ITEMID: 001-58817
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF LOPES GOMES DA SILVA v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 8. The applicant is a Portuguese national. He was born in 1945 and lives in Lisbon. He is a journalist and at the material time was the manager of a large-circulation daily called Público.
9. An article appeared in the 10 June 1993 issue of Público stating that the Popular Party (Partido Popular - CDS/PP) had asked Mr Silva Resende, a lawyer and journalist, to stand in the Lisbon City Council elections. That information had also been published by the Portuguese press agency LUSA.
10. On the same page the applicant published an editorial containing the following passages:
“... [the Chairman of the CDS/PP] has shown himself capable of exceeding even the most vulgar of caricatures ... This is clear from the CDS leadership's unthinkable choice of candidate to head the party's list in the Lisbon City Council elections. One need only read the extracts from recent articles by Mr Silva Resende in the Jornal do Dia which we publish in this issue to form an idea of the character being backed by the new Popular Party in the country's main city council elections. As ludicrous and grotesque as this will appear, it is nevertheless true. Not in the oldest or most delapidated ruins of Salazarism could an ideologically more grotesque and more buffoonish [boçal] candidate have been dug out: such an incredible mixture of crude reactionaryism [reaccionarismo alarve], fascist bigotry and coarse anti-Semitism. Any leading figure of the Salazar regime [Estado Novo] or any mayor of Lisbon from the former regime would come across as singularly progressive compared to this brilliant find ... It would all be merely an inconsequential anecdote or a surreal political oversight if it were not revelatory of a hidden facet which the CDS is trying to disguise behind the diaphanous veil of the modern Right. Incapable of finding a credible candidate for the Lisbon City Council, which is already symptomatic of the fragility of a party desirous of presenting itself as a possible party of government, the leadership of the CDS has resorted to a character who represents the most complacent, stale and ridiculous aspects of the Portuguese right-wing. A character who seems never to have really existed and that no humorist of however dubious taste would have been capable of imagining as the last of the Salazarian abencérages [salazarenta] in the 1990s. We presume that the young leader [of the CDS/PP] believes he has found, in desperation, someone capable of attracting at least football fans, which is the domain in which Mr Silva Resende has forged a remarkable career. It would appear that the majority of young Turks among the leadership of the CDS have contented themselves with reading Mr Silva Resende's football columns while remaining unaware of the rare pearls of his political beliefs...”.
11. In the same issue of Público numerous extracts of recent articles by Mr Resende were published on the same page as the applicant's editorial. The following are a selection of those extracts:
“The bald-headed Jew [Mr L. Fabius] who spends his life, during his public appearances, militating in favour of secularism and the Republic (the two pillars of religious and patriotic impiety are sufficient in themselves to enable any reader of average intelligence to decode his real intentions) concluded after the elections that they [the socialists] were defeated because of their political practice and not because of their ideals.” (Jornal do Dia, 6 April 1993)
“The Clintons' past, and above all the style of their campaign for the Whitehouse, were very revelatory of a fresh conspiracy of the Left at its most deviant: war on the property of others, the cult of agnosticism, moral relativism, social hypocrisy, the inhuman secularism of life. To obtain an idea of the forces mobilised to catapult the Clintons to power, one need only mention that the Jewish lobby paid 60% of the electoral expenses whereas it represents only 5% of the electorate.” (Jornal do Dia, 16 April 1993)
[on the 25 April 1974 revolution]
“... Americans and Russians reached an agreement to inflict a blow on Portugal in Lisbon. We were betrayed by the United States, we were betrayed by NATO, which has placed a naval fleet at the gates of Lisbon in case their blow should fail.” (Jornal do Dia, 21 May 1993)
“It is no coincidence if politicians everywhere are involved in serious corruption. This moral chaos, which threatens to suffocate the world and leads to generalised perversity and attracts divine punishment, began several years ago when the machinery of ideological poisoning and agents of the propagation of error installed themselves comfortably everywhere, when they perverted youth, converting them to idols; when they tore women from the sanctuary of the home; when they flooded the world with their exhibition of vice; and, lastly, when they infiltrated political parties, placing them at the service of impiety.” (Jornal do Dia, 25 May 1993)
“The Masonic Lodge and the Jewish Synogogue, even when not imposing their initiation rights and practices, are always flirting with the owners of power. Sometimes their members even succeed in being appointed to public posts. Le Pen's National Front movement is the only exception to this more or less subtle penetration. “Lepenism” is labelled a racist movement and is persecuted by the most unimaginable means, ranging from assault in broad daylight, sabotaging of meetings and systematic slander to the adoption of iniquitous laws to prevent it from penetrating the social fabric and above all climbing up the steps leading to power. The National Front is certainly not above a number of political sins, but it is the only political force which openly fights for the restoration of a France which proclaims the values of Christian civilisation opposed to Leftism, which, since 1789, has been plundering national energies and has turned the national flag into a symbol of heresy.” (Jornal do Dia, 27 May 1993)
“It pains me to have to broach subjects which exude Satan's breath. However, the city of mankind is made up of all sorts and the Devil is undeniably exerting his influence throughout this world devastated by sin. ... Ten years ago a survey of attitudes to sin was carried out in France. The vast majority of those questioned replied broadly that sin did not exist, but was a taboo invented by medieval obscurantism. The huge setback represented by that response gives us an idea of how decadent we have become and of the abyss into which contemporary society is falling.” (Jornal do Dia, 5 June 1993)
“Most people are unaware that Hitler and Mussolini were socialists and that it was in that capacity that they won power in their respective countries using all the tricks and violence supplied them by the canons of the Left.” (Jornal do Dia, 8 June 1993)
12. Following publication of the editorial in question, Mr Resende lodged a criminal complaint against the applicant with the Lisbon public prosecutor's department and sought leave to intervene in the proceedings as an assistant of the prosecuting authority (assistente). The applicant was subsequently charged with libel through the medium of the press (abuso de liberdade de imprensa).
13. In a judgment of 15 May 1995 the applicant was acquitted by the Lisbon Criminal Court. The court held that the expressions used by the applicant could indeed be construed as insults, but that there had not been an intention to defame. In the court's view, the expressions in question should be construed as criticism of Mr Resende's political beliefs and not of his reputation or his conduct. The court added that account also had to be taken of the extracts from articles by Mr Resende and the incisive manner in which he had referred to a number of public figures, even going so far as to attack their physical features.
14. On appeal by Mr Resende and the public prosecutor, the Lisbon Court of Appeal (Tribunal da Relação) set aside the decision in a judgment of 29 November 1995. The court weighed up the conflicting interests and considered that certain expressions used by the applicant, such as “grotesque”, “buffoonish” and “coarse”, were plain insults which exceeded the limits of freedom of expression. In the Court of Appeal's opinion, the applicant had recklessly committed the offence of which he had been accused. The applicant was accordingly fined 150,000 Portuguese escudos (PTE) and ordered to pay PTE 250,000 in damages to Mr Resende and, lastly, to pay costs amounting to PTE 80,000.
15. Relying on, inter alia, Article 10 of the Convention, the applicant lodged a constitutional appeal with the Constitutional Court (Tribunal Constitucional). He submitted that the Court of Appeal's interpretation of the relevant provisions of the Criminal Code and of the Press Act infringed the Constitution.
16. The Constitutional Court dismissed the appeal in a judgment of 5 February 1997 of which the applicant was notified on 10 February 1997. After stressing that both the Constitution and Article 10 of the Convention provided for certain limits on the exercise of freedom of expression, it held that the provisions referred to by the applicant, as construed and applied by the Court of Appeal, were not contrary to the Constitution.
17. Articles 38 and 26 (as in force at the material time) of the Portuguese Constitution protect the freedom of the press and the right to respect for personal honour and reputation.
18. Article 164 of the Criminal Code at the material time provided:
“1. Anyone who, in addressing a third party, makes an accusation against another, even by merely casting suspicion, or expresses an opinion injuring that person's honour and reputation, or who reproduces such an accusation or opinion, shall be liable to a prison sentence of up to six months and a penalty of up to fifty day-fines.
2. The author of the statement shall not be punishable
(a) if the accusation is motivated by a legitimate public interest or other valid reason; and
(b) if he proves the truthfulness of such an accusation or has serious grounds for believing in good faith that it is true.
...”
19. Article 167 § 2 of the Criminal Code increased the penalties in question to a maximum of two years' imprisonment and 240 day-fines in respect of offences committed through the medium of the press.
20. Section 25(1) of the Press Act, in the version applicable at the material time (Legislative Decree no. 85-C/78 of 26 February 1978), provided:
“Acts or conduct capable of infringing a legal interest protected by the criminal law and committed through the publication of texts or images in the press shall be considered to be offences committed through the medium of the press.”
21. Section 25 (2) provided that those offences fell within the criminal law. It also provided that an accused who had no previous conviction for the same offence could be sentenced to a fine instead of a custodial sentence.
VIOLATED_ARTICLES: 10


ITEMID: 001-109868
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF KONSTANTIN MARKIN v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 37-1-b - Matter resolved);Remainder inadmissible;Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Article 8 - Right to respect for private and family life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Anatoly Kovler;Angelika Nußberger;Ann Power-Forde;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Guido Raimondi;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Luzius Wildhaber;Mihai Poalelungi;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Paulo Pinto De Albuquerque;Renate Jaeger;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 9. The applicant was born in 1976 and lives in Velikiy Novgorod.
10. On 27 March 2004 he signed a military service contract. The contract signed by the applicant was a standard two-page form stating, in particular, that he “undertook to serve under the conditions provided for by law”.
11. At the material time the applicant was serving as a radio intelligence operator (оперативный дежурный группы боевого управления в составе оперативной группы радиоэлектронной разведки) in military unit no. 41480. Equivalent posts in his unit were held by servicewomen and he was often replaced in his duties by female personnel.
12. On 30 September 2005 the applicant’s wife, Ms Z., gave birth to their third child. On the same day a court granted her petition for divorce.
13. On 6 October 2005 the applicant and Ms Z. entered into an agreement under which their three children would live with the applicant and Ms Z. would pay maintenance for them. The agreement was certified by a notary.
14. According to the applicant, several days later Ms Z. left for St Petersburg.
15. On 11 October 2005 the applicant asked the head of his military unit for three years’ parental leave. On 12 October 2005 the head of the military unit rejected his request because three years’ parental leave could be granted only to female military personnel. The applicant was allowed to take three months’ leave. However, on 23 November 2005 he was recalled to duty.
16. The applicant challenged the decision of 23 November 2005 before a court. On 9 March 2006 the Military Court of the Pushkin Garrison annulled the decision and upheld the applicant’s right to the remaining 39 working days of his three months’ leave. On 17 April 2006 the Military Court of the Leningradskiy Command quashed the judgment and rejected the applicant’s claims.
17. Meanwhile, on 30 November 2005, the applicant brought proceedings against his military unit claiming three years’ parental leave. He submitted that he was the sole carer for his three children. He referred, in particular, to section 10(9) of the Military Service Act (see paragraph 47 below).
18. During the hearing before the Military Court of the Pushkin Garrison the representatives of the military unit submitted that the applicant had not proved that he was the sole carer for his children. It was impossible for the applicant, who was serving in the army, studying at a University and participating in several sets of judicial proceedings, to take care of his children alone. There was evidence that Ms Z. and other people were helping him. The children were therefore not left without maternal care. The military unit’s representatives also drew the court’s attention to some inconsistencies in the applicant’s submissions and the documents produced by him. For example, the children’s address indicated in the notarial agreement was incorrect, Ms Z.’s employment contract was not registered as required by law, there was no divorce stamp in Ms Z.’s passport, and the applicant had not applied for child allowances or sued Ms Z. for her failure to pay child maintenance. In their opinion, the applicant’s divorce was a sham with the aim of evading military service and receiving additional benefits from his military unit.
19. The court examined Ms Z.’s petition for divorce in which she stated that she had been living separately from the applicant since September 2005 and that she considered any further marital relationship impossible. It also examined the judicial decision confirming the divorce, the notarial agreement according to which the children were to live with the applicant and Ms Z.’s employment contract signed in St Petersburg. It also studied the record of a hearing held on 27 February 2006 in an unrelated civil case, from which it appeared that Ms Z. had represented the applicant.
20. The applicant stated that he and his children lived in Novgorod together with Ms Z.’s parents. Although Ms Z. helped him occasionally with the children (for example she had done babysitting for the youngest child on 31 January 2006 while he attended a hearing), it was he who took everyday care of them. Ms Z. did not pay child maintenance because her income was too low. Ms Z. had indeed represented him at the hearing of 27 February 2006, which concerned a claim lodged jointly by the couple before the divorce. Ms Z. had agreed to continue her assistance until the end of the proceedings.
21. Ms Z. testified that she lived in St Petersburg, while the children lived with the applicant in Novgorod. She did not participate in the care of the children. She did not pay child maintenance because her salary was minimal.
22. Ms Z.’s father stated that after the divorce his daughter had left for St Petersburg, while the applicant and the children continued to live together with him and his wife in the flat belonging to them. Although his daughter occasionally talked to the children over the phone, she did not participate in their care. The applicant was the sole carer for the children. He took them to school and to the doctor’s, cooked for them, took them for walks and supervised their education.
23. Ms Z.’s employer testified that Ms Z. worked for her in St Petersburg. She knew that employment contracts had to be registered. She had attempted to register Ms Z.’s employment contract with the Tax Authority. The Tax Authority had refused to register the contract, informing her that she had to register it with the Town Administration. However, at the Town Administration she had been told that it was the Tax Authority which was responsible for registering employment contracts. As she had found herself in a vicious circle, she had stopped her fruitless attempts to register the contract. Ms Z. had returned to work two weeks after the childbirth. She knew that Ms Z.’s children lived with their father in Novgorod, but she did not know further details about Ms Z.’s relations with her ex-husband or her children. A couple of times she had heard Ms Z. talking to her eldest child over the phone.
24. The teacher of the applicant’s second child stated that in September 2005 both the applicant and Ms Z. would take the child to school. However, after the birth of the third child and the divorce it was always the applicant who had brought the child to school in the morning and picked him up in the evening. It was the applicant who had come to the school parties. In reply to her questions about his mother, the child had said that his mother had left for St Petersburg where she was working. She thought that the applicant was a good father; the child evidently loved him. At the same time, he never spoke about his mother.
25. The children’s doctor testified that on 6 October 2005 Ms Z. had brought the youngest child for an examination. From 1 November 2005 onwards it was always the applicant who had taken the children to the doctor’s. The children were healthy and good care was taken of them.
26. On 14 March 2006 the Military Court of the Pushkin Garrison dismissed the applicant’s claim for three years’ parental leave as having no basis in domestic law. The court held that only female military personnel were entitled to three years’ parental leave, while male military personnel had no such entitlement even in those cases where their children were left without maternal care. In such cases a serviceman was entitled either to an early termination of his service for family reasons, or to three months’ leave. The applicant had made use of the second opportunity.
27. The court further held that, in any event, the applicant had failed to prove that he was the sole carer for his children and that they lacked maternal care. It followed from the evidence examined at the hearing that even after the divorce the applicant and Ms Z. had continued their marital relationship. They lived together, both took care of their children and defended the interests of their family. The applicant’s allegations to the contrary were therefore false and aimed at misleading the court. It was essential that Ms Z. had not been deprived of parental authority. She was not in any other way prevented from taking care of her children and it was irrelevant whether they lived with her or not.
28. The applicant appealed, alleging that the refusal to grant him three years’ parental leave had violated the principle of equality between men and women guaranteed by the Constitution. He further submitted that the factual findings made by the first-instance court were irreconcilable with the evidence examined at the hearing.
29. On 27 April 2006 the Military Court of the Leningradskiy Command upheld the judgment on appeal. It did not examine the applicant’s allegation that the factual findings made by the first-instance court had been incorrect. Instead it held that under domestic law “male military personnel were not in any circumstances entitled to parental leave”. It further added that the applicant’s “reflections on equality between men and women ... [could] not serve as a basis for quashing the first-instance judgment, which [was] correct in substance”.
30. While the court proceedings were pending the applicant was disciplined several times for systematic absences from his place of work.
31. By order of 24 October 2006 the head of military unit no. 41480 granted parental leave to the applicant until 30 September 2008, the third birthday of his youngest son. On 25 October 2006 the applicant received financial aid in the amount of 200,000 Russian roubles (RUB), equivalent to approximately 5,900 euros (EUR). In a letter of 9 November 2006 the head of military unit no. 41480 informed the applicant that the financial aid was granted to him “in view of [his] difficult family situation, the necessity of taking care of three minor children and the absence of other sources of income”.
32. On 8 December 2006 the Military Court of the Pushkin Garrison issued a decision in which it criticised the head of military unit no. 41480 for granting the applicant three years’ parental leave and thereby disregarding the judgment of 27 April 2006 in which it had been found that the applicant was not entitled to such leave. The court drew the attention of the head of the military unit to the unlawfulness of his order.
33. On 11 August 2008 the applicant applied to the Constitutional Court, claiming that the provisions of the Military Service Act concerning the three-year parental leave were incompatible with the equality clause in the Constitution.
34. On 15 January 2009 the Constitutional Court rejected his application. The relevant parts of its judgment read as follows:
“2.1 ... military service is a special type of public service which ensures the defence of the country and the security of the State, it is therefore performed in the public interest. Persons engaged in military service exercise constitutionally important functions and therefore possess a special legal status which is based on the necessity for a citizen of the Russian Federation to perform his duty and obligation in order to protect the Fatherland.
When establishing a special legal status for military personnel, the federal legislature is entitled, within its discretionary powers, to set up limitations on their civil rights and freedoms and to assign special duties...
... by signing a military service contract a citizen ... voluntarily chooses a professional activity which entails, firstly, limitations on his civil rights and freedoms inherent in this type of public service, and, secondly, performance of duties to ensure the defence of the country and the security of the State. Accordingly, military personnel undertake to abide by the statutory requirements limiting their rights and freedoms and imposing on them special public obligations.
... by voluntarily choosing this type of service citizens agree to the conditions and limitations related to the acquired legal status. Therefore, the imposition by the federal legislature of limitations on the rights and freedoms of such citizens is not in itself incompatible with [the Constitution] and is in accordance with ILO Discrimination (Employment and Occupation) Convention no. 111 of 25 June 1958, which provides that any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination (Article 1 § 2).
2.2 Under section 11(13) of [the Military Service Act] parental leave is granted to female military personnel in accordance with the procedure specified in federal laws and regulations of the Russian Federation. A similar provision is contained in Article 32 § 5 of the Regulations on military service, which also provides that during parental leave a servicewoman retains her position and military rank.
A serviceman under contract is entitled to leave of up to three months if his wife dies in delivery or if he is bringing up a child or children under 14 years old (handicapped children under 16 years old) left without maternal care (in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where his children have no maternal care). The purpose of such leave is to give the serviceman a reasonable opportunity to arrange for the care of his child and, depending on the outcome, to decide whether he wishes to continue the military service. If the serviceman decides to take care of his child himself, he is entitled to early termination of his service for family reasons...
The law in force does not give a serviceman the right to three years’ parental leave. Accordingly, servicemen under contract are prohibited from combining the performance of their military duties with parental leave. This prohibition is based, firstly, on the special legal status of the military, and, secondly, on the constitutionally important aims justifying limitations on human rights and freedoms in connection with the necessity to create appropriate conditions for efficient professional activity of servicemen who are fulfilling their duty to defend the Fatherland.
Owing to the specific demands of military service, non-performance of military duties by military personnel en masse must be excluded as it might cause detriment to the public interests protected by law. Therefore, the fact that servicemen under contract are not entitled to parental leave cannot be regarded as a breach of their constitutional rights or freedoms, including their right to take care of, and bring up, children guaranteed by Article 38 § 2 of the Constitution of the Russian Federation. Moreover, this limitation is justified by the voluntary nature of the military service contract.
By granting, on an exceptional basis, the right to parental leave to servicewomen only, the legislature took into account, firstly, the limited participation of women in military service and, secondly, the special social role of women associated with motherhood. [Those considerations] are compatible with Article 38 § 1 of the Constitution of the Russian Federation. Therefore, the legislature’s decision cannot be regarded as breaching the principles of equality of human rights and freedoms or equality of rights of men and women, as guaranteed by Article 19 §§ 2 and 3 of the Constitution of the Russian Federation.
It follows from the above that section 11(13) of [the Military Service Act], granting the right to parental leave to female military personnel only, does not breach the applicant’s constitutional rights ...
2.4 As servicemen having minor children are not entitled to parental leave, they are also not entitled to receive monthly child-care allowances payable to those who take care of children under the age of a year and a half...”
The Constitutional Court concluded that the provisions challenged by the applicant were compatible with the Constitution.
35. On an unspecified date in March 2011 the Representative of Russia at the European Court of Human Rights asked the local military prosecutor’s office to conduct an inquiry into the applicant’s family situation. In particular, he asked the prosecutor to find out where the applicant, Ms Z. and their children were currently living and whether Ms Z. paid child maintenance.
36. According to the Government, the applicant was summoned to the prosecutor’s office for 30 or 31 March 2011. The applicant stated that he had not received any summons.
37. As the applicant had failed to be present at the appointed time, the prosecutor decided to visit him at home. According to the applicant, the prosecutor arrived at his flat at 10 p.m. on 31 March 2011, waking up and frightening his children. The Government submitted that the prosecutor had visited the applicant at 9 p.m. and had remained for an hour.
38. The prosecutor informed the applicant that he was conducting an inquiry at the request of the Representative of Russia at the European Court of Human Rights. He noted the residents of the flat. He then requested the applicant to produce a court judgment concerning child maintenance in respect of his youngest son. After the applicant had explained that the child maintenance had been fixed by a notarial agreement, the prosecutor requested a copy of that agreement. He warned the applicant that if he refused to produce the requested documents, his neighbours would be questioned.
39. The applicant called his representative before the Court and, following her advice, refused to comply with the prosecutor’s orders or answer his further questions. He signed a written statement to that effect. The prosecutor immediately left.
40. The prosecutor also questioned the applicant’s neighbours, who testified that the applicant and Ms Z. were living together.
41. According to the Government, the inquiry established that the applicant and Ms Z. had remarried on 1 April 2008 and had had a fourth child on 5 August 2010. In December 2008 the applicant had terminated his military service for health reasons. The applicant and Ms Z. were currently living together with their four children and Ms Z.’s parents.
42. The Russian Constitution guarantees equality of rights and freedoms of everyone regardless of, in particular, sex, social status or employment position. Men and women have equal rights and freedoms and equal opportunities (Article 19 §§ 2-3).
43. The Constitution also guarantees protection of motherhood and the family by the State. The care and upbringing of children is an equal right and obligation of both parents (Article 38 §§ 1-2).
44. The Labour Code of 30 December 2001 provides that women are entitled to a so-called “pregnancy and delivery leave” (maternity leave) of 70 days before the childbirth and 70 days after it (Article 255). Further, women are entitled to a three-year “child-care leave” (parental leave). Parental leave may also be taken in full or in part by the father of the child, his/her grandmother, grandfather, a guardian or any relative who is actually taking care of the child. The person on parental leave retains his/her employment position. The period of parental leave is counted for seniority purposes (Article 256).
45. The Federal Law on Obligatory Social Insurance of Sick Leave or Maternity Leave (no. 255-FZ of 29 December 2006) provides that during maternity leave the woman receives a maternity allowance, payable by the State Social Insurance Fund, amounting to 100% of her salary (section 11). During the first year and a half of the parental leave the person who is taking care of the child receives monthly child-care allowances, payable by the State Social Insurance Fund, amounting to 40% of the salary, but no less than RUB 1,500 (approximately EUR 37.5) for the first child and RUB 3,000 (approximately EUR 75) for each of the subsequent children (section 11(2)). During the second year and a half of the parental leave no social-insurance payments or allowances are available.
46. The Federal Law on the Status of Military Personnel (no. 76-FZ of 27 May 1998, “the Military Service Act”) provides that female military personnel are entitled to maternity leave and to parental leave in accordance with the Labour Code (section 11(13)). There is no similar provision in respect of male personnel.
47. The Act also provides that female military personnel, as well as military personnel bringing up children left without maternal/paternal care, are entitled to social benefits in accordance with federal laws and other legal acts concerning protection of family, motherhood and childhood (section 10(9)).
48. Under the Regulations on military service, enacted by Presidential Decree no. 1237 of 16 September 1999, a servicewoman is entitled to maternity leave, to three years’ parental leave, and to all related social benefits and allowances. A serviceman under contract is entitled to three months’ leave in one of the following cases: (a) his wife has died in childbirth, or (b) he is bringing up a child or children under 14 years old (handicapped children under 16 years old) left without maternal care (in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where his children have no maternal care) (Article 32).
49. Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly and ratified by Russia in 1981, provides as follows:
“States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;
(b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.”
50. Its Article 16 § 1 provides, as far as relevant, as follows:
“States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
...
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;...”
51. In its Concluding Observations on the periodic reports submitted by the Russian Federation, adopted on 30 July 2010, the CEDAW Committee stated, in particular, as follows:
“20. The Committee reiterates its concern at the persistence of practices, traditions, patriarchal attitudes and deep-rooted stereotypes regarding the roles, responsibilities and identities of women and men in all spheres of life. In this respect, the Committee is concerned at the State party’s repeated emphasis on the role of women as mothers and caregivers. The Committee is concerned ... that, thus far, the State party has not taken effective and systematic action to modify or eliminate stereotypes and negative traditional values and practices.
21. The Committee urges the State party to put in place without delay a comprehensive strategy, including the review and formulation of legislation and the establishment of goals and timetables, to modify or eliminate traditional practices and stereotypes that discriminate against women... The Committee notes that a shift from a focus on women primarily as wives and mothers to individuals and actors equal to men in society is required for the full implementation of the Convention and the achievement of equality of women and men...”
52. Article 1 of International Labour Organisation (ILO) Convention No. C111 concerning Discrimination in Respect of Employment and Occupation, adopted in 1958 and ratified by the Russian Federation in 1961, reads as follows:
“1. For the purpose of this Convention the term discrimination includes--
(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
(b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies.
2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination...”
53. Article 3 § 1 of ILO Convention No. 156 concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, adopted in 1981 and ratified by the Russian Federation in 1998, reads as follows:
“With a view to creating effective equality of opportunity and treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities.”
54. Article 22 of Recommendation No. 165 supplementing that Convention provides as follows:
“(1) Either parent should have the possibility, within a period immediately following maternity leave, of obtaining leave of absence (parental leave), without relinquishing employment and with rights resulting from employment being safeguarded.
(2) The length of the period following maternity leave and the duration and conditions of the leave of absence referred to in subparagraph (1) of this Paragraph should be determined in each country by one of the means referred to in Paragraph 3 of this Recommendation.
(3) The leave of absence referred to in subparagraph (1) of this Paragraph may be introduced gradually.”
55. The revised European Social Charter was ratified by the Russian Federation in 2009. The Russian Federation declared that it considered itself bound, among others, by Article 27 which reads as follows:
“With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake:
...
2. to provide a possibility for either parent to obtain, during a period after maternity leave, parental leave to take care of a child, the duration and conditions of which should be determined by national legislation, collective agreements or practice.”
56. In its Resolution 1274(2002) on Parental leave, the Parliamentary Assembly stated as follows:
“1. Parental leave was first introduced in Europe more than a century ago as a key element of social and employment policies for women in work at the time of childbirth. Its purpose was to protect the health of mothers and to enable them to look after their children.
2. Parental leave has since been adapted to meet the needs not only of women but also of men who wish to balance work and family life and ensure their children’s well-being.
3. The issue of parental leave is closely linked to that of the role of men in family life, since it permits a genuine partnership in the sharing of responsibilities between women and men in both the private and public sphere...”
57. The Parliamentary Assembly further noted that parental leave was not applied equally in all member States. It therefore urged the Member States, in particular:
“i. to take the necessary steps to ensure that their legislation recognises different types of family structures, if they have not already done so, and, accordingly, to introduce the principle of paid parental leave including adoption leave;
ii. to set up suitable structures for the implementation of parental leave, including adoption leave...”
58. In its Recommendation 1769(2006) on the need to reconcile work and family life the Parliamentary Assembly noted that the aim of reconciling work and family life was far from being achieved in many Council of Europe member States and that this situation primarily penalised women, since they still carried most of the responsibility for running the home, bringing up young children and very often looking after their dependent parents or other elderly dependants. It therefore invited the Committee of Ministers to address a recommendation to the member States asking them, in particular:
“8.3. to take measures making it easier to reconcile work and family life which target women and men, including:
...
8.3.5. providing adequate remuneration/compensation during maternity leave;
8.3.6. introducing, if they have not yet done so, paid paternity leave and encouraging men to take it;
...
8.3.8. introducing paid, socially-covered parental leave, which may be used flexibly by the father and mother, taking special care to ensure that men are actually able to use it”.
59. In its Recommendation No. R (96) 5 on reconciling work and family life, the Committee of Ministers, acknowledging the need for innovative measures to reconcile working life and family life, recommended that member States
“I. Take action, within the framework of a general policy promoting equal opportunities and equal treatment, to enable women and men, without discrimination, to better reconcile their working and family lives;
II. Adopt and implement the measures and general principles described in the appendix to this recommendation in the manner they consider the most appropriate to achieve this goal in the light of national circumstances and preferences.”
60. In respect of maternity, paternity and parental leave the appendix to the aforementioned Recommendation explains as follows:
“12. Women should be entitled to legal protection in the event of pregnancy, and, in particular, an adequate period of maternity leave, adequate pay or allowance during this period and job protection.
13. The fathers of newly born children should also be allowed a short period of leave to be with their families. In addition, both the father and the mother should have the right to take parental leave during a period to be determined by the national authorities without losing either their employment or any related rights provided for in social protection or employment regulations. The possibility should exist for such parental leave to be taken part-time and to be shared between parents.
14. The measures described in paragraph 13 should apply equally for the benefit of persons adopting a child.
15. The return to work at the end of a period of parental leave should be facilitated by, for example, vocational guidance and training facilities”.
61. Recommendation Rec(2007)17 of the Committee of Ministers to member States on gender equality standards and mechanisms recommended, in particular, that
“...the governments of member states take or reinforce necessary measures to implement gender equality in practice, taking fully into account the following principles and standards:
...
B. Standards in specific areas:
...
5. Reconciliation of private/family life and professional/public life
34. Gender stereotypes and a strong division of gender roles influence social models that tend to see women as mainly responsible for family and private life (in the area of unpaid work) and men in the public sphere and professional work (in the area of paid work). Such division leads to the persistence of unequally shared domestic and family responsibilities, being one of the major reasons for discrimination against women in the labour market and for their limited social and political participation.
35. The balanced participation of women and men in professional/public life and in private/family life is, therefore, a key area for gender equality and is essential for the development of society. On the other hand, reconciliation of work and public life with family and private life, promoting self-fulfilment in public, professional, social and family life, is a precondition for a meaningful quality of life for all, women and men, girls and boys, and for the full enjoyment of human rights in the political, economic, cultural and social spheres.
36. Elements indicating states’ political will and commitment to gender equality in this regard include the following:
...
iii. Adoption/existence and enforcement of legislation on maternity and paternity protection, including provisions on paid maternity leave, paid parental leave equally accessible to both parents, and paid non-transferable paternity leave, as well as specific measures addressed equally to women and men workers, to allow the fulfilment of family responsibilities, including care and assistance to sick or disabled children or dependants”.
62. Finally, in Recommendation Rec(2010)4 on the human rights of members of the armed forces, the Committee of Ministers recommended that the Governments of the member States should ensure, in particular, that “the principles set out in the appendix to this recommendation [were] complied with in national legislation and practice relating to members of the armed forces”. Principle 39 of the appendix to that Recommendation provides that “members of the armed forces who are parents of young children should enjoy maternity or paternity leave, appropriate childcare benefits, access to nursery schools and to adequate children’s health and education systems”.
63. Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on parental leave concluded by UNICE [Union of Industrial and Employers’ Confederations of Europe], CEEP [European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest] and the ETUC [European Trade Union Confederation] gave effect to that agreement, which had been entered into on 14 December 1995 between those cross-industry representative organisations and which provided, in particular, as follows:
“Clause 2: Parental leave
1. This agreement grants, subject to clause 2.2, men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age up to 8 years to be defined by Member States and/or management and labour.
2. To promote equal opportunities and equal treatment between men and women, the parties to this agreement consider that the right to parental leave provided for under clause 2.1 should, in principle, be granted on a non-transferable basis...”
64. Council Directive 2010/18/EU of 8 March 2010 on the application of the revised Framework Agreement on parental leave between BUSINESSEUROPE, UEAPME, CEEP and the ETUC replaced Directive 96/34/EC. The revised Framework Agreement provides as follows:
“Clause 2: Parental leave
1. This agreement entitles men and women workers to an individual right to parental leave on the grounds of the birth or adoption of a child to take care of that child until a given age up to eight years to be defined by Member States and/or social partners.
2. The leave shall be granted for at least a period of four months and, to promote equal opportunities and equal treatment between men and women, should, in principle, be provided on a non-transferable basis. To encourage a more equal take-up of leave by both parents, at least one of the four months shall be provided on a non-transferable basis. The modalities of application of the non-transferable period shall be set down at national level through legislation and/or collective agreements taking into account existing leave arrangements in the Member States.”
65. The case of Joseph Griesmar v. Ministre de l’Economie, des Finances et de l’Industrie, Ministre de la Fonction publique, de la Réforme de l’Etat et de la Démocratisation, deals with the issue of service credit for children being awarded only to female civil servants in accordance with the French civil and military retirement pension scheme. In its judgment of 29 November 2001 the European Court of Justice (ECJ) observed that the grant of that credit was not linked to maternity leave or to the disadvantages which a female civil servant incurred in her career as a result of being absent from work during the period following the birth of a child. This credit was linked to a separate period, namely that devoted to bringing up the children. In this connection, the ECJ found that the situations of a male civil servant and a female civil servant were comparable as regard the bringing-up of children. In particular, the fact that female civil servants were more affected by the occupational disadvantages entailed in bringing up children, because this was a task generally carried out by women, did not prevent their situation from being comparable to that of a male civil servant who had assumed the task of bringing up his children and had thereby been exposed to the same career-related disadvantages.
66. Further, the ECJ noted that French legislation introduced a difference in treatment on grounds of sex in regard to male civil servants who had in fact assumed the task of bringing up their children. That measure was not justified because it was not of a nature such as to offset the disadvantages to which the careers of female civil servants were exposed by helping those women conduct their professional life on an equal footing with men. On the contrary, that measure was limited to granting female civil servants who were mothers a service credit at the date of their retirement, without providing a remedy for the problems which they might encounter in the course of their professional career. The French legislation therefore infringed the principle of equal pay inasmuch as it excluded male civil servants who were able to prove that they had assumed the task of bringing up their children from entitlement to the credit.
67. The judgment adopted by the ECJ on 30 September 2010 in the case of Roca Álvarez v. Sesa Start España ETT deals with the question whether the denial of “breast-feeding leave” (a half-hour reduction in the working day for the purpose of feeding a baby) to employed fathers, while employed mothers were entitled to such leave, amounted to discrimination on grounds of sex. The ECJ found that the positions of a male and a female worker, father and mother of a young child, were comparable with regard to their possible need to reduce their daily working time in order to look after their child. The Spanish legislation established a difference on grounds of sex, as between mothers whose status was that of an employed person and fathers with the same status.
68. As concerns justification for such a difference in treatment, the ECJ considered, firstly, that the leave at issue had been detached from the biological fact of breastfeeding, entitlement to it being granted even in cases of bottle feeding. It could be therefore considered as time purely devoted to the child and as a measure which reconciled family life and work following maternity leave. Feeding and devoting time to the child could be carried out just as well by the father as by the mother. Therefore that leave seemed to be accorded to workers in their capacity as parents of the child. It could not therefore be regarded as ensuring the protection of the biological condition of the woman following pregnancy or the protection of the special relationship between a mother and her child.
69. Secondly, the measure at issue did not constitute a permissible advantage given to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men. On the contrary, the fact that only a woman whose status was that of an employed person could take that leave, whereas a man with the same status could not, was liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties. To refuse entitlement to the leave at issue to fathers whose status was that of an employed person, on the sole ground that the child’s mother did not have that status, could have as its effect that the mother would have to limit her self-employed activity and bear the burden resulting from the birth of her child alone, without the child’s father being able to ease that burden. Consequently, a measure at issue could not be considered to be a measure eliminating or reducing existing inequalities in society, nor as a measure seeking to achieve substantive as opposed to formal equality by reducing the real inequalities that could arise in society and thus to prevent or compensate for disadvantages in the professional careers of the relevant persons.
70. The ECJ concluded that the relevant provisions of Spanish law were incompatible with EU law.
71. The Court conducted a comparative study of the legislation of thirty-three member States of the Council of Europe (Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, the “Former Yugoslav Republic of Macedonia”, France, Georgia, Germany, Greece, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Poland, Portugal, Romania, Serbia, Spain, Sweden, Switzerland, Turkey and the United Kingdom).
72. The comparative study suggests that as far as civilians are concerned, in two States (Armenia and Switzerland) entitlement to parental leave is limited to women. In one State (Turkey) men working in the private sector are not entitled to parental leave, while male civil servants are entitled to such leave. In one State (Bosnia and Herzegovina) men may take parental leave under certain conditions only (for example, absence of maternal care of the child). In one State (Albania) no parental leave entitlement is provided by law. In the remaining twenty-eight States both men and women are equally entitled to parental leave in civilian life.
73. In some countries parental leave is a family entitlement to be divided between parents as they choose (for example in Azerbaijan, Georgia and Romania). In other countries it is an individual entitlement, with each parent entitled to a certain portion of parental leave (for example in Belgium, Croatia, the Czech Republic, Luxembourg and Italy). In Sweden the entitlement is partly family, partly individual, with 60 days reserved for each parent and the rest divided between them as they choose. In some countries parental leave is unpaid (for example Austria, Belgium, Cyprus, Malta, the Netherlands, Spain and the United Kingdom). In others parental leave is paid either in part or in full (for example Azerbaijan, the Czech Republic, Luxembourg, Serbia and Portugal). There are also varied approaches to the length of parental leave, ranging from three months (Belgium) to three years (Spain).
74. As regards military personnel, it appears that in one State (Albania) military personnel are not expressly entitled to parental leave. In six States (Armenia, Azerbaijan, Georgia, Moldova, Switzerland and Turkey) only servicewomen are entitled to such leave. In three States (Bosnia, Herzegovina, Bulgaria and Serbia) all servicewomen are entitled to parental leave, while servicemen are entitled to such leave only in exceptional cases, for example if the mother has died, has abandoned the child, is seriously ill or is unable to take care of the child for any other justified reason. In the remaining twenty-three States both servicemen and servicewomen are equally entitled to parental leave.
75. In some countries (for example Austria, Croatia, Cyprus, Estonia, Finland, Italy, Luxembourg, Malta, Poland, Portugal, Serbia and Sweden) parental leave for military personnel seems to be governed by the same general provisions as those applicable to civilians. In other countries (for example the Czech Republic, Latvia, Greece, Lithuania, Romania and France) parental leave is regulated by specific provisions which do not, however, contain any significant differences as compared to the rules applicable to civilians. In five countries (Spain, Germany, the Netherlands, Belgium and the United Kingdom) the specific provisions governing parental leave for military personnel contain certain differences or restrictions not applicable to civilians. For example, legislation in the Netherlands provides that parental leave may be postponed where “important interests of the service” so require. In Germany military personnel benefit from the same statutory entitlements as civilians in terms of parental leave. However, the Ministry of Defence may oppose the attribution of parental leave to a serviceperson or recall a serviceperson on parental leave to duty on grounds of imperative needs of national defence. Similarly, in the United Kingdom, service personnel, who in principle have the same entitlement to parental leave as civilians, may not be able to take parental leave at their convenience if it is considered to affect the combat effectiveness of the armed forces.
VIOLATED_ARTICLES: 14
8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-117876
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF FLORIN MACOVEI v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
JUDGES: Alvina Gyulumyan;Johannes Silvis;Kristina Pardalos
TEXT: 4. The applicant was born in 1969 and lives in Bucharest.
5. On 1 September 1999 the Romanian Copyright Office (“ORDA”) suspended the applicant from work for gross misconduct, that is, suspicion of fraud, malfeasance in public office and document destruction. A criminal complaint was further filed by ORDA with the prosecution authorities on 14 September 1999.
6. On an unspecified date in November 2000 the applicant complained about the protraction of the investigation. His complaint was admitted on 10 November 2000 by the Public Prosecutor’s Office as no procedural act had been carried out until that date. The prosecuting authorities were instructed to deal with the complaint within reasonable delays.
7. On 21 February 2001 the Public Prosecutor’s Office with the Bucharest District Court no. 1 (“the Prosecutor”) decided to initiate the criminal prosecution against the applicant.
8. By a subsequent decision of 31 January 2002 the Prosecutor rejected the initiation of prosecution in respect of the applicant as his conduct did not meet the statutory essential elements of the prosecuted offences. ORDA contested this decision before the Higher Ranking Prosecutor.
9. On 6 March 2002 the contestation was allowed and the criminal prosecution was resumed.
10. Subsequent to the examination of evidence (hearing of four witness testimonies and examination of few documents, without the commission of any expert study), the Prosecutor decided on 8 May 2002 to discontinue the investigation in respect of the applicant. The decision was challenged by ORDA before the Public Prosecutor’s Office with the High Court of Cassation and Justice.
11. On 6 March 2003 the contestation was allowed and the impugned decision was quashed. The case was reopened for further investigation before the prosecuting authorities.
12. On 23 July 2003 the Prosecutor decided to discontinue the investigation against the applicant in respect of the charges of fraud and malfeasance in public office. At the same time, an administrative fine was imposed for charges of document destruction.
13. The decision was upheld before the Higher Ranking Prosecutor and became final on 17 October 2003.
14. Subsequent to the decisions to discontinue the criminal prosecution against him, the applicant requested to resume his work at ORDA. Following the latter’s refusal, the applicant brought two sets of labour litigations against his employer on 22 February 2002 and on an unspecified date in 2003 respectively.
15. On 15 April 2003 the Bucharest County Court dismissed the first action. It ruled that the applicant could not resume work since the decision to discontinue the criminal investigation had not been final at that time. Later on the applicant was reinstated to a different position at ORDA. Shortly afterwards, the employment contract was voluntarily terminated.
16. The second action was allowed by way of a final decision. On 6 July 2006 the Court of Appeal of Bucharest awarded the applicant the retroactive payment of wages he had been entitled to.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60891
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF VEEBER v. ESTONIA (No. 2)
IMPORTANCE: 1
CONCLUSION: Violation of Art. 7-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1948 and lives in Tartu (Estonia). He is the owner of a company called AS Giga and chairman of the board of directors. He is also the chairman of another company called AS Tartu Jõujaam.
10. On 4 December 1995 the Tartu police initiated criminal proceedings against the applicant for abusing his position as company chairman.
11. On 26 February 1996, on discovering that AS Giga had failed to pay certain mandatory taxes, the city tax authorities issued an order directing it to pay the taxes due.
12. On 22 March 1996 the applicant was formally charged with abuse of office, tax evasion and falsification of documents. However, on 28 June 1996 the charge of abuse of office was dropped.
13. On 1 July 1996 a further charge of fraud was added to the indictment.
14. On 7 October 1996 the investigating officers furnished the applicant with the final version of the charges. They concerned his actions as chairman of AS Giga and AS Tartu Jõujaam and as owner of the former. Under Article 148-1 § 7 of the Criminal Code (see “Relevant domestic law and practice” below) he was accused of the intentional, continuous and large-scale concealment of taxable amounts and of submitting false information on the companies' expenditure. The charges under that Article were divided into three different counts: one relating to five instances in 1993 and 1994 of the forgery and fabrication of documents intended to show commercial dealings with a fictitious company; the second to the use at the end of 1994 and in 1995 of false documents purporting to relate to the payment of salaries to employees of AS Giga; and the third to the entry into a sham contract on 12 May 1995 in order to circumvent tax laws.
15. On 31 October 1996, after the completion of the preliminary investigation, the applicant and his lawyer were given access to the case file.
16. On 11 November 1996 the bill of indictment was approved by the competent prosecutor and the case referred to the Tartu City Court (Tartu Linnakohus).
17. On 4 March 1997 the City Court committed the applicant for trial on the above charges. On 24 April 1997 he was served with a copy of the indictment as approved by the City Court.
18. By a judgment of 13 October 1997, the City Court found the applicant guilty as charged and sentenced him to three years and six months' imprisonment, suspended for two years.
In convicting the applicant of the charges of tax evasion under Article 148-1 § 7 of the Criminal Code, the City Court observed that the criminal acts had started in the third quarter of 1993, with the last act beginning on 12 May 1995. It considered that they constituted a continuing offence. They all contained the elements of the same offence – they were directed against the State taxation system, had the same criminal consequences, were all committed intentionally and in a similar fashion, namely by falsifying documents and presenting them to the tax authorities. The City Court held that the applicant's acts came within Article 148-1 §§ 1 to 4 of the Criminal Code. As they had caused considerable damage, they fell to be considered under paragraph 7 of that Article. The City Court pointed out that paragraph 7 was applicable irrespective of whether prior administrative penalties had been imposed on the accused and it referred to the practice of the Supreme Court in support for that view.
It ordered the applicant to pay the city tax authorities 853,550 Estonian kroons in outstanding taxes. No fine or tax surcharge was imposed.
19. On 18 October 1997 the applicant lodged an appeal against that judgment with the Tartu Court of Appeal. He argued that in convicting him under Article 148-1 § 7 of the Criminal Code of offences committed in 1993 and 1994, the City Court had applied the criminal law retrospectively, as paragraph 7 had not entered into force until 13 January 1995. Prior to that date conviction under Article 148-1 could follow only if an administrative penalty had been imposed on the accused for the same act or he or she had a previous criminal conviction for a similar offence.
20. By a judgment of 12 January 1998, the Tartu Court of Appeal upheld the applicant's conviction. It considered that after his first criminal act in 1993 he had embarked on a criminal enterprise which had lasted until 1996, when the tax authorities discovered the offences. The fact that no administrative penalty had been imposed on the applicant was not relevant for the purposes of determining the applicability of Article 148-1 § 7 of the Criminal Code, as the offending acts had been committed intentionally. A criminal intent was proved by his conscious and calculated concealment of matters giving rise to a tax liability and his failure to pay the taxes.
21. On 17 February 1998 the applicant lodged an appeal on points of law with the Supreme Court (Riigikohus) raising the question of the retrospective application of the relevant provision of criminal law. He also argued that the concealment of matters giving rise to a tax liability was not a continuing offence, but a series of individual acts.
22. By a judgment of 8 April 1998, the Supreme Court, agreeing with the reasoning of the Court of Appeal, upheld the applicant's conviction. In response to the applicant's above argument, it said that a constant and continuous violation of the obligation to declare one's sources of income and to pay the taxes due created a persisting criminal state.
23. The text of Article 148-1 of the Criminal Code, as worded until 27 June 1993, was as follows:
“Concealment of income or other taxable amounts and failures to submit income tax returns:
1. The concealment of income or other taxable amounts, the submission of knowingly false data in financial statements, tax calculations, income tax returns or other documents relating to the calculation of taxes or payments and their transfer to the Treasury, or a failure to submit an income tax return or to do so on time shall, provided an administrative penalty has been imposed on the offender for a similar offence [emphasis added], be punishable by a fine or up to three years' imprisonment;
2. The same acts, if committed by a person who has a previous conviction for an offence referred to in paragraph 1 of this Article, shall be punishable by between one and five years' imprisonment.”
24. The text of Article 148-1 of the Criminal Code, as worded between 27 June 1993 and 13 January 1995, was as follows:
“Failure to file income tax returns or other tax calculations, the concealment of income or other taxable amounts, and tax evasion:
1. Any person required to file an income tax return who fails to do so or does so out of time, or who supplies false information in such return shall, if an administrative penalty has been imposed on him or her for a similar offence [emphasis added], be liable on conviction to a fine or up to one year's imprisonment;
2. Any person with responsibility for such matters who conceals or understates income or other taxable amounts or overstates deductible expenditure, who fails to file or files out of time any income tax return, tax calculation, financial statement or other document relating to the calculation of taxes or payments and their transfer to the Treasury, accounting document, contract or other document necessary for the assessment and verification of the tax liability, or who fails to comply with an order of the Tax Board shall, if an administrative penalty has been imposed on him or her for a similar offence [emphasis added], be liable on conviction to a fine or up to three years' imprisonment;
3. Any person with responsibility for such matters who fails to pay taxes or to pay them on time, or who fails to comply or to comply satisfactorily with an order issued by the Tax Board for the compulsory collection of taxes by a bank shall, if an administrative penalty has been imposed on him or her for a similar offence [emphasis added], be liable on conviction to a fine or up to three years' imprisonment;
4. Any person with responsibility for such matters who fails to deduct or to deduct correctly personal income tax from the wages (income) of employees, or to transfer payments so deducted to the Treasury in full and on time, shall, if an administrative penalty has been imposed on him or her for a similar offence [emphasis added], be punishable by a fine or up to three years' imprisonment;
5. The same acts, if committed by a person who has a previous conviction for any of the offences referred to in paragraphs 1, 2, 3 or 4 of this Article shall be liable to between one and five years' imprisonment;
6. A person who has committed any of the acts referred to in paragraphs 1, 2, 3 or 4 of this Article on a large scale shall be punishable by up to seven years' imprisonment.”
25. The text of Article 148-1 of the Criminal Code, as worded since 13 January 1995, reads as follows:
“Failure to file income tax returns or other tax calculations, the concealment of income or other taxable amounts, and tax evasion:
1. Any person required to file an income tax return who fails to do so or does so out of time, or who supplies false information in such return shall, if he or she acted with intent, or is a person on whom an administrative penalty has been imposed for a similar offence [emphasis added], be liable on conviction to a fine or up to one year's imprisonment;
2. Any person with responsibility for such matters who conceals or understates income or other taxable amounts or overstates expenditure for that purpose, who fails to file or files out of time any income tax return, tax calculation, financial statement or other document relating to the calculation of taxes or payments and their transfer to the Treasury, accounting document, contract or other document necessary for the assessment and verification of the tax liability, or who fails to comply with an order of the Tax Board shall, if he or she acted with intent, or is a person on whom an administrative penalty has been imposed for a similar offence [emphasis added], be liable on conviction to a fine or up to three years' imprisonment;
3. Any person with responsibility for such matters who fails to pay taxes or to pay them on time, or who fails to comply or to comply satisfactorily with an order issued by the Tax Board for the compulsory collection of taxes by a bank shall, if he or she acted with intent, or is a person on whom an administrative penalty has been imposed for a similar offence [emphasis added], be liable on conviction to a fine or up to three years' imprisonment;
4. Any person with responsibility for such matters who fails to deduct or to deduct correctly personal income tax from the wages (income) of employees, or to transfer payments so deducted to the Treasury in full and on time, shall, if he or she acted with intent, or is a person on whom an administrative penalty has been imposed for a similar offence [emphasis added], be liable on conviction to a fine or up to three years' imprisonment;
5. Any person with responsibility for such matters who supplies incorrect data or documents on compulsory registration under tax legislation, fails to disclose his or her residence, place of employment or place of business to a tax authority, or by any other means evades the payment of the taxes provided for in the Taxation Act shall, if he or she acted with intent, or is a person on whom an administrative penalty has been imposed for a similar offence [emphasis added], be liable on conviction to a fine or up to three years' imprisonment;
6. The same acts, if committed by a person who has a previous conviction for any of the offences referred to in paragraphs 1, 2, 3, 4 or 5 of this Article shall be punishable by between one and five years' imprisonment;
7. A person who has committed any of the acts referred to in paragraphs 1, 2, 3, 4 or 5 of this Article on a large scale shall be liable to up to seven years' imprisonment.”
26. Under the practice of the Supreme Court, referred to by the Government, if a failure to pay taxes is intentional and continuing, it is the most recent version of Article 148-1 that is applicable to acts which occurred prior to its amendment, provided that part of the criminal activity took place after the amendment came into force. Criminal liability arises on two alternative, not cumulative, grounds: (1) if the offender has committed the offence intentionally or (2) if administrative penalties have previously been imposed on the offender for a similar offence. Article 148-1 § 7 does not create a separate offence, but merely qualifies the elements listed in paragraphs 1 to 5. Thus, a person may only be convicted under Article 148-1 § 7 if his or her acts encompass the elements of one or more of the offences set out in paragraphs 1 to 5 (decision of the Criminal Division of the Supreme Court of 8 April 1997, Riigi Teataja III 1997, 14, 147, and decision of 27 January 1998, Riigi Teataja III 1998, 10, 104).
VIOLATED_ARTICLES: 7
VIOLATED_PARAGRAPHS: 7-1


ITEMID: 001-61629
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2004
DOCNAME: CASE OF PEREZ v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-3 - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Criminal proceedings;Article 6-1 - Civil rights and obligations;Determination (civil);Dispute;Fair hearing)
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 8. The applicant was born in 1933 and lives in La Plaine des Cafres (Réunion, France).
9. On 31 July 1995 she went to the gendarmerie in La Plaine des Cafres to file a complaint of having been assaulted by her two children. She said that her children had come to see her about a lawsuit between them concerning the non-payment of maintenance to which she was entitled because of her ill-health. While the applicant was in the front passenger seat of a motor car driven by her daughter, her son, who was in the back, had allegedly immobilised her and used a syringe to inject her twice with an unknown substance. She said she had quickly got out of the car and gone to hospital.
10. The applicant was found to have marks of injections. Moreover, after a witness had come forward, the gendarmes found a syringe which when tested was found to bear traces of diazepam and benzoic acid, both of which also form part of the chemical make-up of valium.
11. An investigation was begun on the grounds of assault with an offensive weapon resulting in total unfitness for work for more than eight days (reduced to less than that during the investigation).
12. During the investigation, the applicant joined the proceedings as a civil party.
13. On 14 March 1997 the Saint-Pierre investigating judge ruled that there was no case to answer on the ground that there was insufficient evidence that anyone had committed the offence. He found that the applicant's son, “who had allegedly given her the injection, had left the département to return to his dental practice abroad, in Gabon”, that “he had given his mother an injection of a substance which was medically harmless at that dosage...” and “that, in the absence of precise information as to his address, it did not [seem] practicable to interview [the son] given the difficulty of enforcing any request for evidence to be taken on oath in Gabon”. The decision was apparently served on the applicant on the same day by registered post with acknowledgment of receipt.
14. On 7 April 1997 the applicant went to the investigating judge's registry and, claiming that she had not received a copy of the decision, refused to sign the notice of appeal drafted by the registrar. She asserted that she had drafted a personal notice of appeal and lodged it at the registry on that same day. In her written observations to the court of appeal, the applicant requested, inter alia, that the investigating judge be made to stand down, that the investigation be resumed, that it be formally recorded that “her complaint [related to] premeditated assault with an offensive weapon resulting in thirty days' total unfitness for work and, given the results of the tests on the syringe, with criminal intent”, and that her children be “brought to the département by force in order to explain themselves”.
15. By a judgment of 8 July 1997, the Indictment Division of the Court of Appeal of Saint-Denis-de-la-Réunion found that the applicant had appealed “by letter addressed to and received on 7 April 1997 by the investigating judge's registry”, and that she had gone to the registry on the same day and refused to sign the notice of appeal. The Indictment Division therefore ruled that her appeal was inadmissible on the grounds that she had missed the legal deadline and had failed to sign the notice of appeal.
16. On 11 July 1997 the applicant appealed on points of law. On 21 July 1997 she filed personal observations in which she submitted that the Court of Appeal had, in its judgment of 8 July 1997, disregarded certain provisions of the Code of Criminal Procedure: firstly, “the judgment did not meet the essential conditions required for it to be lawful”, having been given by “judges who had not attended all the hearings in the case” and, secondly, the grounds set out in the impugned judgment relating to service of the decision that there was no case to answer were “insufficient” because they did not address the arguments she had put forward at the hearing. She alleged that there had been a breach of Articles 592, 575-6, 593 and 646 of the Code of Criminal Procedure.
17. In a judgment of 21 April 1998, the Criminal Division of the Court of Cassation dismissed her appeal in the following terms:
“ ...
Given the personal written observations filed;
On the sole ground of appeal, based on a breach of Articles 485 and 183 of the Code of Criminal Procedure;
Whereas, firstly, the particulars of the judgment under appeal establish that it was given in the conditions prescribed by Article 485, third paragraph, of the Code of Criminal Procedure;
Whereas, secondly, the Court of Appeal was correct in finding that the appeal of 7 April 1997 against the decision that there was no case to answer served on 14 March 1997 was out of time in accordance with the conditions laid down in Article 183 of the Code of Criminal Procedure;
...”
18. The relevant provisions are as follows:
“Any act that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”
“Everyone shall be liable for the damage he has caused not only by his own acts, but also by his negligence or carelessness.”
“Everyone shall be liable not only for the damage caused by his own act but also for that caused by persons for whom he is responsible or by things he has in his keeping.”
19. The relevant provisions are as follows:
“I. – Criminal proceedings shall be fair and provide for all parties to be heard and shall maintain a balance between the rights of the parties.
...
II. – The courts shall ensure that victims are kept informed and their rights safeguarded during any criminal proceedings.
...”
“Public prosecutions for the punishment of offenders shall be brought and conducted by officers of the State legal service or by those public officials empowered to do so by law.
Such prosecutions may also be brought by the injured party, under the conditions laid down in this Code.”
“Anyone who has personally suffered damage directly caused by a criminal offence may bring civil-party proceedings to seek compensation for such damage.
Discontinuance of such proceedings shall neither terminate nor stay the public prosecution ...”
“Civil-party proceedings may be conducted simultaneously with the public prosecution and before the same court.
Civil-party proceedings may be brought for any head of damage, whether pecuniary or physical or non-pecuniary, caused by the acts under prosecution.”
“Civil-party proceedings may also be conducted separately from the public prosecution.
However, judgment in civil-party proceedings brought in a civil court shall be suspended until final judgment has been given in any public prosecution.”
“A party who has brought proceedings in a civil court may not refer the same complaint to a criminal court unless the prosecution has preferred charges in that court before the civil court has ruled on the merits.”
“An investigating judge may, of his own motion, on the instructions of the prosecuting authorities or at the request of the civil party, do anything lawful to enable him to assess the nature and extent of the damage suffered by the victim or to gather information about the victim's personality.”
“The parties may, during the investigation, submit a written and reasoned request to the investigating judge that they be interviewed or questioned, that a witness be heard, that a confrontation be arranged or that they be taken to the scene of the crime, that one of them be ordered to produce an item relevant to the investigation, or that any other action be taken which they believe is necessary for uncovering the truth. In order to be valid, such a request must comply with the provisions of the tenth paragraph of Article 81; it must relate to specific actions and, where it relates to an interview, must identify the person sought to be interviewed.”
“Anyone who claims to have suffered damage as a result of a serious crime [crime] or other serious offence [délit] may, by lodging a criminal complaint, join the criminal proceedings as a civil party on application to the appropriate investigating judge.”
“A civil-party application may be made at any time during the investigation.”
“The investigating judge shall record in an order the lodging of the complaint. According to the civil party's means, he shall determine the amount of security for costs which that party must, if he has not obtained legal aid, deposit at the registry and the time-limit for doing so if the complaint is not to be declared inadmissible. He may exempt the civil party from paying security.”
“A civil party may appeal against decisions not to begin or to discontinue the investigation and against orders that harm his civil interests. ...”
“Anyone who, in accordance with Article 2, claims to have suffered damage caused by a criminal offence may, if he has not already done so, lodge a civil-party complaint at the hearing itself.
Representation by a lawyer is not mandatory.
A civil party may, in support of his complaint, file a claim for damages in the amount of the loss he has suffered.”
“A civil party shall lodge his complaint either prior to the hearing at the registry or during the hearing itself by making a declaration recorded by the registrar or by filing pleadings.”
“...
With the consent of the public prosecutor, the victim may also file a claim during the police investigation for restitution or damages by making a formal statement recorded by a police officer. Such a claim shall count as a civil-party complaint if it is decided to prosecute and the case is referred directly to a criminal or police court.
...
In the event of a dispute over the ownership of the objects whose restitution is requested or where the court does not find sufficient reasons for a decision in the claim itself, the supporting documents or the file, the decision on the civil claim shall be adjourned to a later hearing to which all parties shall be summoned by the prosecution.”
20. Articles 2-1 to 2-19 concern the exercise of civil-party rights by associations or public-law entities.
21. In order for a civil-party complaint to be admissible, it is sufficient if the circumstances on which it is based permit the investigating judge to accept the possibility that the alleged damage may have occurred and that there may be a direct link between that damage and the commission of an offence (see, inter alia: judgments of the Court of Cassation, Criminal Division (“Cass. crim.”), 9 February 1961, Dalloz, 1961, p. 306; 5 March 1990, Bulletin criminel (“Bull. crim.”) no. 103; 11 January 1996, Bull. crim. no. 16; 8 June 1999, Bull. crim. no. 123; 6 September 2000, Bull. crim. no. 263). The investigating judge must determine whether the complainant can establish a “possible” interest in lodging the complaint, and not find a civil-party application inadmissible on purely abstract grounds for lack of such an interest (Cass. crim., 6 February 1996, Bull. crim. no. 60). A decision by the investigating judge that a civil-party application is inadmissible does not prevent the party in question from lodging a further complaint with the trial court (Cass. crim., 15 May 1997, Bull. crim. no. 185).
22. The Court of Cassation considers that a civil party is free not to exercise his right to claim compensation for his losses (Cass. crim., 10 October 1968, Bull. crim. no. 248; 19 October 1982, Bull. crim. no. 222).
23. Even where compensation for losses falls outside the competence of the criminal courts, a civil-party application is admissible in so far as it assists in proving the offence (Cass. crim., 10 February 1987, Bull. crim. no. 64).
24. “Civil proceedings must await the outcome of criminal proceedings” (Article 4 § 2 of the Code of Criminal Procedure). The civil court must suspend judgment until the criminal court has issued a final ruling in the prosecution. The prosecution must be brought before or during the civil trial. The two sets of proceedings must be based on the same facts, even though the purpose, case and parties do not have to be identical. An application for a suspension must be made to the civil judge, and may be made for the first time at the appeal stage or before the Court of Cassation. Once ordered, a stay is binding on both the civil court and the parties until a final decision has been made in the prosecution, failing which the civil proceedings are null and void.
25. “A final criminal judgment prevails over a civil claim.” A civil court is bound by the final decision in a prosecution. The primacy of a decision in a criminal case is not prescribed by law in the strict sense but derives from case-law. It is an absolute rule, binding not only on the parties to the criminal trial but also on third parties. As application of the rule is not mandatory on public policy grounds, this rule cannot be relied on by the prosecution or by the judge of his own motion. Decisions by investigating judges are not binding on the civil courts. Accordingly, the only criminal decisions which are binding are the final and irrevocable decisions of the trial courts. Moreover a civil court is bound only by “findings of a criminal nature”: a civil court hearing a civil case will be bound by an acquittal, but not by that part of the criminal court's decision which deals with a claim for damages. Such “findings”, namely the reasons and the operative part, must be “certain” (which excludes findings expressed in doubtful or uncertain terms, except for acquittals “for lack of evidence” which are binding on a civil court) and “necessary” (what the judge must find to justify his decision – the elements of the offence, its classification, the aggravating circumstances which determine such classification, and the finding of guilt or not as the case may be). Generally speaking, the reasons do not have the same binding effect as the operative part unless they form its essential underpinning.
26. Recommendation No. R (83) 7 on participation of the public in crime policy, adopted by the Committee of Ministers on 23 June 1983, advocates the establishment of an efficient system of legal aid for victims so that they may have access to justice in all circumstances.
27. Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure, adopted by the Committee of Ministers on 28 June 1985, provides:
“ ...
9. The victim should be informed of
– the date and place of a hearing concerning an offence which caused him suffering;
– his opportunities of obtaining restitution and compensation within the criminal justice process, legal assistance and advice;
– how he can find out the outcome of the case;
10. It should be possible for a criminal court to order compensation by the offender to the victim. To that end, existing limitations, restrictions or technical impediments which prevent such a possibility from being generally realised should be abolished;
11. Legislation should provide that compensation may either be a penal sanction, or a substitute for a penal sanction or be awarded in addition to a penal sanction;
12. All relevant information concerning the injuries and losses suffered by the victim should be made available to the court in order that it may, when deciding upon the form and the quantum of the sentence, take into account:
– the victim's need for compensation;
– any compensation or restitution made by the offender or any genuine effort to that end;
13. In cases where the possibilities open to a court include attaching financial conditions to the award of a deferred or suspended sentence, of a probation order or of any other measure, great importance should be given among these conditions to compensation by the offender to the victim;
...”
28. Recommendation No. R (87) 21 on assistance to victims and the prevention of victimisation, adopted by the Committee of Ministers on 17 September 1987, “recommends that the governments of member States take the following measures”:
“...
4. ensure that victims and their families, especially those who are most vulnerable, receive in particular:
...
– assistance during the criminal process, with due respect to the defence;
...”
29. Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, adopted by the Committee of Ministers on 6 October 2000, provides:
“ ...
34. Interested parties of recognised or identifiable status, in particular victims, should be able to challenge decisions of public prosecutors not to prosecute; such a challenge may be made, where appropriate after an hierarchical review, either by way of judicial review, or by authorising parties to engage private prosecution.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1