and people who retire at the legal age of retirement (usually between 60 and 65). Thus, in Andorra, Croatia, the Czech Republic, Estonia, Latvia, Romania and Slovakia, payment of the State pension is suspended while the person continues to work, if he or she retired before reaching the statutory age of retirement. In Portugal, such suspension is applied for three years if the person continues to work for the same company or group of companies.", "35. Meanwhile, in some States such as Austria, Denmark, Germany, Luxembourg, Poland and Sweden, an early - retirement pension is reduced or suspended only if the salary earned reaches a certain level. This reduction applies in Iceland not only to early - retirement pensions, but to all forms of pension. In Finland, a person ’ s early - retirement pension is not affected in any way by further employment.", "2. Persons who continue to work in the public sector", "36. In some of the States surveyed, the pension payment is suspended for people who continue to work in the public sector, whilst no obstacles apply in the private sector (see also paragraphs 38 - 43 below).", "3. Beneficiaries of a disability or invalidity pension", "37. There are some differences between how the States surveyed regulate salary earned simultaneously with a disability or invalidity pension. In some States such as Austria, reductions are applied if the total amount of pension and salary exceeds a certain threshold. In Croatia and Italy, the accumulation of pension and salary is not possible. On the other hand, pension payments are not suspended for disabled people in Ukraine. Accumulation is also possible in Romania for pensioners with a third - degree invalidity and blind persons.", "B. Differences between employment in the private and public sectors when pension payments may be reduced or suspended", "38. As stated above (paragraph 36 ), some States suspend State pension payments for people who continue to work in the public sector, whereas they may retain full payment if they continue to work in the private sector. For example, in Andorra, the retirement pension of a civil servant is suspended if that person continues to work as a civil servant or agent in the public administration. In Georgia, suspension of a pension would apply to all categories of jobs in the public sector. A person who continues to work in the private sector in Portugal may simultaneously receive a State pension, while the pension is suspended in the public sector. In Spain, Turkey and Ukraine, accumulation is possible for self-employed persons (up to a certain level), but not for most public - sector employees.", "39. In Azerbaijan, while accumulation is possible without a suspension or reduction of the State pension, some categories of public - sector employees, including civil servants, are entitled to supplements to the pension. Supplements are calculated based on a certain percentage of the average salary during the employment period. These supplements will be reduced, or even suspended in some situations. However, they are not reduced or suspended if the person continues to work in the private sector.", "40. The same goes for a special form of public - service pension in Denmark. Payment of the public - service pension is suspended if the person continues to work as a public servant, but not if he or she continues to work in the private sector.", "41. In Italy, if the total amount of public - sector employees ’ earnings (including old-age pension) exceeds a certain ( quite high) threshold, their salary is reduced to the level of that threshold, while the amount of pension remains the same.", "42. In Austria, conversely, public servants, but not private - sector employees, are exempted from the reduction applied to pension payments.", "43. However, a majority of the States surveyed do not make a distinction between the public and private sectors regarding whether pension payments may be reduced or suspended." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "19. The Fundamental Law of Hungary provides as follows:", "Article XII", "“(1) Everyone shall have the right to freely choose his or her work or occupation and to engage in entrepreneurial activities. Everyone shall be obliged to contribute to the enrichment of the community through his or her work, in accordance with his or her abilities and opportunities.", "(2) Hungary shall strive to create the conditions to ensure that everyone who is able and willing to work has the opportunity to do so.”", "20. At the relevant time, the employment of civil servants ( közalkalmazott ) was regulated by Act no. XXXIII of 1992 on the Legal Status of Civil Servants; the employment relationship of public officials ( köztisztviselő ), Government officials ( kormánytisztviselő ), officials in charge of public service administration ( közszolgálati ügykezelő ) and, in relation to some aspects, senior State officials ( állami vezető ) was governed by Act no. CXCIX of 2011 on Public Servants. Employment relationships in the private sector were governed by Act no. I of 2012 on the Labour Code.", "21. The Hungarian compulsory social - security pension scheme is a contributory one. Persons in employment (be it in the public or private sector) pay a certain percentage – ten percent in 2013 – of their monthly income from work towards the scheme. Moreover, employers, private entrepreneurs and primary producers pay a social contribution tax of 27% of the amount of salaries paid, which goes, in whole or in part – the decision being made periodically on the basis of financial circumstances – towards the maintenance of the social - security pension system.", "The Pension Fund ( Nyugdíjbiztosítási Alap ) thus obtained represents an item in the State budget. Pensions are paid from the Fund by the National Pensions Administration, which is a Government agency. If the Fund ’ s expenditures exceed its revenues, the State shall secure the necessary resources from the central budget.", "22. The periods during which a person contributes to the scheme qualify as service time. The amount of pension paid out under the scheme, which is not subject to tax, is dependent on the service time and on that part of a person ’ s income which was subject to compulsory contributions.", "23. In recent years, a number of measures were taken to terminate or reduce the concurrent receipt of State-paid pensions and State-paid salaries. Firstly, on 29 December 2012 Government Decree no. 1700/2012 on the principles of pension policy applicable to the civil service was issued. It prohibited the employment by central Government of persons entitled to an old-age pension, and stipulated that it was only in exceptional cases that vacancies could be filled by persons entitled to such a pension. Secondly, the 1997 Pensions Act was amended on 1 January 2013 to prohibit the simultaneous disbursement of remunerations financed by the central budget and old-age pensions or early - retirement pensions. This amendment applied, inter alia, to pensioners employed by local government bodies. A number of categories of persons in State employment were, however, exempted from the suspension of pension payments, such as members of Parliament, mayors, and judges and prosecutors on administrative leave, as well as persons employed in the public sector under the rules of the Labour Code who carried out tasks not related to the exercise of public powers.", "24. Sections 83/C and 102/I of the 1997 Pensions Act as amended on 1 January 2013 provided as follows:", "Section 83/C", "“(1) The disbursement of an old-age pension shall be suspended ... if the pensioner concerned is employed as a civil servant, a government official, a senior State official, a public official, an official in charge of public service administration, a judge, an officer of the court, an officer of the prosecutor ’ s office, a professional member of an armed service, or a professional member or contractor of the Hungarian Defence Force.", "...", "(3) For the period of suspension of the old-age pension the person concerned shall qualify as a pensioner.", "(4) Disbursement of the old-age pension may be continued at the pensioner ’ s request, if the beneficiary proves that the employment in subsection (1) above has been terminated.", "....”", "Section 102/I", "“(1) Beneficiaries of an old-age pension working in any of the employments listed in section 83/C(1) on 1 January 2013 shall notify the pensions disbursement agency thereof by 30 April 2013.", "(2) The old-age pension of persons working in any of the employments listed in section 83/C(1) on 1 January 2013 shall be suspended from 1 July 2013, provided that such employment is maintained on that date.”", "25. The lawmaker ’ s explanation of section 83/C contains the following passage:", "“The amendment introduced the prohibition of double compensation in respect of the employment relationships of civil servants, government officials, senior State officials, public officials, officials in charge of public service administration, judges, officers of the court or the prosecutor ’ s office, professional members of an armed service, as well as professional members and contractors of the Hungarian Defence Force. Accordingly, persons working in such employments may not receive an old-age pension ... in addition to their remuneration, with the result that such payments must be suspended by the pension disbursement agency for the term of the employment.”", "26. In the decision to suspend pension payments under section 83/ C( 1) no account is taken of the amount of salary being earned by the person concerned.", "27. Beneficiaries of pension payments under the compulsory social ‑ security pension scheme who are at the same time in employment contribute to the scheme in the same way as other employed persons (see paragraph 21 above). They may request a yearly increase of their monthly pension payment in an amount of 0.5% of one-twelfth of their income from work carried out during a calendar year. If disbursement of the pension has been suspended under section 83/ C( 1) of the 1997 Pensions Act, the payment of any such yearly increases is suspended as well. Once disbursement resumes, the yearly increases will be added to the amount of pension that was received prior to the suspension.", "28. According to data supplied by the Government, the number of persons in receipt of an old-age pension on 1 July 2013 was 2,007,426. The pension payments of a maximum number of 5,288 persons were suspended at any one time in the course of 2013 under section 83/ C( 1) of the 1997 Pensions Act. The maximum number of persons concerned at any one time in 2014 was 4,545; in 2015 4,212; and, in the period between January and August 2016, 3,945. Between March 2013 and August 2016 an amount of HUF 30,602,215,675 ( at the last - mentioned date approximately EUR 98 million) was not disbursed as a result of the amendment of the 1997 Pensions Act. However, persons who worked in the public health - care sector and who had their pension payments suspended pursuant to section 83/C(1) of the 1997 Pensions Act (3,169 persons between July 2013 and August 2016) were provided by the National Health Fund with monthly compensation equal to the amount of their pension. Between July 2013 and August 2016 such compensation amounted to HUF 25,190,700,000 ( at the last - mentioned date approximately EUR 8 1 million), which reduced the total amount of savings in State expenditure to HUF 5,411,515,675 (approximately EUR 17 million in August 2016 ).", "29. Act no. CLXXVIII of 2012 on the amendment of certain tax-related legislation amended the 1997 Pensions Act and entered into force in January 2013. This amendment abolished the previously existing ceiling in respect of statutory contributions to the pension scheme, in order to increase the revenues of the Pension Fund.", "30. In 2000 the general statutory retirement age for men in Hungary was 62; an old-age pension could be drawn by those who had reached that age and had completed at least twenty years ’ service. That age was subsequently, and gradually, raised to 63 for both men and women born in 1953.", "Various early - retirement schemes used to be statutorily available, both in the public sector (including the armed forces, to which, in Hungary, also the police belong) and the private sector, and over the years a great number of persons opted to make use of such schemes. From 1 January 2012 onwards those schemes – inasmuch as new entrants were concerned – were abolished by the entry into force of Act no. CLXVII (see also paragraph 12 above ).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN ALONE", "44. The applicant complained that the suspension of disbursement of his old-age pension amounted to a violation of Article 1 of Protocol No. 1 to the Convention, which reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. The Chamber judgment", "45. In its judgment, the Chamber first examined the applicant ’ s complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Having reached a finding of a violation in that respect, the Chamber considered that it was not necessary to examine whether the facts of the case also constituted a violation of Article 1 of Protocol No. 1 taken alone.", "B. The parties ’ submissions to the Grand Chamber", "1. The applicant", "46. The applicant submitted that it followed from the Court ’ s case-law that, as a result of his regular contributions to the State pension scheme from the first day of his employment on 1 August 1973, he had acquired a property right in the form of a legitimate expectation, which therefore entailed the applicability of Article 1 of Protocol No. 1. Owing to the application of section 83/C of the 1997 Pensions Act, he had been deprived of his entire monthly pension. He argued that this deprivation could not be justified by the general interest and was not proportionate.", "47. The applicant accepted that the Government enjoyed a wide margin of appreciation in assessing the requirements of the general interest. However, in his opinion, it was not enough for the Government merely to refer to the general interest without demonstrating that the impugned measure was actually required by that interest. He contended that in this regard the present case fell to be distinguished from the case with which the Government sought to compare it ( Panfile v. Romania ( dec. ), no. 13902/11, 20 March 2012 ), in that in Romania the legislative measure prohibiting the simultaneous receipt of a State-paid pension and a salary acquired through State employment had been taken at the height of the financial crisis, and had been lifted when that crisis had abated. In contrast, by the time the amended legislation had entered into force in Hungary (1 July 2013), Hungary had already ceased to be subject to the EU excessive deficit procedure, the release from which had been the aim of the legislation. In addition, the Government had declared in 2013 that the country ’ s economic situation was excellent, and also from their ambitious spending plans it appeared that they were of the view that the economic crisis was over.", "48. The measure was in any event not fit for the purpose it claimed to pursue, since it only affected a small group of pensioners, bearing in mind that pensions continued to have to be paid to pensioners working in the private sector and to those pensioners employed in the public sector who had been exempted from the ban on accumulation of State-paid pensions and salaries. In addition, in the same year, 2013, the pension ceiling had been raised considerably: whereas it had previously not been possible for a monthly pension to exceed HUF 300,000 (at that time approximately EUR 1,020), the highest monthly pension paid out had now reached HUF 2,000,000 (currently approximately EUR 6,500). Having regard to those factors, the impugned measure could not even in theory have contributed to helping Hungary obtain release from the excessive deficit procedure. The savings actually made currently amounted to no more than 0.0001% of Hungary ’ s gross domestic product (GDP).", "49. For the measure to have a genuine impact on the State budget, it should have provided for the suspension of pension payments to precisely those persons in State employment who had been exempted from such suspension, as it was they who were in receipt of substantially higher pensions than the persons, like the applicant, who had had their pension payments suspended. Moreover, those State employees ’ earnings were also considerably higher than the applicant ’ s salary and the suspension of their pension payments would thus not have had the same impact on them as it had had on the applicant, who had only taken up employment after his retirement out of financial necessity. In that connection he submitted that his pension had been lower than the general monthly salary before tax in Hungary which, according to Hungary ’ s Central Statistical Office, had stood at HUF 229,700 a month (at that time approximately EUR 780) between January and November 2013.", "50. No account had, however, been taken of his income when it was decided that the disbursement of his pension was to be suspended. This also distinguished the case from Panfile, since in Romania the ban on the accumulation of State-paid pensions and salaries only applied if a person ’ s pension exceeded the national average salary before tax.", "51. The applicant had, moreover, taken out a bank loan on the basis of his income consisting of his pension and his salary, and, following the suspension of his pension payments, had encountered problems reimbursing that loan. The loss of half his income had caused, and continued to cause, serious repercussions for his circumstances and those of his family. The applicant concluded that he had been made to bear an excessive and individual burden.", "52. Finally, the applicant disputed the Government ’ s claim that other Council of Europe member States had identical or even similar legislation in place.", "2. The Government", "53. The Government acknowledged that the pension right at issue in the applicant ’ s case was a pecuniary right for the purposes of Article 1 of Protocol No. 1. While they accepted that the impugned measure constituted interference with the peaceful enjoyment by the applicant of that right, they disputed that it amounted to a total deprivation of his entitlements.", "54. The Government further argued that the interference was legitimate and served the general interest. At the hearing before the Grand Chamber they submitted that, owing to an imbalance in the ratio of pension recipients as opposed to pension contributors – caused, inter alia, by an ageing population and the statutory availability of early-retirement schemes – the Hungarian State pension system had been facing serious challenges, with the situation being exacerbated by the 2008 global economic crisis. A number of measures had therefore been taken in order to reform the pension system. One such measure had been the abolition in 2013 of the ceiling on monthly pension contributions (see paragraph 29 above), which had been incorrectly described by the applicant as the elimination of the maximum amount that could be received by way of a monthly pension; in fact, the law in force prior to the measure had not contained such a maximum. In the short run, the abolition of the ceiling on pension contributions had resulted in a significant increase in the revenues of the Pension Fund and, while in the long run it might also lead to an increase in expenditure, important constraints – such as a highly degressive calculation of pension amounts – were in place to prevent such a development.", "55. Apart from reforming the pension system, the Government had also taken action in the field of employment policy, aimed at both the reduction of public debt and ensuring a fairer system of burden sharing and distribution of public funds. In 2012, compulsory retirement at the statutory pensionable age with a prohibition on resuming employment had been introduced in the civil service sector by Decree 1700/2012 (see paragraph 23 above) as a means of downsizing that service, where appropriate, and reducing youth unemployment. That decree was applicable only to central Government – that is, ministries and their subordinate bodies – and could thus not impose any obligation on local government bodies to dismiss persons in receipt of pension benefits in their employ. It was to the latter category of employees that the measure at issue in the present case applied; they were given the choice between either discontinuing their employment and continuing to receive their pension, or continuing their employment and having their pension payments suspended. This measure was thus part of a package of measures aimed at securing the long-term sustainability of the pension system, reducing public debt and facilitating the closure of the EU excessive deficit procedure that had been initiated against Hungary (by the Council of the European Union in accordance with Article 126 of the Treaty on the Functioning of the European Union).", "56. According to the Government, the interference at issue had, moreover, been proportionate. In this connection they referred to the case of Panfile, cited above, which, like the present case, also concerned an applicant who – at the time a law had entered into force prohibiting the concurrent receipt of a pension and a State-paid salary – had been in receipt of pension benefits while simultaneously being in State employment. In that case the Court had noted that, since Mr Panfile had had the choice between continuing to receive his monthly pension and terminating his employment, or having the pension payment suspended while continuing to work for the State, he had not suffered a total deprivation of his entitlements, neither had he been divested of all means of subsistence. In the present case, however, the Chamber had not considered it necessary to examine the applicant ’ s complaint under Article 1 of Protocol No. 1 taken alone. The principle of consistency required that such an examination be carried out in the present case also. That examination should lead, so the Government argued, to the same conclusion as the Court had reached in Panfile : the applicant had had the choice between receiving his pension or continuing to work, and it was to be assumed that he had elected to stay in employment because his salary was higher than his pension. As his pension had amounted to HUF 162,260 (at that time approximately EUR 5 5 0 ), he must have been in receipt of a monthly salary higher than the average salary in Hungary in 2013 (which had been HUF 151,118 (at that time approximately EUR 515)). For those reasons it could not be said that the applicant had been made to bear an excessive individual burden.", "57. Finally, the Government argued that the Chamber judgment in the present case might entail serious consequences for the social - security systems of a number of member States of the Council of Europe, as in some of those member States (they named seven) national law prescribed the reduction or suspension of pension allowances where the beneficiary was in simultaneous receipt of a salary.", "C. The third-party intervener ’ s arguments", "58. The submissions of the European Trade Union Confederation (ETUC ) contained information on legislation in force in the member States of the Council of Europe relating to the accumulation of old-age pension benefits with earnings from work, from which they concluded that the great majority of member States allowed such accumulation.", "59. The ETUC further signalled a growing trend among states towards enshrining the fundamental right to social security in national constitutions. Accordingly, so they argued, any restriction of that right required precise justification.", "D. The Grand Chamber ’ s assessment", "1. Applicability of Article 1 of Protocol No. 1 and the existence of interference", "60. The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not “ distinct ” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, Sargsyan v. Azerbaijan [GC], no. 40167/06, § 217, ECHR 2015, and James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98).", "61. The Court notes from the outset that at the relevant time the applicant was in receipt of an old-age pension. His entitlement to that pension sprang from paragraph 3(2 ) ( b) of Act no. CLXVII: having been born before 1954, he satisfied the legal requirement for his service pension, of which he had been a recipient since 2000, to be converted into an old-age pension when that Act entered into force on 1 January 2012 (see paragraphs 10 and 12 above).", "62. In the proceedings before the Court there was agreement between the parties that the applicant ’ s pension entitlements constituted a possession within the meaning of Article 1 of Protocol No. 1 and that suspension of his pension entitlement by virtue of the amendment of 1 January 2013 to the 1997 Pensions Act entailed interference with the applicant ’ s rights as protected by this provision. The Court sees no reason to disagree.", "63. On the other hand, the Government disputed the applicant ’ s claim that the matter ought to be considered under the second rule mentioned above, that is to say, that the suspension in fact amounted to a deprivation of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1.", "64. The Court has previously held that the modification or discontinuance of supplementary retirement benefits constituted “neither an expropriation nor a measure to control the use of property” (see Aizpurua Ortiz and Others v. Spain, no. 42430/05, § 48, 2 February 2010), and that the reduction of a pension by way of forfeiture was “neither a control of use nor a deprivation of property” (see Banfield v. the United Kingdom ( dec. ), no. 6223/04, ECHR 2005 ‑ XI ). As it did in those two cases, the Court considers that the interference with the applicant ’ s property rights in the present case falls to be considered under the first rule mentioned above, namely the general principle of peaceful enjoyment of property (see also Lakićević and Others v. Montenegro and Serbia, nos. 27458/06 and 3 others, § 64, 13 December 2011, and Panfile, cited above, § 19).", "2. Compliance with Article 1 of Protocol No. 1", "(a) Relevant principles", "65. The principles relevant to the present case have recently been set out by the Grand Chamber in its judgment in Béláné Nagy ( Béláné Nagy v. Hungary [GC], no. 53080/13, ECHR 2016 ):", "“112. An essential condition for an interference with a right protected by Article 1 of Protocol No. 1 to be deemed compatible with this provision is that it should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis, cited above, § 58; Wieczorek, cited above, § 58; and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 96, 25 October 2012).", "113. Moreover, any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is ‘ in the public interest ’. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions. The notion of ‘ public interest ’ is necessarily extensive. In particular, the decision to enact laws concerning social-insurance benefits will commonly involve consideration of economic and social issues. The Court finds it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one and will respect the legislature ’ s judgment as to what is ‘ in the public interest ’ unless that judgment is manifestly without reasonable foundation (see, mutatis mutandis, The former King of Greece and Others v. Greece [GC], no. 25701/94, § 87, ECHR 2000-XII; Wieczorek, cited above, § 59; Frimu and Others v. Romania ( dec. ), nos. 45312/11, 45581/11, 45583/11, 45587/11 and 45588/11, § 40, 7 February 2012; Panfile v. Romania ( dec. ), no. 13902/11, 20 March 2012, and Gogitidze and Others v. Georgia, no. 36862/05, § 96, 12 May 2015).", "114. This is particularly so, for instance, when passing laws in the context of a change of political and economic regime (see Valkov and Others, cited above, § 91 ); the adoption of policies to protect the public purse (see N.K.M. v. Hungary, no. 66529/11, §§ 49 and 61, 14 May 2013); or to reallocate funds (see Savickas and Others v. Lithuania ( dec. ), no. 66365/09, 15 October 2013); or of austerity measures prompted by a major economic crisis (see Koufaki and ADEDY v. Greece ( dec. ), nos. 57665/12 and 57657/12, §§ 37 and 39, 7 May 2013; see also da Conceição Mateus and Santos Januário v. Portugal ( dec. ) nos. 62235/12 and 57725/12, § 22, 8 October 2013; da Silva Carvalho Rico v. Portugal ( dec. ), § 37, no. 13341/14, 1 September 2015).", "115. In addition, Article 1 of Protocol No. 1 requires that any interference be reasonably proportionate to the aim sought to be realised (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§ 81 ‑ 94, ECHR 2005 ‑ VI). The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52; Kjartan Ásmundsson, cited above, § 45; Sargsyan, cited above, § 241; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 66).", "116. In considering whether the interference imposed an excessive individual burden the Court will have regard to the particular context in which the issue arises, namely that of a social-security scheme. Such schemes are an expression of a society ’ s solidarity with its vulnerable members (see Maggio and Others, § 61, and Stefanetti and Others, § 55, both cited above, and also, mutatis mutandis, Goudswaard -Van der Lans v. the Netherlands ( dec. ), no. 75255/01, ECHR 2005-XI).", "117. The Court reiterates that the deprivation of the entirety of a pension is likely to breach the provisions of Article 1 of Protocol No. 1 and that, conversely, reasonable reductions to a pension or related benefits are likely not to do so. However, the fair balance test cannot be based solely on the amount or percentage of the reduction suffered, in the abstract. In a number of cases the Court has endeavoured to assess all the relevant elements against the specific background (see Stefanetti and Others, cited above, § 59, with examples and further references; see also Domalewski v. Poland ( dec. ), no. 34610/97, ECHR 1999 ‑ V). In so doing, the Court has attached importance to such factors as the discriminatory nature of the loss of entitlement (see Kjartan Ásmundsson, cited above, § 43); the absence of transitional measures (see Moskal, cited above, § 74, where the applicant was faced, practically from one day to the next, with the total loss of her early-retirement pension, which constituted her sole source of income, and with poor prospects of being able to adapt to the change); the arbitrariness of the condition (see Klein, cited above, § 46), as well as the applicant ’ s good faith (see Moskal, cited above, § 44).", "118. An important consideration is whether the applicant ’ s right to derive benefits from the social-insurance scheme in question has been infringed in a manner resulting in the impairment of the essence of his or her pension rights (see Domalewski, cited above; Kjartan Ásmundsson, cited above, § 39; Wieczorek, cited above, § 57; Rasmussen, cited above, § 75; Valkov and Others, cited above, §§ 91 and 97; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 55). ”", "(b) Application of these principles to the present case", "( i ) Whether the interference was “lawful”", "66. The lawfulness of the interference, in terms of domestic law, is not in dispute: the Court is satisfied that it was prescribed by section 83/C of the 1997 Pensions Act (see paragraph 24 above).", "(ii) Whether the interference was “in accordance with the general interest”", "67. Bearing in mind the wide margin of appreciation of the State in the field of social security and pensions, the Court finds no reason to doubt that the prohibition on the simultaneous disbursement of salaries and pensions to which the applicant was subjected served the general interest of the protection of the public purse. As submitted by the Government and not disputed by the applicant, the suspension of pension payments at issue was, inter alia, also part of a package of measures aimed at assuring the long-term sustainability of the Hungarian pension system and reducing public debt.", "68. Moreover, the Court cannot agree with the applicant ’ s argument that the legislative interference at issue affected so few people that its impact on the State budget was minimal, and that other measures would have resulted in more meaningful savings. In this connection it reiterates that, provided that the legislature chose a method that could be regarded as reasonable and suited to achieving the legitimate aim being pursued, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way (see James and Others, cited above, § 51).", "(iii) Whether the interference was proportionate", "69. The next question to be addressed by the Court is whether the interference struck a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights.", "70. In this connection, the Court notes at the outset that the issue in the present case arises in the particular context of a social - security scheme. As already set out above (see paragraph 65 ), such schemes are an expression of a society ’ s commitment to the principle of social solidarity with its vulnerable members. The scheme at issue in the present case is a contributory old-age pension scheme. Such pensions are in general disbursed in order to provide compensation for reduced earning capacity as a person gets older. However, when a person in receipt of an old-age pension continues or resumes work – and particularly, like the applicant in the present case, when he or she has not yet reached the statutory retirement age – his or her working life is apparently not yet over and earning capacity still exists.", "71. The applicant took early retirement in 2000, when he was close to 47 years old, and has been a beneficiary of pension payments ever since, except for the period during which disbursement was suspended, that is from 1 July 2013 until 31 March 2015. It therefore appears that the applicant became entitled to a pension on the basis of contributions made over a far shorter period of time than that for which contributions are generally paid by persons who become entitled to an old-age pension only upon reaching the statutory retirement age (see paragraph 30 above). Thereafter he continued to contribute to the Pension Fund as a result of the fact that he carried on working in both the private and the public sector after taking early retirement and leaving the police force in 2000.", "72. The Court reiterates that the funding methods of public pension schemes vary considerably from one Contracting State to another, as does the emphasis on the principle of solidarity between contributors and beneficiaries in national pension systems (see Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, §§ 92 and 98, 2 5 October 2011, and Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 50, ECHR 2005 ‑ X). As such matters involve social and economic policies, they fall in principle within the wide national margin of appreciation accorded to States in this area (see, among many authorities, Béláné Nagy, cited above, § 113; Valkov and Others, cited above, § 92; and James and Others, cited above, § 46).", "73. In examining whether the national authorities acted within their margin of appreciation in the instant case, the Court will have particular regard to the following factors which, from an analysis of its case-law in cases relating to the reduction, suspension or discontinuance of social-security pensions, may be identified as being of relevance, namely the extent of the loss of benefits, whether there was an element of choice, and the extent of the loss of means of subsistence.", "( α ) Extent of loss of benefits", "74. The case at hand does not concern either the permanent, complete loss of the applicant ’ s pension entitlements (compare and distinguish Béláné Nagy, cited above, § 123; Apostolakis v. Greece, no. 39574/07, 22 October 2009; and Kjartan Ásmundsson v. Iceland, no. 60669/00, ECHR 2004 ‑ IX ) or the reduction thereof (compare da Silva Carvalho Rico v. Portugal ( dec. ), no. 13341/14, 1 September 2015; Poulain v. France ( dec. ), no. 52273/08, 8 February 2011; and Lenz v. Germany ( dec. ), no. 40862/98, ECHR 2001 ‑ X ), but rather the suspension of his monthly pension payments (see Panfile and Lakićević and Others, both cited above ). Although the applicant thus did not receive his pension for the duration of that suspension, the Court nevertheless considers that this did not amount to a total loss of his entitlements to an old-age pension. The suspension was of a temporary nature in that disbursement would be (and was) resumed when the applicant left State employment; it did, therefore, not strike at the very substance of his right and the essence of the right was not impaired.", "75. Moreover, a similar suspension was at stake in the cases of Panfile and Lakićević and Others ( both cited above ). The fact that the former case was declared inadmissible and that a violation of Article 1 of Protocol No. 1 was found in the latter suggests that the extent of the loss of benefits – a temporary suspension, as in the present case – is not, in itself, decisive. Indeed, the Court has already held that the fair balance test cannot be based solely on the amount or percentage of the loss suffered but must be examined in the light of all the relevant factors (see Béláné Nagy, cited above, § 117, and Stefanetti and Others v. Italy, nos. 21838/10 and 7 others, §§ 59 ‑ 60, 15 April 2014 ).", "( β ) Element of choice", "76. This brings the Court to the second factor: was there anything the applicant could have done in order to avoid or prevent the disbursement of his pension being suspended? In this connection the Court observes at the outset that there is no suggestion that when the applicant started his employment at Budapest XIII District Municipality on 1 July 2012 he had any inkling of the changes to the pension system that were afoot. It would therefore be disingenuous to hold that he could have avoided being affected by the amended legislation simply by electing not to re-enter State employment (contrast and compare Mauriello v. Italy ( dec. ), no. 14862/07, § 39, 13 September 2016, and Torri and Others v. Italy ( dec. ), nos. 11838/07 and 12302/07, § 37, 24 January 2012). But once the legislation at issue had entered into force, it was not the case that the disbursement of the applicant ’ s pension was suspended without his having any choice in the matter. In similar fashion to the applicant in Panfile (cited above, § 23), and as the Government also pointed out (see paragraphs 55 - 56 above), the applicant was able to choose between discontinuing his employment in the civil service and continuing to receive his pension, or remaining in that employment and having his pension payments suspended. He opted for the latter.", "77. In addition, the Court notes that as a result of the applicant ’ s electing to stay in employment, he continued to make contributions to the Pension Fund, which resulted in an increase in his pension once pension payments were resumed (see paragraphs 18 and 27 above).", "( γ ) Extent of loss of means of subsistence", "78. The extent to which a person ’ s means of subsistence or living standard are affected by the discontinuance, reduction or suspension of pension payments constitutes an important factor in the Court ’ s assessment of the proportionality of such measures. Thus, an excessive individual burden was found to have been imposed in cases in which, inter alia, the withdrawal or discontinuance of a pension amounted to the total loss of an applicant ’ s sole source of income (see Béláné Nagy, cited above, § 123; Apostolakis, cited above, § 39; and Moskal v. Poland, no. 10373/05, § 74, 15 September 2009), and those in which a suspended pension constituted a considerable part of the monthly income before tax of the applicants, who worked on a part-time basis only (see Lakićević and Others, cited above, § 70 ). By the same token, the Court has held that a fair balance was struck in a number of cases because, inter alia, the cap on pensions complained about did not totally divest the applicants – who were among the top earners of the persons in receipt of a retirement pension in Bulgaria – of their only means of subsistence (see Valkov and Others, cited above, § 97), or because it was considered that the Contracting State concerned had been entitled to take into account the other sources of income of the applicant – who also received benefits under private pension schemes – when establishing the amount of a widow ’ s allowance (see Matheis v. Germany ( dec. ), no. 73711/01, 1 February 2005). The Court applied a similar approach in the case relied on by the Government, that is, Panfile, in which, after the loss of his job due to the introduction of legal provisions preventing him from receiving concomitantly a pension and a salary, the applicant continued to receive a full monthly pension, whose level was higher than the level of the national average salary before tax ( see Panfile, cited above, § 23).", "79. Turning to the circumstances of the present case, it is clear that when the applicant ’ s old-age pension payments were suspended he continued to receive his salary. He has not disclosed in the proceedings before the Court the amount of the monthly salary he was earning at the relevant time, but he indicated that the suspension of his pension payments resulted in the loss of about half his income. The Government posited that the applicant ’ s salary must have been higher than the amount of old-age pension he was receiving monthly (HUF 162,260; approximately EUR 550 at the relevant time; see paragraph 14 above ), as he chose to stay on in his post and to continue receiving his salary rather than opt for the continued disbursement of his pension. This was not disputed by the applicant.", "80. Having regard to the material in its possession relating to average salaries and taxes (see paragraphs 22, 49 and 56 above), the Court is satisfied that the applicant was left with an income in the range of the average salary after tax in Hungary.", "81. It is true that the disbursement of the applicant ’ s old-age pension would also have been suspended had his salary been much lower than the average salary, or if the applicant had been in part-time employment only, in which circumstances his pension would have constituted a considerably greater part of his income than was actually the case. However, it is not the Court ’ s task to examine the domestic legislation in the abstract: it should limit its examination to the manner in which that legislation was applied to the applicant in the particular circumstances (see Sahin v. Germany [GC], no. 30943/96, § 87, ECHR 2003 ‑ VIII).", "82. The Court considers that the suspension of the applicant ’ s pension payments by no means left him devoid of all means of subsistence. Moreover, the applicant has not argued that he risked falling below the subsistence threshold.", "(iv) Alleged discriminatory aspect", "83. Finally, owing to the fact that the application of the impugned measure on the applicant was less individualised than was the case with the measure at issue in Kjartan Ásmundsson (cited above), the Court considers that an examination of the allegedly discriminatory nature of the suspension of the applicant ’ s pension payments is to be conducted below within the framework of the applicant ’ s complaint under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1.", "(v) Conclusion", "84. On the basis of the foregoing, and once more bearing in mind the State ’ s wide margin of appreciation in the matter and the legitimate aims of protecting the public purse and ensuring the long-term sustainability of the Hungarian pension system, the Court finds that a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the applicant ’ s fundamental rights, and that he was not made to bear an excessive individual burden.", "85. Accordingly, there has been no violation of Article 1 of Protocol No. 1 taken alone.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "86. The applicant further complained of an unjustified difference in treatment in that the suspension of old-age pension payments to which he was subjected on account of his employment in the public sector did not apply, firstly, to old-age pension recipients working in the private sector and, secondly, to old-age pension recipients working in certain categories within the public sector. He relied on Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1.", "A. Preliminary issue", "87. The complaint relating to discrimination as set out in the application form of 5 December 2013, by means of which the present case was lodged with the Court, referred only to an allegedly unjustified difference of treatment between pensioners employed in the public sector and those employed in the private sector. In his reply dated 9 February 2015 to the observations of the Government (see paragraph 4 above), the applicant mentioned for the first time a similarly unjustified difference of treatment within the public sector in that certain State employees were exempted from the ban on accumulation of old-age pensions and State-paid salaries (see paragraph 23 above).", "88. The question arises whether the second instance of discrimination complained of, that is, the alleged discrimination between different categories of State employees, was lodged with the Court in compliance with the six-month rule set out in Article 35 § 1 of the Convention. However, any exploration of that matter should be preceded by an examination of the question whether the Court is competent at this stage of the proceedings to deal with this issue, bearing in mind that the complaint relating to the alleged second instance of discrimination was declared admissible by the Chamber and the Government did not address the issue until requested to do so in the proceedings before the Grand Chamber (see paragraph 8 above).", "1. Whether or not the Court has jurisdiction to examine the issue of the applicant ’ s compliance with the six-month rule", "89. The Court reiterates firstly that the Grand Chamber is not, either by the Convention or the Rules of Court, precluded from deciding questions concerning the admissibility of an application under Article 35 § 4 of the Convention, since that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings”. Thus, even at the merits stage the Court may reconsider a decision to declare an application admissible if it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see Blečić v. Croatia [GC], no. 59532/00, § 65, ECHR 2006 ‑ III, with further references).", "90. Secondly, the fact that the Government did not raise any alleged failure by the applicant to comply with the six-month rule, either in the proceedings before the Chamber or in their request for referral of the case to the Grand Chamber, does not prevent the Grand Chamber from ruling on it. According to the case-law, it is not open to the Court to set aside the application of the six-month rule solely because a Government have not made a preliminary objection to that effect ( see Blečić, cited above, § 68). In the present instance the Court sees no need to examine whether the Government are estopped from making the above objection since it finds in any event that it concerns a matter which goes to the Court ’ s jurisdiction and which it is not prevented from examining of its own motion (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, ECHR 2016 (extracts), and Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012 ).", "2. Compliance with the six-month rule", "(a) The parties ’ submissions to the Grand Chamber", "( i ) The Government", "91. The Government argued that the period of six months had started to run at the latest on 27 September 2013 when the National Pensions Administration discontinued the examination of the applicant ’ s appeal (see paragraph 17 above). In view of the fact that the complaint alleging discrimination between public servants was lodged with the Court only on 9 February 2015 in the applicant ’ s observations in reply to those of the Government – hence, more than six months after the applicant had become aware of the alleged violation – that complaint must, so the Government submitted, be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.", "(ii) The applicant", "92. According to the applicant, the running of the six-month period had started on 1 July 2013, when the payment of his pension had been suspended (see paragraph 14 above). The discrimination between pensioners employed in the public and private sectors, as well as the discrimination between different categories of employees within the public sector, was contained in the amendment to the 1997 Pensions Act itself. Therefore, the applicant ’ s complaint that the suspension of his pension constituted discriminatory treatment contrary to Article 14, which he lodged within six months of the aforementioned date, related to both forms of discrimination.", "(b) The Grand Chamber ’ s assessment", "( i ) Relevant principles", "93. The principles relevant to the issue under consideration were set out by the Grand Chamber in its judgment in Sabri Güneş, cited above :", "“39. The six-month time-limit provided for by Article 35 § 1 has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see P.M. v. the United Kingdom ( dec. ), no. 6638/03, 24 August 2004). It also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see O ’ Loughlin and Others v. the United Kingdom ( dec. ), no. 23274/04, 25 August 2005) and facilitates the establishment of facts in a case, since with the passage of time, any fair examination of the issues raised is rendered problematic (see Nee v. Ireland ( dec. ), no. 52787/99, 30 January 2003).", "40. That rule marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible (see Walker v. the United Kingdom ( dec. ), no. 34979/97, ECHR 2000 ‑ I). The existence of such a time-limit is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question and constitutes a legitimate concern for order, stability and peace (see De Becker v. Belgium ( dec. ), no. 214/56, 9 June 1958).", "41. Article 35 § 1 contains an autonomous rule which has to be interpreted and applied in such a manner as to ensure to any applicant claiming to be the victim of a violation by one of the Contracting Parties of one of the rights set forth in the Convention and its Protocols the effective exercise of the right of individual petition pursuant to Article 35 § 1 of the Convention (see Worm v. Austria ( dec. ), no. 22714/93, 27 November 1995).", "42. The Court reiterates that with regard to procedure and time-limits, legal certainty constitutes a binding requirement which ensures the equality of litigants before the law. That principle is implicit in all the Convention ’ s Articles and constitutes one of the fundamental elements of the rule of law (see, among other authorities, Beian v. Romania (no. 1), no. 30658/05, § 39, ECHR 2007 ‑ V (extracts)).”", "94. Moreover, some indication of the factual basis of the complaint and the nature of the alleged violation of the Convention is required to introduce a complaint and interrupt the running of the six-month period (see Abuyeva and Others v. Russia, no. 27065/05, § 222, 2 December 2010, and Allan v. the United Kingdom ( dec. ), no. 48539/99, 28 August 2001). As regards complaints that were not included in the initial communication, the running of the six-month period is not interrupted until the date when such complaints are first submitted to the Court (see Allan, cited above). Allegations made after the expiry of the six-month time-limit can only be examined by the Court if they constitute legal submissions relating to, or particular aspects of, the initial complaints that were introduced within the time-limit (see Kurnaz and Others v. Turkey ( dec. ), no. 36672/97, 7 December 2004, and Sâmbata Bihor Greco-Catholic Parish v. Romania ( dec. ), no. 48107/99, 25 May 2004).", "( ii ) Application of these principles to the present case", "95. The Court will examine whether the applicant ’ s submissions relating to the allegedly unjustified difference in treatment between pensioners employed in different categories within the public sector, as set out in his observations of 9 February 2015, should be considered as legal submissions in respect of his initial complaint and/ or as a particular aspect of that complaint to which the six-month rule would not apply, rather than as a separate complaint introduced at a later stage.", "96. It considers that the nature of a violation alleged under Article 14 requires that a complaint brought under this heading should provide at least an indication of the person or group of persons in comparison with whom the applicant claims he or she was treated differently, as well as of the ground of the distinction that was allegedly applied. The complaint should thus contain the parameters required to define the scope of the issue to be examined by the Court, and also by the Government should the Court decide to invite them to submit their observations on the admissibility and/or merits of the complaint. In this connection it is further to be borne in mind that justifications for differences in treatment may well vary depending on the comparator group or groups and/or the ground or grounds of distinction at issue. For these reasons, the Court cannot accept that the mere fact that a complaint under Article 14 of the Convention was included in the application form is sufficient to constitute introduction of all subsequent complaints made under that provision.", "97. The Court notes that the allegation raised in the present case concerning the difference in treatment between various categories of State employees in receipt of an old-age pension was not mentioned in any communication received from the applicant prior to 9 February 2015, not even as part of the background facts of the case. In the opinion of the Court, this complaint is distinct from the one relating to the alleged difference of treatment between pensioners employed in the private sector and those employed in the public sector. Nor can it be regarded as so closely connected to the original complaint that it cannot be examined separately.", "98. Consequently, the Court concludes that the complaint concerning a difference in treatment between pensioners employed by the State was introduced in the applicant ’ s submissions of 9 February 2015. Regardless of whether the six-month period started running on 1 July 2013, when the applicant ’ s pension payments were suspended, or on 27 September 2013, when the National Pensions Administration discontinued the examination of the applicant ’ s appeal, the Grand Chamber, unlike the Chamber, concludes that this part of the application was introduced outside the six-month time-limit and is therefore inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.", "99. Accordingly, the Grand Chamber has no jurisdiction to entertain this complaint and will confine its examination below to the merits of the applicant ’ s grievance relating to the alleged discrimination between State and private - sector employees in receipt of an old-age pension.", "B. Merits", "100. The Court will examine the applicant ’ s complaint under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1, alleging that, as a person in receipt of an old-age pension and working in the civil service, he was treated differently from recipients of an old-age pension working in the private sector. He submitted that the latter continued to receive their pensions whilst his pension payments were suspended for the continued duration of his employment in the civil service.", "Article 14 of the Convention provides :", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "1. The Chamber judgment", "101. In so far as the matter complained of by the applicant falls within the Court ’ s jurisdiction as delimited in paragraph 99 above, the Grand Chamber notes that the Chamber, being satisfied that the subject - matter of the case fell within the ambit of Article 1 of Protocol No. 1, found Article 14 of the Convention to be applicable. This was because the applicant had been denied payment of his pension on the ground of his being employed in the civil service, which was covered by the term “other status” for the purposes of Article 14. Moreover, the Chamber was of the view that retirees working in the civil service and those working in the private sector were in an analogous situation seen from the perspective of the core argument advanced by the Government, namely that employed persons do not require a substitute for salary.", "102. The Chamber went on to consider that the impugned measure was capable, to some extent, of reducing public spending, and it therefore accepted that the aim of the legislation underlying the differential treatment in question – namely the protection of the “public purse” – could be regarded as legitimate. However, it found that the difference in treatment between retirees employed in the civil service and retirees employed in the private sector, with regard to entitlement to the continued receipt of an old-age pension, was not based on any “objective and reasonable justification”, as members of both groups earned salaries and the pensions paid out to retirees employed in the private sector could therefore also be regarded as redundant public expenditure. For these reasons, it found that there had been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.", "2. The parties ’ submissions to the Grand Chamber", "(a) The applicant", "103. The applicant submitted that, since the respondent State had put in place a compulsory pension scheme, it followed from the Court ’ s established case-law that his complaint of interference with his rights under that scheme fell within the scope of Article 1 of Protocol No. 1, and that any amendment of the scheme accordingly had to be compatible with Article 14 of the Convention. He maintained that he had been in the same situation as other recipients of an old-age State pension and that disbursement of his pension had been suspended solely on account of the fact that he was simultaneously employed in the civil service, which was a ground amounting to “other status” for the purposes of Article 14.", "104. Contrary to what the Government claimed, there were no other member States of the Council of Europe which made a similar distinction between persons employed in the public and private sectors when it came to paying out pensions. Where any such distinctions were made, they related to the payment of early - retirement pensions and, as such, were of no relevance to the present case.", "105. The applicant further contended that there was no objective and reasonable justification for the difference in treatment.", "106. Firstly, it did not pursue a legitimate aim. Since considerable numbers of pensioners in post-retirement employment were exempted from the ban, the aim of putting an end to the simultaneous receipt of State-paid pensions and salaries could not be achieved by the enactment of section 83/C of the 1997 Pensions Act. It could, furthermore, not be accepted that a prohibition on the accumulation of pension and salary was as such in the general interest, without an indication, which the Government had failed to provide, of the use to which the money saved had been put.", "The applicant acknowledged that the protection of a country ’ s economic system might constitute a legitimate aim for general measures of economic strategy in a serious economic crisis. But Hungary, having been affected by the global financial crisis (as had the whole of Europe) in 2008, did not require protection of the economic system five years later, at a time when the EU excessive deficit procedure had been closed, the economic crisis declared over, and the pension ceiling quashed. In addition, the prohibition was not temporary but continued to apply despite an improved economic situation.", "107. Secondly, there was no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Only a very small group of pensioners was affected by the prohibition on accumulation of salaries and pensions, and the savings made were insignificant, whereas the applicant had had to bear a total deprivation of his pension. Moreover, the applicant could not have been expected to give up his job and seek employment in the private sector, as such an argument would render Article 14 devoid of substance.", "(b) The Government", "108. The Government argued that persons having taken up post-retirement employment in the private sector did not draw their salary from the public budget and did not therefore benefit from a double income from public sources. They were of the view that this essential distinction between pensioners employed in the private sector and pensioners employed in the civil service was of such significance that, despite the other features which the two groups had in common, it was decisive in concluding, in the context of the contested legislation, that they were not in an analogous situation. The Government pointed out that this had also been the approach taken by the Court in the case of Panfile (cited above, § 28). In its judgment in the present case, the Chamber had not provided any specific justification for its departure from this case-law.", "109. There were also, seen from the perspective of the reasons behind the introduction of the ban on accumulating pensions and salaries, other features which set employees in the civil service apart from those in the private sector. Thus, in respect of public employees, the State was in the position not only of regulator in the field of employment policy, but also of employer. The State could therefore directly implement its employment policy with regard to its employees without having to consider possible interference with private - law relationships as it would with regard to persons working in the private sector.", "110. A further difference, so the Government submitted, lay in the fact that public servants had a special duty of loyalty to the State and were under an obligation to observe certain ethical norms not applicable to those employed in the private sector. The suspension of pension payments corresponded to an ethical obligation not to abuse the law. Even though the receipt of retirement benefits without retiring was not illegal, it was unethical in the sense that it maximised personal advantages to the detriment of the community.", "(c) The third-party intervener ’ s arguments", "111. Taking the view that the right to social security was a fundamental social right of special importance, the ETUC submitted that there should be no discrimination in allocating benefits to different categories of insured persons.", "3. The Grand Chamber ’ s assessment", "(a) Relevant principles", "112. The Court has consistently held that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, among many other authorities, Biao v. Denmark [GC], no. 38590/10, § 88, ECHR 2016; İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 158, ECHR 2016; Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010; and E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008 ).", "113. In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see, amongst many authorities, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 64, ECHR 2017; X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013; and Konstantin Markin v. Russia [GC], no. 30078/06, § 125, ECHR 2012 (extracts) ). In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see Clift v. the United Kingdom, no. 7205/07, § 66, 13 July 2010). However, not every difference in treatment will amount to a violation of Article 14. Firstly, the Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “ status ”, are capable of amounting to discrimination within the meaning of Article 14 (see Carson and Others, cited above, § 61, and Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 86, ECHR 2013 (extracts) ). Secondly, a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013 (extracts); Topčić -Rosenberg v. Croatia, no. 19391/11, § 36, 14 November 2013; and Weller v. Hungary, no. 44399/05, § 27, 31 March 2009).", "114. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin will vary according to the circumstances, the subject - matter and the background (see Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011).", "115. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy for example (see Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” (see Carson and Others, cited above, § 61). Any measures taken on such grounds, including the reduction of the amount of pension normally payable to the qualifying population, must nevertheless be implemented in a non-discriminatory manner and comply with the requirements of proportionality (see Lakićević and Others, cited above, § 59, and Stec and Others, cited above, § 55 ). In any case, irrespective of the scope of the State ’ s margin of appreciation, the final decision as to the observance of the Convention ’ s requirements rests with the Court (see, inter alia, Konstantin Markin, cited above, § 126).", "116. Lastly, as regards the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see Khamtokhu and Aksenchik, cited above, § 65; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 (extracts); and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 177, ECHR 2007 ‑ IV ).", "117. In cases, such as the present one, concerning a complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question. Although Protocol No. 1 does not include the right to receive a social - security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see Stec and Others, cited above, § 55, with further references).", "(b) Application of these principles to the present case", "( i ) Applicability of Article 14", "118. From the principles stated in paragraphs 112 and 117 above, it follows that the applicant ’ s complaint clearly falls within the ambit of Article 1 of Protocol No. 1 and that Article 14 is applicable. Indeed, this was not in dispute between the parties.", "(ii) Existence of an analogous or relevantly similar situation", "119. As already indicated in paragraph 113 above, the first issue to be examined is whether the applicant, as a person in receipt of an old-age pension subsequently employed in the civil service, was in an analogous or relevantly similar situation compared with a person in receipt of an old-age pension subsequently employed in the private sector.", "120. Whereas the applicant claimed that he was indeed in a relevantly similar situation to recipients of old-age pensions with subsequent employment in the private sector, the Government disputed that claim, placing reliance on, in particular, the Court ’ s decision in Panfile (cited above).", "(α) General considerations", "121. The Court reiterates that a difference in treatment may raise an issue from the point of view of the prohibition of discrimination as provided for in Article 14 of the Convention only if the persons subjected to different treatment are in a relevantly similar situation, taking into account the elements that characterise their circumstances in the particular context. The Court notes that the elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject-matter and purpose of the measure which makes the distinction in question.", "122. As a general starting - point the Court considers, firstly, that the Contracting Parties, by necessity, enjoy wide latitude in organising State functions and public services, including such matters as regulating access to employment in the public sector and the terms and conditions governing such employment, in the context of their obligations under the Convention.", "Secondly, for institutional and functional reasons, employment in the public sector and in the private sector may typically be subject to substantial legal and factual differences, not least in fields involving the exercise of sovereign State power and the provision of essential public services. Civil servants, unlike persons employed in the private sector, may be engaged in the exercise of the State ’ s sovereign power, and therefore their functions as well as the duty of loyalty owed to their employer may be of a different nature, although the extent to which this is the case may depend on the specific functions they have to perform.", "Thirdly, as a result of the above, it cannot be assumed that the terms and conditions of employment, including the financial ones, or the eligibility for social benefits linked to employment, will be similar in the civil service and in the private sector, nor can it therefore be presumed that these categories of employees will be in relevantly similar situations in this regard. Another important difference in this context is that the salaries as well as the employment-linked social benefits of State employees, unlike those of private- sector employees, are paid by the State.", "123. Each of the three kinds of considerations mentioned above is widely reflected in various ways in a long-standing line of case-law recognising a distinction between civil servants and private employees as two categories that are not comparable.", "124. The first of these may be seen in Valkov and Others (cited above, § 117), where the Court held, in the context of a cap on pensions examined under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, that it was not for an international court to pronounce on the question whether the authorities of a Contracting State had made a valid distinction between the character of the respective employments of two groups. Decisions involving such distinctions were policy judgments which were in principle reserved for the national authorities, which had direct democratic legitimation and were better placed than an international court to evaluate local needs and conditions. The Court also noted that on a number of occasions the Court and the former Commission had countenanced the distinctions that some Contracting States drew, for pension purposes, between civil servants and private employees (ibid., § 117, with further references).", "125. An example of the second type of factors taken into account as relevant considerations may be found in Heinisch v. Germany (no. 28274/08, § 64, ECHR 2011 (extracts)), albeit in a context unrelated to the prohibition of discrimination laid down in Article 14. In that case the Court, in examining the necessity of a restriction on free speech under Article 10 § 2 of the Convention, held that the duty of loyalty which employees owed to their employer might be more pronounced in the case of civil servants and employees in the public sector compared with employees in private-law employment relationships.", "Also of interest in this connection is the fact that, whilst the above line of authority concerns the interpretation and application of substantive Convention guarantees (that is, Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 in the first case, and Article 10 in the second case) with regard to differential treatment of employees placed in distinct categories under domestic law, the Court has accepted certain distinctions also for the purposes of the due process guarantee in the context of the applicability of the civil limb of Article 6 § 1 to disputes regarding civil servants. Thus, when developing the former Pellegrin doctrine (see Pellegrin v. France [GC], no. 28541/95, § 67, ECHR 1999 ‑ VIII) into what later became known as the Eskelinen test (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ II), the Court recognised the State ’ s interest in controlling access to a court when it comes to certain categories of staff, stating that “it is primarily for the Contracting States, in particular the competent national legislature, not the Court, to identify expressly those areas of public service involving the exercise of the discretionary powers intrinsic to State sovereignty where the interests of the individual must give way” (ibid., § 61).", "Although these findings in Heinisch and Eskelinen were not formulated with a view to an assessment of whether or not a difference of treatment raised an issue under Article 14 of the Convention, they do nonetheless shed light on the Court ’ s assessment of the distinctive features of civil servants ’ role in the exercise of public powers and functions in contrast to that of other categories of employees.", "126. The third type of factor was relied on by the Court in Panfile (cited above), when disposing of a complaint under Article 14 of the Convention taken together with Article 1 of Protocol No. 1, where a distinction between the sources of the salaries of employees in the public and private sectors (respectively from State funds and from private funds ) led it to conclude that those two categories of persons could hardly be regarded as being in an analogous or relevantly similar situation within the meaning of Article 14 (see Panfile, cited above, § 28).", "127. Whilst the above analysis shows the importance of the three aforementioned considerations in the Court ’ s case-law, the present case has revealed a need to take yet a further – fourth – factor into account, namely the role of the State when acting in its capacity as employer. This role is distinct from the one the State assumes when acting in its capacity as regulator of the minimum conditions of employment and of the provision of social - welfare benefits linked to employment in sectors outside its direct control. In particular, as employers, the State and its organs are not in a comparable position to private - sector entities either from the perspective of the institutional framework they operate under or in terms of the financial and economic fundamentals of their activities; the funding bases are radically different, as are the options available for taking measures to counter financial difficulties and crises.", "128. Finally, it should also be observed that even when confronted with issues of comparisons between professionals belonging to different categories, irrespective of public and private - sector divides as referred to above, the Convention institutions have been disinclined to view different types of functions as giving rise to analogous or relevantly similar situations. Thus, in Valkov and Others (cited above, § 117), the Court was not prepared to draw any conclusions from the applicants ’ arguments regarding the nature of the tasks performed by members of the groups invoked as comparators. It referred to a number of previous rulings in which no similarity had been found between the disparate situations in question, on the basis that “each one [was] characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect” (see Van der Mussele v. Belgium, 23 November 1983, § 46, Series A no. 70, where the treatment of lawyers in private practice acting in legal - aid cases was compared to that of judicial and para -judicial professions and where the requirement for lawyers to provide services free of charge to indigent persons was compared to the absence of such a requirement for medical practitioners, veterinary surgeons, pharmacists and dentists; see also Allesch and Others v. Austria, no. 18168/91, Commission decision of 1 December 1993, unreported, concerning the comparison of the pension entitlements of engineers with those of other liberal professions; and Liebscher and Others v. Austria, no. 25170/94, Commission decision of 12 April 1996, unreported, on issues concerning the comparison of lawyers in private practice with chartered public accountants regarding the possibility to establish limited - liability companies).", "129. Thus, it is in the light of the general considerations highlighted above that the Court will assess the circumstances of the present case, while bearing in mind that it is incumbent on the applicant, who alleges the differential treatment, to demonstrate the existence of an “analogous or relevantly similar situation” (see paragraph 113 above).", "(β) Whether the applicant was in an analogous or relevantly similar situation", "130. Turning to the circumstances of the present case, the Court observes that it concerns old-age pensions under the Hungarian compulsory social - security pension scheme, to which both State employees and private - sector employees were affiliated and to which they contributed in the same way and to the same extent. This scheme provided for pension entitlements for both groups, regardless of whether they had previously worked in the public or the private sector (see paragraphs 21 - 22 above). Accordingly, old-age pensions disbursed to employees in the public sector originated from the same source as pension payments to employees working in the private sector. Nevertheless, this is not in itself sufficient to establish that the situations of persons in receipt of a pension and employed in the civil service after retirement and those in receipt of a pension but re-employed in the private sector were relevantly similar for the purposes of the assessment of the present case.", "131. The Court observes firstly that, following the entry into force of section 83/C of the 1997 Pensions Act, it was the applicant ’ s post-retirement employment in the civil service that entailed the suspension of his pension payments. It was precisely the fact that, as a civil servant, he was in receipt of a salary from the State that was incompatible with the simultaneous disbursement of an old-age pension from the same source. As a matter of financial, social and employment policy, the impugned bar on simultaneous accumulation of pension and salary from the State budget had been introduced as part of legislative measures aimed at correcting financially unsustainable features in the pension system of the respondent State. Steps taken to reform deficient pension schemes had, in turn, been part of action taken with the aim of reducing public expenditure and debt. This did not prevent the accumulation of pension and salary for persons employed in the private sector, whose salaries, in contrast to those of persons employed in the civil service, were funded not by the State but through private budgets outside the latter ’ s direct control. As already stated in paragraph 126 above, it was the distinction between the sources of the salaries of employees in the public and private sectors that led the Court to conclude in Panfile that those two categories of persons could hardly be regarded as being in an analogous or relevantly similar situation within the meaning of Article 14.", "132. The Court further notes that, under Hungarian national law, employment in the civil service and employment in the private sector were treated as distinct categories (see paragraph 20 above). Moreover, the applicant ’ s specific profession within the civil service was difficult to compare with any in the private sector and no relevant comparisons were suggested by him. Finally, as regards his employment relationship, the State did not function only as regulator and standard-setter but was also his employer. In line with the considerations stated in paragraph 127 above, the Court regards it as significant that it was for the State to lay down, in that capacity as employer, the terms of employment for its personnel and, as manager of the Pension Fund, the conditions for disbursement of pensions.", "(iii) Conclusion", "133. Taking all these aspects of the present case into account, the Court finds that the applicant has not demonstrated that, as a member of the civil service whose employment, remuneration and social benefits were dependent on the State budget, he was in a relevantly similar situation to pensioners employed in the private sector.", "134. It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1." ]

[ "10. The applicants were born between 1938 and 1948 and live in various cities of Latvia.", "11. The facts of the case, as submitted by the parties, may be summarised as follows.", "THE GENERAL HISTORICAL BACKGROUND TO THE CASE", "12. The historical background, namely the incorporation of the Baltic States into the Soviet Union in 1940, has been described in the cases of Ždanoka v. Latvia [GC] (no. 58278/00, §§ 12-13, ECHR 2006 ‑ IV); Kuolelis and Others v. Lithuania (nos. 74357/01 and 2 others, § 8, 19 February 2008); Vasiliauskas v. Lithuania [GC] (no. 35343/05, §§ 11-12, ECHR 2015); and Sõro v. Estonia (no. 22588/08, § 6, 3 September 2015).", "13. On 4 May 1990, the Supreme Council of the “Latvian Soviet Socialist Republic” (“SSR”, one of the fifteen “Soviet Socialist Republics” of the USSR), the legislative assembly elected on 18 March of the same year, adopted the Declaration on the Restoration of Independence of the Republic of Latvia, which declared Latvia’s incorporation into the USSR in 1940 unlawful under international law and acknowledged that the fundamental provisions of the 1922 Constitution ( Satversme ) were still in force. A transitional period, aimed at the restoration of de facto sovereignty, was instituted. Negotiations with the USSR were to be initiated in accordance with the 1920 Peace Treaty between Latvia and Russia. During this period, various provisions of the Constitution of the Latvian SSR and other applicable legal acts remained in force in so far as they did not contradict the fundamental provisions of the 1922 Constitution (see paragraphs 60-61 below).", "14. On 21 August 1991, the Supreme Council passed a constitutional law proclaiming full independence with immediate effect (see paragraph 62 below). The transitional period established under the 4 May 1990 Declaration on the Restoration of Independence was abolished.", "15. On 8 December 1991, Belarus, the Russian Federation and Ukraine signed the Minsk Agreement, declaring the end of the Soviet Union’s existence and setting up the Commonwealth of Independent States (CIS).", "16. On 21 December 1991, eleven sovereign States, former polities of the USSR – but not Latvia, Lithuania, Estonia, and Georgia – signed the Alma ‑ Ata Declaration, which confirmed and extended the Minsk Agreement setting up the CIS. It was noted in the Alma-Ata Declaration that “with the establishment of the CIS, the USSR ha[d] cease[d] to exist” and that the CIS was neither a State nor a supra-State entity. A Council of the Heads of State of the CIS was set up. They decided on the same date that (UN Doc. A/47/60):", "“The States of the Commonwealth support Russia’s continuance of the membership of the USSR in the United Nations, including permanent membership of the Security Council, and [membership of] other international organisations.”", "PARTICULAR CIRCUMSTANCES OF THE CASEThe initial calculation of the applicants’ retirement pensions", "The initial calculation of the applicants’ retirement pensions", "The initial calculation of the applicants’ retirement pensions", "17. In 1996, the Republic of Latvia created a social security system under which periods of employment and equivalent periods accrued prior to 1991 in the territory of Latvia were to be taken into account in the calculation of retirement pensions. Such periods were also to be taken into account for citizens of Latvia if they had been accrued in the other territories of the former USSR. However, in relation to “permanently resident non-citizens” the employment and equivalent periods accrued in the other territories of the former USSR were to be taken into account only in a limited number of situations (see paragraphs 66-68 below).", "18. The applicants were all born in various territories of the Soviet Union, were nationals of the former USSR, and came to live in Latvia while its territory was incorporated in the Soviet Union. Some of them arrived at a young age, others shortly before the restoration of Latvia’s independence in 1990-91. Following the restoration of independence the applicants did not become Latvian nationals but were granted the status of “permanently resident non-citizens” ( nepilsoņi ) of Latvia. After having worked in Latvia until their retirement they were granted retirement pensions. However, in contrast to the situation pertaining for citizens of Latvia, the employment and equivalent periods accrued outside the territory of Latvia in other parts of the former USSR prior to the restoration of that State’s independence were not taken into account in calculating their pensions.", "First applicant (Mr Jurijs Savickis)", "19. The first applicant was born in the Kalinin Oblast (Russia) in 1939. Before the Court, he complained that the period of his employment in Russia, which had lasted 21 years, 3 months and 13 days, was not initially included in the calculation of his retirement pension, and although it was later included this was only on an ex nunc basis, without retroactive effect.", "20. By a letter received by the Registry on 30 October 2020, the applicants’ representative informed the Court of the first applicant’s death. By a letter of 16 February 2021, the applicant’s representative informed the Court that no heir or close relative had come forward with a wish to pursue the application on the first applicant’s behalf.", "Second applicant (Mr Genādijs Nesterovs)", "21. The second applicant was born in Baku (Azerbaijan) in 1938. According to his submissions, he was employed in the territory of Azerbaijan from 1956 to 1957 and from 1960 to 1968 (that is, 9 years, 1 month and 8 days). From 1957 to 1960 he was conscripted for compulsory military service, which he served in East Germany (3 years, 2 months and 12 days). In 1968, at the age of 30, he started working in Latvia.", "22. On 12 January 1999 the State Social Insurance Agency ( Valsts sociālās apdrošināšanas aģentūra ) granted the second applicant a retirement pension. The insurance period was set at 30 years, 1 month and 14 days. The years of employment and of military service outside the territory of Latvia were not included in the calculation. The monthly amount of his pension was set at 79.05 Latvian lati (LVL) (approximately 113 euros (EUR)), payable from 3 December 1998.", "23. On 11 February 2008 the second applicant’s pension was recalculated in view of his continued employment. The insurance period was set at 39 years, 1 month and 13 days, and he was granted a pension amounting to LVL 177.46 (approximately EUR 253), payable from 1 January 2007.", "24. According to the most recent information provided by the applicants, as of December 2015 the second applicant was receiving a pension of EUR 359.15 and a supplement of EUR 26.89. The employment periods accrued in Azerbaijan and the compulsory military service served in Germany remain excluded from the calculation.", "Third applicant (Mr Vladimirs Podoļako)", "25. The third applicant was born in Vladivostok (Russia) in 1948 and came to Latvia in 1951, at the age of three. He worked in the territory of Latvia from 1968 onwards. He states that his compulsory military service was carried out in Russia (2 years and 1 month).", "26. On 20 October 2009 the third applicant requested an early retirement pension. On 2 December 2009 his application was refused on the grounds that he did not meet the requirement of having accrued an insurance period of at least 30 years. As the period of compulsory military service had not been taken into account, the insurance period was set at 28 years, 5 months and 14 days. An appeal before the administrative courts was not examined on the grounds that he failed to establish that he had complied with the procedural requirements.", "27. On 2 August 2010, after the third applicant had reached the official retirement age, he was granted a retirement pension of LVL 186.17 (approximately EUR 265), payable from 11 July 2010. In view of his continued employment, his insurance period was set at 29 years, 3 months and 16 days.", "28. According to the most recent information provided by the third applicant, as of December 2015 he was receiving a pension of EUR 283.05 and a supplement of EUR 16.93. The years of his compulsory military service in Russia remain excluded from the calculation.", "Fourth applicant (Ms Asija Sivicka)", "29. The fourth applicant was born in Termez (Uzbekistan) in 1946. According to data from the State Social Insurance Agency, from 1963 to 1971 she worked in the territory of Uzbekistan (a total of 7 years, 10 months and 14 days of employment, and 2 months of parental leave). From 1971 to 1973 (1 year, 11 months and 26 days) the fourth applicant was on parental leave, although the documents before the Court do not clearly specify in which country this time was spent. In the period between 1973 and 1976 the fourth applicant was employed in Germany (2 years, 9 months and 16 days of employment and 1 month and 4 days of parental leave). From 1976 until 1981 she was employed in Russia (4 years, 11 months and 25 days). From 1981 to 1985 she served in the Soviet armed forces as a volunteer. From 1985 to 1987 (1 year, 5 months and 5 days) the fourth applicant worked in the territory of Belarus. She started working in Latvia in 1987, at the age of 41.", "30. On 28 March 2008, the State Social Insurance Agency granted the fourth applicant a retirement pension. The insurance period was set at 19 years, 11 months and 12 days, as the years of employment and the equivalent periods accrued outside the territory of Latvia were not included in the calculation. The monthly amount of her pension was set at LVL 49.50 (approximately EUR 70), payable from 27 February 2008.", "31. On 28 September 2010, the Agreement between the Republic of Latvia and the Republic of Belarus on Cooperation in the Field of Social Security (“Latvia-Belarus Social Security Agreement”) entered into force. On the basis of this agreement, the Republic of Belarus granted the fourth applicant a retirement pension of EUR 6.55 with respect to the employment period in Belarus. There are no documents establishing when this decision was taken. In her application form lodged on 4 August 2011, the fourth applicant submitted that she had filed the relevant request in October 2010 but had not yet received a response. However, the Government alleged that this decision had already been taken on 27 October 2010.", "32. On 19 January 2011, the Agreement between the Republic of Latvia and the Russian Federation on Cooperation in the Field of Social Security (“Latvia-Russia Social Security Agreement”) entered into force. By a decision of 8 June 2011 the employment period in Russia was included in the calculation on the basis of the Latvia-Russia Social Security Agreement. Accordingly, the insurance period was set at 27 years, 2 months and 7 days (including periods accrued through continued employment following her retirement). The monthly pension was set at LVL 82.05 (approximately EUR 117) with a supplement of LVL 9.10 (approximately EUR 13), payable from 1 February 2011.", "33. According to the most recent information provided by the applicants, as of December 2015 the fourth applicant was receiving a pension of EUR 152.06 and a supplement of EUR 12.95 from Latvia. The applicant receives a pension of EUR 12.50 from Belarus for the periods worked in Belarus. The employment and equivalent periods accrued in Uzbekistan remain excluded from the calculation. While the employment periods accrued in Germany and the voluntary military service in Russia are also excluded from the calculation, the fourth applicant does not complain about those periods, as they also remain excluded from the relevant calculation for Latvian citizens.", "Fifth applicant (Ms Marzija Vagapova)", "34. The fifth applicant was born in Syzran (Russia) in 1942. According to the data provided by the State Social Insurance Agency, she worked in the territory of Russia from 1960 to 1970 (9 years, 10 months and 14 days), in Uzbekistan from 1970 to 1971 (7 months and 10 days), in Turkmenistan from 1972 to 1980 (4 years, 9 months and 15 days, or, according to the applicant’s submissions, 5 years, 3 months and 12 days), and in Tajikistan from 1980 to 1986 (6 years, 1 month and 15 days). She started working in Latvia in 1987, at the age of 44.", "35. On 16 February 2005, the State Social Insurance Agency granted the fifth applicant a retirement pension. The insurance period was set at 10 years and 4 days, as the years of service outside the Latvian territory were not included in the calculation. The monthly amount of her pension was set at LVL 38.50 (approximately EUR 55), payable from 1 December 2004.", "36. By a decision of 11 March 2011, the employment periods accrued in the territory of Russia were included in the calculation on the basis of the Latvia-Russia Social Security Agreement. The insurance period was set at 21 years, 1 month and 18 days (including periods of employment accrued following her retirement). The monthly amount of the pension was set at LVL 88.76 (approximately EUR 126). She was granted a supplement of LVL 12.60 (approximately EUR 18), payable from 1 February 2011.", "37. According to the most recent information provided by the fifth applicant, as of December 2015 she was receiving a pension of EUR 137.08, with a supplement of EUR 17.93. The employment periods accrued in Uzbekistan, Turkmenistan, and Tajikistan remain excluded from the calculation.", "38. On an unspecified date (after the introduction of the application before the Court but prior to its relinquishment to the Grand Chamber), the fifth applicant acquired Russian nationality.", "The Constitutional Court’s initial ruling (2001)", "39. The domestic legislation providing for the differences in the calculation of State pensions on the basis of Latvian citizenship was reviewed by the Constitutional Court ( Satversmes tiesa ) in 2001, in proceedings instituted by twenty members of the Parliament. The Constitutional Court considered that the contested provision, namely Paragraph 1 of the transitional provisions of the State Pensions Act, did not concern the right of property, as the pension entitlements for the respective time periods were based on the principle of solidarity and did not create a direct link between the contributions and the amount of pensions. Accordingly, it found that the contested provision was not at variance with Article 1 of Protocol No. 1 and did not infringe Article 14 of the Convention. Additionally, the Constitutional Court pointed out that the distinction made under the domestic law was objectively justified by the nature and principles of the Latvian pension system and did not amount to a discrimination within the meaning of the Constitution. The question of the aggregate periods of employment outside Latvia prior to 1991 with respect to persons not holding Latvian citizenship had to be resolved by means of international agreements, and Latvia should not be required to assume the obligations of another State (for a translation of the Constitutional Court’s main arguments, see Andrejeva v. Latvia [GC], no. 55707/00, § 37, ECHR 2009).", "The Court’s judgment in the Andrejeva case", "40. The conformity of Paragraph 1 of the transitional provisions of the State Pensions Act with Article 1 of Protocol No. 1 and Article 14 of the Convention was put before the Court in the Andrejeva case, cited above. In its judgment, the Court started by pointing out that in Stec and Others v. the United Kingdom ((dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005 ‑ X) it had abandoned the distinction between contributory and non-contributory benefits for the purposes of the applicability of Article 1 of Protocol No. 1. The Government’s argument that, from the standpoint of public international law, Latvia had not inherited the rights and obligations of the former Soviet Union as regards welfare benefits, was found to be misconceived in the instant case, as the Latvian State had decided of its own accord to pay pensions to individuals in respect of periods of employment outside its territory, thereby creating a sufficiently clear legal basis in its domestic law. Accordingly, the presumed entitlement to such benefits fell within the scope of Article 1 of Protocol No. 1 and rendered Article 14 of the Convention applicable (ibid., §§ 76-80).", "41. Having regard to the conclusions it would reach later in its judgment, the Court considered it unnecessary to determine whether the domestic courts’ finding that the fact of having worked for an entity established outside Latvia, despite having been physically in Latvian territory, had not constituted “employment within the territory of Latvia” was reasonable or, on the contrary, manifestly arbitrary (see Andrejeva, cited above, § 85). The Court then accepted that the difference in treatment pursued at least one legitimate aim, namely the protection of the country’s economic system (ibid., § 86) and then noted that the national authorities’ refusal to take into account the years of the applicants’ employment “outside Latvia” had been based exclusively on the consideration that she had not had Latvian citizenship. Therefore, the Court concluded that nationality had been the sole criterion for the distinction complained of (ibid., § 87).", "42. Relying on the judgments in Gaygusuz v. Austria (16 September 1996, § 42, Reports of Judgments and Decisions 1996 ‑ IV), and Koua Poirrez v. France (no. 40892/98, § 46, ECHR 2003 ‑ X), the Court reiterated that very weighty reasons would have to be put forward before it could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention. No such reasons could be discerned in the Andrejeva case. Firstly, it had not been alleged that the applicant had not satisfied the other statutory conditions entitling her to a pension in respect of all her years of employment. She had therefore been in an objectively similar situation to persons who had had an identical or similar career involving periods of employment outside Latvian territory but who, after 1991, had been recognised as Latvian citizens. Secondly, there was no evidence that during the Soviet era there had been any difference in treatment between nationals of the former USSR as regards pensions. Thirdly, the applicant was not a national of any State. She had the status of a “permanently resident non ‑ citizen” of Latvia, the only State with which she had any stable legal ties and thus the only State which, objectively, could assume responsibility for her in terms of social security (ibid., § 88). Accordingly, the Court was not satisfied that there was a “reasonable relationship of proportionality” rendering the impugned difference of treatment compatible with the requirements of Article 14 of the Convention (ibid., § 89).", "43. Additionally, while the Court acknowledged the importance of the bilateral inter-State agreements on social security in the effective solution of problems such as those arising in the case before it, it noted that the Latvian State could not be absolved of its responsibility under Article 14 of the Convention on the ground that it was not bound by inter-State agreements on social security (ibid., § 90). Finally, the Court rejected the Government’s argument that it would be sufficient for the applicant to become a naturalised Latvian citizen in order to receive the full amount of the pension claimed. Dismissing the victim’s claims on the ground that he or she could have avoided the discrimination by altering one of the factors listed in Article 14 – for example, by acquiring a nationality – would render that provision devoid of substance (ibid., § 91). Accordingly, the Court found a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention.", "The applicants’ requests subsequent to the Andrejeva judgmentRequests for administrative review", "Requests for administrative review", "Requests for administrative review", "44. On 14 August 2009, following the delivery of the judgment in the Andrejeva case, the first, second, fourth, and fifth applicants applied to the State Social Insurance Agency seeking a recalculation of their pensions and the inclusion of the employment and equivalent periods accrued in the territory of the former USSR outside Latvia, as well as compensation for the pecuniary damage sustained. As these requests were refused, the applicants brought proceedings before the administrative courts, seeking the reopening of the administrative proceedings related to their claims.", "45. By final decisions of 20 November 2009, 27 November 2009, and 16 December 2009 the District Administrative Court ( Administratīvā rajona tiesa ) dismissed the applicants’ requests. The District Administrative Court declared that the Court’s judgment had been adopted only in respect of Ms Andrejeva; conversely, no similar judgments had been given by the Court with respect to any of the applicants in the present case. Furthermore, reopening could not be based on an alleged change in the legal circumstances, as the State had a margin of appreciation in deciding how to execute the Strasbourg Court’s judgment. In particular, the District Administrative Court pointed out that draft amendments to the State Pensions Act were pending before Parliament and had been adopted at first reading. These amendments proposed that the insurance periods accrued outside the territory of Latvia be excluded from the calculation of pensions in respect of both Latvian citizens and “permanently resident non-citizens”. The explanatory note to the draft amendments argued that the Andrejeva judgment could be executed either by including those periods in the calculation with respect to both of these groups or by excluding them from the calculation entirely. As the inclusion of these periods in the calculation of pensions for “permanently resident non-citizens” was seen as contradicting the doctrine of continuity of the Latvian State despite its occupation or annexation by foreign powers, a complete exclusion was proposed. In view of these circumstances, the District Administrative Court considered that only following the legislative amendments would it be possible to speak of a change in legal circumstances warranting or justifying the reopening of the administrative proceedings.", "The Constitutional Court’s review", "(a) Application before the Constitutional Court", "46. On 5 March 2010, relying on the Court’s judgment in Andrejeva, the first, second, fourth, and fifth applicants lodged an application with the Constitutional Court seeking a reassessment of the compatibility of Paragraph 1 of the transitional provisions of the State Pensions Act, instituting the impugned difference in treatment between citizens and “permanently resident non-citizens” in the calculation of their retirement pensions, with Article 91 of the Constitution (guaranteeing the principle of equality and non-discrimination) and Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1 to the Convention.", "47. The Constitutional Court accepted their application and instituted proceedings on 24 March 2010 (case no. 2010-20-0106). It considered that the applicants had provided sufficient evidence that no possibility was open to them to defend their rights through the generally available remedies.", "48. On 22 March 2010, the third applicant lodged a similar application, specifically pointing to the exclusion of the periods of compulsory military service from the calculation of the insurance period and the resulting refusal to grant him an early retirement pension. On 16 April 2010 the Constitutional Court instituted proceedings with respect to the third applicant also, having held that the contested legal provision had personally affected him and that he had substantiated that he was unable to protect his rights by using the general remedies. On 17 June 2010 the two applications were joined.", "(b) The Constitutional Court’s second judgment (2011)", "49. By a judgment delivered on 17 February 2011, the Constitutional Court found that the impugned legal provision was compatible with the principle of non-discrimination. Analysing the historical context in which the social security system had been created, the Constitutional Court reasoned that, once Latvia’s independence had been restored, the State had to resolve the issue of how to calculate retirement pensions for those persons who had made no contributions to the Latvian State budget, either because they had retired prior to the restoration of independence or because their insurance periods had been entirely or partly accrued during the Soviet regime. With regard to Latvian citizens, the legislature had chosen to include in the calculation all the employment periods and equivalent periods accrued both in Latvia and in the territory of the former USSR outside Latvia. Conversely, with respect to foreign citizens, stateless persons and “permanently resident non-citizens” of Latvia, only the periods of work in the Latvian territory were to be counted (with some exceptions). The treatment of Latvian citizens and “permanently resident non-citizens” of Latvia was thus clearly different and it had to be determined whether this difference was justified.", "50. Referring to the Court’s judgment in the Andrejeva case, the Constitutional Court noted that the European Court of Human Rights had only analysed the particular circumstances of that case, rather than the general compliance of the relevant domestic regulation with legal provisions of a higher legal force. The Constitutional Court then drew a distinction between the factual circumstances in the Andrejeva case and those in the case at hand. In particular, even though Ms Andrejeva had been an employee of a Soviet enterprise, the regional department where she was physically present during her work had been located in Latvia. In contrast, in the case at hand the applicants had been working outside the Latvian territory for periods of considerable length over which time they could not have acquired legal ties with Latvia.", "51. The relevant part of the Constitutional Court’s reasoning reads as follows:", "“9. ... The factual circumstances in the case of Andrejeva v. Latvia and in the present case put before the Constitutional Court differ considerably. In particular, Ms N. Andrejeva lived in Latvia from 1954 onwards and was an employee of an enterprise that was placed under the authority of the central government of the USSR, that is, an all-Union enterprise; the regional department where she worked was nonetheless located in the territory of Latvia.", "However, the total length of the insurance period for the [first] applicant is 37.2 years, of which 21.3 years (57 percent) was worked outside the territory of Latvia. [The fifth applicant] worked outside the territory of Latvia for 21.4 years (68 percent) of the total length of her insurance period (31.4 years). [The fourth applicant] accrued 21.8 years (52 percent) of the total length of her insurance period (41.7 years) outside Latvia, whilst [the second applicant] [accrued outside Latvia] 12 years (28 percent) of the total length of his insurance period (42.1 years). The Constitutional Court has no information that the above-mentioned applicants had only formally been employees of the enterprises placed under the authority of other Republics of the USSR but had in reality resided and worked in the territory of Latvia, as was the case for Ms N. Andrejeva. Consequently, during these periods, no legal ties could have formed between them and Latvia.”", "52. Relying, inter alia, on the case-law of the European Court of Human Rights, the Constitutional Court emphasised the wide margin of appreciation enjoyed by the States in creating their social security schemes, including pension schemes. Further, relying on such cases as Jasinskij v. Lithuania ((dec.), no. 38985/97, 9 September 1998); Kuna v. Germany ((dec.), no. 52449/99, 10 April 2001); Kireev v. Moldova and Russia ((dec.), no. 11375/05, 1 July 2008); Kovačić and Others v. Slovenia ([GC], nos. 44574/98 and 2 others, § 256, 3 October 2008); and Si Amer v. France (no. 29137/06, 29 October 2009), the Constitutional Court noted that the Court had indeed paid due regard to considerations of the State succession and continuity of legal obligations.", "53. The Constitutional Court continued (emphasis as in the original):", "“11.1. ... On 18 November 1918 the People’s Council of Latvia proclaimed the Republic of Latvia as an independent State. Latvia and the other Baltic States lost their independence de facto in 1940 when the USSR occupied Latvia in breach of international law.", "Latvia’s independence was restored in 1990, based on the doctrine of State continuity. If a State in respect of which independence was discontinued unlawfully restores its statehood on the basis of the doctrine of State continuity, it is entitled to recognise itself as the same State as that which was unlawfully liquidated ...", "The continuity of Latvia as a subject of international law was emphasised in the Declaration [“On the Restoration of Independence of the Republic of Latvia”, adopted on 4 May 1990 by the Supreme Council of the Latvian SSR]. Its Preamble notes that the incorporation of the Republic of Latvia into the Soviet Union was null and void from the perspective of international law and that the Republic of Latvia still existed de jure as a subject of international law. Establishing the doctrine of the continuity of the Latvian State in the Latvian legal system may be considered to be the main function of the Preamble to the Declaration ...", "11.2. A State’s legal identity determines its rights and obligations. In determining a State’s legal identity it must be noted, and recognised, that the illegal annexation of a State, or part thereof, into other State has no effect in legal terms. ... According to the principle ex injuria ius non oritur, States or parts thereof can join other States on a voluntary basis only, complying with the procedures established by international and national law ...", "11.3 The doctrine of State continuity directly influences the State’s actions, not only in the area of international law, where it continues to comply with the obligations undertaken prior to the de facto termination of its independence and does not assume the international obligations of the State of which it formerly unlawfully formed part, but also in internal affairs. The acts of the illegally established public authorities of the other State in the field of public law are not binding on the State which has restored its independence. ... To claim or to imply indirectly that Latvia has any automatic obligations based on the Soviet period would be tantamount to denying the fact of the unlawful occupation and annexation of Latvia within the meaning of international law and would be contrary to the principle ex injuria ius non oritur and the obligation of non-recognition established in international law (see the partly dissenting opinion of Judge Ziemele in the case of Andrejeva v. Latvia, paragraph 22).", "Accordingly, the Republic of Latvia is not a successor to the rights and obligations of the former USSR and, in accordance with the doctrine of State continuity, the restored State is not required to undertake any obligations emanating from the obligations of the occupying State. ”", "54. The Constitutional Court then noted that a difference in treatment in the sphere of social rights was based on the idea that the State had to assume particular responsibility for its citizens. Some social rights could only be ensured partially and an absolute application of the prohibition of discrimination could have serious financial consequences. The mere fact that a person did not enjoy certain social rights did not violate his or her fundamental rights, as a violation would only be caused if this restriction was without sufficient justification. Referring to the Court’s decision in Janković v. Croatia ((dec.), no. 43440/98, ECHR 2000 ‑ X), the Constitutional Court noted that the State enjoyed a margin of appreciation of granting privileges to those persons that it deemed appropriate in view of the particular circumstances. The Convention did not prevent the Contracting Parties from introducing measures that treated certain groups of people differently, in so far as this interference could be justified under the Convention. The case-law of the European Court of Human Rights also showed that Article 1 of Protocol No. 1 did not guarantee the right to a pension of a specific amount, instead calling for a determination of whether the essence of the right to receive the pension had not been impaired (the Constitutional Court referred to Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004 ‑ IX, and Janković, cited above). Likewise, the Convention did not guarantee the right to receive a pension for the work carried out in another country (referring to L.B. v. Austria (dec.), no. 39802/98, 18 April 2002).", "55. The Constitutional Court then continued (emphasis as in the original):", "“12.2. Since the restoration of its independence, Latvia has developed a social security system which applies to all persons who were resident in Latvia on 1 January 1991.", "The collapse of the USSR and the restoration of the Latvian State gave rise to considerable difficulties. During the occupation, the State and social budgets were controlled by the USSR State Bank. After the collapse of the USSR, those resources were not shared; they remained the property of the Russian Federation. Therefore, Latvia decided to ensure a minimum pension for all the inhabitants of Latvia. Pursuant to the disputed provision, periods of work accrued within the territory of Latvia are taken into consideration when calculating pensions for both citizens and [“permanently resident non-citizens”]. The legislature chose this particular regulatory framework because, in fact, this was the same administrative territory, with the same body of inhabitants, that Latvia “inherited” when it restored its independence. Furthermore, it could be considered that during the periods preceding 31 December 1991 when they worked within the territory of Latvia, the inhabitants had contributed to the national economy and the development of Latvia.", "12.3. When devising the new pension system, it was decided that, in addition to the minimum pension already awarded, periods of work which had been accrued outside the territory of Latvia would be included in everyone’s insurance period. Latvian citizens were credited with a broader range of work periods accrued outside the territory of Latvia for inclusion in the insurance period, as compared to [“permanently resident non-citizens”], aliens and stateless persons. When assessing the periods which the legislature has chosen to count towards the length of the insurance periods for [“permanently resident non-citizens”], it can be seen that these are the periods during which [“permanently resident non-citizens”] acquired education or upgraded their qualifications so that they would later contribute to the development of the Latvian national economy, as well as those periods during which politically persecuted persons were held in custody, were resettled or were deported because they were regarded as opponents of the occupying regime. Accordingly, in creating its pension system the State exercised its margin of appreciation and took into account its citizens’ special link with the State, as well as the contribution their predecessors had made to the development of the national economy. The inclusion of certain periods of work accrued outside the territory of Latvia towards the insurance period for [“permanently resident non-citizens”] can be regarded as a manifestation of good will by the restored State (see also Epstein and Others v. Belgium (dec.), no. 9717/05, 8 January 2008).", "13. As a result of the Soviet occupation in June 1940, Latvia not only lost its independence but also experienced mass deportations, killings of its inhabitants and an influx of Russian-speaking immigrants. On 25 March 1949 2.3% of the inhabitants of Latvia were deported – that is, about three times as many people as in the deportation of 14 June 1941. After the Second World War mass immigration into Latvia of USSR citizens occurred ...", "After the restoration of independence, the legislature had to decide how to establish the body of Latvian citizens. In view of the continuity of Latvia as a subject of international law, the citizenry of Latvia was restored in the same way as it had been determined in the Nationality Act of 1919. Accordingly, instead of granting citizenship to persons who had held citizenship prior to Latvia’s occupation, Latvia restored the rights of those persons de facto ... Consequently, the continuity of Latvia as a subject of international law was the legal grounds for not automatically granting citizenship status to a certain group of people, and it was necessary to create a special legal status for those persons who had come to Latvia during the period of occupation without acquiring any other citizenship. The granting of the status of [“permanently resident non-citizens”] to a certain group of people was the result of a complicated political compromise. Moreover, when enacting the Law “On the Status of those Citizens of the Former USSR who do not have the Citizenship of Latvia or any other State”, Latvia had also to observe international human-rights standards, which prohibit increasing the number of stateless persons ...", "The status of [“permanently resident non-citizens”] of Latvia cannot be equated with the status of either stateless persons or aliens, as defined in international legal instruments, as the level of rights granted to [“permanently resident non-citizens”] does not fully correspond to [those granted to persons] of either of those statuses. The status of [“permanently resident non-citizens”] is not and cannot be regarded as a variety of Latvian citizenship ...", "The present case does not concern long-term immigrants who arrived in the country pursuant to the provisions of a regulated immigration procedure, as happens nowadays. The majority of [“permanently resident non-citizens”] in Latvia settled in Latvian territory as a result of the immigration policy implemented by the USSR. Over the employment periods accrued outside the territory of Latvia these persons made no contribution to the Latvian economy and development. For these persons, the Latvian SSR was one corner of the USSR, where they could live and work for a shorter or longer while, thereby implementing part of the Sovietisation and Russification policy of the Communist Party of the Soviet Union (see the partly dissenting opinion of Judge Ziemele in the case of Andrejeva v. Latvia, paragraph 27).", "The Constitutional Court recognises that [“permanently resident non-citizens”] have legal ties with Latvia that are the basis for certain mutual rights and obligations. Nonetheless, the context of the State continuity is decisive, and it serves as a weighty reason justifying the difference in calculation of pensions for citizens and [“permanently resident non-citizens”]. A State that has been occupied as the result of an aggression by another State does not have the obligation to guarantee social security to persons who had travelled to its territory as the result of the immigration policy of the occupying State. This is particularly so if the erga omnes obligation not to recognise and justify breaches of international law is taken into account (see the judgment of 5 February 1970 of the International Court of Justice in the case of Belgium v. Spain (Barcelona Traction case), ICJ Reports 1970, No. 3, paragraph 33).", "Although the applicants do not regard the possibility of obtaining citizenship of the Republic of Latvia as proportionate, this option is open to [“permanently resident non ‑ citizens”]. The legislature has expressed the view that the status of [“permanently resident non-citizens”] was devised as a temporary instrument, so that the persons could obtain Latvian citizenship or choose another State with which to establish legal ties ... After the acquisition of Latvian citizenship, the employment periods accrued outside the territory of Latvia would also be counted towards the length of the insurance period. Many [“permanently resident non-citizens”] have used this possibility as a means of obtaining the rights and duties stipulated with respect of citizens. However, many [“permanently resident non-citizens”] have not wished to take advantage of this possibility, for a variety of reasons.", "Consequently, the difference in treatment when calculating pensions for citizens and [“permanently resident non-citizens”] of Latvia has objective and reasonable grounds. ”", "56. Further, referring to the Court’s case-law in Carson and Others v. the United Kingdom ([GC], no. 42184/05, § 88, ECHR 2010), and Andrejeva, cited above, the Constitutional Court noted the importance of international agreements in the area of social security. Latvia was not required to assume the obligations of another State and to insure persons with retirement pensions for periods of work accomplished in that State. Latvia could not oblige the taxpayers of the new pension scheme to resolve issues that fell to be determined by international agreements. Latvia had in fact concluded such agreements with several countries, envisaging mutual recognition of periods of employment for inclusion in calculating State pensions. The Constitutional Court referred to the agreements with the United States of America (in force since 5 November 1992), Lithuania (in force since 31 January 1995), Estonia (in force since 29 January 1997, replaced by a new agreement in force since 1 September 2008), Ukraine (in force since 11 June 1999), Finland (in force since 1 June 2000), Norway (in force since 18 November 2004), the Netherlands (in force since 1 June 2005), Canada (in force since 1 November 2006), Belarus (in force since 28 September 2010) and Russia (in force since 19 January 2011).", "57. The Constitutional Court continued:", "“14. ... The agreements concluded with the States which were formed after the collapse of the USSR show that these States have a similar understanding of the rights and obligations in the area of social law with respect to the period of occupation by the USSR. All these agreements are different; they reflect the outcome of negotiations between different States and regulate situations that have formed as a result of different historical, economic and political circumstances (see Tarkoev and Others v. Estonia, nos. 14480/08 and 47916/08, § 53, 4 November 2010). When concluding these agreements, the States have taken into account the historical context in which Latvia created its pensions system following the restoration of its independence.”", "58. The Constitutional Court then noted that, with respect to the fourth applicant, the Latvia-Belarus Social Security Agreement was to be taken into account in calculating her pension, whereas the employment period accrued in Germany would be included in any calculation based on European Union law. In addition, with respect to the first, third, fourth, and fifth applicants, the periods of employment and of compulsory military service were to be included in the calculation, on the basis of the Latvia-Russia Social Security Agreement which had taken effect on 19 January 2011.", "59. The Constitutional Court then observed that the applicants, similarly to the applicants in the case of Tarkoev and Others v. Estonia (nos. 14480/08 and 47916/08, 4 November 2010), wished to expand their rights with respect to the amount of pension granted, but this desire was not justified. The applicants had not been deprived of the pension or of any other social security payments and, in case of need, they were entitled to receive other social services and benefits. Accordingly, the difference in treatment was justified and proportionate, and the contested provision was therefore compatible with Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, as well as with Article 91 of the Constitution." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "DOMESTIC LAWConstitutional provisions", "Constitutional provisions", "Constitutional provisions", "60. On 4 May 1990, the Supreme Council of the “Latvian SSR” adopted the Declaration on the Restoration of Independence of the Republic of Latvia ( Deklarācija “ Par Latvijas Republikas neatkarības atjaunošanu ”). It was noted in its Preamble that the establishment of the State of Latvia had been proclaimed on 18 November 1918, that in 1920 Latvia had been internationally recognised, and that in 1921 it had become a member of the League of Nations. It was further noted in the Preamble that:", "“Hence, according to international law, the incorporation of Latvia into the Soviet Union is invalid. Accordingly, the Republic of Latvia continues to exist de jure as a subject of international law, and it is recognised as such by more than 50 nations of the world.”", "61. The operative provisions of the Declaration of 4 May 1990 read as follows:", "“The Supreme Council of the Latvian SSR decides :", "(1) in recognition of the supremacy of international law over the provisions of national law, to consider illegal the Pact of 23 August 1939 between the USSR and Germany and the subsequent liquidation of the sovereignty of the Republic of Latvia through the USSR’s military aggression on 17 June 1940;", "(2) to declare null and void the Declaration by the Parliament [ Saeima ] of Latvia, adopted on 21 July 1940, on Latvia’s integration into the Union of Soviet Socialist Republics;", "(3) to restore the legal effect of the Constitution [ Satversme ] of the Republic of Latvia, adopted on 15 February 1922 by the Constituent Assembly [ Satversmes sapulce ], throughout the entire territory of Latvia. The official name of the Latvian State shall be the REPUBLIC of LATVIA, abbreviated to LATVIA;", "(4) to suspend the Constitution of the Republic of Latvia pending the adoption of a new version of the Constitution, with the exception of those Articles which define the constitutional and legal foundation of the Latvian State and which, in accordance with Article 77 of the same Constitution, may only be amended by referendum, namely:", "Article 1 – Latvia is an independent and democratic republic.", "Article 2 – The sovereign power of the State of Latvia is vested in the Latvian people.", "Article 3 – The territory of the State of Latvia, as established by international agreements, consists of Vidzeme, Latgale, Kurzeme and Zemgale.", "Article 6 – Parliament [ Saeima ] shall be elected in general, equal, direct and secret elections, based on proportional representation.", "Article 6 of the Constitution shall be applied after the restoration of the State and administrative structures of the independent Republic of Latvia, which will guarantee free elections;", "(5) to introduce a transition period for the re-establishment of the Republic of Latvia’s de facto sovereignty, which will end with the convening of the Parliament of the Republic of Latvia. During the transition period, supreme power shall be exercised by the Supreme Council of the Republic of Latvia;", "(6) during the transition period, to accept the application of those constitutional and other legal provisions of the Latvian SSR which are in force in the territory of the Latvian SSR when the present Declaration is adopted, in so far as those provisions do not contradict Articles 1, 2, 3 and 6 of the Constitution of the Republic of Latvia.", "Disputes on matters relating to the application of legislative texts will be referred to the Constitutional Court of the Republic of Latvia.", "During the transition period, only the Supreme Council of the Republic of Latvia shall adopt new legislation or amend existing legislation;", "(7) to set up a commission to draft a new version of the Constitution of the Republic of Latvia that will correspond to the current political, economic and social situation in Latvia;", "(8) to guarantee social, economic and cultural rights, as well as universally recognised political freedoms compatible with international instruments of human rights, to citizens of the Republic of Latvia and citizens of other States permanently residing in Latvia. This shall apply to citizens of the USSR who wish to live in Latvia without acquiring Latvian nationality;", "(9) to base relations between the Republic of Latvia and the USSR on the Peace Treaty of 11 August 1920 between Latvia and Russia, which is still in force and which recognises the independence of the Latvian State for all time. A governmental commission shall be set up to conduct the negotiations with the USSR.”", "62. The operative provisions of the Constitutional Law of 21 August 1991 on the status of the Republic of Latvia as a State ( Konstitucionālais likums “Par Latvijas Republikas valstisko statusu” ) read as follows:", "“The Supreme Council of the Republic of Latvia decides :", "(1) to declare that Latvia is an independent and democratic republic in which the sovereign power of the State of Latvia belongs to the Latvian people, the status of which as a State is defined by the Constitution of 15 February 1922;", "(2) to repeal Paragraph 5 of the Declaration of 4 May 1990 on the Restoration of the Independence of the Republic of Latvia, establishing a transition period for the de facto restoration of the Republic of Latvia’s State sovereignty;", "(3) until such time as the occupation and annexation is ended and Parliament is convened, supreme State power in the Republic of Latvia shall be fully exercised by the Supreme Council of the Republic of Latvia. Only those laws and decrees enacted by the supreme governing and administrative authorities of the Republic of Latvia shall be in force in its territory;", "(4) this Constitutional Law shall enter into force on the date of its enactment.”", "63. The relevant provisions of the Latvian Constitution ( Satversme ) are worded as follows:", "Preamble (third paragraph)", "(Inserted by the Act of 19 June 2014)", "“The people of Latvia did not recognise the occupation regimes, resisted them and regained their freedom by restoring national independence on 4 May 1990 on the basis of continuity of the State. They honour their freedom fighters, commemorate victims of foreign powers, [and] condemn the Communist and Nazi totalitarian regimes and their crimes.”", "Article 91", "(Inserted by the Act of 15 October 1998)", "“All persons in Latvia shall be equal before the law and the courts. Human rights shall be exercised without discrimination of any kind.”", "Article 109", "(Inserted by the Act of 15 October 1998)", "“Everyone has the right to social assistance in the event of old age, incapacity to work, unemployment and in other cases provided for by law.”", "Provisions on the calculation of State pensionsSoviet law (before 1991)", "Soviet law (before 1991)", "Soviet law (before 1991)", "64. Before 1991, persons resident in Latvian territory were covered by the same social security scheme as the rest of the population of the USSR. In particular, the pension system at the time was based not on the contribution principle but on the solidarity principle. All pensions were paid from Treasury funds, a portion of the State’s revenue being set aside for pensions. More specifically, employees themselves were not subject to social tax, which was paid by their employers. The social-insurance contributions paid by the various employers were transferred via trade unions to the USSR Treasury, managed by the USSR State Bank. Those funds were then redistributed among the SSRs for a variety of purposes, including the payment of retirement pensions, and the amount of a pension did not depend directly on the amount of tax previously paid to the tax authorities. There was also a personal income tax, part of which was paid to the USSR central tax authorities and the rest to the local tax authorities of the relevant SSR. However, personal income-tax revenues were practically never used for pension payments (for more precise details on the legal provisions applicable during the Soviet period, see Andrejeva, cited above, §§ 26 ‑ 32).", "The 1990 and 1995 State Pensions Acts", "65. The main instrument governing pensions is the State Pensions Act of 2 November 1995 ( Likums « Par valsts pensijām » ), which came into force on 1 January 1996, repealing the previous Act passed in 1990. Section 3(1) of the Act provides that persons who have been covered by the compulsory insurance scheme are entitled to a State social-insurance pension. As a rule, the amount of the pension in each particular case depends on the period during which the entitled person, the employer or both paid, or are presumed to have paid, insurance contributions in respect of State pensions (section 9(1) and (2)). Evidence of this period is provided by data at the disposal of the State Social-Insurance Agency (section 10).", "66. Matters relating to the reckoning of years of employment under the Soviet regime (prior to 1991) are governed by the transitional provisions of the Act. Paragraph 1 of these transitional provisions, as in force from 1 July 2008 until 18 July 2012, provided:", "“In the case of Latvian citizens, periods of employment and equivalent periods accrued in the territory of Latvia and of the former USSR up to 31 December 1990, as well as the aggregate period spent outside Latvia in the case specified in sub ‑ paragraph (10) of this paragraph, shall be counted towards the insurance period. In the case of foreign nationals, stateless persons and non-citizens of Latvia, the insurance period shall be composed of periods of employment and equivalent periods that have been accrued in the territory of Latvia, as well as the equivalent periods that have been accrued in the former USSR in the cases specified in sub-paragraphs (4) and (5) of this paragraph, and the aggregate period spent outside Latvia in the case specified in sub ‑ paragraph (10) of this paragraph. The following periods, which are treated as equivalent to employment, and which have been accrued up to 31 December 1990 – but in case of sub-paragraph (11) of this paragraph up to 31 December 1995 – shall be counting towards the insurance period:", "(1) mandatory active military service and alternative (work) service;", "(2) career service for soldiers and service for officers in the Army of the Republic of Latvia, for citizens of Latvia – also in the USSR Armed Forces, if as a result of their activities in the interests of Latvia they had been demoted or if they had been called up for active military service after serving their compulsory military service or after graduating a civil university ...;", "(3) rank and file service and position of unit commanding personnel in the institutions dealing with internal affairs, with the exception of the KGB [the State Security Committee];", "(4) periods of study at higher-education institutions, and at other training institutions at post-secondary level, subject to a limit of five years in the case of qualifications requiring up to five years of study at the relevant time, and a limit of six years in the case of qualifications requiring more than five years of study at the relevant time;", "(5) periods of full-time doctoral studies, up to a maximum of three years, postgraduate education or ongoing vocational training;", "(6) individual work;", "(7) time spend caring for a disabled person with a category I disability status, a disabled child up to the age of 16, as well as a person who has reached 80 years of age;", "(8) time spent by a mother raising a child up to the age of eight years;", "(9) gainful employment in religious organisations;", "(10) time spent in places of detention by victims of political persecution ... in exile, and time spent escaping from such places, those periods to be multiplied by three, or by five in the case of time spent in the [Soviet] Far North and regions treated as equivalent ...", "(11) time when an insured person was given a disability status of category I, II or III and did not work (including due to an accident at work or occupational illness), but no longer than up to reaching the retirement age; ...", "(12) employment in the status of a member of a collective farm ( kolkhoz ) from the age of 16.”", "67. In other words, with respect to Latvian citizens, all of the defined employment and equivalent periods accrued prior to 1991 in the territory of the former USSR are taken into account in the calculation of their pension. In contrast, with respect to the “permanently resident non-citizens” the employment periods accrued outside the territory of Latvia are not counted towards their insurance period, and from the equivalent periods only those mentioned in subparagraphs 4, 5, and 10 are taken into account. If a “permanently resident non-citizen” obtains Latvian citizenship by way of naturalisation, he or she also starts receiving pension in respect of the employment periods accrued outside Latvia, but only ex nunc; the recalculation of the amount of the pension has no retroactive effect.", "68. Under paragraph 7 of the above-mentioned transitional provisions:", "“The following shall be deemed to constitute evidence of periods of employment accrued before 31 December 1995:", "(1) an employment record [ darba grāmatiņa ];", "(2) a record of employment contracts [ darba līgumu grāmatiņa ];", "(3) a document certifying payment of social-insurance contributions;", "(4) any other evidence of periods of employment (such as certificates, contracts of employment or documents certifying performance of work).”", "69. In order to clarify the application of the provisions cited above, on 23 April 2002 the Cabinet adopted Regulation no. 165 on the procedure for certifying, calculating and monitoring insurance periods ( Apdrošināšanas periodu pierādīšanas, aprēķināšanas un uzskaites kārtība ). Rule 21 of this regulation states that any work carried out for entities situated in Latvian territory is to be treated as “employment in Latvia”.", "INTERNATIONAL LAW AND PRACTICENationalityThe case-law of the International Court of Justice", "NationalityThe case-law of the International Court of Justice", "The case-law of the International Court of Justice", "NationalityThe case-law of the International Court of Justice", "The case-law of the International Court of Justice", "The case-law of the International Court of Justice", "70. In the Nottebohm Case ( Liechtenstein v. Guatemala, judgment of 6 April 1955, ICJ Reports 1955), the International Court of Justice (ICJ) concluded as follows.", "“It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation. It is not necessary to determine whether international law imposes any limitations on its freedom of decision in this domain. Furthermore, nationality has its most immediate, its most far-reaching and, for most people, its only effects within the legal system of the State conferring it. Nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or imposes on its nationals. This is implied in the wider concept that nationality is within the domestic jurisdiction of the State.", "...", "According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.", "...", "Naturalisation is not a matter to be taken lightly. To seek and to obtain it is not something that happens frequently in the life of a human being. It involves his breaking of a bond of allegiance and his establishment of a new bond of allegiance. It may have far-reaching consequences and involve profound changes in the destiny of the individual who obtains it. It concerns him personally, and to consider it only from the point of view of its repercussions with regard to his property would be to misunderstand its profound significance. In order to appraise its international effect, it is impossible to disregard the circumstances in which it was conferred, the serious character which attached to it, the real and effective, and not merely the verbal preference of the individual seeking it for the country which grants it to him.”", "The European Convention on Nationality", "71. The principal Council of Europe document concerning nationality is the European Convention on Nationality (ETS No. 166), which was adopted on 6 November 1997 and came into force on 1 March 2000. It has been ratified by twenty member States of the Council of Europe. Latvia signed this Convention on 30 May 2001 but has not ratified it.", "72. The relevant Articles of this Convention read as follows.", "Article 2 – Definitions", "“For the purpose of this Convention:", "a. ’nationality’ means the legal bond between a person and a State and does not indicate the person’s ethnic origin; ...”", "Article 3 – Competence of the State", "“1. Each State shall determine under its own law who are its nationals.", "2. This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality.”", "Article 4 – Principles", "“The rules on nationality of each State Party shall be based on the following principles:", "a. everyone has the right to a nationality;", "b. statelessness shall be avoided;", "c. no one shall be arbitrarily deprived of his or her nationality;", "d. neither marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse.”", "73. The Explanatory Report to this Convention states, inter alia, in relation to Article 2:", "Article 2 – Definitions", "“22. The concept of nationality was explored by the International Court of Justice in the Nottebohm case. This court defined nationality as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’ ( Nottebohm case, ICJ Reports 1955, p. 23).", "23. Nationality’ is defined in Article 2 of the Convention as ‘the legal bond between a person and a State and does not indicate the person’s ethnic origin’. It thus refers to a specific legal relationship between an individual and a State which is recognised by that State. As already indicated in a footnote to paragraph 1 of this explanatory report, with regard to the effects of the Convention, the terms ‘nationality’ and ‘citizenship’ are synonymous.”", "The case-law of the Inter-American Court of Human Rights", "74. In Proposed Amendments to the Naturalisation Provision of the Constitution of Costa Rica (Advisory Opinion OC-4/84, 19 January 1984), the Inter-American Court of Human Rights ruled as follows:", "“31. The questions posed by the Government involve two sets of general legal problems which the Court will examine separately. There is, first, an issue related to the right to nationality established by Article 20 of the Convention. A second set of questions involves issues of possible discrimination prohibited by the Convention.", "32. It is generally accepted today that nationality is an inherent right of all human beings. Not only is nationality the basic requirement for the exercise of political rights, it also has an important bearing on the individual’s legal capacity.", "Thus, despite the fact that it is traditionally accepted that the conferral and regulation of nationality are matters for each state to decide, contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by the states in that area, and that the manners in which states regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction; those powers of the state are also circumscribed by their obligations to ensure the full protection of human rights.", "33. The classic doctrinal position, which viewed nationality as an attribute granted by the state to its subjects, has gradually evolved to the point that nationality is today perceived as involving the jurisdiction of the state as well as human rights issues. This has been recognized in a regional instrument, the American Declaration of the Rights and Duties of Man of 2 May 1948 ... [text of Article 19]. Another instrument, the Universal Declaration of Human Rights ... provides the following [text of Article 15].", "34. The right of every human being to a nationality has been recognized as such by international law. Two aspects of this right are reflected in Article 20 of the Convention: first, the right to a nationality established therein provides the individual with a minimal measure of legal protection in international relations through the link his nationality establishes between him and the state in question; and, second, the protection therein accorded the individual against the arbitrary deprivation of his nationality, without which he would be deprived for all practical purposes of all of his political rights as well as of those civil rights that are tied to the nationality of the individual.", "35. Nationality can be deemed to be the political and legal bond that links a person to a given state and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that state. In different ways, most states have offered individuals who did not originally possess their nationality the opportunity to acquire it at a later date, usually through a declaration of intention made after complying with certain conditions. In these cases, nationality no longer depends on the fortuity of birth in a given territory or on parents having that nationality; it is based rather on a voluntary act aimed at establishing a relationship with a given political society, its culture, its way of life and its values.", "36. Since it is the state that offers the possibility of acquiring its nationality to persons who were originally aliens, it is natural that the conditions and procedures for its acquisition should be governed primarily by the domestic law of that state. As long as such rules do not conflict with superior norms, it is the state conferring nationality which is best able to judge what conditions to impose to ensure that an effective link exists between the applicant for naturalization and the systems of values and interests of the society with which he seeks to fully associate himself. That state is also best able to decide whether these conditions have been complied with. Within these same limits, it is equally logical that the perceived needs of each state should determine the decision whether to facilitate naturalization to a greater or lesser degree; and since a state’s perceived needs do not remain static, it is quite natural that the conditions for naturalization might be liberalized or restricted with the changed circumstances. It is therefore not surprising that at a given moment new conditions might be imposed to ensure that a change of nationality not be effected to solve some temporary problems encountered by the applicants when these have not established real and lasting ties with the country, which would justify an act as serious and far-reaching as the change of nationality.”", "75. In Case of the Girls Yean and Bosico v. Dominican Republic (preliminary objections, merits, reparations and costs), judgment of 8 September 2005, Series C No. 130, the Inter-American Court of Human Rights ruled as follows (footnotes omitted):", "“139. The American Convention recognizes both aspects of the right to nationality: the right to have a nationality from the perspective of granting the individual a ‘minimal measure of legal protection in international relations through the link his nationality establishes between him and the State in question; and second the protection accorded the individual against the arbitrary deprivation of his nationality, without that are tied to the nationality of the individual’.", "140. The determination of who has a right to be a national continues to fall within a State’s domestic jurisdiction. However, its discretional authority in this regard is gradually being restricted with the evolution of international law, in order to ensure a better protection of the individual in the face of arbitrary acts of States. Thus, at the current stage of the development of international human rights law, this authority of the States is limited, on the one hand, by their obligation to provide individuals with the equal and effective protection of the law and, on the other hand, by their obligation to prevent, avoid and reduce statelessness.", "141. The Court considers that the peremptory legal principle of the equal and effective protection of the law and non-discrimination determines that, when regulating mechanisms for granting nationality, States must abstain from producing regulations that are discriminatory or have discriminatory effects on certain groups of population when exercising their rights. Moreover, States must combat discriminatory practices at all levels, particularly in public bodies and, finally, must adopt the affirmative measures needed to ensure the effective right to equal protection for all individuals.", "142. States have the obligation not to adopt practices or laws concerning the granting of nationality, the application of which fosters an increase in the number of stateless persons. This condition arises from the lack of a nationality, when an individual does not qualify to receive this under the State’s laws, owing to arbitrary deprivation or the granting of a nationality that, in actual fact, is not effective. Statelessness deprives an individual of the possibility of enjoying civil and political rights and places him in a condition of extreme vulnerability.”", "76. The principles emerging from the case-law of the Inter-American Court of Human Rights concerning the right to nationality were confirmed in Expelled Dominicans and Haitians v. Dominican Republic (preliminary objections, merits, reparations and costs, judgment of 28 August 2014, Series C No. 282, §§ 253-64).", "State responsibility", "77. The International Law Commission adopted the Articles on Responsibility of States for Internationally Wrongful Acts (the ILC Articles) at its 53 rd session, in 2001 ( Official Records of the General Assembly, Fifty ‑ sixth Session, Supplement No. 10 and corrigendum (A/56/10 and Corr.1)). They were submitted to the General Assembly which, in its resolution of 12 December 2001 (A/56/83 (2001)), took note of these articles and commended them to the attention of Governments. Article 2, entitled “Elements of an internationally wrongful act of a State”, provides:", "“There is an internationally wrongful act of a State when conduct consisting of an action or omission:", "(a) is attributable to the State under international law; and", "(b) constitutes a breach of an international obligation of the State.”", "78. The Commentary, adopted together with the ILC Articles, further explains in relation to Article 2 (footnotes omitted):", "“(5) For particular conduct to be characterized as an internationally wrongful act, it must first be attributable to the State. The State is a real organized entity, a legal person with full authority to act under international law. But to recognize this is not to deny the elementary fact that the State cannot act of itself. An “act of the State” must involve some action or omission by a human being or group: “States can act only by and through their agents and representatives.” The question is which persons should be considered as acting on behalf of the State, i.e. what constitutes an “act of the State” for the purposes of State responsibility.", "(6) In speaking of attribution to the State what is meant is the State as a subject of international law. Under many legal systems, the State organs consist of different legal persons (ministries or other legal entities), which are regarded as having distinct rights and obligations for which they alone can be sued and are responsible. For the purposes of the international law of State responsibility the position is different. The State is treated as a unity, consistent with its recognition as a single legal person in international law. In this as in other respects the attribution of conduct to the State is necessarily a normative operation. What is crucial is that a given event is sufficiently connected to conduct (whether an act or omission) which is attributable to the State under one or other of the rules set out in chapter II.", "(7) The second condition for the existence of an internationally wrongful act of the State is that the conduct attributable to the State should constitute a breach of an international obligation of that State ...", "(12) In subparagraph (a), the term “attribution” is used to denote the operation of attaching a given action or omission to a State. In international practice and judicial decisions, the term “imputation” is also used. But the term “attribution” avoids any suggestion that the legal process of connecting conduct to the State is a fiction, or that the conduct in question is “really” that of someone else.", "(13) In subparagraph (b), reference is made to the breach of an international obligation rather than a rule or a norm of international law. What matters for these purposes is not simply the existence of a rule but its application in the specific case to the responsible State. The term “obligation” is commonly used in international judicial decisions and practice and in the literature to cover all the possibilities. The reference to an “obligation” is limited to an obligation under international law, a matter further clarified in article 3.”", "International agreements on social security concluded by Latvia", "79. Mutual recognition of periods of employment to be taken into account in calculating State pensions is provided for in the cooperation agreements on social security which Latvia has concluded with Lithuania (in force since 31 January 1996), Estonia (in force since 29 January 1997), Ukraine (in force since 11 June 1999), Finland (in force since 1 June 2000) and Canada (in force since 1 November 2006). A similar agreement with the Netherlands (in force since 1 June 2005) prohibits any discrimination on the ground of place of residence. Since the delivery of the Court’s judgment in Andrejeva, cited above, further bilateral agreements have been concluded, most importantly with Belarus (in force since 28 September 2010) and with Russia (in force since 19 January 2011).", "80. In particular, Article 3(1) of the cooperation agreement on social security between Latvia and the Russian Federation expressly extends its scope to “permanently resident non-citizens” of Latvia. Article 10(1) provides that, in calculating a retirement pension, each of the parties is to take into account the aggregate period of employment of the person concerned in both countries. Article 4(2) provides for an exception to the effect that the principle of equality between nationals and residents of both States does not apply to the specific arrangements for the calculation of Latvian citizens’ periods of employment prior to 1991.", "81. Article 25 of the agreement shares the financial burden of retirement pensions between the two States where the person concerned has become entitled to such a pension after the agreement’s entry into force. The pension in respect of employment prior to 1 January 1991 is paid by the State in which the beneficiary is resident at the time of claiming the pension. However, in respect of the period after that date, each Contracting Party has undertaken to cover the periods of employment in its own territory. Article 26 states that a pension that had already been granted before the entry into force of the agreement may also be recalculated on that basis at the express request of the beneficiary; however, any such review can only take effect from the entry into force of the agreement.", "82. The agreement with Belarus contains similar provisions.", "LAW AND PRACTICE of the institutions of the european communities and the european unionThe Court of Justice of the European Union", "The Court of Justice of the European Union", "The Court of Justice of the European Union", "83. In case C-135/08 Janko Rottmann v. Freistaat Bayern (judgment of 2 March 2010), the Court of Justice of the European Union ruled as follows (references omitted):", "“45. Thus, the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law ...", "...", "48. The proviso that due regard must be had to European Union law does not compromise the principle of international law previously recognised by the Court, ..., that the Member States have the power to lay down the conditions for the acquisition and loss of nationality, but rather enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union, as is in particular the case of a decision withdrawing naturalisation such as that at issue in the main proceedings, is amenable to judicial review carried out in the light of European Union law.", "...", "55. In such a case, it is, however, for the national court to ascertain whether the withdrawal decision at issue in the main proceedings observes the principle of proportionality so far as concerns the consequences it entails for the situation of the person concerned in the light of European Union law, in addition, where appropriate, to examination of the proportionality of the decision in the light of national law.”", "The European Parliament", "84. The relevant parts of the Resolution of the European Parliament regarding the Baltic States, adopted on 13 January 1983 (1982-1983 EUR.PARL.DOC (no.7.908) 432-33 (9183)), read as follows:", "“The European Parliament,", "...", "Having regard to the bilateral peace treaties between the Soviet Union and the Baltic states in Dorpat (February 2, 1920), Moscow (July 12, 1920) and Riga (August 11, 1920), in which the Soviet Union guaranteed the three Baltic states the inviolability of their territory and eternal peace,", "Having regard to Article VIII of the Final Act of the Helsinki Conference on Security and Cooperation, which secures the right of self-determination of peoples and their right, in full freedom, to determine, when and as they wish, their internal and external political status,", "Condemning the fact that the occupation of these formerly independent and neutral states by the Soviet Union occurred in 1940 pursuant to the Molotov-Ribbentrop Pact, and continues,", "Whereas the Soviet annexation of the three Baltic states has still not been formally recognised by most European states and the USA, Canada, the United Kingdom, Australia and the Vatican still adhere to the concept of Baltic states,", "...", "Calls on the Conference of Foreign Minister meeting in political cooperation to attempt to form a common favourable approach to the declaration addressed to the United Nations in 1979,", "Suggests that they submit the issue of the Baltic states to the Decolonisation Subcommittee on the U.N.,", "...", "Expresses the hope that the Conference of Foreign Ministers will use their best endeavours to see that the aspirations of the peoples of these states as to their form of government is realised,", "Instructs its President to forward this resolution to the Foreign Ministers of the Member States of the European Community meeting in political cooperation, and to the governments of the Member States.”", "REPORTS AND RESOLUTIONS OF COUNCIL OF EUROPE BODIESThe Parliamentary Assembly of the Council of Europe", "The Parliamentary Assembly of the Council of Europe", "The Parliamentary Assembly of the Council of Europe", "85. Resolution 189 (1960) of the Parliamentary Assembly of the Council of Europe, entitled “Situation in the Baltic States on the twentieth anniversary of their forcible incorporation into the Soviet Union”, adopted on 29 September 1960, reads as follows:", "“1. The Assembly,", "2. On the twentieth anniversary of the occupation and forcible incorporation into the Soviet Union of the three European States of Estonia, Latvia and Lithuania,", "3. Notes that this illegal annexation took place without any genuine reference to the wishes of the people;", "4. Expresses sympathy with the sufferings of the Baltic peoples and assures them that they are not forgotten by their fellow Europeans;", "5. Is confident that Communist oppression will not succeed in crushing their spirit and faith in freedom and democracy;", "6. Notes that the independent existence of the Baltic States is still recognised de jure by a great majority of the Governments of the nations of the free world;", "7. Urges member Governments to support appropriate efforts of Baltic refugees to maintain their natural culture, traditions and languages, in anticipation of the time when Estonia, Latvia and Lithuania will be able to play their part as free nations in our democratic international institutions.”", "86. The relevant parts of Resolution 872(1987) of the Parliamentary Assembly of the Council of Europe, entitled “Situation of the Baltic peoples”, adopted on 28 January 1987, read as follows:", "“The Assembly,", "...", "3. Recalling that the incorporation of the three Baltic states into the Soviet Union was and still is a flagrant violation of the right to self-determination of peoples, and that it remains unrecognised by the great majority of European states and many members of the international community;", "4. Considering that the elimination of the international problems created by this incorporation demands solutions on the basis of the international obligations entered into by the Soviet Union and other members of the international community;", "...", "6. Deploring the fact that, as a result of forced immigration into their area, the Baltic peoples are brought under pressure to assimilate, and that the lack of possibilities for education and cultural expression of their own is leading towards the loss of national identity;", "...", "12. Appeals to the Government of the Soviet Union to respect the right to self ‑ determination and the human rights in the Baltic states;", "13. Invites the governments of member states of the Council of Europe at the CSCE Conference in Vienna and, if need be, at further CSCE meetings to draw the attention of participating states to the serious violations of human rights and the right to self ‑ determination in the three Baltic states.”", "The European Commission against Racism and Intolerance (ECRI)", "87. On 9 December 2011 the European Commission against Racism and Intolerance (ECRI) during the fourth monitoring cycle adopted a report on Latvia, which includes an assessment of the situation following the adoption of the Andrejeva judgment (emphasis as in the original):", "“129. ECRI would also like to express its concern in connection with certain measures taken by the Latvian authorities further to the [Court’s] judgment in Andrejeva v. Latvia ... ECRI was informed that further to this judgment, the authorities submitted amendments to the State Pensions Act which “levelled down” the pension entitlements for both citizens and “non-citizens”, thus treating citizens less favourably than before. These amendments are still pending. ECRI once again stresses the negative impact that the amendments, should they be adopted, may have on interethnic relations.", "130. ECRI notes that in February 2011, the Constitutional Court declared that the provision of the State Pensions Act that was of issue in Andrejeva v. Latvia was not in breach of the Latvian Constitution. The court rejected the claims of the applicants (similar to those of Andrejeva) on grounds that Ms Andrejeva’s case was exceptional for she was physically working in the territory of Latvia. ECRI observes that the Constitutional Court’s decision, at best, gives a very narrow interpretation of the [Court’s] judgment.", "131. Furthermore, ECRI has been informed that bilateral agreements have been signed with Russia, Ukraine and Belarus in order to cover “non-citizens” pensions for employment periods spent in former USSR republics. ECRI notes that this approach, while positive for those who have worked in the above republics and who would otherwise have received a curtailed pension, fails to address the “non-citizens” who have worked in the remaining 9 former USSR republics, in respect of which a bilateral agreement has not been signed. This, according to the [Court’s] Andrejeva judgment, amounts to discrimination.", "132. ECRI recommends that the Latvian authorities implement the judgment of the [Court] in a manner that will not have a negative impact on interethnic relations, namely by using it to reduce existing pension entitlements of citizens .”", "88. Following the fifth monitoring cycle, the ECRI report on Latvia, adopted on 4 December 2018, includes the following assessment of the status of “permanently resident non-citizen” of Latvia (footnotes omitted; emphasis as in the original):", "“Non-citizens”", "55. According to the CSB January 2017 data, there were 222 847 so-called “non ‑ citizens” residing in Latvia, accounting for 11.4% of the country’s population. The majority of them are ethnic Russians. They are a special category of persons, citizens of the former USSR who were residents in Latvia on 1 July 1991 and who do not possess citizenship of any other country. The term “non-citizens” does not cover foreign nationals. Although they do not have the same rights as citizens, the United Nations High Commissioner for Refugees (UNHCR) points out that the “non-citizens” enjoy the right to reside in Latvia ex lege and a set of rights and obligations generally beyond the rights prescribed by the 1954 Convention Relating to the Status of Stateless Persons, including protection from removal, and as such the “non-citizens” may currently be considered persons to whom the Convention does not apply in accordance with its Article 1.2(ii).", "56. Since ECRI’s last report, the number of “non-citizens” has further declined (326 735 persons in 2011, who then made up 14.6% of the population). This is partially due to demographic factors and mortality, as around 40% of “non-citizens” are 60 years or older. At the same time, the number of naturalisations has also declined but now stabilised at approximately 1 000 per year. According to the authorities, 98% of “non ‑ citizen” applicants pass the necessary naturalisation exams, although not all of them on their first attempt. According to a 2016 survey carried out by the Office for Citizenship and Migration Affairs, among “non-citizens”, the personal reasons why respondents did not want to apply for naturalisation have changed. In previous years, the Latvian language requirement and the fees had been mentioned as obstacles. These no longer feature strongly among the reasons given. Instead, the advantages of visa-free travel to the Russian Federation and eligibility for a then more advantageous Russian pension are highlighted by many respondents. In addition, many “non-citizens” refuse to apply for naturalisation out of principle, as they believe they should be granted Latvian citizenship automatically. These reasons and sentiments were also confirmed to ECRI by various representatives of “non-citizen” organisations.", "57. The Latvian authorities underlined that instead of making the “non-citizen” status more equal to that of citizens, it is their stated aim to eventually abolish this category by promoting and facilitating naturalisations ...", "...", "59. Further steps taken by the authorities to promote the naturalisations of “non ‑ citizens” include information-days organised in municipalities with a high proportion of “non-citizens” among the residents, during which details of the naturalisation process are explained. The authorities, through the Society Integration Fund, also provide free Latvian language classes for “non-citizens” in preparation for their naturalisation exams, as recommended by ECRI in its last report. While ECRI commends the authorities for this measure, it also received information that these language classes, at times, fill up very quickly, resulting in insufficient capacity for all “non-citizens” who wish to enrol. This problem might grow, if the authorities’ efforts to promote naturalisation are successful.", "60. ECRI recommends that the authorities ensure that sufficient places are available for “non-citizens” wishing to enrol in Latvian language courses free of charge in preparation for their naturalisation exams. ”", "The Advisory Committee on the Framework Convention for the Protection of National Minorities (FCNM)", "89. The Advisory Committee on the Framework Convention for the Protection of National Minorities (FCNM), second opinion on Latvia, adopted on 18 June 2013, includes the following assessment (footnotes omitted):", "“139. The Advisory Committee further notes research pointing to differences among ethnic groups also with regard to access to social services, mainly due to the fact that Latvians are better informed of their rights and have the relevant networks to insist on obtaining the social assistance that is available. It refers in this context in particular to the large elderly population among national minorities that still faces considerable language barriers. Regarding access to pensions, the Advisory Committee regrets that the 2009 Andrejeva judgment of the [Court] has not led to a comprehensive solution regarding the calculation of pensions of citizens and “non-citizens”. It notes the Government’s view that the judgment has been implemented by signing bilateral agreements with the Russian Federation and a number of other countries in which “non ‑ citizens” spent periods of employment under the Soviet Union, but remains concerned by the fact that these agreements do not cover all former republics of the Soviet Union and are therefore not suitable to address the situation vis-à-vis all “non ‑ citizens”.”", "THE LAW", "PRELIMINARY REMARKSThe first applicant’s death", "The first applicant’s death", "The first applicant’s death", "90. The Court notes at the outset that the first applicant, Mr Jurijs Savickis, died while the application was pending before the Court, and that no heir or close relative has expressed the wish to pursue the application on his behalf (see paragraph 20 above). It is the Court’s usual practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed the wish to pursue an application (see, among many other examples, Mraović v. Croatia (striking out) [GC], no. 30373/13, § 24, 9 April 2021). The Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols that would require the Court to continue the examination of that part of the application pursuant to Article 37 § 1 in fine of the Convention. It is therefore appropriate to strike this particular application out of the list of cases in so far as the first applicant is concerned (Article 37 § 1 (c) of the Convention).", "91. Nevertheless, for practical reasons, Mr Savickis will continue to be called “the first applicant” in the present judgment, and the name of the case will not be changed (see, mutatis mutandis, Ahmet Sadık v. Greece, 15 November 1996, § 3, Reports 1996-V; Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI; Vasiljević and Drobnjaković v. Serbia (dec.), nos. 43987/11 and 51910/15, § 42, 28 January 2020; and Ghavalyan v. Armenia, no. 50423/08, § 60, 22 October 2020). Any mention of “the applicants” in the remainder of this judgment must be understood as referring to the four remaining applicants.", "Scope of the caseThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "92. The respondent Government argued, first of all, that the scope of the case should be limited to those complaints which the applicants had brought before the District Administrative Court and the Constitutional Court. Accordingly, the case should be limited to the employment periods and the years of compulsory military service which had accrued outside the territory of Latvia prior to 1 January 1991 and were not included in the calculation of the relevant retirement pensions.", "93. Regarding the scope of the present case, the respondent Government emphasised that its subject matter was neither an entitlement to an old-age pension – as each of the applicants was insured and received an old-age pension – nor any difference between the applicants and Latvian nationals in respect of the period since the restoration of Latvia’s independence in 1990 ‑ 91. Instead, the dispute is whether, in calculating supplements to the applicants’ pensions paid by Latvia, the Latvian authorities were obliged, under the relevant rules and principles of international law, to take account of employment and military service carried out outside Latvia during Latvia’s illegal occupation and annexation by the Soviet Union.", "94. The applicants submitted that their requests before the Court were the same as those raised before the domestic authorities. They also noted that the conclusions made by the Court in the case of Andrejeva v. Latvia [GC], (no. 55707/00, ECHR 2009) were applicable to every “permanently resident non-citizen” of Latvia. Furthermore, the same discriminatory distinction was made in calculating the disability pension and the widow’s pension, as well as in calculating unemployment benefits.", "The Court’s assessment", "95. The Court reiterates that, for the purposes of Article 32 of the Convention, the scope of a case “referred to” it in the exercise of the right of individual application is determined by the applicant’s complaint or “claim”, which consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto. In contrast, the Court cannot rule beyond or outside what is alleged by the applicants. Thus, it cannot rule on the basis of facts not covered by the complaint, it being understood that while the Court has jurisdiction to review circumstances complained of in the light of the entirety of the Convention or to “view the facts in a different manner”, it is nevertheless limited by the facts presented by the applicants (see Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, §§ 99-101, 1 June 2021).", "96. The Court notes that both the applicants’ constitutional complaints and the scope of review by the Constitutional Court encompassed all the employment periods and equivalent periods, as provided for in Paragraph 1 of the transitional provisions of the State Pensions Act. While only employment periods, compulsory military service, and parental leave periods were relevant in respect of the applicants, this distinction was not made by the Constitutional Court in its judgment. Additionally, the refusal to award an early retirement pension was the subject matter of the third applicant’s constitutional complaint and thus this matter also falls within the scope of the review before the Court.", "97. Moreover, the Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicants gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015, with further references). While the present case only deals with the calculation of the applicants’ retirement pensions and the entitlement to early retirement pension, the Court notes that the impugned legal provision –Paragraph 1 of the transitional provisions of the State Pensions Act – serves to determine the “insurance period”, which might then be used for a variety of calculations for the purposes of attributing welfare benefits. Therefore, the Court observes that at the domestic level, the problem might indeed be broader than the issues put before it in the present case. Of course, as it has just emphasised, the Court must act within the confines of the present case. However, as with most complaints of alleged discrimination in a welfare or pensions system, the issue before the Court for consideration goes to the compatibility of the system with Article 14, not to the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation. It is therefore appropriate to look at the system as a whole (see British Gurkha Welfare Society and Others v. the United Kingdom, no. 44818/11, § 63, 15 September 2016, and J.D. and A. v. the United Kingdom, nos. 32949/17 and 34614/17, § 100, 24 October 2019).", "Latvia’s State continuity doctrineThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "(a) The respondent Government", "98. The respondent Government considered that the State continuity doctrine, as expounded in the judgment of the Constitutional Court of 17 February 2011, is of utmost importance and must be taken into account by the Court in order to reach an equitable solution of the present case. In this regard, the respondent Government recalled the historical events as summarised in paragraphs 12-14 above. They noted that for fifty years (from 1940 until 1990-91), the entire territory of Latvia was under unlawful occupation and effective physical control by the USSR, in clear violation of international law. Nevertheless, according to the doctrine of State continuity, the Republic of Latvia continued to exist de jure throughout this period of occupation and annexation.", "99. For the same reason, Latvia is not and cannot be a successor to the rights and liabilities of the former Soviet Union. In the light of the customary rules of State responsibility under international law, any legal obligations directly emanating from the above violation of international law, including those related to payments of social security benefits, fall to the occupying State which exercised effective control and jurisdiction over the territories and persons during the years in question, namely, the USSR and its successor, the Russian Federation. In this regard, the respondent Government referred to the advisory opinion of the International Court of Justice in the Namibia case ( Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971], ICJ Reports 16, p. 56), as well as to the Court’s own judgments in the cases of Cyprus v. Turkey [GC] (no. 25781/94, ECHR 2001 ‑ IV); Catan and Others v. the Republic of Moldova and Russia [GC] (nos. 43370/04 and 2 others, ECHR 2012 (extracts)); and Ukraine v. Russia (re Crimea) [GC] (dec.) (nos. 20958/14 and 38334/18, 16 December 2020). Since Latvia did not exercise such effective control or jurisdiction, no obligation in the field of social security for the disputed years could fall on this State. To conclude otherwise would lead to a manifestly unreasonable interpretation of the Convention, that is, directly deriving a legal benefit from an illegal act, in violation of the legal maxim “ ex injuria ius non oritur ”.", "(b) The applicants", "100. The applicants considered that the State continuity doctrine was not relevant for the purposes of the present case. Although the Republic of Latvia was indeed not directly responsible for the actions of the former Soviet Union, it could not simply ignore the de facto interruption of its statehood for fifty years. Moreover, Latvia was required to fulfil obligations in the field of fundamental rights that it had undertaken both at the domestic level and by ratifying the Convention. Even if Latvia was not a successor State to the USSR, it had expressly assumed responsibility for former Soviet citizens who settled in that country during the Soviet period. In this regard, the applicants referred to the Declaration of 4 May 1990 on the Restoration of Independence of the Republic of Latvia, in which Latvia expressly took the commitment “to guarantee social, economic and cultural rights ... to citizens of the USSR who wish to live in Latvia without acquiring Latvian nationality” (see paragraph 61 above). The applicants therefore invited the Court to reaffirm its finding in the Andrejeva judgment according to which the respondent Government’s reference to the State continuity doctrine is “misconceived” (ibid., § 78).", "Submissions of the third-party intervener", "101. The Russian Government stated that, during the period in question, Latvia had been a full-fledged part of the Soviet Union. They submitted that the terms “Soviet occupation”, “Sovietisation” and “Russification” were controversial and extra-legal categories which could not justify the application of discriminatory provisions thirty years after Latvia had become independent.", "The Court’s assessment", "102. The Court points out that its jurisdiction is delineated by Article 19 of the Convention, according to which its sole duty is “[t]o ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. Accordingly, the Court is not empowered to pass formal judgment on the legality or legitimacy of any transfer of sovereignty under international law (see Ukraine v. Russia (re Crimea) [GC] (dec.), nos. 20958/14 and 38334/18, § 339, 16 December 2020), be it current or historical. Moreover, in principle, given the subsidiary nature of the Convention system, it is not the Court’s task to substitute itself for the domestic courts, particularly in cases where they assess facts of some historical sensitivity (see, among many other authorities, Vasiliauskas v. Lithuania [GC] (no. 35343/05, § 160, ECHR 2015).", "103. On the other hand, the Court has always held that the provisions of the Convention cannot be interpreted and applied in a vacuum. Despite its specific character as a human rights instrument, the Convention is an international treaty to be interpreted in accordance with the relevant norms and principles of public international law. Thus, the Court has never considered the provisions of the Convention to be the sole frame of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties (see, among many other authorities, Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 134, 21 June 2016, and Naït-Liman v. Switzerland [GC], no. 51357/07, § 174, 15 March 2018). The Court has also repeatedly held that, while it is not its function to deal with errors of fact or law allegedly committed by national courts – unless and in so far as they may have infringed rights and freedoms protected by the Convention and unless that domestic assessment is arbitrary or manifestly unreasonable – it can accept certain well-known historical truths and base its reasoning on them. This principle also applies where domestic law refers to rules of general international law or international agreements, and where domestic courts apply principles of international law (see Vasiliauskas, cited above, ibid., with further references). However, the Court is empowered to do so in so far as and only to the extent necessary for the exercise of its competence under Article 19 of the Convention as defined above (see Ukraine v. Russia (re Crimea), decision cited above, § 341).", "104. As far as Latvia is concerned, the Court notes that its official position as expounded in the judgment of the Constitutional Court of 17 February 2011 and in the written observations of the respondent Government in the present case (see paragraphs 55 and 98-99 above) may be summarised as follows. Latvia (as well as the neighbouring Baltics States of Lithuania and Estonia) was a victim of aggression, unlawful occupation and annexation on the part of the former Soviet Union, starting from 1940. Therefore, Latvia is not a successor state to the USSR; it retains the statehood that existed when its independence was lost de facto in 1940 but which nevertheless remained in place de jure throughout the entire Cold War period. In other words, Latvia never disappeared de jure, although its independence was forcibly interrupted de facto for a half-century as a result of a blatant breach of international law.", "105. The Court notes that it has itself repeatedly referred to the version of historical events as described above in the “Facts” part of its judgments and decisions in cases against the three Baltic States (see Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006 ‑ I; Penart v. Estonia (dec.), nos. 14685/04, 24 January 2006; Ždanoka v. Latvia [GC] (no. 58278/00, §§ 12-13, ECHR 2006 ‑ IV); Kuolelis and Others v. Lithuania (nos. 74357/01 and 2 others, § 8, 19 February 2008); Vasiliauskas, cited above, §§ 11-14; and Sõro v. Estonia (no. 22588/08, § 6, 3 September 2015). Moreover, in one case, the Court itself defined the situation of Latvia (and therefore of all three Baltic States) as “unlawful occupation” (see Likvidējamā p/s Selga and Vasiļevska v. Latvia (dec.), nos. 17126/02 and 24991/02, § 5, 1 October 2013). Finally, the European Commission of Human Rights clearly stated that “Lithuania [could not] be seen as a successor of the Soviet Union in respect of ... debts [arising from fixed term internal state bonds] and ha[d] not made any legal undertaking to compensate those of its citizens who [were] holders of the bonds” (see the Commission decision in Jasinskij v. Lithuania ((dec.), no. 38985/97, 9 September 1998).", "106. The Court perceives no reason to depart from this assessment of the relevant historical facts as consistently described in its earlier judgments and decisions, especially since, so far as the Court can see, it corresponds to the general stance of the majority of the free democratic States of the world during the Cold War, as defined and summarised by the Parliamentary Assembly of the Council of Europe and the European Parliament (see paragraphs 84-86 above). It agrees with the respondent Government that this doctrine is prima facie relevant in the circumstances of the present case; accordingly, it will be duly taken into account when deciding on the merits of the application.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 to the convention", "107. The applicants complained that, due to their status as “permanently resident non-citizens”, the employment and equivalent periods which they had accrued prior to 1991 outside the territory of Latvia in other parts of the former USSR had not been included in the calculation of the “insurance period” used as a reference in determining the amount of their retirement pensions and eligibility for an early retirement pension. Accordingly, they had been treated less favourably than citizens of Latvia, in breach of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. In so far as relevant, those provisions read as follows:", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... national or social origin, association with a national minority ... birth or other status.”", "Article 1 of Protocol No. 1", "“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "108. The respondent Government contested that argument, while the Russian Government as the third-party intervener supported it.", "AdmissibilityCompatibility ratione personae", "Compatibility ratione personae", "Compatibility ratione personae", "(a) The parties’ arguments", "109. The respondent Government submitted that under Article 1 of the Convention Latvia could not be held responsible for the employment periods during which the applicants had resided and worked in various republics of the former USSR, but not in Latvia. The applicants’ claims concerned matters that could not be attributed to the Government of Latvia and manifestly fell outside its jurisdiction. In this regard, the Government emphasised the fact that the periods of employment contested by the applicants had been accrued while working for enterprises located in different parts of the former USSR, where, contrary to the circumstances in the Andrejeva case, they had worked for most of their lives, thereby investing in the economy and development of the respective foreign countries. The applicants invoked Latvia’s responsibility and jurisdiction for the entirety of their periods of employment only because they had spent the last years of their employment in Latvia. The claims adduced against Latvia manifestly contradicted the “generally accepted praxis” of States concerning retirement pension entitlements.", "110. The respondent Government recognised that in the Andrejeva case, the objection ratione personae had been dismissed. However, in the present case, the applicants had not de facto resided in Latvia during the periods which they had asked to be included in the calculation. The respondent Government considered that the Court should follow the same approach it had taken in the case of Likvidējamā p/s Selga and Vasiļevska v. Latvia (dec.), cited above, where it had held that in the circumstances of the case Latvia could not incur responsibility under the Convention in relation to actions undertaken by an entity operating in another country. The Convention imposed no specific obligation on the States to right injustices or harm caused before they had ratified the Convention, and the undertaking by the Latvian authorities to provide some compensation could not be interpreted as implying that there was an obligation incumbent on Latvia under international law to make any payments at all.", "111. The applicants pointed out that this exact argument had already been raised by the Government in the case of Andrejeva, and had been rejected by the Court. They submitted that the applicants’ residence over the contested time periods was of no relevance for the issue of jurisdiction.", "(b) The Court’s assessment", "112. The Court notes that this argument is identical in substance to the objection already raised by the respondent Government in the Andrejeva case and rejected by the Court in the following terms (ibid. , § 57):", "“57. In the present case, the Court notes that the applicant complained about a measure taken in respect of her by a Latvian public authority – the State Social-Insurance Agency – refusing her part of the pecuniary benefit she had intended to draw from a Law passed by the Latvian Parliament. The dispute raised by the applicant in respect of that measure was examined by the three levels of Latvian courts, which delivered binding decisions on the subject. In the Court’s view, that is easily sufficient to warrant the conclusion that in the context of the present case, the applicant fell within the “jurisdiction” of the respondent State and that the Government’s objection should be dismissed (see, mutatis mutandis, Markovic and Others v. Italy [GC], no. 1398/03, §§ 54-56, ECHR 2006 ‑ XIV) ...”", "113. It is true that the applicants in the present case were not physically present in Latvia during the time periods in question, in contrast to Ms Andrejeva. However, this does not alter the fact that they, as permanent residents of Latvia, are still claiming a financial benefit under Latvian law and contesting decisions taken in their regard by the Latvian authorities, including courts. In these circumstances, the Court does not see any difference between Andrejeva and the present case for the purposes of “jurisdiction” within the meaning of Article 1 of the Convention. As to the decision in the case of Likvidējamā p/s Selga and Vasiļevska, cited above and referred to by the respondent Government, the Court points out that the applicants in that case were owners of currency deposited with a foreign bank in another country; the key questions put before the Court were whether the respondent State could be held responsible for the freezing of those assets by that foreign bank, and whether it had any positive obligation under the Convention to take any particular measures in that respect (ibid., §§ 102 and 113). This being so, the Court fails to see the relevance of this reference for the issue at hand, these two cases being fundamentally different.", "114. The Court therefore dismisses the respondent Government’s objection. Nevertheless, it considers that the arguments raised to support this objection are closely linked to the merits of the complaint under Article 14 of the Convention. Accordingly, just as it did in the Andrejeva case, the Court will have regard to them in determining whether there has been a violation of that Article (ibid., § 57 in fine ).", "Compatibility ratione materiae", "(a) The parties’ arguments", "(i) The respondent Government", "115. The respondent Government submitted that the application was incompatible ratione materiae with the provisions of the Convention, as an alleged violation of Article 1 of Protocol No. 1 had to relate to “possessions”, as defined by the case-law of the Court. There was no right under Article 1 of Protocol No. 1 to receive a social security benefit or pension payment of any kind or amount, unless national law provided for such an entitlement.", "116. The respondent Government recognised that the Court had dismissed this argument in the Andrejeva case. However, they emphasised the nature of the alleged property right and the lack of legitimate expectations. Firstly, the additional undertaking by Latvia to provide financial compensation for the years of employment under the jurisdiction of the former Soviet Union in order to redress, at least in some way, the consequences of the years of unlawful occupation, could not be regarded as creating a property right for the applicants falling within the ambit of Article 1 of Protocol No. 1. The geopolitical and historical context ought not to be disregarded by the Court. The Court’s competence in the field of social security was not broad enough to make a State responsible for pecuniary interests originating under the jurisdiction of another State, particularly in view of the margin of appreciation afforded to States with regard to general measures of economic and social strategy. The applicants’ claims fell within the ambit of Article 1 of Protocol No. 1 to the Convention only to the extent that the transitional provisions of the State Pensions Act granted them the right to receive retirement pension concerning the periods of employment in the territory of Latvia.", "117. Moreover, the applicants could not have expected, and in fact did not expect, that Latvia would accept any responsibility for the employment periods in the territory of the former USSR. Ms Andrejeva had actually worked and resided in the territory of Latvia during the impugned time periods and had truly believed that these employment periods would be regarded as having been carried out in the territory of Latvia. She had immediately challenged before the administrative court the refusal to include those periods in the calculation of her pension. In contrast, the applicants in the present case had not challenged the accuracy of the calculations and interpretation of the domestic law in their regard. This demonstrated that the applicants had been fully aware that the domestic law had not entitled them to a retirement pension for their employment in the territory of the former USSR and they had had no expectation that Latvia would assume responsibility for those periods. Therefore, the applicants could not claim that the Latvian domestic law or practice had ever created any legitimate expectation that Latvia would assume responsibility for the payment of retirement pensions for work carried out under the jurisdiction of other States. Nor had such an expectation been created by the Court’s judgment in Andrejeva, given that the Court’s ruling had been based on the individual circumstances of that specific case.", "(ii) The applicants", "118. The applicants noted that this objection had already been dismissed by the Grand Chamber in the case of Andrejeva, cited above. They pointed out that Paragraph 1 of the transitional provisions of the State Pensions Act had created an entitlement to a retirement pension in respect of the employment and equivalent periods accrued prior to 1991 in the territory of the former USSR, but had reserved this right to the citizens of Latvia. By virtue of this provision the applicants had been refused a pension for those periods solely because they did not have Latvian citizenship. Had the applicants been Latvian citizens, the respective employment and equivalent periods accrued in the territory of the former USSR would be taken into account in calculating their “insurance period”, which was subsequently used to determine the entitlement to state pensions and the amount thereof. Hence, the applicants’ pecuniary interests fell within the scope of Article 1 of Protocol No.1, which rendered Article 14 applicable.", "(b) The Court’s assessment", "119. As a preliminary point, the Court reiterates that, as the question of applicability of a particular provision of the Convention or its Protocols is an issue of the Court’s jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits. No such particular reason exists in the present case and the issue of the applicability of Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, falls therefore to be decided at the admissibility stage (see Popović and Others v. Serbia, nos. 26944/13 and 3 others, § 46, 30 June 2020, and, mutatis mutandis, Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018).", "120. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, among many other authorities, Andrejeva, cited above, § 74; Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010; Fábián v. Hungary [GC], no. 78117/13, § 112, 5 September 2017; and Molla Sali v. Greece [GC], no. 20452/14, § 123, 19 December 2018).", "121. The Court notes that the respondent Government’s objection, like the previous one, is identical in substance to that already raised by the respondent Government in the Andrejeva case, cited above, and rejected by the Court in the following terms:", "“77. The Court has ... held that all principles which apply generally in cases concerning Article 1 of Protocol No. 1 are equally relevant when it comes to welfare benefits ... Thus, Article 1 of Protocol No. 1 does not guarantee as such any right to become the owner of property ... Nor does it guarantee, as such, any right to a pension of a particular amount ... Similarly, the right to receive a pension in respect of activities carried out in a State other than the respondent State is not guaranteed either ... Furthermore, Article 1 of Protocol No. 1 places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a pecuniary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements ...", "78. The Government submitted that, from the standpoint of public international law, Latvia had not inherited the rights and obligations of the former Soviet Union as regards welfare benefits. Having regard to its findings in Stec and Others v. the United Kingdom ((dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005 ‑ X), the Court considers that that argument is misconceived in the instant case. Even assuming that the Government were correct on this point, the conclusion that has to be drawn in this case would be unaffected: where a State decides of its own accord to pay pensions to individuals in respect of periods of employment outside its territory, thereby creating a sufficiently clear legal basis in its domestic law, the presumed entitlement to such benefits falls within the scope of Article 1 of Protocol No. 1. In this connection, the Court notes that the first paragraph of the transitional provisions of the Latvian State Pensions Act creates an entitlement to a retirement pension in respect of aggregate periods of employment prior to 1991 in the territory of the former USSR (“outside Latvia” in the version in force before 1 January 2006), regardless of the payment of any kind of contributions, but that it reserves this right to Latvian citizens. By virtue of this provision, the applicant was refused the pension in question solely because she did not have Latvian citizenship.", "79. In the Stec and Others decision (cited above, § 55) the Court held as follows:", "‘In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question ... Although [Article 1 of] Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.’", "80. It follows that the applicant’s pecuniary interests fall within the scope of Article 1 of Protocol No. 1 and the right to the peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 of the Convention applicable.”", "122. The Court does not see any difference between the case of Andrejeva and the present case regarding the applicability ratione materiae of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. According to the Court’s well-established case-law, the prohibition of discrimination enshrined in Article 14 generally applies where a Contracting State has in force legislation providing for the payment as of right of a pension or another welfare benefit; that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements. If, but for the condition of entitlement under domestic law about which the applicant complains, he or she would have had a right enforceable under domestic law to receive the benefit in question, his or her complaint falls within the scope of Article 1 of Protocol No. 1 and that is sufficient to render Article 14 of the Convention applicable ratione materiae (see J.D. and A. v. the United Kingdom, cited above, § 63). This being so, the Court cannot but dismiss the respondent Government’s objection for the same reasons as stated in §§ 77-80 of the Andrejeva judgment (see also, mutatis mutandis, Gaygusuz v. Austria (16 September 1996, § 40, Reports 1996 ‑ IV); Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011; Fábián, cited above, § 117; and Ribać v. Slovenia, no. 57101/10, §§ 43-45, 15 December 2017).", "123. As to the particular questions raised by the respondent Government, namely, to what extent the Court’s overall reasoning in Andrejeva was conditioned by the particular factual circumstances of that case, whether it is transposable to the present case, and whether the applicants might have had any “legitimate expectations” for the purposes of Article 1 of Protocol No. 1 given their physical absence from the Latvian territory during the contested periods, these relate to the merits of the application and will be examined by the Court under the respective head.", "Six-month time-limit", "(a) The parties’ arguments", "124. The respondent Government referred to the decisions whereby the second, the fourth and the fifth applicants had initially been granted their retirement pensions. As these applicants had not appealed against the relevant decisions, they had entered into force and should be regarded as the “final decisions” for the purposes of the six-month time-limit. The respondent Government also submitted that the applicants should have been well aware that their retirement pensions could only be recalculated on the basis of either the State Pensions Act or bilateral international agreements. Accordingly, their reopening requests before the administrative courts had had no legal basis and it had been inevitable that they would be dismissed.", "125. With regard to the allegation that the Constitutional Court’s ruling of 17 February 2011 should be regarded as the final decision, the respondent Government noted that nothing had prevented the applicants from lodging a constitutional complaint immediately after their retirement pensions had been granted. The applicants had not adduced any arguments to justify their inactivity of up to ten years.", "126. In the respondent Government’s view, both the reopening proceedings before the administrative courts and the constitutional proceedings were to be regarded as attempts by the applicants to comply belatedly with the procedural requirements and to restore the running of the six-month time-limit for the purposes of lodging the present application before the Court.", "127. The applicants submitted that the remedies used by them had been the only available effective legal avenues and that they had exhausted them in compliance with the requirements of domestic law. The applicants pointed out that Paragraph 1 of the transitional provisions of the State Pensions Act had already been declared constitutional by the Constitutional Court in 2001 in proceedings instituted by twenty members of Parliament (see paragraph 39 above). Accordingly, this claim had already been adjudicated and all the State authorities, including the courts, were bound by the Constitutional Court’s findings. Additionally, a claim having already been adjudicated was an inadmissibility ground under the Constitutional Court Act. The applicants pointed out that, unlike Ms Andrejeva, they disagreed with the contents of the domestic law rather than with its interpretation in their particular cases.", "128. Only after the Court delivered its judgment in Andrejeva, cited above, did the legal circumstances change, permitting the applicants to request the reopening of their administrative proceedings. After their reopening requests had been refused the applicants brought constitutional proceedings, save for the third applicant who applied to the Constitutional Court directly. The Constitutional Court instituted the proceedings and delivered a judgment assessing the merits of the applicants’ complaint. The present application was filed within six months of that judgment.", "(b) The Court’s assessment", "129. The Court notes at the outset that the respondent Government’s objection does not apply to the third applicant, who lodged his complaint directly to the Constitutional Court on 22 March 2010, that is, several months before the calculation of his retirement pension (see paragraphs 27 and 48 above). The Court will accordingly examine that objection as only concerning the second, the fourth and the fifth applicants.", "(i) General principles", "130. The object of the time-limit under Article 35 § 1 of the Convention – six months at the time when the present applications were lodged – is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-40, 29 June 2012).", "131. The requirements contained in Article 35 § 1 as to the exhaustion of domestic remedies and the six-month period are closely interrelated, as they are not only combined in the same Article, but also expressed in a single sentence whose grammatical construction implies such a correlation. Thus, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level, otherwise the principle of subsidiarity would be breached. However, this provision allows only remedies which are normal and effective to be taken into account, as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see, among many other authorities, Lekić v. Slovenia [GC], no. 36480/07, § 65, 11 December 2018). Thus, the pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six ‑ month rule (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016).", "132. As a general rule, an application for the reopening of proceedings is not an effective remedy (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II; Tucka v. the United Kingdom (no. 1) (dec.), no. 34586/10, 18 January 2011; and Haász and Szabó v. Hungary, nos. 11327/14 and 11613/14, §§ 36-37, 13 October 2015), and, as such, does not interrupt the running of the six-month time-limit, except when it is the only judicial avenue available to the applicant in the circumstances of the case (see Ahtinen v. Finland (dec.), no. 48907/99, 31 May 2005, and Tomaszewscy v. Poland, no. 8933/05, §§ 117-19, 15 April 2014).", "133. If the request for reopening of the proceedings is dismissed, the respective decision is not the “final decision” for the purposes of Article 35 § 1 and cannot be taken as the starting point of the six-month time-limit (see Sapeyan v. Armenia, no. 35738/03, § 23, 13 January 2009). If, however, proceedings are reopened or a final decision is eventually reviewed, the running of the six-month period in respect of the initial set of proceedings or the final decision will be interrupted, but only in relation to those Convention issues which served as a ground for such a review or reopening and were the subject of examination before the extraordinary appeal body (ibid., § 24). Finally, if an application for extraordinary review has not led to the reopening of the initial proceedings, but the domestic courts have nevertheless been provided with the opportunity of addressing the core of the human rights issues that the applicant subsequently brought before the Court and did address them, then the running of the six-month time-limit has to be considered to have restarted (see Schmidt v. Latvia, no. 22493/05, §§ 66-67 and 70-71, 27 April 2017).", "134. Regarding the Constitutional Court of Latvia – and as the European Court of Human Rights has already established on several occasions – its jurisdiction is limited to reviewing the constitutionality of legal provisions and their compatibility with provisions of superior legal force. Accordingly, for the purposes of Article 35 § 1 of the Convention, applicants are required to avail themselves of this remedy only if they are challenging a provision of a statute or a regulation as being as such contrary to the national Constitution or the Convention; in other words, if the alleged violation stems from a legal norm itself. On the other hand, the procedure of an individual constitutional complaint is not an effective remedy where the applicant is complaining of an allegedly erroneous application or interpretation of a legal provision which, in its content, is not unconstitutional (see Elberte v. Latvia, no. 61243/08, §§ 79-80, 13 January 2015, with further references). In such cases a constitutional complaint does not interrupt the running of the six ‑ month time-limit.", "(ii) Application of these principles in the present case", "135. In the present case, the Court notes that the initial calculation of each of the applicants’ pensions (except for the third applicant, as stated above) took place between 1999 and 2008, and that none of them appealed against the respective domestic decisions. On 18 February 2009 the Court delivered its judgment in the case of Andrejeva, cited above. On 14 August 2009 the applicants requested that their pensions be recalculated in the light of the Andrejeva judgment. These requests were refused. The applicants brought proceedings before the District Administrative Court, seeking the reopening of their proceedings on the basis of the Andrejeva judgment in accordance with domestic law. By final decisions of 20 November 2009, 27 November 2009, and 16 December 2009, the District Administrative Court dismissed the applicants’ complaints, declaring that the Andrejeva judgment did not warrant a reopening of their cases. On 5 March 2010 the applicants applied to the Constitutional Court, petitioning it to overrule and overturn its previous approach in relation to Paragraph 1 of the transitional provisions of the State Pensions Act (defined in 2001), and to make a new judgment on the basis of the Grand Chamber judgment in Andrejeva. The Constitutional Court delivered a judgment on the merits of the applicants’ arguments (including the circumstances of each individual case) on 17 February 2011.", "136. In the Court’s view, the applicants’ requests for reopening of the administrative proceedings before the District Administrative Court and the subsequent individual complaint before the Constitutional Court must be regarded as a single set of proceedings, ultimately aimed at obtaining the recalculation of their pensions following the Court’s judgment in the Andrejeva case. It is true that the applicants remained passive for a long time after the initial calculation of their pensions. However, the Court accepts that they could have believed, realistically and in good faith, that their legal situation had changed after the delivery of the Andrejeva judgment, which they considered as giving them a fresh opportunity to obtain a recalculation of their pensions – either immediately, or, if need be, after a formal invalidation of the impugned legal provision by the Constitutional Court. This was especially so because, unlike the Constitutional Court in its judgment of 17 February 2011, the Andrejeva judgment expressly refused to attribute a decisive role to the distinction between working in the territory of Latvia or outside it (ibid., § 85). What this Court considers decisive is the fact that the Constitutional Court did indeed consider the applicants’ constitutional complaints to be procedurally admissible under domestic law, agreed to examine them on the merits, and gave a meticulously reasoned judgment addressing the same human-rights issues that the applicants are now bringing before this Court (see, mutatis mutandis, Schmidt, cited above, §§ 68-71).", "137. In consequence, in the particular circumstances of the present case, the Court considers that the judgment of the Constitutional Court of 17 February 2011 was indeed the “final decision” for the purposes of Article 35 § 1, and that the six-month time-limit has to be counted from the date of its delivery. The present application, lodged with the Court on 4 August 2011, has therefore been submitted within the six months following the latter date. For this reason, the respondent Government’s objection must be dismissed.", "Objections with respect to specific applicants", "(a) The second applicant", "(i) The parties’ arguments", "138. The respondent Government argued that the second applicant’s reopening request, brought before the administrative courts, had only concerned the inclusion of the employment periods accrued in the territory of the former USSR but had not mentioned the periods of compulsory military service. Furthermore, the applicant had not submitted to the domestic authorities any documents allowing them to establish the country where that service had been carried out. Accordingly, in so far as it concerned the exclusion of the compulsory military service, the second applicant’s complaint should be rejected for non-exhaustion of domestic remedies or as manifestly ill-founded.", "139. The applicants responded that there were no effective domestic remedies with respect to the periods of compulsory military service. As Latvian citizens had only to prove the fact of service, they could obtain the inclusion of those periods by showing their employment record and their military identity card. Those documents indicated the territory from where the person had been conscripted but not the location where the compulsory military service had been served. In contrast, a “permanently resident non ‑ citizen” was required to prove the exact location of the military service. For that purpose, he was required to contact the archives of the respective foreign armed forces, for a fee, without necessarily having the corresponding linguistic abilities and with no certainty that such data were available.", "(ii) The Court’s assessment", "140. The Court notes at the outset that the respondent Government themselves have asserted the ineffectiveness of the reopening requests brought by the applicants before the administrative courts for the purposes of Article 35 § 1 of the Convention (see paragraph 124 above). That being so, the Government’s assertion that the applicants should have raised a particular point of fact by way of that same procedure seems unsustainable. In any event, the Court reiterates that non-exhaustion of domestic remedies cannot be held against an applicant if, in spite of the latter’s alleged failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the exact claim that he or she is bringing before the Court (see Vladimir Romanov v. Russia, no. 41461/02, § 52, 24 July 2008, and Ulemek v. Croatia, no. 21613/16, § 77, 31 October 2019). In the present case, it appears that the Constitutional Court had declared the second applicant’s constitutional complaint procedurally admissible in its entirety and examined it with regard to all the disputed periods, without distinguishing between them (see paragraph 51 above). In these circumstances, the applicant cannot be blamed for not exhausting the domestic remedies, and the respondent Government’s objection must be dismissed.", "(b) The third applicant", "(i) The parties’ arguments", "141. The respondent Government pointed out that the administrative proceedings which the third applicant had brought against the refusal to grant his early retirement claim, had been left without examination on procedural grounds. Additionally, when he had later been granted the retirement pension, which excluded the compulsory military service period, he had not appealed against that decision. He had also failed to institute constitutional proceedings in that regard, as his constitutional complaint had only addressed the refusal to grant him an early retirement pension. Furthermore, as pointed out by the Constitutional Court, following the entry in force of the Latvia-Russia Social Security Agreement the applicant could have requested a recalculation of his pension and the inclusion of the compulsory military service period carried out in Russia. However, unlike the other applicants, the third applicant failed to do so, thus failing to exhaust the domestic remedies.", "142. The applicants reiterated their arguments concerning the procedural difficulties in identifying the country where compulsory military service had been carried out (see paragraph 139 above). They argued that the entry in force of the bilateral agreement had not fully eradicated the difference in treatment between citizens and “permanently resident non-citizens”; instead it had shifted this difference from the substantive law to the procedural law. While Latvian citizens were only required to submit a limited number of easily available documents, the “permanently resident non-citizens” were required to turn to the archives of foreign armed forces. The applicants submitted that there were several such archives in Russia, where the relevant information would need to be sought against a fee. Additionally, irreparable damage had been suffered prior to the entry into force of the relevant bilateral agreements, when the refusal to include those periods had been in accordance with domestic law and no domestic remedies had been available.", "(ii) The Court’s assessment", "143. The Court points out that the third applicant’s complaint concerns both the refusal to grant him an early retirement pension and also the subsequent failure to include the period of compulsory military service in the calculation of his retirement pension. When this applicant lodged his constitutional complaint, he had not yet reached retirement age (see paragraphs 27 and 48 above). Thus, before the Constitutional Court, his complaint indeed concerned only the refusal to grant him the early retirement pension. However, the Court can only reiterate its well-established case-law according to which an applicant cannot be blamed for not exhausting a domestic remedy if, despite his or her alleged failure to observe the requirement set out by law, the competent authority has nevertheless examined the substance of the claim that he or she is raising before the Court (see paragraph 133 above). In the present case, the Constitutional Court did not regard the third applicant’s failure to pursue the administrative proceedings as an obstacle for the institution of proceedings, as the applicant had “substantiated that he could not protect his rights via the general remedies” (see paragraph 48 above). Therefore, with respect to this aspect of his complaint, the Court considers that the third applicant has to be deemed to have exhausted the domestic remedies.", "144. The Court further notes that a retirement pension which excluded the compulsory military service period was granted to the third applicant during the constitutional proceedings. The case file contains no information as to whether any supplementary observations were put before the Constitutional Court to that effect. However, it is obvious that the Constitutional Court made no distinction between the question of granting the early retirement pension to the third applicant and the refusal to include certain periods in the calculations in respect of the retirement pension of the other applicants. Instead, it analysed the constitutionality of the legal provision, which provides that with respect to “permanently resident non-citizens” certain employment and equivalent periods are not included in the calculation of their “insurance period” as defined by Latvian law. Thus, on its substance, the judgment of the Constitutional Court covered both aspects of the third applicant’s complaint. Furthermore, after the delivery of the Constitutional Court’s judgment, this remedy was no longer available to the applicant, as this claim had already been adjudicated.", "145. In these circumstances, the Court concludes that the third applicant cannot be blamed for not exhausting the domestic remedies, as required by Article 35 § 1 of the Convention. It therefore dismisses the respondent Government’s objection on this point.", "(c) The fourth applicant", "(i) The parties’ arguments", "146. The respondent Government argued that with respect to the fourth applicant’s employment period in Belarus, a retirement pension had been granted by Belarus prior to the lodging of the present application. Additionally, also prior to the lodging of the present application, the fourth applicant’s pension had been recalculated on the basis of the Latvia-Russia Social Security Agreement, in order to include the employment periods accrued in the territory of Russia. As the fourth applicant had withheld this information from the Court, she had manifestly abused the right of individual application within the meaning of Article 35 § 3 (a) of the Convention. She could also no longer claim to be a victim with respect to those periods.", "147. Concerning the alleged employment periods in Germany and the period spent on maternity leave, the respondent Government argued that the fourth applicant had not raised these complaints at domestic level and that they should be rejected for non-exhaustion of domestic remedies.", "148. The applicants responded that the information referred to by the Government had been included in the application form. They also argued that the fourth applicant should be considered a victim with respect to the periods included in the calculation on the same grounds as with respect to the first applicant. Furthermore, the fourth applicant’s claim did not cover the employment period in Germany since, at the time of her retirement and as was true also in respect of citizens of Latvia, only the periods accrued in the territory of the former USSR had been taken into account. For the same reasons, no complaint had been brought concerning the period of the voluntary military service. With regard to the periods spent on parental leave, the applicants argued that these periods formed part of the employment periods and were not the subject matter of a separate dispute.", "(ii) The Court’s assessment", "149. The Court reiterates that under Article 35 § 3 (a) an application may be rejected as an abuse of the right of individual application if, among other reasons, it is knowingly based on untrue facts. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references).", "150. The Court notes at the outset that, contrary to the respondent Government’s allegation, the information about the recalculation of the fourth applicant’s pension on the basis of the Latvia-Russia Social Security Agreement was indeed included in the initial application form. The applicants also stated in the form that the fourth of their number had requested a Belarussian pension but had not yet received a reply, and the respondent Government have provided no documentary evidence establishing that this claim was inaccurate.", "151. The Court also rejects the Government’s argument that the fourth applicant has lost her “victim” status. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see J.D. and A. v. the United Kingdom, cited above, § 64, with further references). This has clearly not been done in the present case. The Court considers that the respondent Government’s argument concerning the alleged absence of victim status rather pertains to the merits of the case and falls to be examined under that head. The allegations of “abuse” and “loss of victim status” must therefore be dismissed.", "152. As to the question of the inclusion of parental leave in the calculation of the “insurance period”, the Court once again reiterates the principle that an applicant cannot be blamed for non-exhaustion of domestic remedies if the substance of the claims raised in Strasbourg has been previously examined, in spite of any alleged procedural shortcomings (see paragraph 133 above). In the present case, the entire length of the disputed period was covered by the reasoning of the Constitutional Court’s judgment (see paragraph 51 above); it follows that this objection should also be dismissed.", "(d) The fifth applicant", "(i) The parties’ arguments", "153. The respondent Government submitted that the fifth applicant’s pension had been recalculated on the basis of the Latvia-Russia Social Security Agreement prior to the lodging the present application, a fact of which she had not informed the Court. Hence, her claim ought to be dismissed for abuse of the right of individual application and loss of victim status.", "154. The applicants reiterated that the information concerning the recalculation had been included in the application form and that the fifth applicant should still be regarded as having victim status on the grounds set out above.", "(ii) The Court’s assessment", "155. On the basis of the case file before it, the Court comes to the same conclusions as for the fourth applicant: there is no indication of “abuse”, given that the information about the recalculation of the pension was indeed included in the fifth applicant’s initial application form, and the argument regarding victim status is to be considered as related to the merits of the case (see paragraphs 149-151 above). These objections must consequently also be dismissed.", "Conclusion on the admissibility of the application", "156. The Court notes that the applicants’ complaint under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. The application must therefore be declared admissible.", "MeritsThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "(a) The applicants", "157. The applicants declared that their complaint concerned solely their claim for the inclusion in the calculation of their retirement pensions of those same periods which were included in calculating the equivalent pensions for Latvian citizens; thus, they were not claiming any additional benefits. The failure to include the impugned employment and equivalent periods in the calculation had led to a reduction of the applicants’ overall insurance period and had directly affected the amount of their retirement pensions. It had also barred four of the five applicants from retiring early and had prevented them from benefitting from favourable conditions in determining the initial capital sum that was used to calculate their pensions. As a result, the first, fourth and fifth applicants had received the minimum pension.", "158. The applicants reiterated that, had they been Latvian citizens, the respective employment and equivalent periods accrued in the territory of the former USSR would have been taken into account in calculating the “insurance period” which was subsequently used to determine their entitlement to state pensions and the amount thereof. Thus, the impugned difference in treatment had been based solely on nationality.", "159. With respect to the legitimate aim of the difference in question, the applicants conceded that it pursued the aim of protecting the country’s economic system. However, they doubted whether this aim still retained its full importance today. Regarding the proportionality of the difference in treatment, the applicants pointed out that the special status of “permanently resident non-citizens” was in substance similar to Latvian citizenship, as it established a special legal bond between the State and the individual. Furthermore, Latvia was the only State with which the applicants had stable legal ties and thus the only State which, objectively, could assume responsibility for them in terms of social security. All of them had lived most of their lives in Latvia; the third applicant had lived there since the age of three. Accordingly, the applicants considered that, irrespective of any circumstantial differences, the facts of the present case could not reasonably be distinguished from those of the above-cited Andrejeva case. In particular, they did not agree that Ms Andrejeva had had a closer legal tie with Latvia than they or any other “permanently resident non-citizens” did. In any event, the status of “permanently resident non-citizen” had been the only aspect invoked by the Court in its finding of a violation in the Andrejeva case.", "160. The applicants admitted that, unlike Ms Andrejeva, they had actually lived outside the territory of Latvia during the periods not included in the calculation. However, they referred to paragraph 85 of the Andrejeva judgment, where the aspect of residence had been considered irrelevant. Furthermore, while before the Court the Government tried to distinguish the two cases on the basis of residence, such a distinction had not been made under domestic law. Even now only work carried out for local Latvian enterprises was regarded as “employment in Latvia”.", "161. The applicants also submitted that their situation with respect to bilateral agreements was very similar to that of Ms Andrejeva. The Agreement between the Republic of Latvia and Ukraine regarding Cooperation within the Field of Social Security had taken effect prior to Ms Andrejeva bringing her case before the Court, and her pension had been recalculated ex nunc; on the other hand, the agreement with Russia had not entered into force before her death. In Andrejeva, the Government’s objection concerning victim status had been raised belatedly; however, the Court had expressed its position concerning the bilateral agreements by stating that a Contracting State could not be absolved of its responsibility under the Convention on the ground that it was not bound by some type of inter-State treaties (ibid., § 90).", "162. In particular, two bilateral agreements (with Belarus and Russia) had entered into force over the course of the domestic proceedings and prior to the present case being brought. Recalculations had been made for certain of the applicants; however, they had only been made ex nunc, as none of the agreements allowed for retrospective payments. Furthermore, employment periods and equivalent periods accrued in other territories of the former Soviet Union remained excluded from the calculation. According to the applicants, the partial inclusion of certain periods in the calculation of their retirement pensions could only have relevance for the calculation of the just satisfaction award under Article 41 of the Convention.", "163. The applicants also dismissed the respondent Government’s claim that finding a violation would render the bilateral agreements on social security devoid of purpose. That would only be the case if the aim of those agreements had been to improve the situation of “permanently resident non ‑ citizens” only; however, their scope was much broader. In practice, those agreements did improve the situation of some “permanently resident non ‑ citizens”, to a certain extent; however, such improvements were merely collateral and could not be considered an effective means of eradicating the violation of the Convention caused by the domestic legislation.", "164. While the judgment in the above-cited Andrejeva case had concerned only the employment periods accrued outside the territory of Latvia, the applicants argued that the same principles also applied with regard to equivalent periods. This was especially true in respect of compulsory military service, as conscripts had been unable to choose the location of the compulsory military service and were compelled to go where they were sent. There had been no local or ethnic units in the Soviet army at the relevant time. The applicants emphasised that the third applicant had been conscripted from the territory of Latvia where he had lived since the age of three.", "165. Finally, the applicants also referred to the findings of the ECRI and the Advisory Committee on the FCNM (see paragraphs 87-89 above) regarding the implementation of the Andrejeva judgment by the Latvian authorities.", "166. In summary, the applicants argued that any purported factual differences between their case and that of the applicant in the Andrejeva case was not a reason for the Court to reach a different conclusion. Accordingly, there had been a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1.", "(b) The respondent Government", "167. The respondent Government declared at the outset that the present case did not concern a refusal to grant the applicants a retirement pension or any other social benefit. Just like Latvian citizens, the applicants were receiving the retirement pension provided by law and were entitled to apply for other social services and assistance. Rather, the applicants claimed that the employment periods accrued outside the territory of Latvia during their residence in other parts of the former USSR prior to the restoration of Latvia’s independence should be taken into account in calculating their pension. In this regard, the respondent Government emphasised that benefits paid on account of employment or military service performed outside Latvia were to be considered as supplements for additional pension payments, and not the core of the old-age pension itself. They reiterated that, when old-age pensions were calculated for employment periods after 1 January 1991, those pensions were calculated in the same manner for both citizens and non-citizens; however, the same approach could not be applied to periods when Latvia was unlawfully occupied by the Soviet Union.", "168. The respondent Government once again referred to the doctrine of State continuity, according to which the forcible incorporation of Latvia into the Soviet Union had been contrary to international law and therefore null and void; consequently, Latvia had continued to exist de jure throughout the entire Cold War period; Latvia was not a successor State to the former USSR and could not assume any of its obligations (see paragraphs 98-99 above).", "169. According to the respondent Government, upon the restoration of its independence, Latvia had an obligation under international law to assume responsibility only for its own citizens and its own territory. In the light of the erga omnes obligation not to recognise or justify violations of international law, Latvia, as a State that had been illegally occupied as a result of aggression, could not assume responsibility for individuals who entered its territory as a result of the immigration policies imposed by the occupying power. In other words, had Latvia accepted that it had such an obligation under international law, it would have been acting against the prohibition on recognising and justifying the violations of international law committed by the USSR. The respondent Government admitted that the impugned decision by the Latvian legislature had also been guided by the necessity to protect the economic system of the country by avoiding a substantive financial burden. However, considerations of State identity and State continuity as described above had been more important than economic considerations.", "170. The respondent Government explained that, after the restoration of its independence, Latvia had created a pension system based on the principle of individual contributions. However, since no pension funds existed at that moment, Latvia voluntarily decided to guarantee a minimum pension to all residents of Latvia, irrespective of their citizenship. Generally speaking, it could hardly be suggested that Latvia ought to have taken responsibility for the full pension entitlements of any person resident on its territory before 1991; instead the obligation to pay pensions for work periods accrued during the occupation fell to the State which had exercised jurisdiction and effective control during the disputed years. Nevertheless, Latvia decided to grant full pension advantages, based on two criteria: first, the beneficiaries’ citizenship, and second, the principle of territoriality. Thus, full pension benefits were awarded, firstly, to all citizens of Latvia, regardless of where in the former USSR they had been employed and had resided, and secondly, to all other persons (“permanently resident non-citizens”, stateless persons, and foreign nationals) to the extent that they had worked in the Latvian territory. This solution was entirely reasonable. On the one hand, Latvia could legitimately assume additional responsibilities with regard to its own citizens, given their special relationship with the State. On the other hand, those non-citizens who had worked in the Latvian territory during the Soviet regime did contribute to the development of Latvia’s economy.", "171. The respondent Government considered that the applicants were not in a similar or relevantly comparable situation to that of Latvian citizens. They explained the historical context of the creation of the status of “permanently resident non-citizen” of Latvia. During the Soviet occupation, an extensive influx of civilian workforce and military personnel was artificially organised into the territory of Latvia as a part of a general Sovietisation and Russification policy, resulting in a large-scale transfer of population from the Soviet Union to Latvia. This policy had dramatically altered the ethnic and linguistic composition of society. Referring to the advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (advisory opinion of 7 July 2004, ICJ Reports 2004), the respondent Government emphasised that such population transfers were prohibited under international law.", "172. After 1991, according to the doctrine of State continuity, Latvian citizenship was not granted anew, but only restored to those individuals who had held it prior to the occupation, and to their descendants. As a result, a large number of persons present in Latvia were not automatically granted citizenship. For humanitarian reasons, in order to protect them from becoming stateless persons, Latvia created the status of “permanently resident non-citizens”. The respondent Government emphasised that the status of “permanently resident non-citizen” had been intended as a temporary status, and that its holders were expected to eventually obtain either Latvian citizenship or that of another State. In that respect, the respondent Government further explained that after 1994, when the Citizenship Act was adopted, “permanently resident non-citizens” became eligible to acquire Latvian citizenship by way of naturalisation. The requirements for naturalisation included knowledge of the Latvian language, of the basic principles of the Latvian Constitution and of the national anthem, and the basic facts of Latvia’s history and culture, and swearing an oath of loyalty to the Republic of Latvia. The applicants could have applied to acquire Latvian citizenship, but had never attempted to do so, and had provided no explanation for their decision. The respondent Government explained that if the applicants were to become Latvian citizens, their pensions would be recalculated to include the periods of employment and mandatory military service in the former USSR outside Latvia. However, they had freely decided not to avail themselves of this opportunity, and the fifth applicant had opted for the nationality of the Russian Federation.", "173. The respondent Government recognised that in the Andrejeva case the Court had found a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1. However, in the light of the foregoing, they considered that this finding had to be understood as based on the decisive fact that, during all the disputed periods, the applicant in that case had resided and worked in the territory of Latvia, forming legal and factual ties with Latvia only. In the present case, however, during the disputed years the applicants had worked or performed their mandatory military service in Russia, Ukraine, Belarus, Turkmenistan, Tajikistan, or Azerbaijan, creating no ties with Latvia in respect of these periods. Thus, while the applicant in the Andrejeva case had worked in the territory of Latvia, the applicants in the present case had not. They had not only been physically employed in the territory of another republic of the former USSR, but their residence had also been officially registered there. Moreover, the central issue in the Andrejeva case was the definition of the concept of “employment in Latvia”, which was not at stake here. In the present case, there was no dispute concerning the fact that the applicants had not lived and resided in Latvia during the years in question. Therefore, unlike in Andrejeva, they could not have had any legitimate expectations that they would receive a pension for the contested periods of employment. The respondent Government concluded that the applicants were in a substantially different situation from that of the applicant in the Andrejeva case.", "174. The respondent Government also recognised that, according to the Court’s case-law, the relevant test for the application of Article 14 of the Convention was whether, but for the condition of entitlement about which they complained, the applicants would have had a right to receive the benefit in question. However, while in most cases this test would be sufficient, it could not be automatically applied in the present case without taking into account the specific historical background as set out above. To assert otherwise would mean completely disregarding the violations of international law that were committed during and following the occupation of Latvia.", "175. Furthermore, contrary to the circumstances in Andrejeva, when the present application was lodged the bilateral social-security agreements with Belarus and Russia had already entered in force and the applicants’ retirement pensions had been recalculated accordingly. According to the respondent Government, the circumstances in the present case were rather similar to those of Carson and Others and Tarkoev and Others (both cited above). The international bilateral agreements on social security entered into by Latvia were based on a mutual understanding of fundamental principles and were the result of continued negotiations between the parties involved, in the course of which the States had sought to identify comparable groups to which the agreements should apply equally. To concur with the applicants’ position, challenging the role of the social-security agreements, would not only disregard the freedom of States to conclude bilateral agreements on social issues, but would also render all such agreements meaningless. The respondent Government asked whether two States ought ever to conclude bilateral agreements on social security if their nationals could enjoy all the available social benefits on the basis of Article 14 of the Convention without having to reciprocate.", "176. To sum up, the respondent Government concluded that the impugned difference in treatment was directly based on the doctrine of State continuity and, by extension, had its roots in general public international law. It had therefore at least two legitimate aims: protection of Latvia’s economic system following the restoration of its independence, and respect for the principle of State continuity and constitutional identity. The impugned measure was also proportionate to these aims: all residents of Latvia received basic old-age pensions, irrespective of their citizenship; their pensions were periodically indexed, the applicants received additional social benefits for housing, health care and transportation, and their pensions had been recalculated following the entry into force of several bilateral agreements on social-security matters. There was indeed no other less restrictive measures to achieve the same legitimate aim. Accordingly, when adopting the domestic-law provision relevant in the present case, Latvia had acted within its margin of appreciation which, in the circumstances of the present case, was wide. The respondent Government therefore concluded that there had been no violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1.", "Submissions of the third-party intervener", "177. The Russian Government considered that the very existence of the status of “permanently resident non-citizen” fell foul of the basic standards of the Convention, the bearers of this status being systematically discriminated against in many areas, including that of social and economic rights.", "178. The Russian Government further explained that the USSR had been a unified formation. Soviet citizens had been entitled to travel all over the territory of the USSR, often not by their own choice but as a result of compulsory job placement by the State authorities. Taking into account the State-guaranteed pension support that had existed in the USSR for many years, they had had a reasonable expectation that their labour records would be valid throughout the entire territory of their country, that is, the Soviet Union. In these circumstances, the difference in the amount of pension paid to citizens and to non-citizens was obviously unfair and discriminatory.", "179. According to the Russian Government, the present case was substantially similar to Andrejeva, cited above, and ought to be determined in the same manner. As to the bilateral agreements on social matters concluded by Latvia with some former republics of the USSR, the Russian Government considered that these were not an adequate solution to the problem in issue, since none of these agreements allowed for a retrospective payment of pensions. Moreover, such agreements had been concluded by Latvia with only five out of the fourteen other former Soviet republics, and “permanently resident non-citizens” who had worked in other parts of the former Soviet Union could not have the amounts of their pensions recalculated accordingly. In this connection, the Russian Government specifically referred to the opinions of the ECRI and the Advisory Committee on the FCNM (see paragraphs 87-89 above).", "The Court’s assessment", "(a) General principles", "180. The Court reiterates at the outset that Article 1 of Protocol No. 1 does not guarantee as such any right to a pension of a particular amount, any right to a pension in respect of activities carried out in a State other than the respondent State, and, indeed, any right to a pension at all. If, however, a State does decide to create a pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006-VI, and Andrejeva, cited above, § 77).", "181. In the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in relevantly similar situations (see, among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). However, only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Carson and Others, cited above, § 61; Fábián, cited above, § 113, and Molla Sali, cited above, § 134). Furthermore, not every difference in treatment will amount to a violation of Article 14. A difference of treatment based on a prohibited ground is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Andrejeva, cited above, § 81; Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013; Fábián, cited above, § 113; and Molla Sali, cited above, § 135).", "182. The Court also reiterates that the provisions of the Convention do not prevent Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the interference with the rights of the statutory category or group as a whole can be justified under the Convention (see Andrejeva, cited above, § 83, and Ždanoka, cited above, § 112). Indeed, measures of economic and social policy often involve the introduction and application of criteria which are based on making distinctions between categories or groups of individuals (see J.D. and A. v. the United Kingdom, cited above, § 81). Moreover, Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them (see Guberina v. Croatia, no. 23682/13, § 70, ECHR 2016, with further references).", "183. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background (see Stummer, cited above, § 88). First and foremost, the nature of the status upon which differential treatment is based weighs heavily in determining the scope of that margin (see Bah v. the United Kingdom, no. 56328/07, § 47, ECHR 2011). The margin is very narrow if the distinction is based on an inherent or immutable personal characteristic such as race or sex (see, for example, D.H. and Others v. the Czech Republic [GC], no. 57325/00 § 196, ECHR 2007 ‑ IV, and J.D. and A. v. the United Kingdom, cited above, § 89). The Court has applied the same standard to the criterion of nationality, holding that very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the grounds of nationality as compatible with the Convention (see Gaygusuz, § 42; Andrejeva, § 87; and Ribać, § 53, all cited above). Conversely, the margin of appreciation will be considerably wider, and the justification required will not be as weighty, if the status in question is subject to an element of personal choice, such as immigration status (see Bah, cited above, ibid., and, mutatis mutandis, Makarčeva v. Lithuania (dec.), no. 31838/19, § 68, 28 September 2021).", "184. Secondly, in the context of Article 1 of Protocol No. 1, the Court has held that in matters concerning general measures of economic or social strategy the States usually enjoy a wide margin of appreciation under the Convention (see Andrejeva, § 83; Fábián, § 115; Guberina, § 73; and British Gurkha Welfare Society and Others, § 62, all cited above). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Andrejeva, § 83; Carson and Others, § 61; and Fábián, § 115, all cited above).", "185. On the other hand, as the Court has stressed in the context of Article 14 in conjunction with Article 1 of Protocol No. 1, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality (see Fábián, cited above, § 115, with further references). Among other areas, this general rule applies in pension matters (see Stec and Others, cited above, § 55, and Jurčić v. Croatia, no. 54711/15, § 64, 4 February 2021). Hence, in that context the Court has usually limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality (see Stec and Others, §§ 61-66; British Gurkha Welfare Society and Others, § 81; and J.D. and A. v. the United Kingdom, § 88, all cited above).", "186. Irrespective of the scope of the State’s margin of appreciation, the final decision as to the observance of the Convention’s requirements rests with the Court (see, among many other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012).", "187. Lastly, as regards the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment between persons in relevantly similar situations, it is for the Government to show that it was justified (see D.H. and Others v. the Czech Republic [GC], cited above, § 177; Kurić and Others v. Slovenia [GC], no. 26828/06, § 389, ECHR 2012 (extracts); and Guberina, cited above, § 74).", "188. In the context of complaints of alleged discrimination in a welfare or pensions system, the Court has held that its main task is to assess the compatibility of the impugned features of the system with Article 14, not the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation (see, for example, Carson and Others, § 62; Stec and Others, §§ 50-67; Burden, §§ 58-66; and Andrejeva, §§ 74-92, all cited above). Rather, the Court’s role is to determine the question of principle, namely whether the legislation as such unlawfully discriminates between persons who are in an analogous situation ( Carson and Others, § 62, and British Gurkha Welfare Society and Others, § 63, both cited above).", "(b) Application to the present case", "189. The Court has already found that the facts of the case fall within the ambit of the substantive article – here, Article 1 of Protocol No. 1 – and that Article 14 of the Convention is therefore applicable to the applicants’ complaint (see paragraphs 121-122 above). It remains for the Court to determine, firstly, whether the impugned difference in treatment is based on at least one of the protected grounds set out in Article 14 of the Convention; secondly, whether the applicants are in a relevantly similar situation to that of the respective comparator group, i.e., Latvian citizens; thirdly, whether that difference pursued a legitimate aim; and, fourthly, whether it was proportionate to that aim, satisfying the requirement of a “reasonable and objective justification” for that difference in treatment (see, mutatis mutandis, Vrountou v. Cyprus, no. 33631/06, § 61, 13 October 2015).", "190. As regards the applicants’ factual situation, their circumstances can be summarised as follows. All the applicants, with the exception of the third applicant who moved to Latvia when he was three, moved to Latvia and settled there in the course of their adult lives. In the absence of a relevant bilateral agreement, the impact on the second applicant of excluding the entire period of his employment in Azerbaijan, where he worked before settling in Latvia, has not been mitigated by any subsequent measure. The same is true for the period of his military service prior to his settlement in Latvia (see paragraphs 21-24 above). The fourth applicant, who retired in 2008, subsequently benefitted from the recalculation of her retirement pension following the conclusion of the bilateral agreement with Russia, whereby her periods of employment in Russia were taken into account with effect from June 2011. As a result, the remaining impact of the difference concerns the amount of the retirement pension she received during the period of about 3 years and 3 months between the start of her retirement in 2008 and the recalculation in 2011, and the amount relating to the employment period in her native Uzbekistan (about eight years), which remains excluded (see paragraphs 29-33 above). The fifth applicant, who started receiving her retirement pension in 2005, also benefitted from the recalculation in 2011 as far as her employment periods in Russia were concerned. As a result, the remaining impact of the difference concerns the amount of the retirement pension she received during the period of about seven years between the start of her retirement in 2005 and the recalculation in 2011, and the amount relating to the employment periods in Uzbekistan, Turkmenistan and Tajikistan (about eight years), which remain excluded (see paragraphs 34-37 above). Finally, the third applicant has spent practically all his life in Latvia, interrupting his residence there for the duration of his compulsory military service (about two years) outside Latvia (see paragraphs 25-28 above).", "(i) The alleged ground of discrimination", "191. In the Andrejeva judgment, cited above, the Court held:", "“87. ... The Court notes ... that as a ‘permanently resident non-citizen’, the applicant is lawfully resident in Latvia on a permanent basis and that she receives a retirement pension in respect of her employment ‘in Latvia’, that is, for entities based in Latvian territory. The national authorities’ refusal to take into account her years of employment ‘outside Latvia’ is based exclusively on the consideration that she does not have Latvian citizenship. It was not disputed in the instant case that a Latvian citizen in the same position as the applicant, having worked in the same enterprise during the same period, would be granted the disputed portion of the retirement pension. Moreover, the parties agreed that if the applicant became a naturalised Latvian citizen she would automatically receive the pension in respect of her entire working life. Nationality is therefore the sole criterion for the distinction complained of ...”", "192. In the present case, the Court sees no reason to depart from this conclusion. It appears that in the Latvian legal system the terms “nationality” and “citizenship” have the same meaning (for an example of interchangeable use of both terms, see Kurić and Others, cited above). It was clearly stated in Paragraph 1 of the transitional provisions of the State Pensions Act that the impugned difference in treatment is between Latvian citizens and other categories of people – that is, foreign nationals, stateless persons and “permanently resident non-citizens” of Latvia (see paragraph 66 above). Both the Constitutional Court in its judgment of 17 February 2011 and the Latvian Government in its observations before the Court have, in substance, recognised this, justifying the difference in question by the idea that the State has to assume particular responsibility for its own citizens. Moreover, as the respondent Government have pointed out, if the applicants had become Latvian citizens by way of naturalisation, their pensions would be recalculated to include the periods of employment and mandatory military service outside Latvia, and the amount of their pensions would become – albeit only ex nunc – identical to the amount that Latvian citizens with the same employment history would receive (see paragraph 172 above).", "193. This being so, the Court cannot but reaffirm its earlier conclusion, reached in the Andrejeva case, namely that “nationality”, or rather the absence of Latvian citizenship on the applicants’ part, is the sole criterion for the distinction complained of (see Gaygusuz, cited above, §§ 40 and 47; Koua Poirrez v. France (no. 40892/98, §§ 41 and 47, ECHR 2003 ‑ X); and, mutatis mutandis, Rangelov v. Germany, no. 5123/07, § 99, 22 March 2012). Accordingly, very weighty reasons must be adduced to justify a difference in treatment in such cases. Nonetheless, the specific circumstances of the case are to be taken into account in determining the scope of the respondent State’s margin of appreciation.", "(ii) Whether the applicants are in a relevantly similar situation to that of Latvian citizens", "194. According to the respondent Government, for the purposes of the present case, the applicants are not in a relevantly similar or comparable situation to that of Latvian citizens: the latter are in a special relationship of loyalty, allegeance and mutual obligations with the Latvian State, which, accordingly, has a special responsibility with regard to them, whereas the former group, transferred to Latvia as a result of demographic policies imposed by an occupying power in violation of international law, do not possess such special ties. From this perspective, if the Latvian legislature has decided to grant them pensions on the account of their employment during the Soviet regime in the Latvian territory, this was a reasonable bonus based on the fact that, to the extent that they had worked in Latvia, they had also contributed to that country’s economic development (see paragraphs 170-171 above). On the other hand, the applicants’ position can be understood as emphasising the identical factual nature of their position and that of a Latvian citizen with a similar employment history; in other words, having or not having Latvian nationality is the only objective difference between them (see paragraph 159 above). Like the applicants, the third-party intervener emphasised the equal status of all former Soviet citizens with regard to labour and pension benefits during the Soviet period (see paragraph 178 above).", "195. The Court finds it sufficient at this stage of its examination to note that, with regard to the calculation of their retirement pensions within the Latvian system of occupational pensions, the applicants can be considered to be in a relevantly similar situation to persons with the same employment history but possessing Latvian citizenship. Accordingly, the Court will proceed with an assessment of whether the difference in treatment pursued one or more legitimate aims and whether it was proportional in the light of those aims.", "(iii) The legitimacy of the aims pursued", "196. Drawing on the Constitutional Court’s judgment of 17 February 2011, the respondent Government stated that the difference in treatment established by Paragraph 1 of the transitional provisions of the State Pensions Act, instituting the impugned difference in treatment between Latvian citizens and other categories of persons, pursued not one but two aims: namely, protecting the economic system of the country, and safeguarding the constitutional identity of the State by implementing the doctrine of State continuity, the latter aim being more important than the former.", "197. In the Andrejeva case, cited above, the Court held:", "“86. The Court accepts that the difference in treatment complained of pursues at least one legitimate aim that is broadly compatible with the general objectives of the Convention, namely the protection of the country’s economic system. It is undisputed that after the restoration of Latvia’s independence and the subsequent break-up of the USSR, the Latvian authorities were confronted with an abundance of problems linked to both the need to set up a viable social security system and the reduced capacity of the national budget. Furthermore, the fact that the provision in issue was not introduced until 1995, four years after Latvia’s independence had been fully restored, is not decisive in the instant case. It is not surprising that a newly established democratic legislature should need time for reflection in a period of political turmoil to enable it to consider what measures were required to ensure the country’s economic well-being. It cannot therefore be concluded that the fact that Latvia did not introduce the difference in treatment until 1995 showed that the State itself did not deem such a measure necessary to protect the national economy (see, mutatis mutandis, Ždanoka, cited above, § 131).”", "198. The Court notes that the Constitutional Court gave its second judgment regarding pension rights in 2011, that is, after the delivery of the Court’s judgment in Andrejeva, which was taken into account and analysed by the Constitutional Court. According to the Constitutional Court’s reasoning, the impugned difference in treatment has at least two legitimate aims. The first, and most important according to the domestic authorities, was the need to protect the constitutional identity of the Republic of Latvia, which is based on the principle of State continuity as set out in the Declaration on the Restoration of Independence and subsequent constitutional provisions and doctrine. The Court observes that the essential point in this regard is not the doctrine of State continuity per se but rather the constitutional foundation of the Republic of Latvia following the restoration of its independence. The underlying arguments for Latvia’s doctrine of State continuity stem from the overall historical and demographic background which, as argued by the Government, accordingly also informed the setting up of the impugned system of retirement pensions following the restoration of Latvia’s independence. More specifically, the Court acknowledges that the aim in that context was to avoid retrospective approbation of the consequences of the immigration policy practised in the period of unlawful occupation and annexation of the country. In this specific historical context, such an aim, as pursued by the Latvian legislature when establishing the system of retirement pensions, was consistent with the efforts to rebuild the nation’s life following the restoration of independence, and the Court accepts this aim as legitimate. The second legitimate aim, as the Court established in the Andrejeva case, was the protection of the country’s economic system (ibid., § 86).", "199. It therefore remains to be determined whether there was a reasonable relationship of proportionality between these aims and the means employed by the Latvian authorities.", "(iv) The proportionality of the difference in treatment", "(α) Preliminary considerations", "200. The Court reiterates at the outset that it has in the past examined several cases concerning the obligations of the successor States to the former Yugoslavia as regards individual patrimonial rights and interests after the disintegration of that State (see, for example, Kurić and Others, cited above, and Kovačić and Others v. Slovenia ([GC], nos. 44574/98 and 2 others, 3 October 2008). However, it considers that the rules and principles of international law concerning State succession in pension matters are of little or no use for the purposes of the present case, as the official and consistent legal position of Latvia is based on the doctrine of State continuity, in the sense of a firm and coherent denial of any link of State succession between the former Soviet Union and the Latvian State.", "201. The Court also reiterates that there is no right under Article 1 of Protocol No. 1 taken alone to receive a social security benefit or pension payment of any kind or amount, unless national law provides for such an entitlement (see, for example, Damjanac v. Croatia, no. 52943/10, § 87, 24 October 2013). Furthermore, given that the Latvian legislature has decided to grant occupational retirement pensions for the work performed during the historical period in question, the Court perceives no reasonable objection, from the point of view of Convention law, to a policy generally excluding periods of employment accrued while individuals were residing and working outside the Latvian territory. The core issue in the present case, however, is not whether the legitimate aims pursued by Latvia can justify not granting pensions at all, or granting them for the periods of work done in Latvia only, but whether they can justify the difference made in this regard between those holding Latvian citizenship and those holding the status of “permanently resident non-citizens”, and whether there is sufficient justification for this difference in treatment in the light of all the circumstances of the case.", "202. The Court further notes that in the case of Andrejeva, cited above, it found a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. While mindful of the broad margin of appreciation enjoyed by the respondent State in the field of social security, the Court was not convinced that there had been a reasonable relationship of proportionality with respect to the legitimate aim of protecting the country’s economic system (ibid, § 89). In this regard, the Court reiterates that, while it is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see Martinie v. France [GC], no. 58675/00, § 54, ECHR 2006-VI, and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 150, 8 November 2016). The Court must therefore determine whether there are any such reasons in the instant case, especially in the light of the expanded reasoning adduced by the Constitutional Court in its judgment of 17 February 2011.", "203. The Court agrees with the Constitutional Court that upon the restoration of its independence Latvia was not obliged to assume the responsibilities of the USSR. Having undergone unlawful occupation and subsequent annexation, a State is not required to assume the public-law obligations accrued by the illegally established public authorities of the occupying or annexing power. Latvia was neither automatically bound by such obligations based on the Soviet period nor obliged to undertake obligations emanating from obligations of the occupying or annexing State. The Court observes, however, that once Latvia had put in place a system of occupational retirement pensions in 1996 which allowed for periods of employment accrued outside its territory to be counted towards the pension for Latvian nationals, it was bound, as from the date on which the Convention entered into force in respect of Latvia (that is, 27 June 1997), to comply with Article 14 taken in conjunction with Article 1 of Protocol No. 1.", "(β) Considerations relating to the scope of the margin of appreciation", "204. Although an overview of the relevant general principles deriving from the Court’s case-law is presented above (see paragraphs 183-185), and given that the margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, the Court finds it important at the outset to proceed with a closer analysis of the various relevant considerations to be taken into account when determining the appropriate scope of the margin of appreciation in the specific circumstances of the present case. In this regard, the Court observes the following.", "205. The Court has repeatedly held, on the one hand, that in the field of social security and fiscal matters the margin of appreciation enjoyed by States must be wide (see paragraph 184 above). On the other hand, it has also repeatedly held that only “very weighty reasons” could justify a difference in treatment based exclusively on the grounds of nationality for the purposes of Article 14 of the Convention, thus indicating a narrow margin and strict scrutiny by the Court (see Gaygusuz, cited above, § 42; Andrejeva, cited above, § 87; and Ribać, cited above, § 53). In Stec (cited above, § 52) the Court set out the requirement of “very weighty reasons”, followed by the principle of “wide margin” in general measures of economic or social strategy, including a reference to the test of “manifestly without reasonable foundation” (see also, albeit in the context of “other status”, Stummer, cited above, §§ 101 and 109).", "206. That being stated, the Court notes, firstly, that while the scope of the margin of appreciation clearly cannot be the same as regards the adoption of general measures of economic and social policy and as regards the introduction, in that context, of differences in treatment based solely on criteria such as nationality, the Court finds it reasonable to consider that in a field where a wide margin is, and must be, granted to the State in formulating general measures, even the assessment of what may constitute “very weighty reasons” for the purposes of the application of Article 14 may have to vary in degree depending on the context and circumstances.", "207. In its case-law, the Court has previously acknowledged that there may be valid reasons for giving special treatment to those whose link with a country stems from birth within it or who otherwise have a special link with a country (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 88, Series A no. 94, and Ponomaryovi v. Bulgaria, no. 5335/05, §§ 54-56, ECHR 2011). Thus, in Abdulaziz, Cabales and Balkandali, the Court accepted a measure whereby the United Kingdom (where, for historical reasons, several categories of “nationality” exist, with differences in the legal position notably regarding rights of entry and residence) restricted family reunification rights between spouses in respect of certain “nationals”, depending on where the spouse already resident in the country had been born.", "208. In the present case, the Court notes in particular that the special status of “permanently resident non-citizens” was created by the Latvian legislature following the restoration of Latvia’s independence with a view to addressing the consequences of a situation which had arisen from an occupation and subsequent annexation in breach of international law (see paragraphs 105 ‑ 106 above).", "209. Another factor to be taken into account with regard to the scope of the margin of appreciation is the specific temporal scope and context of the impugned measure. In this regard, it is important to underline that the sole issue in the present case concerns a difference in treatment which was introduced when the Latvian system of employment pensions was set up and which concerns only periods of employment completed outside the territory of Latvia in the period prior to the restoration of Latvia’s independence.", "210. The Court therefore notes that the present case must be distinguished from that of Luczak v. Poland (no. 77782/01, ECHR 2007 ‑ XIII). In that case, the applicant was refused admission to the farmers’ social-security scheme on account of his nationality. Thus, he was prevented from obtaining and contributing to social cover for future periods of occupational activity as a farmer in the respondent State. By contrast, the issue in the present case concerns past periods of employment, completed outside the respondent State before the introduction of the occupational pension scheme. In this regard, it can be noted that the Court has previously accepted a difference in treatment based on nationality for reasons relating to the date from which the applicants developed ties with the respondent State (see British Gurkha Welfare Society and Others, cited above, §§ 84-85). The Court notes that in that case the applicants were Nepalese Gurkha soldiers whose pension entitlements were significantly lower than those of British soldiers with whom the Gurkhas had served, in the same units, in various parts of the world. The contested periods of service in respect of which there was a difference in the calculation and amount of the pensions between the Nepalese and the British nationals had been accrued outside the United Kingdom, at a time before the Gurkhas had any links to Britain. Although the contested periods consisted of service in the British Army abroad, in the units to which they were integrated, the Court found no violation of Article 14 in conjunction with Article 1 of Protocol No. 1, accepting that the respondent State had acted within its margin of appreciation when adopting the impugned domestic provisions, under which the equalisation of pension rights between the Nepalese and the British nationals was foreseen only for the period following the removal of the Gurkhas’ home base to the United Kingdom.", "211. As highlighted by the Constitutional Court and the respondent Government, the choices made by the Latvian legislature when setting up the employment-based retirement pension system and determining the criteria for entitlement therein were directly linked to the particular historical and demographic circumstances of Latvia’s situation at the relevant time, together with the constraints imposed by the severe economic difficulties prevailing at the time. Thus, the present case, which concerns only past periods of employment dating back to the years prior to the restoration of Latvia’s independence, is characterised by the specific background to the impugned transitory measure concerning this pension system. The Court points out that it has already acknowledged the need for a wide margin of appreciation in the context of such fundamental changes to a country’s system as the transition from a totalitarian regime to a democratic form of government and the reform of the State’s political, legal and economic structure, phenomena which inevitably involve the enactment of large-scale economic and social legislation (see Broniowski v. Poland [GC], no. 31443/96, §§ 149 and 162 ‑ 63, ECHR 2004-V ). Furthermore, the Court reiterates that it may have regard to facts prior to the ratification of the Convention by the respondent State where such circumstances could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see, mutatis mutandis, Broniowski v. Poland (dec.) [GC], no. 31443/96, § 74, ECHR 2002-X, and Hoti v. Croatia, no. 63311/14, § 85, 26 April 2018).", "212. Moreover, the Court notes that while the nature of a social benefit, in particular the question whether or to what extent it depends on prior individual contributions payable by the beneficiaries, is not in itself decisive for the determination of whether it constitutes an entitlement falling within the scope or the ambit of Article 1 of Protocol No. 1 (see Andrejeva, cited above, § 76), the margin of appreciation may nonetheless depend on whether the impugned measure entails a loss of individual contributions paid by or on behalf of the individual affected by the measure (compare and contrast Pichkur v. Ukraine, no. 10441/06, § 51, 7 November 2013). Another factor which the Court has also taken into account is whether the lack of entitlement left the individual in question without social cover (see Stummer, cited above, § 108, and Janković, cited above).", "213. In view of the above considerations, the Court considers that the assessment of whether the impugned difference in treatment is justified by “very weighty reasons” must be carried out against the background of the wide margin of appreciation to be applied in the circumstances of the present case.", "(γ) The assessment of proportionality", "214. The Court observes, firstly, that the ground for the impugned difference in treatment which was introduced in the transitional provisions of the occupational pension system set up by the Latvian legislature is directly linked with the primary aim relied on by the Latvian Constitutional Court (see paragraph 196 above). The preferential treatment accorded to those possessing Latvian citizenship in respect of past periods of employment performed outside Latvia is therefore in line with that legitimate aim.", "215. Secondly, the Court notes that the difference in treatment depended on the possession or, rather the lack, of Latvian citizenship, a legal status distinct from the national origin of the persons concerned and available to the applicants as “permanently resident non-citizens”. In this regard the Court notes, with reference to the Constitutional Court’s judgment, that the status of “permanently resident non-citizen” was devised as a temporary instrument so that the individuals concerned could obtain Latvian citizenship or choose another State with which to establish legal ties (see paragraph 55 above). In this respect, the Court can accept that in the context of difference in treatment based on nationality there may be certain situations where the element of personal choice linked with the legal status in question may be of significance with a view to determining the margin of appreciation left to the domestic authorities, especially in so far as privileges, entitlements and financial benefits are at stake (see, mutatis mutandis, Bah, cited above, § 47). It does not appear from the case file that any of the applicants has ever tried to obtain citizenship of Latvia – the country in which they have already been permanently settled for many years – or that they did so but were met with obstacles. It is clear that naturalisation depends on the fulfilment of certain conditions and may require certain efforts. This does not, however, alter the fact that the question of legal status, namely the choice between remaining a “permanently resident non-citizen” and acceding to citizenship, is largely a matter of personal aspiration rather than an immutable situation, especially in the light of the considerable time-frame available to the applicants to exercise that option (see paragraph 190 above).", "216. Thirdly, the difference in treatment only concerned past periods of employment, completed prior to the introduction of the pension scheme in question. The choices made by the Latvian legislature when determining the criteria for entitlements in the employment-based retirement pension system were directly linked to the particular historical, economic and demographic circumstances, that is, the five decades of unlawful occupation and annexation, and the subsequent, particularly difficult situation prevailing in the wake of the restoration of Latvia’s independence. In contrast to the case of Andrejeva, the difference in treatment was limited to periods of employment completed by the applicants outside Latvia, before they settled in Latvia or had any other links with that country (see British Gurkha Welfare Society and Others, cited above, and paragraph 210 above). Only one of the applicants (the third) had been resident in Latvia prior to the period of military service at issue.", "217. Fourthly, the impugned difference in treatment neither concerns the applicants’ entitlement to basic pension benefits, accorded under Latvian law irrespective of the individual’s employment history, nor does it entail any deprivation, or other loss, of benefits based on financial contributions made by the applicants in respect of the employment periods in question.", "218. Furthermore, with particular regard to the second legitimate aim pursued (see paragraph 196 above), the Court notes that the Latvian system of employment pensions at issue was based on social insurance contributions and functioned according to the principle of solidarity, in the sense that the total amount of contributions collected was used to fund the current disbursement of pensions, payable to all the beneficiaries at a given time. Thus, determining the scope of eligible periods of employment inevitably had an impact on the level of the benefits and the contributions required to fund them. The Court considers that these types of trade-offs in social welfare systems generally call for a wide margin of appreciation. Given the particular difficulties and the complex policy choices facing the Latvian authorities after the restoration of independence, the Court cannot but recognise, in its overall assessment, a substantial degree of deference to be afforded to the Government (see, mutatis mutandis, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 113, 25 October 2012).", "219. In sum, the Court accepts, in the light of all the above circumstances and the respective margin of appreciation, that the impugned difference in treatment was consistent with the legitimate aims pursued and that the grounds relied upon by the Latvian authorities to justify it can be deemed to amount to very weighty reasons.", "(v) Conclusion", "220. In view of all the above considerations, the Court considers that in the specific circumstances of the present case the respondent State has not overstepped its margin of appreciation with regard to the applicants. The Court thus finds that it must reach a different conclusion from that of the Andrejeva case (see, a contrario, Martinie, cited above § 54).", "221. There has accordingly been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1950 and lives in Gothenburg.", "10. He is a professor, specialising in child and adolescent psychiatry, at the University of Gothenburg.", "11. In the period between 1977 and 1992 a research project was carried out at the University of Gothenburg in the field of neuropsychiatry, focusing on cases of Attention ‑ Deficit Hyperactivity Disorder ( ADHD) or Deficits in Attention, Motor Control and Perception (DAMP) in children. The aim was to elucidate the significance thereof and associated problems from a long-term perspective. Parents to a group of one hundred and forty ‑ one pre ‑ school children volunteered to participate in the study, which was followed up every third year. Certain assurances were made to the children’s parents and later to the young people themselves concerning confidentiality. The research file, called the Gothenburg study, was voluminous and consisted of a large number of records, test results, interview replies, questionnaires and video and audio tapes. It contained a very large amount of privacy-sensitive data about the children and their relatives. Several doctoral theses have been based on the Gothenburg study. The material was stored by the Department of Child and Adolescent Psychiatry, of which the applicant was director. The project was originally set up and started by other researchers but the applicant subsequently took over responsibility for completing the study.", "12. The applicant alleged that the Ethics Committee of the University of Gothenburg had made it a precondition in their permits that sensitive information about the individuals participating in the study would be accessible only to the applicant and his staff and that he had therefore promised absolute confidentiality to the patients and their parents. That fact was disputed by the Government.", "13. Two permits were issued by the Ethics Committee of the University of Gothenburg, on 9 March 1984 and 31 May 1988 respectively, consisting of one page each and indicating, among other things, the dates of application (respectively 26 January 1984 and 24 March 1988), the researchers involved in the project, the name of the project and the date of approval; they bore the signatures of the chairman and the secretary of the Ethics Committee. They contained no specific requirements and no reference to “secrecy” or “absolute secrecy”.", "14. In a letter of 17 February 1984 to the parents of the children participating in the study, the applicant stated, inter alia :", "“All data will be dealt with in confidentiality and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital, and its present results will, as was the case for the previous study three years ago, be followed up.”", "15. A later undated letter from the applicant to the participants in the study included the following wording:", "“Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be processed in such a way that nobody apart from those of us who met you and have direct contact with you will be able to find out anything at all about you.”", "A. Proceedings concerning access to the research material", "16. In February 2002 a sociologist, K, requested access to the background material. She was a researcher at Lund University and maintained that it was of great importance to have access to the research material and that it could, without risk of damage, be released to her with conditions under Chapter 14, section 9, of the Secrecy Act ( Sekretesslagen; SFS 1980:100). She had no interest in the personal data as such but only in the method used in the research and the evidence the researchers had for their conclusions. Her request was refused by the University of Gothenburg on 27 February 2002 because K had not shown any connection between the requested material and any research, and on the ground that the material contained data on individuals’ health status which, if disclosed, might harm an individual or persons related to that individual. An appeal against the decision was lodged with the Administrative Court of Appeal ( Kammarrätten i Göteborg ), which referred the matter to the University of Gothenburg to examine whether the material could be released after removal of identifying information or with a condition restricting K’s right to pass on or use the data. The University of Gothenburg again refused the request on 10 September 2002, on the ground that the data requested was subject to secrecy, that there was no possibility of releasing the material after removal of identifying information, nor was there sufficient evidence to conclude that the requested material could be released with conditions. K again appealed against the decision to the Administrative Court of Appeal.", "17. In the meantime, in July 2002, a paediatrician, E, also requested access to the material. He submitted that he needed to keep up with current research, that he was interested in how the research in question had been carried out and in clarifying how the researchers had arrived at their results, and that it was important to the neuropsychiatric debate that the material should be exposed to independent critical examination. His request was refused by the University of Gothenburg on 30 August 2002, for the same reasons as its refusal to K, a decision against which E appealed to the Administrative Court of Appeal.", "18. By two separate judgments of 6 February 2003, the Administrative Court of Appeal found that K and E had shown a legitimate interest in gaining access to the material in question and that they could be assumed to be well acquainted with the handling of confidential data. Therefore, access should be granted to K and E, but subject to conditions made by the University of Gothenburg in order to protect the interests of the individuals concerned in accordance with various named provisions of the Secrecy Act.", "19. The University of Gothenburg’s request to the Supreme Administrative Court ( Regeringsrätten) for relief for substantive defects ( resning ) was refused on 4 April 2003.", "20. In vain the applicant and some of the individuals participating in the study also applied to the Supreme Administrative Court for relief for substantive defects. Their requests were refused on 4 April, 16 May and 22 July 2003 respectively, because they were not considered to be party to the case ( bristande talerätt).", "21. In the meantime, on 7 April 2003 the University of Gothenburg decided that, “provided that the individuals concerned gave their consent”, the documents would be released to K and E with conditions specified in detail in the decisions.", "22. K and E appealed against certain of the conditions imposed by the University of Gothenburg. They also reported the University of Gothenburg’s handling of the case to the Parliamentary Ombudsman, which in decisions of 10 and 11 June 2003 criticised the University of Gothenburg, notably regarding the delays in replying to the request for access.", "23. In two separate judgments of 11 August 2003, the Administrative Court of Appeal lifted some of the conditions imposed by the university. It pointed out that in the judgments of 6 February 2003 K and E had already been given the right of access to the requested documents and that the only matter under examination was the conditions of access, which could only be imposed if they were designed to remove a given risk of damage, and that a condition should be framed to restrict the recipient’s right of disposal over the data. Thereafter, six conditions were set regarding K’s access, including that the data was only to be used within the Swedish Research Council funded research project called “The neurological paradigm: on the establishment of a new grand theory in Sweden” which K had specified before the Administrative Court of Appeal, that she was not allowed to remove copies from the premises where she was given access to the documents, and that transcripts of released documents containing data on psychological, medical or neurological examinations or treatment, or concerning the personal circumstances of individuals, and notes concerning such examinations, treatment or circumstances from a document released to her, would be destroyed when the above research project was completed and at the latest by 31 December 2004. Six similar conditions were also imposed on E, including that data in the released documents referring to psychological, medical, psychiatric or neurological examinations or treatment, and data in the released documents concerning the personal circumstances of an individual, was to be used for examination of how the researchers who participated in the research project in which the documents had been used had arrived at their results and conclusions, and so that E could generally maintain his competence as a paediatrician.", "24. The University of Gothenburg did not have a right to appeal against the judgments and on 5 November 2003 the applicant’s request to the Supreme Administrative Court for relief for substantive defects was refused because he was not considered to be a party to the case.", "25. In the meantime, in a letter of 14 August 2003 to the applicant, the Vice ‑ Chancellor of the university stated that, by virtue of the judgments of the Administrative Court of Appeal, K and E were entitled to immediate access to the documents on the conditions specified. Furthermore, by decision of the university, K and E were to be given access to the documents on the university’s premises on a named street and the documents therefore had to be moved there from the Department of Child and Adolescent Psychiatry without delay. The letter stated that the transportation of the documents was to begin on 19 August 2003 at 9 a.m. The applicant was requested to arrange for the documents to be available for collection at that time and, if necessary, to ensure that all the keys to the rooms where the material was kept were delivered to a person P.", "26. The applicant replied in a letter of 18 August 2003 that he did not intend to hand over either the material or the keys to the filing cabinets to P. On the same day the Vice-Chancellor had a meeting with the applicant.", "27. On instruction by the Vice-Chancellor, on 19 August 2003 P visited the Department of Child and Adolescent Psychiatry. He was met by controller L, who handed him a document showing that L had been instructed by the applicant not to release either the material in question or the keys to the filing cabinets.", "28. By letter of 1 September 2003 the Vice-Chancellor of the University of Gothenburg informed K and E that since the applicant refused to transfer the material for the present he could not help them any further and that he was considering bringing the applicant before the Public Disciplinary Board ( Statens ansvarsnämnd ) on grounds of disobedience.", "29. On 18 October 2003 the applicant had a meeting with the Vice-Chancellor of the University of Gothenburg about the case. Moreover, in autumn 2003 the applicant and various persons corresponded with the Vice ‑ Chancellor, including a professor of jurisprudence and Assistant Director General of the Swedish Research Council who questioned the judgments of the Administrative Court of Appeal, which prompted the Vice-Chancellor to consider whether it would be possible to impose new conditions on K and E. The case was discussed within the University Board and subsequently, by decision of 27 January 2004, the University of Gothenburg decided to refuse to grant access to K because, in the light of a memorandum drawn up on 12 March 2003 by the Swedish Research Council, there was no connection between K’s research and the research project that she had specified before the Administrative Court of Appeal. Likewise, in a decision of 2 February 2004 the university decided to impose a new condition on E before giving him access. It stated that it had reason to believe that E’s activities and position did not justify giving him access to the material, even subject to restrictions. E thus had to demonstrate that his duties for the municipality included reviewing or otherwise acquiring information about the basic material on which the research in question was based.", "30. The decisions were annulled by the Administrative Court of Appeal by two separate judgments of 4 May 2004.", "31. The applicant’s request to the Administrative Supreme Court for relief for substantive defects was refused on 28 September 2004 and 1 July 2005, because he was not considered to be party to the case.", "32. In the meantime, according to the applicant, the research material was destroyed during the weekend of 7 and 9 May 2004 by three of his colleagues.", "B. Criminal proceedings against the applicant", "33. On 18 January 2005 the Parliamentary Ombudsman decided to initiate criminal proceedings against the applicant and by a judgment of 27 June 2005 the District Court ( Göteborgs Tingsrätt ) convicted the applicant of misuse of office pursuant to Chapter 20, Article 1 of the Penal Code ( Brottsbalken). The applicant was given a suspended sentence and ordered to pay fifty day-fines of 750 Swedish kronor (SEK), amounting to a total of SEK 37,500, (approximately 4,000 Euros (EUR).", "34. The Vice-Chancellor of the university was also convicted of misuse of office for having disregarded, through negligence, his obligations as Vice-Chancellor by failing to ensure that the documents were available for release as ordered in accordance with the judgments of the Administrative Court of Appeal. The Vice-Chancellor was sentenced to forty day ‑ fines of SEK 800, amounting to a total of SEK 32,000 (approximately EUR 3,400).", "35. The Parliamentary Ombudsman also decided to initiate criminal proceedings against the Chair of the Board of Gothenburg University, but the charges were later dismissed.", "36. Finally, by a judgment issued on 17 March 2006, the three officials who had destroyed the research material were convicted of the offence of suppression of documents and given a suspended sentence and fined.", "37. On appeal, on 8 February 2006 the applicant’s conviction and sentence were upheld by the Court of Appeal ( Hovrätten för Västra Sverige ) in the following terms:", "General observations on the university’s management of the case", "“In its two initial judgments of 6 February 2003 the Administrative Court of Appeal held that K and E were entitled to have access to the documents requested. In its two subsequent judgments of 11 August 2003 the Administrative Court of Appeal decided on the conditions that would apply in connection with the release of the documents to them. The judgments of the Administrative Court of Appeal had therefore settled the question of whether the documents were to be released to K and E once and for all.", "At the hearing in the Administrative Court of Appeal, the university had the opportunity to present reasons why the documents requested should not be released to K and E. Once the judgments, against which no appeal could be made, had been issued in February 2003, whether or not the university considered that they were based on erroneous or insufficient grounds had no significance. After the February judgments the university was only required to formulate the conditions it considered necessary to avoid the risk of any individuals sustaining harm through the release of the documents. Subsequently the university had the opportunity to present its arguments to the Administrative Court of Appeal for the formulation of the conditions it had chosen. After the Administrative Court of Appeal had determined which conditions could be accepted, the question of the terms on which [K and E] could be allowed access to the documents requested was also settled once and for all. There was then no scope for the university to undertake any new appraisal of K’s and E’s right of access to the documents.", "Therefore, in the period referred to in the indictment [from 11 August 2003 until 7 May 2004] it was no longer the secrecy legislation that was to be interpreted but the judgments of the Administrative Court of Appeal. Their contents were clear. [The Vice-Chancellor’s] letters of 14 August 2003 to [the applicant] and of 1 September 2003 to K and E show that the university administration had understood that it was incumbent on the university to release the documents without delay.", "The promptness required by the Freedom of the Press Act in responding to a request for access to a public document should in itself have caused the university to avoid measures leading to further delay in releasing the documents. Despite this, in its interpretation of the conditions and in laying down additional conditions, the university made it more difficult for K and E to gain access to the documents.”", "The applicant’s liability", "“The prosecutor has maintained that after the judgments of the Administrative Court of Appeal of 11 August 2003 and until 7 May 2004, when the material is said to have been destroyed, [the applicant] in his capacity as head of the Department of Child and Adolescent Psychiatry, wilfully disregarded the obligations of his office by failing to comply with the judgments of the Administrative Court of Appeal and allow [E and K] access to the documents. According to the indictment, [the applicant] in so doing not only refused to hand over the documents in person but also refused to make them available to the university administration.", "The research material was the property of the university and hence to be regarded as in the public domain. It was stored in the Department of Child and Adolescent Psychiatry, where [the applicant] was the head. [The Vice-Chancellor’s] letter of 14 August 2003, to which copies of the judgments of the Administrative Court of Appeal relating to the conditions were attached, made it clear to [the applicant] that the material in question must be released. As head of the department, [the applicant] was responsible for making the material available to [K and E]. [The applicant’s] awareness of his immediate responsibility is revealed not least by the instructions that he gave to [L] before the visit of [P] not to allow the university administration access to the material. It is also shown by [the applicant’s] written reply on 18 August 2003 to [the Vice-Chancellor].", "Through [the Vice-Chancellor] the university had instructed [the applicant] to release the material to the university, so that it could be moved to premises where K and E could examine it. In view of this, the Court of Appeal, like the District Court, does not consider that [the applicant] can be held culpable because he refused to hand over the documents in person. However, it was incumbent upon him to make the documents available for removal in accordance with the instructions he had received from the university.", "[The applicant] has protested that he did not consider that there was any serious intent behind the instruction he received from the [Vice-Chancellor] on 14 August 2003. Here he has referred in particular to the meeting on 18 August 2003 and to the fact that P did not follow up his visit to the department and that he received no new directive to make the material available.", "[The Vice-Chancellor], however, has stated that on no occasion did he withdraw the instructions issued on 14 August 2003, and that it must have been quite clear to [the applicant] that they continued to apply, even though they were not explicitly repeated. According to the Vice-Chancellor, nothing transpired at the meeting on 18 August 2003 that could have given [the applicant] the impression that these instructions no longer applied or that they were not intended seriously. [The Vice-Chancellor’s] statement in this respect has been confirmed by the Director at the Vice-Chancellor’s office, W. It is further borne out by the fact that after the meeting on 18 August 2003 W was given the task of drawing up a complaint to the Government Disciplinary Board for Higher Officials on the subject of [the applicant’s] refusals and that the latter was aware that a complaint of this kind was being considered. In addition, it can be seen from a number of e-mails from [the applicant] to [the Vice-Chancellor] that during the entire autumn he considered that he was required to hand over the documents and that he maintained his original refusal to obey his instructions. It has also been shown that when the Board met on 17 December 2003, [the Vice-Chancellor] was still considering making a complaint to the Disciplinary Board. Finally, [a witness, AW] has testified that at a meeting with [the applicant] shortly after the beginning of 2004, when asked whether he still persisted in his refusal, he confirmed that this was the case.", "All things considered, the Court of Appeal finds that it has been shown that [the applicant] was aware that the instructions to make the material available to the administration applied during the entire period from when he learnt about the judgments of the Administrative Court of Appeal on 14 August 2003. It was incumbent on him to take the action required to comply with the judgments.", "[The applicant] has stated that he was never prepared to participate in the release of the documents to K and E. His actions were, in other words, intentional and their result was that K and E were categorically denied a right that is guaranteed by the Constitution and that is also of fundamental importance in principle. All things considered, the Court of Appeal finds that [the applicant’s] conduct means that he disregarded the obligation that applied to him as head of department in such a manner that the offence of misuse of office should be considered. [The applicant] has however also objected that his conduct should be regarded as excusable in view of the other considerations that he had to bear in mind.", "He has thus claimed that in the situation that had arisen he was prevented by medical ethics and research ethics from disclosing information about the participants in the study and their relatives. He referred in particular to international declarations drawn up by the World Medical Association and to the Convention.", "The nature of the international declarations agreed on by the World Medical Association is not such as to give them precedence over Swedish law. [The applicant’s] objections on the basis of the contents of these declarations therefore lack significance in this case.", "Article 8 of the Convention lays down that everyone has the right to respect for his or her private and family life, and that this right may not be interfered with by a public body except in certain specified cases. The provisions of the Secrecy Act are intended, in accordance with Article 8 of the Convention, to protect individuals from the disclosure to others of information about their personal circumstances in cases other than those that can be regarded as acceptable with regard to the right to insight into the workings of the public administration. These regulations must be considered to comply with the requirements of the Convention, and the judgments of the Administrative Court of Appeal lay down how they are to be interpreted in this particular case. [The applicant’s] objection that his conduct was excusable in the light of the Convention cannot, therefore, be accepted.", "[The applicant] has also asserted that he risked criminal prosecution for breach of professional secrecy if he released the documents to [K and E]. However, the judgments of the Administrative Court of Appeal determined once and for all that the secrecy Act permitted release of the documents. For this reason there was of course no possibility of prosecution for breach of professional secrecy, which, in the opinion of the Court of Appeal, [the applicant] must have realised.", "[The applicant] has also stated that he was bound by the assurances of confidentiality he had given to the participants in the study in accordance with the requirements established for the research project. The assurances were given in 1984, in the following terms: “All data will be dealt with in confidence and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital and its present results will, as was the case for the previous study three years ago, be followed up.” A later assurance of confidentiality had the following wording: “Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be processed in such a way that nobody apart from those of us who met you and have direct contact with you will be able to find out anything at all about you.”", "The assurances of confidentiality given to the participants in the study go, at least in some respects, further than the Secrecy Acts permits. The Court of Appeal notes that there is no possibility in law to provide greater secrecy than follows from the Secrecy Act and that it is not possible to make decisions on issues concerning confidentiality until the release of a document is requested. It follows therefore that the assurances of confidentiality cited above did not take precedence over the law as it stands or a court’s application of the statutes. [The applicant’s] objections therefore have no relevance in assessing his criminal liability.", "Finally, [the applicant] has claimed that his actions were justifiable in view of the discredit that Swedish research would incur and the decline in willingness to participate in medical research projects that would ensue if information submitted in confidence were then to be disclosed to private individuals. The Court of Appeal notes that there are other possibilities of safeguarding research interests, for example by removing details that enable identification from research material so that sensitive information cannot be divulged. What [the applicant] has adduced on this issue cannot exonerate him from liability.", "[The applicant’s] actions were therefore not excusable. On the contrary, for a considerable period he failed to comply with his obligations as a public official arising from the judgments of the Administrative Court of Appeal. His offence cannot be considered a minor one. [The applicant] shall therefore be found guilty of misuse of office for the period after 14 August 2003, when he was informed of the judgments of the Administrative Court of Appeal. The offence is a serious one as [the applicant] wilfully disregarded the constitutional right of access to public documents. On the question of the sentence, the Court of Appeal concurs with the judgment of the District Court.", "38. Leave to appeal to the Supreme Court was refused on 25 April 2006.", "III. THE HELSINKI DECLARATION", "52. The Helsinki Declaration, adopted by the 18th World Medical Association’s General Assembly in Finland in June 1964, with later amendments, states, inter alia :", "INTRODUCTION", "1. The World Medical Association (WMA) has developed the Declaration of Helsinki as a statement of ethical principles for medical research involving human subjects, including research on identifiable human material and data. The Declaration is intended to be read as a whole and each of its constituent paragraphs should not be applied without consideration of all other relevant paragraphs.", "2. Although the Declaration is addressed primarily to physicians, the WMA encourages other participants in medical research involving human subjects to adopt these principles.", "3. It is the duty of the physician to promote and safeguard the health of patients, including those who are involved in medical research. The physician’s knowledge and conscience are dedicated to the fulfilment of this duty.", "4. The Declaration of Geneva of the WMA binds the physician with the words, \"The health of my patient will be my first consideration,\" and the International Code of Medical Ethics declares that, \"A physician shall act in the patient’s best interest when providing medical care.\"", "5. Medical progress is based on research that ultimately must include studies involving human subjects. Populations that are underrepresented in medical research should be provided appropriate access to participation in research.", "6. In medical research involving human subjects, the well-being of the individual research subject must take precedence over all other interests.", "...", "10. Physicians should consider the ethical, legal and regulatory norms and standards for research involving human subjects in their own countries as well as applicable international norms and standards. No national or international ethical, legal or regulatory requirement should reduce or eliminate any of the protections for research subjects set forth in this Declaration.", "BASIC PRINCIPLES FOR ALL MEDICAL RESEARCH", "11. It is the duty of physicians who participate in medical research to protect the life, health, dignity, integrity, right to self-determination, privacy, and confidentiality of personal information of research subjects.", "...", "14. The design and performance of each research study involving human subjects must be clearly described in a research protocol. The protocol should contain a statement of the ethical considerations involved and should indicate how the principles in this Declaration have been addressed. The protocol should include information regarding funding, sponsors, institutional affiliations, other potential conflicts of interest, incentives for subjects and provisions for treating and/or compensating subjects who are harmed as a consequence of participation in the research study. The protocol should describe arrangements for post-study access by study subjects to interventions identified as beneficial in the study or access to other appropriate care or benefits.", "15. The research protocol must be submitted for consideration, comment, guidance and approval to a research ethics committee before the study begins. This committee must be independent of the researcher, the sponsor and any other undue influence. It must take into consideration the laws and regulations of the country or countries in which the research is to be performed as well as applicable international norms and standards but these must not be allowed to reduce or eliminate any of the protections for research subjects set forth in this Declaration. The committee must have the right to monitor ongoing studies. The researcher must provide monitoring information to the committee, especially information about any serious adverse events. No change to the protocol may be made without consideration and approval by the committee.", "...", "23. Every precaution must be taken to protect the privacy of research subjects and the confidentiality of their personal information and to minimize the impact of the study on their physical, mental and social integrity.", "24. In medical research involving competent human subjects, each potential subject must be adequately informed of the aims, methods, sources of funding, any possible conflicts of interest, institutional affiliations of the researcher, the anticipated benefits and potential risks of the study and the discomfort it may entail, and any other relevant aspects of the study. The potential subject must be informed of the right to refuse to participate in the study or to withdraw consent to participate at any time without reprisal. Special attention should be given to the specific information needs of individual potential subjects as well as to the methods used to deliver the information. After ensuring that the potential subject has understood the information, the physician or another appropriately qualified individual must then seek the potential subject’s freely-given informed consent, preferably in writing. If the consent cannot be expressed in writing, the non-written consent must be formally documented and witnessed. ..." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The right of public access to official documents", "39. The principle of public access to official documents ( offenlighetsprincipen ) has a history of more than two hundred years in Sweden and is one of the cornerstones of Swedish democracy. One of its main characteristics is the constitutional right for everyone to study and be informed of the contents of official documents held by the public authorities. This principle allows the public and the media to exercise scrutiny of the State, the municipalities and other parts of the public sector which, in turn, contributes to the free exchange of opinions and ideas and to efficient and correct management of public affairs and, thereby, to maintaining the legitimacy of the democratic system (see Govt. Bill 1975/76:160 pp. 69 et seq.). The principle of public access to official documents is enshrined in Chapter 2, Sections 1 and 12, of the Freedom of the Press Act. Thus, every Swedish citizen is entitled to have free access to official documents, in order to encourage the free exchange of opinion and the availability of comprehensive information (Chapter 2, Section 1; foreign nationals enjoy the same rights in this respect as Swedish citizens, Chapter 14, Section 5).", "40. A document is official if it is held by and is regarded as having been received or “drawn up” by a public authority (Chapter 2, Sections 3 and 6-7, of the Freedom of the Press Act). A document is “drawn up” when it is dispatched by an authority. A document that is not dispatched is “drawn up” when the matter to which it relates is finally settled by the authority in question. If the document does not relate to any specific matter, it is “drawn up” when it has been finally checked or has otherwise received its final form. As research is considered to be an activity in its own right (faktiskt handlande) ( see, for example, the Chancellor of Justice, 1986 p. 139), it cannot be said to relate to any specific matter. This means, in turn, that research material, as a rule, is “drawn up” and thereby official, as soon as it has been finally checked or otherwise received its final form. It could be added that preliminary outlines, drafts, and similar documents enumerated in Chapter 2, Section 9, of the Freedom of the Press Act are not deemed to be official unless they introduce new factual information or have been accepted for filing. Finally, there is no general requirement that a document be filed in order to be considered official, and registration does not affect the issue of whether a document is official or not (cf. Chapter 15, Section 1, of the Secrecy Act).", "41. An official document to which the public has access shall be made available on request forthwith, or as soon as possible, at the place where it is held, and free of charge, to any person wishing to examine it, in such form that it can be read, listened to, or otherwise comprehended; a document may also be copied, reproduced or used for sound transmission (Chapter 2, Section 12). Such a decision should normally be rendered the same day or, if the public authority in question has to consider whether the requested document is official or whether the information is public, within a few days (see, for example, the Parliamentary Ombudsman’s decision of 23 November 2007 in case no. 5628-2006). A certain delay may also be acceptable if the request concerns very extensive material. If a document cannot be made available without disclosure of such part of it as constitutes classified material, the rest of the document shall be made available to the person requesting access in the form of a transcript or copy (Section 12). A public authority is under no obligation to make a document available at the place where it is held if this presents serious difficulty.", "B. Restrictions on the right of public access to official documents", "42. An unlimited right of public access to official documents could, however, result in unacceptable harm to different public and private interests. It has therefore been considered necessary to provide exceptions. These exceptions are laid down in Chapter 2, Section 2 (first paragraph), of the Freedom of the Press Act, which reads as follows:", "The right of access to official documents may be restricted only if restriction is necessary having regard to 1. the security of the State or its relations with another State or an international organisation; 2. the central fiscal, monetary or currency policy of the State; 3. the inspection, control or other supervisory activities of a public authority; 4. the interest of preventing or prosecuting crime; 5. the economic interest of the public institutions; 6. the protection of the personal or economic circumstances of private subjects; 7. the preservation of animal or plant species.", "43. According to paragraph 2 of the same provision, restrictions on the right of access to official documents shall be scrupulously specified in a provision of a special act of law or, if this is deemed more appropriate in a particular case, in another act of law to which the special act refers (see, for example, Govt. Bill 1975/76:160 pp. 72 et seq. and Govt. Bill 1979/80:2, Part A, pp. 48 et seq.). The special act of law referred to is the Secrecy Act. Pursuant to such a provision, the Government may issue more detailed provisions for its application in an ordinance ( förordning). Since the mandate to restrict the right of public access to official documents lies exclusively with the Swedish Parliament ( Riksdag ), it is not possible for a public authority to enter into an agreement with a third party exempting certain official documents from the right of public access, or to make similar arrangements.", "44. The Secrecy Act contains provisions regarding the duty to observe secrecy in the activities of the community and regarding prohibitions against making official documents available (Chapter 1, Section 1). The latter provisions limit the right of access to official documents provided for in the Freedom of the Press Act ( Tryckfrihetsförordningen, SFS 1949:105). They relate to prohibitions on disclosing information, irrespective of the manner of disclosure. The question of whether secrecy should apply to information contained in an official document cannot be determined in advance, but must be examined each time a request for access to a document is made. Decisive for this issue is whether making a document available could imply a certain risk of harm. The risk of harm is defined in different ways in the Secrecy Act, having regard to the interests that the secrecy is intended to protect. Thus, the secrecy may be more or less strict depending on the interests involved. The secrecy legislation has been elaborated in this way in order to provide sufficient protection, for example, for the personal integrity of individuals, without the constitutional right of public access to official documents being circumscribed more than is considered necessary. In the present case, the Administrative Court of Appeal, in its judgments of 6 February 2003, found that secrecy applied to the research material under Chapter 7, Sections 1, 4, 9 and 13, of the Secrecy Act (Chapter 7 deals with secrecy with regard to the protection of the personal circumstances of individuals).", "45. If a public authority deems that such a risk of loss, harm, or other inconvenience which, pursuant to a provision on secrecy, constitutes an obstacle to information being communicated to a private subject, can be removed by imposing a restriction limiting the private subject’s right to re-communicate or use the information, the authority shall impose such a restriction when the information is communicated (Chapter 14, Section 9, of the Secrecy Act). As an example of such a restriction, the preparatory notes mention prohibiting the dissemination of the content of a document or the publication of secret information contained in a document (see Govt. Bill 1979/80:2, Part A, p. 349). An individual who has been granted access to a document subject to a restriction limiting the right to use the information may be held criminally liable if he or she does not respect that restriction (see Chapter 20, Section 3, of the Penal Code).", "C. Procedure concerning requests for public access to official documents", "46. A request to examine an official document must be made to the public authority which holds the document (Chapter 2, Section 14, of the Freedom of the Press Act and Chapter 15, Section 6, of the Secrecy Act). As mentioned above, there are specific requirements of promptness regarding the handling of such requests. A decision by an authority other than the Swedish Parliament or the Government to refuse access to a document is subject to appeal to the courts – as a general rule, an administrative court of appeal – and, further, to the Supreme Administrative Court (Chapter 2, Section 15, of the Freedom of the Press Act; Chapter 15, Section 7, of the Secrecy Act and Sections 33 and 35 of the 1971 Administrative Court Procedure Act ( Förvaltningsprocesslagen; SFS 1971:291)). Leave to appeal is required in the last-mentioned court. Only the person seeking access has a right of appeal. Thus, if the Administrative Court of Appeal – contrary to the public authority holding the document in question – decides that a document must be made available, its judgment is not open to appeal by the public authority in question, or by private subjects who consider that harm would be inflicted on them as a consequence of access to the document being granted (see RÅ 2005 note 1 and RÅ 2005 ref. 88). The reason why the right of appeal has been narrowly limited is that once the competing interests have been considered by a court the legislator has given priority to the principle of public access to official documents over other private and public interests (see, for example, Govt. Bill 1975/76:160 p. 203 and RÅ 2003 ref. 18, which concerned an institution’s request for relief for substantive defects).", "D. Responsibility of public officials and criminal provisions", "47. The principle of public access to official documents is applicable to all activities within the public sector and every public official is obliged to be acquainted with the laws and regulations in this area. This is in particular the case where a certain official – following a special decision or otherwise – has the duty to examine requests for access to official documents (Chapter 15, Section 6, second paragraph of the Secrecy Act). Formally, the head of the public authority has the primary responsibility to ensure that such requests are duly examined. However, the task may be delegated to other office holders within the authority and this is what is usually done in practice for the purposes of the authority’s daily activities. Such delegation has to be in accordance with the regulations of the authority (Section 21 of the former Government Agencies and Institutes Ordinance, Verksförordningen SFS 1995:1322, applicable at the relevant time). Irrespective of a public official’s particular competence or power under the regulations of the authority in question, he or she has a general duty to perform the tasks that are part of his or her official duties. As previously mentioned, this duty involves the obligation to assist in making official documents available forthwith, or as soon as possible, to persons who are considered to have the right of access to them under the legislation described above.", "48. By virtue of Chapter 20, Article 1, of the Penal Code a person who, in the exercise of public authority, by act or by omission, intentionally or through carelessness, disregards the duties of his office, will be sentenced for misuse of office ( tjänstefel). The provision reads as follows:", "Chapter 20, Article 1:", "“A person who, in the exercise of public authority, by act or by omission, intentionally or through carelessness, disregards the duties of his office, shall be sentenced for misuse of office to a fine or a maximum term of imprisonment of two years. If, having regard to the perpetrator’s official powers or the nature of his office considered in relation to his exercise of public power in other respects or having regard to other circumstances, the act may be regarded as petty, punishment shall not be imposed. If an offence mentioned in the first paragraph has been committed intentionally and is regarded as serious, the perpetrator shall be sentenced for gross misuse of office to a term of imprisonment of at least six months and at most six years. In assessing whether the crime is serious, special attention shall be given to whether the offender seriously abused his position or whether the crime occasioned serious harm to an individual or the public sector or gave rise to a substantial improper benefit. A member of a national or municipal decision-making assembly shall not be held responsible under the provisions of the first or second paragraphs of this Article for any action taken in that capacity. Nor shall the provisions of the first and second paragraphs of this Article apply if the crime is punishable under this or some other Law.”", "49. A suspended sentence may be imposed by the courts for an offence for which a fine is considered an inadequate penalty, and such a sentence is, as a general rule, combined with day-fines. A maximum total of 200 day-fines may be imposed. When determining the amount, account is taken of the economic circumstances of the accused, but a day ‑ fine may not exceed 1,000 Swedish kronor (SEK) (Chapter 25, Section 2, Chapter 27, Sections 1 and 2, and Chapter 30, Section 8 of the Penal Code).", "50. In Sweden a suspended sentence does not refer to any specific number of days of imprisonment. Under Chapter 27 of the Penal Code a suspended sentence is always subject to a probationary period of two years. A suspended sentence may be linked to specific conditions. If the person convicted commits a new crime during the probationary period the courts may, having due regard to the nature of the new crime, revoke the suspended sentence and impose a joint sanction for the crimes (Chapter 34 of the Penal Code).", "E. The Parliamentary Ombudsmen", "51. The functions and powers of the four Parliamentary Ombudsmen are laid down in particular in Chapter 12, Section 6 of the Instrument of Government ( Regeringsformen ) and in the Act with Instructions for the Parliamentary Ombudsmen ( Lagen med instruktion för Riksdagens ombudsmän; SF5 1986:765). Their main task is to supervise the application of laws and other regulations in the public administration. It is their particular duty to ensure that public authorities and their staff comply with the laws and other statutes governing their actions. An Ombudsman exercises supervision, either on complaint from individuals or of his or her own motion, by carrying out inspections and other investigations which he or she deems necessary. The examination of a matter is concluded by a decision in which the Ombudsman states his or her opinion whether the measure taken by the authority contravenes the law or is otherwise wrongful or inappropriate. The Ombudsmen may also make pronouncements aimed at promoting uniform and proper application of the law. An Ombudsman’s decisions are considered to be expressions of his or her personal opinion. They are not legally binding upon the authorities. However, they do have persuasive force, command respect and are usually followed in practice. An Ombudsman may, among many other things, institute criminal proceedings against an official who has committed an offence by departing from the obligations incumbent on him or her in his or her official duties (for example, as in the present case, misuse of office). The Ombudsman may also report an official to the competent authority for disciplinary measures. The Ombudsman may attend deliberations of the courts and the administrative authorities and is entitled to have access to their minutes and other documents.", "THE LAW", "I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER", "53. From the outset, the Grand Chamber reiterates that the content and scope of the “case” referred to it are delimited by the Chamber’s decision on admissibility (see, inter alia, K. and T. v. Finland [GC], no. 25702/94, §§ 140-141, ECHR 2001-VII; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; Perna v. Italy [GC], no. 48898/99, §§ 23-24, ECHR 2003-V; and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 109, ECHR-2007-IV). Thus the Grand Chamber may only examine the case in so far as it has been declared admissible; it cannot examine those parts of the application which have been declared inadmissible. Therefore, if an applicant before the Grand Chamber raises a complaint which has been declared inadmissible by the Chamber, this complaint will be declared outside the scope of the case before the Grand Chamber (see, inter alia, Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 61-62, ECHR 2007-I).", "54. Furthermore, under Article 35 § 4 of the Convention the Grand Chamber may dismiss applications it considers inadmissible “at any stage of the proceedings”. Thus, even at the merits stage the Court may reconsider a decision to declare an application admissible if it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, inter alia, Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III).", "55. In these circumstances the Grand Chamber has jurisdiction to examine only the merits of the case as declared admissible by the Chamber in its judgment of 2 November 2010. This means, in particular, that the applicant’s complaints concerning the outcome of the civil proceedings before the administrative courts cannot be examined as they were declared inadmissible as being lodged out of time.", "56. In conclusion, the Grand Chamber has jurisdiction to examine only whether the criminal conviction of the applicant for misuse of office infringed his rights under Articles 8 and 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "The Government’s preliminary objection", "1. The Government’s submissions", "57. By way of a preliminary objection, the Government contended that the applicant’s complaint fell outside the scope of Article 8 of the Convention and should therefore be declared incompatible with the Convention ratione materiae.", "58. More specifically, they contested that a criminal conviction could constitute an interference with the right to respect for private life under Article 8, unless there were special circumstances in a particular case calling for a different conclusion (see, for example, Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, Reports of Judgments and Decisions 1997 ‑ I).", "59. Furthermore, recalling that the applicant was convicted of a crime related to his professional duties as a public official, the Government contended that the applicant had failed to show how such a conviction had affected his “private life” or any other aspects of Article 8, in order for his complaint to fall within the ambit of the said Article.", "2. The applicant’s submissions", "60. The applicant first claimed that he had a right under Article 8 of the Convention not to impart confidential information and that this right had been breached by his criminal conviction.", "61. He also contended that his moral integrity, his reputation and his honour had been affected by the conviction to a degree falling within the scope of Article 8, and that he had suffered personally, socially, psychologically and economically. On this last point, he had lost income because he had been dismissed by the Norwegian Institute of Public Health and because he could have written at least five books during the time that had been taken up by the case.", "62. The applicant submitted that the national authorities had put him in the impossible dilemma of having either to breach his promise of secrecy to the participants in the study by complying with the Administrative Court of Appeal’s judgments, which in his opinion was wrong, or to refuse to comply with the said judgments and run the risk of being convicted for misuse of office. He chose to keep his promise of secrecy and received massive support for that decision from numerous renowned and highly respected scientists.", "3. The Chamber’s decision", "63. In its judgment of 2 November 2010 the Chamber left open whether the applicant’s complaint fell within the scope of Article 8 and whether there had been an interference with his right to respect for his “private life”, because even assuming that there had been an interference, it found that there had been no violation of the provision concerned.", "4. The Grand Chamber’s assessment", "64. The Court recalls that the applicant was a public official researcher exercising public authority at a public institution, namely the University of Gothenburg. He was not the children’s doctor or psychiatrist and he did not represent the children or the parents. In their judgment convicting the applicant, the criminal courts found him guilty of misuse of office from 14 August 2003 to 7 May 2004 because he had refused to make the research material belonging to the University of Gothenburg available in compliance with the final judgments of the Administrative Court of Appeal. The criminal courts did not, however, decide on whether K and E should have had access to the research material before it was destroyed in May 2004, because that question had already been determined by the Administrative Court of Appeal in its judgments of 6 February and 11 August 2003. Whether or not the latter judgments breached a right under Article 8 of the Convention not to impart confidential information, as the applicant claims, falls outside the scope of the Grand Chamber’s jurisdiction (see paragraphs 53-56 above).", "65. It therefore remains to be examined whether the applicant’s criminal conviction for misuse of office, on account of having disregarded his duties as a public official, amounted to an interference with his “private life” within the meaning of Article 8 of the Convention.", "66. The concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person’s physical and social identity. Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008).", "67. The applicant maintained that the criminal conviction in itself affected the enjoyment of his “private life” by prejudicing his honour and reputation. The Court reiterates in this regard that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence (see, inter alia, Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII, and Mikolajová v. Slovakia, no. 4479/03, § 57, 18 January 2011).", "68. The applicant also contended that the criminal conviction had adversely affected his moral and psychological integrity and that he had suffered personally, socially, psychologically and economically. The Court observes that the protection of an individual’s moral and psychological integrity is an important aspect of Article 8 of the Convention. It notes, however, that there is no Convention case-law in which the Court has accepted that a criminal conviction in itself constitutes an interference with the convict’s right to respect for private life. The Court does not ignore that such a criminal conviction may entail personal, social, psychological and economic suffering for the convicted person. In the Court’s view, though, such repercussions may be foreseeable consequences of the commission of a criminal offence and can therefore not be relied on in order to complain that a criminal conviction in itself amounts to an interference with the right to respect for “private life” within the meaning of Article 8 of the Convention.", "69. The Court is aware that Article 8 of the Convention was found applicable to convictions in Laskey, Jaggard and Brown (cited above). Nevertheless, in that case the applicants complained that their convictions were the result of an unforeseeable application of a provision of the criminal law to their consensual sado-masochistic activities between adults. The Court expressed doubt as to whether those activities fell entirely within the notion of “private life” in the particular circumstances of that case, but saw no reason to examine the issue of its own motion since that point was not disputed by the parties ( Laskey, Jaggard and Brown, § 36).", "70. In the present case, the applicant was convicted of misuse of office in his capacity as a public official, pursuant to Chapter 20, Article 1 of the Penal Code ( Brottsbalken). His conviction was not the result of an unforeseeable application of that provision and the offence in question has no obvious bearing on the right to respect for “private life”. On the contrary, it concerns professional acts and omissions by public officials in the exercise of their duties. Nor has the applicant pointed to any concrete repercussions on his private life which were directly and causally linked to his conviction for that specific offence.", "71. Moreover, the applicant has not further defined or elaborated on the nature and extent of his suffering connected to the criminal conviction. He did point out, though, that he had found himself in a dilemma and that he had chosen to refuse to comply with the judgments of the Administrative Court of Appeal, with the risk that he would be convicted of misuse of office. This confirms, in the Court’s opinion, that the applicant’s conviction and the suffering it may have entailed were foreseeable consequences of his having committed the criminal offence.", "72. The applicant also contended that he had lost income because he was dismissed by the Norwegian Institute of Public Health and could have written at least five books during the time taken up by the case. To the extent that this is to be understood as a claim that the applicant’s conviction affected the enjoyment of his “private life” because of its bearing on his professional activities (see, among other authorities, Turán v. Hungary, no. 33068/05, 6 July 2010; Sidabras and Džiautas (cited above); Halford v. the United Kingdom, 25 June 1997, Reports 1997 ‑ III; and Niemietz v. Germany, 16 December 1992, Series A no. 251 ‑ B), the Court considers this form of economic suffering to be a foreseeable consequence of the commission of a criminal offence by the applicant in respect of which Article 8 cannot be relied on (see paragraph 68 above).", "73. At any rate, the Court observes that the criminal conviction of the applicant had no negative bearing on his maintaining his position as professor and head of the Department of Child and Adolescent Psychiatry at the University of Gothenburg. Furthermore, even if the applicant’s allegation that he was dismissed by the Norwegian Institute of Public Health is an established fact, the Court notes that the applicant failed to show that there was any causal link between the conviction and the dismissal. Moreover, the applicant’s claim that he had lost income from at least five books which he had planned to write, but had been unable to because his time was taken up by the case, remains wholly unsubstantiated. Finally, according to the applicant, he had support from numerous renowned and highly respected scientists who agreed with the conduct for which he was convicted. There is therefore no indication that the impugned conviction had any repercussions on the applicant’s professional activities which went beyond the foreseeable consequences of the criminal offence for which he was convicted.", "74. In conclusion, the Court finds, in light of the facts of the present case, that the applicant’s rights under Article 8 of the Convention have not been affected. Accordingly, this provision does not apply in the instant case and the Government’s preliminary objection must be upheld.", "III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "The Government’s preliminary objection", "1. The Government’s submissions", "75. By way of a preliminary objection, the Government contended that the applicant’s complaint fell outside the scope of Article 10 and therefore should be declared incompatible with the Convention ratione materiae.", "76. They disputed that a right to negative freedom of expression could apply in the context of a criminal conviction of a public official for failure as an employee to assist in disclosing official documents as ordered by a court of law.", "77. The Government noted in this regard that there was no case-law supporting the view that the right to receive information set out in Article 10 should be interpreted as including a general right of access to case files and other documents held by public authorities, especially if these were not of a general character. Thus, it was difficult to conclude that its negative counterpart, namely the right to refuse access to official documents, could be considered to enjoy the protection of Article 10.", "78. Nor did the Government find that the applicant’s situation could be compared to that of journalists protecting their sources or that of lawyers protecting the interest of their clients (see, for example, Goodwin v. the United Kingdom, 27 March 1996, Reports 1996 ‑ II, and Niemietz, cited above).", "2. The applicant’s submissions", "79. In the applicant’s view, he had a negative right within the meaning of Article 10 of the Convention not to impart the disputed research material.", "80. He pointed out that he had given a promise of confidentiality to the participants in the research and had attempted to protect their integrity, in spite of being ordered by a court to reveal the confidential data. For that he had been convicted and punished, a situation very similar to that in the Goodwin case (cited above). He also found that his situation could be compared to the duty of confidentiality by which lawyers were bound.", "3. The Chamber’s decision", "81. In its judgment of 2 November 2010 the Chamber left open whether the applicant’s complaint fell within the scope of Article 10 and whether there had been an interference with his right to freedom of expression, because even assuming that there had been an interference, it found that there had been no violation of the invoked provision.", "4. The Grand Chamber’s assessment", "82. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see among other authorities, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 53, 12 September 2011).", "83. The right to receive and impart information explicitly forms part of the right to freedom of expression under Article 10. That right basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him (see, for example, Leander v. Sweden, 26 March 1987, § 74, Series A no. 116, and Gaskin v. the United Kingdom, 7 July 1989, § 52, Series A no. 160).", "84. In the present case the applicant was not prevented from receiving and imparting information or in any other way prevented from exercising his “positive” right to freedom of expression. He argued that he had a “negative” right within the meaning of Article 10 to refuse to make the disputed research material available, and that consequently his conviction was in violation of Article 10 of the Convention.", "85. The Court observes that case-law on the “negative” right protected under Article 10 is scarce. Referring to K. v. Austria (16002/90, Commission Report of 13 October 1992, § 45), the former Commission stated in Strohal v. Austria (no. 20871/92, Commission decision of 7 April 1994) that “the right to freedom of expression by implication also guarantees a “negative right” not to be compelled to express oneself, that is, to remain silent”. Article 10 was also invoked in Ezelin v. France (judgment of 26 April 1991, Series A no. 202, § 33) where the Court stated that a refusal to give evidence was an issue “which in itself does not come within the ambit of Articles 10 and 11 ...”.", "86. The Court does not rule out that a negative right to freedom of expression is protected under Article 10 of the Convention, but finds that this issue should be properly addressed in the circumstances of a given case.", "87. It notes that in the present case it was the Department of Child and Adolescent Psychiatry of the University of Gothenburg which carried out the research from 1977 to 1992. The project was originally set up and started by other researchers, but the applicant subsequently took over responsibility for completing the study. The material belonged to the University and was stored at the Department of Child and Adolescent Psychiatry of which the applicant was head. Accordingly, the material consisted of public documents subject to the principle of public access under the Freedom of the Press Act and the Secrecy Act. That entailed, among other things, that secrecy could not be determined until a request for access was submitted, and it was impossible in advance for a public authority to enter into an agreement with a third party exempting certain official documents from the right to public access (see paragraphs 43 and 44). Nevertheless, in his letter of 17 February 1984 to the parents of the children participating in the research project, the applicant stated, inter alia: “All data will be dealt with in confidentiality and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital, and its present results will, as was the case for the previous study three years ago, be followed up.” In a later, undated, letter to the participants, the applicant submitted: “Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be processed in such a way that nobody apart from those of us who met you and have direct contact with you will be able to find out anything at all about you.”", "88. In its judgment of 8 February 2006 convicting the applicant, the Court of Appeal held that “[these] assurances of confidentiality given to the participants in the study go further, at least in some respects, than the Secrecy Act permits” and that “there is no possibility in law to provide greater secrecy than follows from the Secrecy Act or to make decisions on issues concerning confidentiality until the release of a document is requested. It follows therefore that the assurances of confidentiality cited above did not take precedence over the law as it stood or a court’s application of the statutes”. Equally important, in the period referred to in the indictment, namely from 11 August 2003 to 7 May 2004, it was no longer the secrecy legislation that was to be interpreted by the criminal courts but rather the judgments of the Administrative Court of Appeal, which had settled once and for all the question of whether and on what conditions the documents were to be released to K and E.", "89. The Court of Appeal also found that the nature of the international declarations agreed on by the World Medical Association was not such that they took precedence over Swedish law. In this regard it is noteworthy that the applicant in the present case was not mandated by the participants in the research and that, as a consequence, he was not bound by professional secrecy as if he were their doctor or psychiatrist, or by virtue of the Helsinki Declaration adopted by the World Medical Association’s General Assembly.", "90. Moreover, the national courts dismissed the applicant’s allegation that his assurances of confidentiality to the participants had been a requirement of the Ethics Committee of the University of Gothenburg for approving the research project. Nor has the applicant submitted any convincing evidence to that effect before this Court.", "91. Accordingly, the applicant was not prevented from complying with the judgments of the Administrative Court of Appeal by any statutory duty of secrecy or any order from his public employer. Rather, his refusal to make the research material available was motivated by his personal belief that for various reasons the outcome of the judgments of the Administrative Court of Appeal was wrong.", "92. Taking these circumstances into account, the Court considers that the crucial question can be narrowed down to whether the applicant, as a public employee, had an independent negative right within the meaning of Article 10 of the Convention not to make the research material available, although the material did not belong to him but to his public employer, the University of Gothenburg, and despite the fact that his public employer – the university – actually intended to comply with the final judgments of the Administrative Court of Appeal granting K and E access to its research material on various conditions, but was prevented from so doing because the applicant refused to make it available.", "93. In the Court’s view, finding that the applicant had such a right under Article 10 of the Convention would run counter to the property rights of the University of Gothenburg. It would also impinge on K’s and E’s rights under Article 10, as granted by the Administrative Court of Appeal, to receive information in the form of access to the public documents concerned, and on their rights under Article 6 to have the final judgments of the Administrative Court of Appeal implemented (see, mutatis mutandis, Loiseau v. France (dec.) no. 46809/99, ECHR 2003-XII, extracts; Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III; and Hornsby v. Greece, judgment of 19 March 1997, § 40, Reports 1997-II).", "94. Accordingly, the Court cannot endorse the applicant’s view that he had a “negative” right within the meaning of Article 10 to refuse to make the research material belonging to his public employer available, thereby denying K and E their right to access to it as determined by the Administrative Court of Appeal.", "95. It appears that the applicant also maintained that his complaint fell within the ambit of Article 10 of the Convention because his situation was similar to that of journalists protecting their sources. The Court notes, however, that the pertinent case ‑ law on this subject concerns journalists’ positive right to freedom of expression (see, inter alia, Goodwin (cited above); Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999 ‑ I; and Roemen and Schmit v. Luxembourg, application no. 51772/99, ECHR 2003-IV). Moreover, the information diffused by a journalist based on his or her source generally belongs to the journalist or the media, whereas in the present case the research material was considered to belong to the University of Gothenburg, and thus to be in the public domain. The disputed research material was therefore subject to the principle of public access to official documents under the Freedom of the Press Act and the Secrecy Act, which specifically allowed for the public, and the media, to exercise control over the State, the municipalities and other parts of the public sector, and which in turn contributed to the free exchange of opinions and ideas and to the efficient and correct administration of public affairs. By contrast, the applicant’s refusal in the present case to comply with the judgments of the Administrative Court of Appeal, by denying K and E access to the research material, hindered the free exchange of opinions and ideas on the research in question, notably on the evidence and methods used by the researchers in reaching their conclusions, which constituted the main subject of K’s and E’s interest. In these circumstances the Court finds that the applicant’s situation cannot be compared to that of journalists protecting their sources.", "96. Finally, in so far as the applicant contended that his complaint fell within the scope of Article 10 of the Convention because his situation was comparable to that of lawyers protecting information obtained in confidence from their clients, the Court reiterates that the relevant case-law thereon, including access to correspondence with legal advisers, concerns Article 8 of the Convention (see, for example, Niemietz, cited above, and Foxley v. The United Kingdom, no. 33274/96, 20 June 2000). In any event, referring to its finding above (paragraph 89), the Court notes that since the applicant had not been mandated by the research participants as their doctor, he had no duty of professional secrecy towards them. Moreover, the applicant was never asked to give evidence and there are no elements indicating that, had he complied with the Administrative Court of Appeal’s judgments, there would have been repercussions on other proceedings as may be the case when a lawyer’s professional secrecy has been disregarded (see Niemietz, § 37 and Foxley, § 50, both cited above). In these circumstances the Court finds that the applicant’s situation cannot be compared to that of a lawyer bound by a duty of professional secrecy vis-à-vis his clients.", "97. In conclusion, the Court finds, in light of the facts of the present case, that the applicant’s rights under Article 10 of the Convention have not been affected. Accordingly, this provision does not apply in the instant case and the Government’s preliminary objection must be upheld." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1954 and lives in Opfikon.", "6. The applicant had been employed as a hairdresser since 1993 and she had compulsory accident insurance under the Federal Law on Accident Insurance (see Relevant domestic law below ). On 28 August 1995 she was hit by a motorcycle while crossing the road and fell on her back. She was hospitalised overnight owing to suspected concussion resulting from the impact of her head against the ground.", "7. On 2 October 1995 the applicant was examined by a rheumatologist who diagnosed her with a cervical trauma and possible cranial trauma. On 6 December 1995 her family doctor certified that her injuries had resulted in total incapacity for work until the end of the year.", "8. On 29 January 1996 the applicant was examined at the Zurich University Hospital. The doctor who examined her predicted that she could make a gradual return to work. Nevertheless, on 12 June 1996 another doctor in the same hospital declared the applicant totally incapable of work.", "9. At the request of her insurance company, the applicant ’ s health was assessed by means of orthopaedic, neurological, neuropsychological and psychiatric examinations by the insurance-disability medical examination centre (COMAI) of St. Gallen. On the basis of the assessment carried out by that centre, the applicant was declared fully capable of work with effect from February 1997.", "10. By a decision of 23 January 1997 the insurance company informed the applicant that her entitlement to daily allowances would end on 1 April 1997.", "11. On 4 February 1997 the applicant submitted an objection to that decision and enclosed a report of a neurologist, who confirmed an almost permanent headache, limited head movement, pain radiation towards the shoulders and arms with sensory disorders as well as sleep disorders. In addition, the specialist suspected that the applicant had suffered whiplash and that she was affected by a neuropsychological dysfunction.", "12. In September 1997 the insurance company rejected the applicant ’ s complaint finding no causal link between the accident and her health problems.", "13. The applicant appealed to the Social Insurance Court of the Canton of Zurich ( Sozialversicherungsgericht des Kantons Zürich ).", "14. In a decision of 24 August 2000, the Social Insurance Court allowed the applicant ’ s appeal. It overturned the insurance company ’ s decision and remitted the case for further clarifications. Taking into account the partial contradictions that existed between the different medical reports, the court considered that the consequences of the accident for the applicant ’ s state of health were not sufficiently established. Moreover, a doubt remained as to whether the applicant had suffered trauma to her neck and spine. The insurance company was thus required to clarify the issue.", "15. The insurance company subsequently ordered a multidisciplinary examination, which was conducted by an institute of medical experts in Basel. In their report the experts concluded that the applicant was totally incapacitated in respect of the duties required in her profession. However, the insurance company challenged this report once it found that a doctor who had participated in its preparation had previously carried out a private examination of the applicant in the initial stages of the proceedings.", "16. The insurance company therefore ordered another medical report, which was delivered on 11 November 2002. The report observed the existence of a causal link between the accident and the damage to the applicant ’ s health, and was accompanied by a neuropsychological report, which noted a brain dysfunction subsequent to a head injury.", "17. Meanwhile, by a decision of 21 March 2002 the competent social security authority ( Sozialversicherungsanstalt ) of the Canton of Zurich granted the applicant a full disability pension with retroactive effect.", "18. Subsequently, the applicant asked the insurance company on several occasions to comment on its obligation to grant her insurance benefits.", "19. On 5 October 2003 another expert report commissioned by the insurance company was prepared solely on the basis of the previous examinations. The medical expert confirmed the existence of a causal link between the accident and the applicant ’ s health problems, and concluded that the applicant ’ s illness had led to a total incapacity for work.", "20. On 14 January 2005 the insurance company issued a decision confirming the termination of the applicant ’ s benefits as of 1 April 1997. The applicant lodged a complaint against that decision.", "21. On 11 June 2005, another independent physician concluded, solely on the basis of the previously drafted medical reports, that these medical findings were not sufficiently explicit as regards causality. According to him, the applicant ’ s incapacity for work amounted to not more than 20%. He also strongly criticised the approach and findings of other medical experts. On the basis of this report, on 22 September 2005 the insurance company dismissed the applicant ’ s complaint on the grounds of lack of a causal link between the accident and her medical conditions.", "22. The applicant appealed, arguing that most of the medical reports had found a causal link and that the only report denying the existence of such a link was based solely on medical reports by other experts instead of on a direct examination.", "23. On 28 December 2005 the Social Insurance Court recognised the existence of a causal link between the accident and the health problems the applicant complained of, and allowed her appeal. The matter was referred to the insurance company for it to decide on the right of the applicant to insurance benefits.", "24. Thereafter, the insurance company invited the applicant to undergo a medical evaluation of her functional abilities, which she refused. The applicant was then issued with a formal notice within the meaning of Article 43 ( 3 ) of the Social Security Act inviting her to undergo the said evaluation and warning her about the legal consequences of failing to do so indicated in the said provision (see § 3 8 below). No mention of the possibility of covert monitoring was mentioned.", "25. Thereafter, on 3, 10, 16 and 26 October 2006 the applicant was monitored by private investigators, commissioned by the insurance company. The surveillance was performed on four different dates over a period of twenty-three days and lasted several hours each time. The undercover investigators followed the applicant over long distances. Following the surveillance, a detailed monitoring record was prepared. Pursuant to that report, the applicant appears to have become aware of the secret surveillance on the last day of implementation of the measure.", "26. In a decision dated 17 November 2006 the insurance company refused the applicant ’ s representative access to the surveillance report. The applicant then lodged a complaint with the supervisory authority, namely the Federal Office of Public Health, objecting to the failure to take a decision on her benefits entitlement.", "27. On 14 December 2006 the insurance company sent the private investigators ’ report to the applicant. The report included the surveillance footage and declared that it considered it necessary to conduct a fresh neurological assessment of the applicant. However, the applicant refused to undergo any further examination and asked for a decision on her benefits to be taken.", "28. In a decision of 2 March 2007 the insurance company again refused to grant any benefits to the applicant on the basis of the images recorded during the surveillance and her refusal to undergo a neurological examination.", "29. The applicant lodged a complaint against that decision, claiming a pension on the basis of a degree of disability of 100% as well as compensation for damage to her physical integrity. She also asked for the surveillance case file to be destroyed.", "30. On 12 April 2007 another neurologist appointed by the insurance company, Dr H., released an anonymous expert opinion based on evidence and drafted taking into account all the medical examinations and assessments carried out previously as well as the surveillance images. He found that the applicant ’ s incapacity to work amounted to 10%. Furthermore, he estimated the damage to the applicant ’ s physical integrity at between 5% and 10%. On the basis of the analysis of the surveillance images he concluded that the restriction on her capacity to lead a normal life was minimal.", "31. On 14 March 2008 the Federal Office of Public Health gave the insurance company a deadline to decide the applicant ’ s complaint. By a decision of 10 April 2008, the insurance company rejected the applicant ’ s request for destruction of the images and decided to grant her daily allowances and a pension on the basis of a disability degree of 10%.", "32. On 6 May 2008 the applicant lodged an appeal with the Social Insurance Court claiming compensation for damage to her physical integrity as well as a disability pension based on 70% disability. In addition, she claimed interest at 5% on arrears on the daily allowances remaining unpaid since the accident. She also asked for the expert opinion on the evidence taking into consideration the material resulting from the surveillance be to be removed from her case file. The applicant complained that the surveillance had been “ reprehensible and inappropriate ” and had constituted an “ attack on her personality ”.", "33. On 29 May 2009 the Social Insurance Court found in favour of the applicant. In particular, it ruled that owing to the lack of legal basis for the surveillance the monitoring record was not admissible as evidence. As a result, it denied any probative value of the expert opinion based on the evidence, which had taken into account the illegal surveillance. Moreover, according to the court ’ s previous decision of 28 December 2005, the applicant was not required to undergo any further examinations. Therefore, she was entitled to refuse a medical assessment of her functional abilities.", "34. The insurance company lodged an appeal against this decision before the Federal Court, criticising in particular the amount of benefits to be granted to the applicant.", "35. In its judgment of 29 March 2010, of which the applicant was notified on 19 April 2010, the Federal Court ruled that, in accordance with its earlier jurisprudence (see below § 4 3 ), the surveillance of the applicant by private investigators had been lawful and the surveillance file was therefore a valid piece of evidence. After evaluating the surveillance file it found that the medical reports contradicted the images and videos showing the applicant walking her dog, driving a car long distances, going shopping, carrying groceries and opening the boot of the car by moving her arms above her head without noticeable restrictions or unusual behaviour. Moreover, it found that there were discrepancies, not only between the results of the surveillance and the medical reports but also between the medical reports which had been drafted before the surveillance. Finally, the examination of the applicant by a neurologist was necessary and admissible because she had previously refused to undergo an assessment of her functional capacities and a neurological examination, which were required in the circumstances. Accordingly, the Federal Court denied the probative value not only of the medical reports attesting to the applicant ’ s complete incapacity to work but also of the reports attesting to her incapacity to work of a lesser degree. Therefore, the insurance company had acted correctly in ordering a reassessment of her ability to work through a critical review of all previous medical reports. Following an analysis of this expert opinion report based on evidence, the Federal Court held that its findings were convincing. It quashed the decision of the Social Insurance Court, except for the considerations relating to the interest on arrears.", "36. Subsequently the applicant lodged a request with the Federal Court for interpretation of its decision in the light of the established case ‑ law concerning the probative value of the medical reports. The Federal Court dismissed her request, concluding that she had submitted her application not for the purposes defined in this legal remedy, but rather to argue a violation of Articles 6 and 8 of the Convention.", "I. Principles", "The authority shall establish the facts of the case of its own motion and obtain evidence by means of the following:", "a. official documents;", "b. information from the parties;", "c. information or testimony from third parties;", "d. inspection;", "e. expert opinions.”", "40. The relevant provisions of the Federal Act on Accident Insurance ( Bundesgesetz über die Unfallversicherung; classified compilation 832.20; “ the Accident Insurance Act” ) read as follows:", "Article 1 a – Insured persons", "“ 1 All persons employed in Switzerland, including home employees, apprentice trainees, trainees, and volunteers, as well as those working in protected technical schools or workshops, are compulsorily insured pursuant to the provisions of the present Act. ”", "Article 58 – Categories of insurers", "“ Accident insurance is managed, by category of insured person, by the Swiss National Accident Insurance Fund (CNA) or by other authorised insurers and by a supplementary fund managed by the latter. ”", "Article 68 – Categories and enrolment in the registry", "“ 1. Those outside the competence of the CNA shall be insured against accidents by one of the companies indicated below :", "a. private insurance companies subject to the Act of 17 December 2004 on insurance monitoring (LSA) ...", "2. Insurers wishing to participate in the management of compulsory accident insurance must be entered in a registry kept by the Federal Office of Public Health. This registry is public. ”", "Article 96 – Processing of personal data", "“ The authorities in charge of implementing the present Act, or of assessing or monitoring its execution, are allowed to process and require to be processed personal data, including sensitive data and personality profiles, which are necessary in order to perform the tasks that are assigned to them by the present Act, in particular to:", "a. calculate and collect payments;", "b. establish rights to benefits, calculate, allocate and coordinate them with those from other types of social insurance ...", "e. monitor the execution of the present Act ... ”", "41. The relevant provision of the Civil Code (classified compilation 210) reads as follows:", "Article 28", "“ 1 Any person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement.", "2 An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law. ”", "42. The relevant provision of the Criminal Code (classified compilation 311.0) reads as follows:", "Article 179 quater", "“ Breach of secrecy or privacy through the use of an image-carrying device", "Any person who observes with a recording device or records with an image-carrying device information from the secret domain of another or information which is not automatically accessible from the private domain of another,", "any person who makes use of information or makes information known to a third party, which he knows or must assume has been produced as a result of an offence under paragraph 1 above,", "any person who stores or allows a third party access to a recording that he knows or must assume has been made as the result of an offence under paragraph 1 above,", "is liable on complaint to a custodial sentence not exceeding three years or to a fine. ”", "43. The relevant parts of judgment 8C_807/2008 of the Federal Court dated 15 June 2009 (published as 135 I 169), the leading judgment concerning secret surveillance of an insured person ordered by the insurer, read as follows ( unofficial translation ) :", "“ 4.2 The respondent is an insurance company, which is registered as an authorised insurer in the Register for the implementation of compulsory accident insurance within the meaning of Article 68 UVG. As such, it is considered a public authority within the meaning of Article 1 § 2 ( e ) VwVG ... To the extent that it can deliver binding decisions to insured persons, and thus exercises sovereign powers, it has to respect not only the procedural guarantees of administrative law, but also general constitutional principles, in particular fundamental rights. ...", "4.3 The aim of surveillance of an insured person by private detectives is to collect and confirm facts which materialise in the public domain and may be observed by anyone (for example, walking, climbing stairs, driving, carrying loads or performing sports activities). Even when the surveillance is ordered by an authority, it does not give the person undertaking the surveillance the right to interfere with the privacy of the insured person. Unlike a judicially ordered surveillance – for instance, in the context of the Federal Act of 6 October 2000 on the Surveillance of Post and Telecommunications (BÜPF; SR 780.1) – the protection of the insured person from crime remains intact, since private detectives acting on the strength of an administrative order are not allowed to commit criminal acts. In particular, the person in charge of the surveillance has to keep to the framework set up by Article 179 quater of the Criminal Code. In contrast to a covert investigation pursuant to the Federal Law of 20 June 2003 on the undercover investigation ... it is not the purpose of such surveillance for the investigating person to create links with the person subject to the surveillance so as to penetrate into their environment ...", "5.4 Given that, pursuant to Article 43 [of the Social Security Act] it is incumbent on the insurer to make the necessary clarifications, the said provision – at least in conjunction with Article 28 ( 2 ) [of the Social Security Act], which sets out a general obligation on the insured person to provide information – represents a basis for ordering surveillance. It must, however, be examined whether these provisions are sufficiently clear to serve as a legal basis within the meaning of Article 36 § 1 [of the Constitution].", "5.4.2 Regular surveillance of insured persons by private detectives represents in any case a relatively minor interference with the fundamental rights of the individual concerned, in particular if it is limited to the area defined at point 4.3 [above] and thus restricted to the public space ... Part of the literature represents the view that surveillance which is limited to such an extent does not even affect the scope of the fundamental right of privacy ( Ueli Kieser, supra). The core content of Article 13 [of the Constitution] is not affected by the institution of such surveillance. In principle, information obtained from insured persons, their employers and healthcare professionals is sufficient for a reliable assessment of claims for benefits; further investigation by a private detective is indicated only in a vanishingly small percentage of persons registered with accident insurance cases ... Ordering of secret surveillance is thus of an exceptional nature, as it will only take place if the other clarification measures fail to produce a conclusive result. The overall legal basis for the restriction of the fundamental rights of insured persons is thus sufficiently precise ...", "5.7 To sum up, it should be concluded that ordering surveillance of insured persons by accident insurers in the context outlined in point 4.3 [above] is permitted; the results of such surveillance can thus in principle be used for assessment of the issues in question ... The probative value of the records and reports of private investigators can, however, only be granted in so far as they indicate activities and actions which the insured person has exercised without being influenced by those engaging in the surveillance ... ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "37. The relevant provisions of the Federal Constitution of the Swiss Confederation (classified compilation 101) read as follows:", "Article 10 – Right to life and to personal freedom", "“ ... 2 Every person has the right to personal liberty and in particular to physical and mental integrity and to freedom of movement ... ”", "Article 13 – Right to privacy", "“ 1 Every person has the right to privacy in their private and family life and in their home, and in relation to their mail and telecommunications.", "2 Every person has the right to be protected against the misuse of their personal data.”", "Article 36 – Restrictions on fundamental rights", "“ 1 Restrictions on fundamental rights must have a legal basis. Significant restrictions must have their basis in a federal act. The foregoing does not apply in cases of serious and immediate danger where no other course of action is possible.", "2 Restrictions on fundamental rights must be justified in the public interest or for the protection of the fundamental rights of others.", "3 Any restrictions on fundamental rights must be proportionate.", "4 The essence of fundamental rights is sacrosanct.”", "38. The relevant parts of the Federal Act on the General Part of Social Security Law ( Bundesgesetz über den Allgemeinen Teil des Sozialversicherungsrechts; classified compilation 830.1; “Social Security Act”) read as follows:", "Article 28 – Cooperation in the enforcement", "“ 1 Insured persons and employers shall cooperate freely in the enforcement of the laws on social insurance.", "2 Those who apply for benefits shall provide all information necessary to establish their rights and to assess the amount of benefits due.", "3 Under specific circumstances the applicant is required to authorise all persons and institutions concerned, including employers, doctors, insurance companies and official bodies, to provide such information as may be necessary for the establishment of their entitlement to benefits. These individuals and institutions must provide the required information. ”", "Article 43 – Application process", "“ 1 The insurer shall examine requests, take of its own motion the necessary investigative measures, and collect necessary information. Information obtained orally must be issued in writing.", "2 Insured persons must undergo such medical or technical examinations as may reasonably be required and are necessary for the assessment of their case.", "3 If an insured person or other applicant unjustifiably refuses to perform their obligation to provide information or to cooperate in the process, the insurer can decide on the basis of the case file as it stands or close the investigation and decide not to address the merits of the case. In that event it must send them a written notice warning them about the legal consequences and providing them with an appropriate reflection period. ”", "Article 55 – Special rules of procedure", "“ 1 The procedural aspects that are not exhaustively regulated by Article 27-54 of this Act or by provisions of special laws are governed by the Federal Act of 20 December 1968 on administrative proceedings ... ”", "Article 61 – Procedure", "“ With the exception of Article 1(3) of the Federal Act of 20 December 1968 on administrative proceedings, the proceedings before the Cantonal Insurance Court are regulated by cantonal law. They must satisfy the following requirements ...", "c. the court shall establish the facts relevant for the outcome of the case together with the parties; it shall manage the necessary evidence and assess it freely ... ”", "39. The relevant provision of the Federal Act on Administrative Procedure ( Bundesgesetz über das Verwaltungsverfahren; classified compilation 172.021; “ the Administrative Procedure Act” ) reads as follows:", "Article 12", "“D. Establishing of the facts of the case", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "44. The applicant complained that the domestic authorities had violated her right to respect for private life. In particular, she alleged lack of clarity and precision in the domestic legal provisions that had served as the legal basis of her surveillance. Article 8 of the Convention provides as follows :", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "45. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Acts imputable to the State", "46. The surveillance measure complained of in the present case was ordered by a private insurance company. However, the said company has been given the right by the Federal Office of Public Health to provide benefits arising from compulsory insurance and to collect insurance premiums partly regulated by law. Under the jurisprudence of the domestic courts, such insurance companies are considered public authorities and are ‑ at least in so far as they adopt binding decisions – obliged to respect the fundamental rights arising out of the Constitution (compare judgment of the Federal Court ATF 135 I 169, consid. 4.2).", "47. The Court considers that the same must hold true for the Convention since, as it has already held, a State cannot absolve itself from responsibility under the Convention by delegating its obligations to private bodies or individuals (see, among many other authorities, Kotov v. Russia [GC], no. 54522/00, § 92, 3 April 2012). Given that the insurance company was operating the State insurance scheme and that it was regarded by the domestic regime as a public authority, the company must thus be regarded as a public authority and acts committed by it must be imputable to the respondent State (see, a contrario, De La Flor Cabrera v. Spain, no. 10764/09, § 23, 27 May 2014 ).", "2. Existence of an interference", "( a ) The parties ’ submissions", "48. The applicant claimed that the systematic recording and storage or publication of images fell within the scope of Article 8. Even when the requirements for the protection of private sphere in a public space were less stringent, as in the case of a person of public interest, they could nevertheless not be unconcerned. In this regard, the Court should primarily consider whether the person involved could reasonably expect to enjoy the privacy afforded to the private sphere when moving in the public sphere (“reasonable expectation of privacy”).", "49. The applicant pointed out that she was systematically and intentionally followed and filmed by professionals specifically trained for this purpose, which, coupled with the storage and selection of the video material, constituted a serious interference with her right to respect for private life. The impact of the surveillance on her private life was evident in that the insurance company used those images in order to significantly reduce the amount of benefits she was entitled to receive.", "50. The Government argued that the surveillance of the applicant was a measure of last resort of an exceptional nature. Under normal circumstances the information provided by the insured persons, their employer and doctors was sufficient to conduct a reliable assessment of an insurance benefit claim. Surveillance by a private investigator was requested only in a small proportion of cases when other measures of examination had proved inconclusive and the insured person had not fulfilled her or his obligation to provide the requested information. In these circumstances, surveillance aimed at systematically collecting and retaining data on facts that happened in the public arena and that anyone could note, for example the observed person ’ s way of walking, climbing the stairs, driving, carrying loads or exercising.", "51. In the Government ’ s view, the surveillance of the applicant could thus only marginally have affected the scope of application of Article 8 of the Convention and did not constitute a serious infringement of her right to respect for private life. This, in turn, also relatively diminished the need for clarity and precision of the legal basis of the surveillance in question.", "( b ) The Court ’ s assessment", "52. The Court reiterates that “private life” within the meaning of Article 8 is a broad term not susceptible of exhaustive definition. Article 8 protects, inter alia, a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” ( see Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003 ‑ I; Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003 ‑ IX (extracts); and Köpke v. Germany (dec), no. 420/07, 5 October 2010).", "53. The guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. This may include activities of a professional or business nature and may be implicated in measures effected outside a person ’ s home or private premises ( see Peck, cited above, §§ 57-58; Perry, cited above, §§ 36-37; and Benediktsdóttir v. Iceland (dec.), no. 38079/06, 16 June 2009).", "54. However, the possibility cannot be excluded that a person ’ s private life may be implicated in measures effected outside a person ’ s home or private premises. A person ’ s reasonable expectation as to privacy is a significant, although not necessarily conclusive, factor (see Perry, cited above, § 37).", "55. In the context of monitoring of actions of an individual through the use of video or photographic equipment, the Court has held that the normal use of security cameras as such, whether in the street or on public premises, where they serve a legitimate and foreseeable purpose, did not raise an issue under Article 8 of the Convention (see Perry, cited above, § 38). However, private-life considerations may arise concerning recording of the data and the systematic or permanent nature of such a record ( see Peck, cited above, §§ 58-59; and Perry, cited above, § 38).", "56. Further elements which the Court has taken into account in this respect include the question whether there has been a compilation of data on a particular individual, whether there has been processing or use of personal data or whether there has been publication of the material concerned in a manner or degree beyond that normally foreseeable (see Uzun v. Germany, no. 35623/05, § 45, ECHR 2010 (extracts)).", "57. In a case concerning secret video recording of an employee at her workplace made on the instructions of her employer, the Court found that the covert video surveillance during some fifty hours, the recording of personal data, the examination of the tapes by third parties without the applicant ’ s knowledge or consent, the use of the videotapes as evidence in the proceedings before the labour courts, and the domestic courts ’ refusal to order the destruction of the tapes, had all seriously interfered with the applicant ’ s right to privacy ( see Köpke, cited above ).", "58. Turning to the present case, the Court must determine whether the use of the footage and images of the applicant in public spaces obtained by secret surveillance constituted processing or use of personal data of a nature to constitute an interference with her respect for private life. In that connection, the Court observes that the applicant was systematically and intentionally watched and filmed by professionals acting on the instructions of her insurance company on four different dates over a period of twenty ‑ three days. The material obtained was stored and selected and the captured images were used as a basis for an expert opinion and, ultimately, for a reassessment of her insurance benefits.", "59. By applying the principles outlined above to the circumstances surrounding the applicant ’ s surveillance, the Court is satisfied that the permanent nature of the footage and its further use in an insurance dispute may be regarded as processing or collecting of personal data about the applicant disclosing an interference with her “private life” within the meaning of Article 8 § 1.", "3. Justification for the interference", "60. The Court reiterates that any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers, and is necessary in a democratic society in order to achieve any such aim (see Kennedy v. the United Kingdom, no. 26839/05, § 130, 18 May 2010).", "( a ) The parties ’ submissions", "61. The applicant argued that the surveillance had not been in “accordance with the law”. In particular, the legal provisions on which the surveillance had been based were not sufficiently certain, precise or clear and thus not foreseeable as to their effects, in contrast to, for example, the domestic provisions regulating surveillance carried out by the police.", "62. In fact, Articles 28 and 43 of the Social Security Act did not specify when, where and under what conditions surveillance was permissible, the time and length of surveillance measures, how the destruction of material obtained in this way was managed by the surveillance company, how the person monitored could complain about the surveillance and the destruction of the images, or how the person conducting the surveillance had to be trained. The law only vaguely defined that surveillance could be carried out when it seemed to be “objectively justified”, but did not specify this concept further. It follows that the law was not sufficiently clear for it to be “foreseeable”.", "63. The applicant further submitted that, according to domestic case-law, the conditions for a surveillance operation to be lawful were the high amount of the claim for damages and inconsistencies in the medical reports at hand. As to the first condition, surveillance would be permissible virtually any time that a victim of a traffic accident claimed a large amount in damages, which was usually the case. As to the second condition, the applicant pointed out that the findings of the medical reports did not depend on the victim of the accident, but on the medical experts in charge, who had often been commissioned by the insurance company itself.", "64. The Government argued that the minor interference with the applicant ’ s Article 8 rights had a basis in domestic law which was sufficiently foreseeable and accessible. In particular, the Federal Court repeatedly recognised that Article 43, read in conjunction with Article 28 (2) of the Social Security Act and Article 96 (b) of the Accident Insurance Act formed a sufficient legal basis for the surveillance of an insured person. The said provisions prescribed surveillance as a measure of last resort used when the insured person did not comply with her or his obligation to provide information requested and the insurance company had to process certain data necessary for it to perform the tasks assigned to it in domestic law. The law allowed the collection of data only in public spaces for a limited period of time and made it available only to a restricted number of persons.", "65. Moreover, there were effective procedures guaranteeing the respect of the insured person ’ s rights. According to the case-law of the Federal Court, the domestic law did not allow intrusion into the intimate sphere of the person being watched, or the commission of any punishable acts against him or her. Insured persons were protected against the abuse of surveillance measures by a number of domestic law provisions, namely Article 28 of the Civil Code and Article 179 quater of the Criminal Code. In particular, it was forbidden to contact the insured person in order to interfere with her or his life, surveillance could be performed only for a limited period of time, and collected data could be seen only by a small number of people for the fulfilment of the insurer ’ s legal tasks.", "( b ) The Court ’ s assessment", "66. Pursuant to the Court ’ s case-law, the expression “in accordance with the law” within the meaning of Article 8 § 2 requires, firstly, that the measure should have some basis in domestic law. It also refers to the quality of the law in question, requiring it to be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him. It must also be compatible with the rule of law (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000 ‑ V; Uzun, cited above, § 60; and Kennedy, cited above, § 151).", "67. The Court has held on several occasions that the reference to “foreseeability” in the context of secret surveillance measures by State authorities could not be the same as in many other fields (see, as a most recent authority, Roman Zakharov v. Russia [GC], no. 47143/06, § 229, 4 December 2015). Foreseeability in that specific context cannot mean that individuals should be able to foresee when the authorities are likely to resort to secret surveillance so that they can adapt their conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances and conditions under which public authorities are empowered to resort to any such measures (see Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Uzun, cited above, §§ 61-63; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 75, 28 June 2007; and Shimovolos v. Russia, no. 30194/09, § 68, 21 June 2011 ). In view of the risk of abuse intrinsic to any system of secret surveillance, such measures must be based on a law that is particularly precise, especially as the technology available for use is continually becoming more sophisticated (see Uzun, cited above, § 61).", "68. In addition, in the context of secret measures of surveillance by public authorities, because of the lack of public scrutiny and the risk of abuse of power, compatibility with the rule of law requires domestic law to provide adequate protection against arbitrary interference with Article 8 rights. The Court ’ s assessment in this respect depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Uzun, cited above, § 63 ).", "( c ) Application in the present case", "69. Turning to the present case, it is not in dispute that the surveillance measure applied to the applicant was based on Article 43 read in conjunction with Article 28 (2) of the Social Security Act and Article 96 (b) of the Accident Insurance Act (see § § 3 8 and 40 above). These articles, read together, provide that when an insured person does not comply with the obligation to submit the requested information, insurance companies are allowed to take of their own motion the necessary investigative measures and collect necessary information. In particular, they are allowed to process and require to have processed personal data, including sensitive data and personality profiles necessary in order to establish rights to benefits and to calculate, allocate and coordinate them with those from other social insurance funds.", "70. There is no doubt that those provisions were accessible to the applicant. What remains to be established is whether they constituted a sufficiently clear and detailed legal basis for the interference at stake in the instant case.", "71. In determining whether the provisions of domestic law on which the applicant ’ s surveillance was based complied with the requirement of “foreseeability”, the Court notes that the said provisions were limited to obliging the insured persons to “provide all information necessary to establish their rights” ( Article 28 (2) of the Social Security Act), allowing insurance companies to “take investigative measures and collect the necessary information ” ( Article 43 of the Social Security Act) as well as to “process and require [the processing of] personal data” ( Article 96 of the Accident Insurance Act) in order to carry out their duties when an insured person refused to cooperate by providing the necessary information herself or himself. In the Court ’ s view, the said expressions did not seem to either expressly include or even imply the recording of images or videos among the investigative measures that could be deployed by insurance companies. However, it observes that the domestic courts, which are primarily called upon to interpret and apply domestic law (see, among many other authorities, Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998 ‑ II), concluded that the said provisions covered surveillance in such circumstances (see §§ 35 and 43 above).", "72. In examining whether domestic law contained adequate and effective guarantees against abuse, the Court takes note of the Government ’ s argument that Article 28 of the Civil Code and Article 179 quater of the Criminal Code, coupled with the case-law of the Federal Court (see § 43 above), constituted sufficient safeguards against abuse of secret surveillance measures as they restricted the measure to the actions taken in public and forbid the making of contact with the insured person with the aim of interfering in his or her life.", "73. While the above jurisprudence of the Federal Court did provide for certain safeguards as regards the scope of the surveillance measure as argued by the Government (see § 43 above), given the overall lack of clarity of domestic law provisions on the matter, the Court is not satisfied that they were sufficient to constitute adequate and effective guarantees against abuse.", "74. In particular, the Court observes that neither the above provisions nor the cited jurisprudence indicated any procedures to follow for the authorisation or supervision of the implementation of secret surveillance measures in the specific context of insurance disputes. Furthermore, in the absence of any details as regards the maximum duration of the surveillance measures or the possibility of their judicial challenge, insurance companies (acting as public authorities) were granted a wide discretion in deciding which circumstances justified such surveillance and for how long. It can thus not be said that the domestic law had set a strict standard for authorising the surveillance measure at issue (see, a contrario, Uzun, cited above, § 70).", "75. Moreover, the said legal provisions equally remained silent on the procedures to be followed for storing, accessing, examining, using, communicating or destroying the data collected through secret measures of surveillance. It thus remained unclear where and how long the report containing the impugned footage and photographs of the applicant would remain stored, which persons would have access to it and whether she had any legal means of contesting the handling of the said report. The foregoing necessarily increased the risk of unauthorised access to, or disclosure of, the surveillance materials.", "76. The Government further argued that the interference with the applicant ’ s right to privacy by way of secret surveillance was relatively small in the light of the public interests at stake, namely the prevention of insurance fraud and, ultimately, ensuring the proper management of public funds. In the Government ’ s view, this placed in context the need for clarity and precision of the legal basis of the surveillance in question. While the Court can agree that surveillance in the present case must be considered to interfere less with a person ’ s private life than, for instance, telephone tapping, it nonetheless has to adhere to general principles on adequate protection against arbitrary interference with Article 8 rights as summarised above (see § 68 above; see also Uzun, cited above, §§ 66 and 72 ).", "77. For the above reasons – and notwithstanding the arguably minor interference with the applicant ’ s Article 8 rights – the Court does not consider that the domestic law indicated with sufficient clarity the scope and manner of exercise of the discretion conferred on insurance companies acting as public authorities in insurance disputes to conduct secret surveillance of insured persons. In particular, it did not, as required by the Court ’ s case-law, set out sufficient safeguards against abuse. The interference with the applicant ’ s rights under Article 8 was not, therefore, “in accordance with the law” and there has accordingly been a violation of Article 8 of the Convention.", "78. In the light of the foregoing, it is unnecessary for the Court to go into an analysis of whether the measure complained of was also “necessary in a democratic society”.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "79. The applicant further complained of a violation of her right to a fair trial guaranteed by Article 6 of the Convention, which provides as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. The parties ’ submissions", "80. The applicant argued that the Federal Court had based its judgment solely on the findings of the expert opinion on the evidence, which in turn was mainly based on the results of the unlawful surveillance. Moreover, the opinion was drafted by Dr H. , who was financially dependent on the administration; it was well known that Dr H. worked for the respondent insurance company, and could thus not be considered an independent expert. Moreover, Dr H. ’ s findings were mainly based on the surveillance report drafted by private investigators that were also economically dependent on the insurance company. Therefore, neither the surveillance report nor the report drafted by Dr H. could be considered impartial.", "81. The applicant further submitted that she did not have the opportunity to comment on the images recorded during her surveillance or on the report drafted thereafter. She was unable to challenge Dr H. ’ s appointment to the evaluation of her case because she was unaware of his identity in advance.", "82. In addition, the applicant alleged a violation of the principle of separation of powers, since the insurance company conducted further investigations which were not indicated in the decision of the Social Insurance Court. She also alleged that the Federal Court had violated the principle of res iudicata in quashing a lower court ’ s judgment which had become final.", "83. The Government argued that, according to the Federal Court ’ s case ‑ law, information gathered through lawful surveillance examined together with the relevant medical report in principle constituted an appropriate means of determining the health status of an insured person and her or his ability to work. On the other hand, the surveillance report taken alone did not constitute a sufficiently reliable basis, as it could only be used as a prima facie indication or a basis for further assumptions. Only an assessment of the surveillance report by a doctor could have led to certainty about the facts. If a private insurance company appointed a private investigator to lawfully monitor a person, Article 96 (b) of the Accident Insurance Act and 43 (1) read in conjunction with Article 61 (c) of the Social Security Act formed the legal basis for the use of the evidence collected ( namely the surveillance report and the video recording) by the Swiss National Accident Insurance Fund.", "84. As to the circumstances of the present case, the Government stressed that, under the Social Insurance Court ’ s judgment of 28 December 2005, the insurance company was entitled – and even obliged – to carry out further investigations in order to assess the benefit claimed by the applicant. Moreover, the surveillance report was sent to the applicant on 14 December 2006. Subsequently, on 10 January 2007 the insurance company informed the applicant that it was going to order an expert opinion on the evidence, and gave her until 9 February 2007 to comment on it if she wished to. Furthermore, during the court proceedings the applicant was able to comment on the report at issue, and she availed herself of that opportunity.", "85. The Government pointed out that the Federal Court ’ s judgment was not based solely on Dr H. ’ s report, but also on the decision of the lower court, the parties ’ submissions and all the medical records available in the file. Furthermore, the expert opinion on the evidence was not based solely on the surveillance report, but also involved a careful assessment of previous medical reports. The Government maintained that Dr H., who was responsible for the report, was an independent neurologist and not an employee of the respondent insurance company. Moreover, another insurance company, where Dr. H. did work as a consultant doctor, was not a party to the proceedings.", "86. In conclusion, in the Government ’ s view, the use as evidence of the report prepared by Dr H. did not violate the applicant ’ s right to a fair trial.", "B. The Court ’ s assessment", "1. Admissibility", "87. The applicant ’ s main grievance under Article 6 seems to concern the fact that, when deciding her case, the Federal Court took into account the surveillance footage as well as the medical report based thereon.", "88. The Court notes that this part of the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "89. However, the applicant raised a number of further complaints under Article 6. In particular, she complained that neither the surveillance report nor the report drafted by Dr. H. could be considered impartial, as they had been drafted by people who were economically dependent on the respondent insurance company. In that connection, the Government submitted that Dr. H. was not an employee of the respondent insurance company, which the applicant did not seem to dispute further. In any event, the Court observes that the mere fact that experts are employed by the administrative authorities in charge of examining a case is not sufficient per se to deem them unable to perform their duties with the requisite objectivity (see T.B. v. Switzerland (dec.), no. 33957/96, 22 June 1999, with further references). Nor does an issue of objectivity arise in that, in the applicant ’ s proceedings, the doctor was both designated as expert and presumably remunerated by the insurance company (see Spycher v. Switzerland (dec), no. 26275/12, § 28, 17 November 2015).", "90. As regards the remainder of the applicant ’ s allegations under Article 6, in the light of the material in its possession, the Court does not consider that they raise an issue under that provision.", "It follows that this part of the Article 6 complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "2. Merits", "91. What remains to be established by the Court is whether the fact that the domestic courts relied on evidence obtained in breach of Article 8 also violated the applicant ’ s right to a fair trial as guaranteed under Article 6 § 1 of the Convention.", "92. In this connection, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, 12 July 1988, Series A no. 140, p. 29, §§ 45-46; and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I).", "93. It is not, therefore, the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000 ‑ V; and P.G. and J.H. v. the United Kingdom, cited above, § 76).", "94. As to the examination of the nature of the Convention violation found, the Court reiterates that the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, including respect for the applicant ’ s defence rights and the quality and importance of the evidence in question (compare, inter alia, Khan, cited above, §§ 35-40; P.G. and J.H. v. the United Kingdom, cited above, §§ 77-79; and Bykov v. Russia [GC], no. 4378/02, §§ 94-98, 10 March 2009, in which no violation of Article 6 was found).", "95. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubts on its reliability or accuracy. Finally, the Court will attach weight to whether the evidence in question was or was not decisive for the outcome of the proceedings (compare, in particular, Khan, cited above, §§ 35 and 37).", "96. Turning to the present case, the Court must examine whether the use in administrative proceedings of evidence obtained in breach of the Convention was capable to rendering the applicant ’ s proceedings as a whole unfair.", "97. The Court notes at the outset that Article 6 of the Convention is applicable to proceedings concerning social security disputes ( see Schuler ‑ Zgraggen v. Switzerland, 24 June 1993, § 46, Series A no. 263).", "98. As to the overall fairness of the proceedings in the instant case, the Court would observe that in her appeal to the Social Insurance Court of 6 May 2008 the applicant requested that the material resulting from her surveillance be removed from the case file because it constituted an “ attack on her personality ” (see § 3 2 above). As a consequence, the Social Insurance Court excluded the surveillance report from the evidence. On appeal, the Federal Court concluded that, under its own jurisprudence, the surveillance had not been unlawful, and so it took the surveillance report into evidence. It followed that the applicant had had the opportunity to challenge the impugned evidence and oppose its use in adversarial proceedings. Moreover, in their reasoned decision, the domestic courts gave ample consideration to the applicant ’ s request in this respect.", "99. The Court further observes that the impugned recording, together with the expert opinion issued on the basis of the surveillance, was not the only evidence relied on by the Federal Court as the basis for its decision in the applicant ’ s case. As evident from the Federal Court ’ s reasoning, that court took into consideration other available evidence, in particular the existing contradictions between the medical reports drawn up prior to the surveillance (see § 3 5 above).", "100. In view of the above, the Court finds that the use in the applicant ’ s proceedings of the secretly taped material did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "101. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "102. The applicant claimed 20,000 Swiss francs ( CHF – approximately 18,500 euros (EUR)) in respect of non-pecuniary damage.", "103. The Government considered this claim excessive and submitted that the amount of CHF 5,000 (approximately EUR 4,600) would cover any non-pecuniary damage suffered by the applicant.", "104. The Court considers that the violation found must have caused the applicant certain distress and anguish. It thus awards the applicant EUR 8 ,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "105. The applicant also claimed CHF 37,272 (approximately EUR 34,500) for costs and expenses incurred before the Court. This sum corresponds to 133 hours of legal work billable by her lawyer at an hourly rate of CHF 300.", "106. The Government contested this claim and proposed CHF 4,000 (approximately EUR 3,700) as appropriate compensation for costs and expenses.", "107. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 15,000 covering costs under all heads.", "C. Default interest", "108. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]