ITEMID: 001-109788
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF OSTERMUNCHNER v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Mark Villiger
TEXT: 6. The applicant was born in 1953 and is currently detained in Vienna (Austria).
7. Between 1968 and 1988 the applicant was convicted by Austrian courts in seven judgments of offences including robbery, theft, assault and dangerous assault. In 1981 he was also found guilty of raping a woman he had followed from the street into her house on the day of his release from prison. He was sentenced to seven years’ imprisonment; the court further ordered his placement in an institution for mentally disturbed offenders. The applicant was detained altogether for more than ten years, at times in an institution for mentally disturbed criminals.
8. On 14 June 1991 the Munich I Regional Court convicted the applicant of three counts of sexual abuse of children, combined with attempted rape in one case and with attempted sexual assault in another case, committed in 1989 and 1990. It sentenced him to five years and six months’ imprisonment and ordered his preventive detention pursuant to Article 66 § 1 of the Criminal Code (see paragraphs 31-32 below). The Regional Court found that the applicant, who had acted with full criminal responsibility, had sexually abused and attempted to sexually assault an eight-year-old girl he had followed from the street into her home. He had further sexually abused and attempted to rape a ten-year-old girl he had lured into the cellar of her house and had sexually abused another eightyear-old girl in a playground. The Regional Court found that the applicant, whom the court-appointed experts had described as an egocentric anti-social personality lacking empathy, had a propensity to commit serious offences which considerably harm their victims physically or mentally.
9. By a decision of 19 September 1991 the City of Munich, having regard to the applicant’s conviction by the Munich I Regional Court on 14 June 1991, decided to expel the applicant from German territory and prohibited him from ever re-entering Germany. The expulsion was to be enforced on the applicant’s release from prison. The decision became final on 30 October 1991.
10. The applicant served his full prison sentence until 20 March 1996. He was then placed in preventive detention, for the first time, on 21 March 1996, which was executed in a separate wing of Straubing Prison.
11. On 15 July 1997 the Regensburg Regional Court ordered the execution of the preventive detention order against the applicant (Article 67c § 1 of the Criminal Code, see paragraph 33 below). It noted that in his reports dated 15 October 1996 and 20 June 1997 the psychiatric and neurologic expert, A., it had consulted had found that the applicant suffered from a dissocial personality disorder and had not wished to undergo a therapy addressing his sexual offences in prison for fear of being harassed by other detainees. He considered that the applicant should first undergo a social therapy in prison to test his readiness to change his personality and should then be admitted to a therapy for sexual offenders.
12. The Regional Court found that unless the applicant had completed a therapy for sexual offenders, there was still a risk that he would commit further sexual offences if released. The court further refused to transfer the applicant to a psychiatric hospital (Article 67a § 2 of the Criminal Code, see paragraph 39 below). The applicant’s reintegration into society could currently best be furthered by a social therapy; he was not, therefore, transferred to a psychiatric hospital for a sexual therapy.
13. The applicant subsequently attempted to be admitted to a social therapeutic institution in a different prison, with the help of the Straubing Prison authorities. However, on 1 August 1997 the social therapeutic institution of Baden-Württemberg refused to accept the applicant for treatment. It argued that in view of the enforceable expulsion order against him, it could not be guaranteed that the applicant could complete a five-year therapy in that institution. Likewise, on 6 November 1998 the Erlangen Prison refused to admit the applicant to its social therapeutic department. It was argued that under the administrative rules relating to section 9 of the Execution of Sentences Act (see paragraph 38 below), prisoners against whom an enforceable expulsion order had been made were excluded from transfer to a social therapeutic institution. Moreover, on 22 December 1998 the Munich Prison equally refused to admit the applicant to a social therapy. It was argued that its department offered treatment for young sexual offenders and was therefore not suitable for the then 45-year-old applicant.
14. In its decision of 13 January 2000, which was confirmed on appeal, the Regensburg Regional Court ordered the continuation of the applicant’s preventive detention. It found that there was a risk that the applicant, who still suffered from a dissocial personality disorder, would commit further sexual offences if released (Article 67d § 2 of the Criminal Code, see paragraph 34 below). The court considered that the applicant had refused with good cause to participate in a psychoanalytical group therapy for sexual offenders in Straubing Prison. He had further made strenuous efforts, with the help of the prison authorities, to be admitted to a social therapy in a different prison, which had also been considered to be beneficial by the psychiatric expert A. heard by that court. However, he had not been allowed to take part in a social therapy in Germany because of his age and because he was a foreigner who was to be expelled from German territory. It should therefore be examined by the prosecution authorities whether he could be transferred to Austria for the continuation of his preventive detention and could be admitted to a social therapy there.
15. On 17 December 1993, 19 July 1995, 20 October 1998, 2 August 2000 and 14 February 2003 the Munich I Public Prosecutor’s Office, whose decisions were confirmed on appeal, dismissed the applicant’s repeated requests under Article 456a of the Code of Criminal Procedure (see paragraph 37 below) to dispense with the further execution of his prison sentence and his preventive detention in view of his expulsion from German territory. It argued that there was still a public interest in the further execution of the preventive detention order made against the applicant, who was likely to reoffend and was dangerous to the public. It was noted in these proceedings that the applicant had not taken up the authorities’ proposal that he should request his transfer to Austria for the further execution of his preventive detention.
16. On 2 May 2003 the Regensburg Regional Court, having heard the applicant, his counsel and a psychiatric and psychotherapeutic expert, H., ordered the further execution of the applicant’s preventive detention under Article 67d § 2 of the Criminal Code.
17. The Regional Court agreed with the findings of expert H. who had taken the view that the applicant’s dissocial personality had not changed and that there was still a risk that he would commit further violent sexual offences if released. In his report of 25 October 2002 the expert had considered that a therapy should be attempted despite its limited chances of success because the applicant had repeatedly stated that he was willing to undergo therapy and because there were no other means to reduce his dangerousness. He had proposed that the applicant participate in a discussion group for sexual offenders in Straubing Prison – which the applicant had, however, refused as he did not wish his offences to become known within that prison. The expert had further proposed that the applicant be admitted to a social therapeutic institution – for instance in Bayreuth, Amberg or Würzburg Prison or in that which was currently being built up in Straubing Prison itself.
18. On 4 July 2003 the Nuremberg Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it found that it was not to be expected that the applicant would not commit further offences on his release (Article 67d § 2 of the Criminal Code). It equally referred to the findings of expert H., which it considered convincing. It noted, in particular, that the expert had considered that the applicant should first take part in a discussion group for sexual offenders in Straubing Prison; however, the applicant had vigorously refused to do so. In view of this, the court considered that the applicant’s continued preventive detention was proportionate.
19. The Court of Appeal further noted that the prosecution authority’s refusal to dispense with a further execution of the applicant’s preventive detention under Article 456a of the Code of Criminal Procedure was not the subject-matter of the proceedings before it. It noted, however, that the applicant had not taken up the prosecution’s proposal to make a (necessary) request for his transfer to Austria for the further execution of his preventive detention.
20. On 8 August 2003 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He claimed that his right to liberty had been violated because his continued preventive detention, during which he had been refused any therapy in view of his impending expulsion, was disproportionate. Moreover, his continued preventive detention without a maximum duration, which had been abolished after his conviction (Article 67d § 3 of the Criminal Code, read in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code, as amended in 1998, see paragraph 36 below), breached the prohibition of retrospective punishment. The refusal to offer him any treatment because of the expulsion order against him also discriminated against him on account of his Austrian nationality.
21. By a decision of 25 March 2004, which was served on the applicant’s counsel on 7 April 2004, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1355/03).
22. In so far as the applicant complained that the prohibition of retrospective punishment under the Basic Law had been breached, the Federal Constitutional Court found that his complaint was inadmissible. The applicant was not yet affected by the provisions of Article 67d § 3 of the Criminal Code, read in conjunction with Section 1a § 3 of the Introductory Act to the Criminal Code. The court further referred to its leading judgment of 5 February 2004 in the case of M. (file no. 2 BvR 2029/01; application no. 19359/04 to this Court). Apart from that, the applicant’s complaint was ill-founded as the impugned decisions of the courts dealing with the execution of sentences did not violate constitutional law.
23. On 14 July 2005 the Regensburg Regional Court again ordered the applicant’s preventive detention to continue (Article 67d § 2 of the Criminal Code). It noted that the applicant had not received any therapy. The applicant had confirmed this, stating that he had failed in his attempts to be admitted to a therapy in a different prison in view of his planned deportation. The applicant’s appeal against this decision was to no avail.
24. On 27 April 2006 the Regensburg Regional Court decided that the applicant’s preventive detention was not to be declared terminated on completion of ten years in such detention (20 March 2006). Having consulted a psychiatric expert, N., it found that there was still a risk that the applicant would commit further serious sexual offences resulting in considerable psychological or physical harm to the victims if released (Article 67d § 3 of the Criminal Code). It noted that the applicant had refused therapies for sexual offenders or social therapeutic treatment which had since been made available in Straubing Prison. On 4 July 2006 the Nuremberg Court of Appeal dismissed the applicant’s appeal. On 10 January 2007 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.
25. On 15 September 2005 and on 28 September 2007 the Bavarian Ministry for Justice dismissed the applicant’s requests to be transferred to Austria for the further execution of the preventive detention order against him as the applicant would have to be released there after having served ten years in such detention, that is, in March 2006. The decisions became final.
26. Furthermore, on 13 May 2004, 13 April 2005 and 16 May 2007 the Munich I Public Prosecutor’s Office, whose decisions were confirmed by the Munich General Public Prosecutor, dismissed the applicant’s fresh requests under Article 456a of the Code of Criminal Procedure to dispense with the further execution of his prison sentence and his preventive detention in view of his expulsion from German territory. The latter decision was quashed on 4 December 2007 by the Munich Court of Appeal, which argued that it appeared that the prosecution authorities had failed to take all aspects relevant to their decision into account.
27. On 24 January 2008 the Munich I Public Prosecutor’s Office dispensed with the further execution of the applicant’s preventive detention at the date of his expulsion from Germany under Article 456a § 1 of the Code of Criminal Procedure.
28. On 16 April 2008 the applicant was released from Straubing Prison and expelled to Austria.
29. On 14 May 2008 the Vienna Regional Court revoked the suspension on probation of the applicant’s placement in an institution for mentally disturbed offenders ordered in 1981 (see paragraph 7 above). Since 12 August 2008 the applicant has been detained in Vienna.
30. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). The provisions referred to in the present case provide as follows:
31. The sentencing court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public (Article 66 of the Criminal Code).
32. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time).
33. Article 67c § 1 of the Criminal Code provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b (1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends the execution of the preventive detention order and places the person on probation with supervision of the person’s conduct which commences with the suspension.
34. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article, in its version in force at the relevant time, provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release.
35. Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3).
36. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the offender’s conduct. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a (3) of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis.
37. Pursuant to Article 456a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may dispense with the execution of a prison sentence or a measure of correction and prevention if the convicted person is expelled from German territory. The execution of the sentence or measure may be continued if the expelled person returns to Germany territory (Article 456a § 2 of the Code of Criminal Procedure).
38. Section 9 § 2 of the Execution of Sentences Act provides that prisoners may be transferred to a socio-therapeutic institution with their consent if the special therapeutic measures and social aids of the institution are advisable for their rehabilitation. The transfer is conditional upon the consent of the head of the socio-therapeutic institution concerned.
39. Article 67a of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, of the Criminal Code, the court may subsequently transfer a perpetrator against whom preventive detention was ordered to a psychiatric hospital if the perpetrator’s reintegration into society can be better promoted thereby.
40. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for the complainants’ preventive detention (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.
41. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.
42. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. The provisions on the imposition and duration of preventive detention which did not concern the retrospective ordering or prolongation of preventive detention could only continue to be applied in the transitional period subject to a strict review of proportionality. As a general rule, proportionality was only observed where there was a danger of the person concerned committing serious violent crimes or sexual offences if released.
43. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-a


ITEMID: 001-61863
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF LEYLA ŞAHİN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Manifest religion or belief)
JUDGES: Nicolas Bratza
TEXT: 10. The applicant was born in 1973 and has lived in Vienna since 1999, when she left Istanbul to pursue her medical studies at the Faculty of Medicine at Vienna University. She comes from a traditional family of practising Muslims and considers it her religious duty to wear the Islamic headscarf.
11. On 26 August 1997 the applicant, who was then in her fifth year at the Faculty of Medicine at the University of Bursa, enrolled at the Cerrahpaşa Faculty of Medicine at the University of Istanbul. She says that she wore the Islamic headscarf during the four years she spent studying medicine at the University of Bursa and continued to do so until February 1998.
12. On 23 February 1998 the Vice-Chancellor of Istanbul University issued a circular regulating students’ admission to the university campus. The relevant part of the circular provides:
“By virtue of the Constitution, the law and regulations, and in accordance with the case-law of the Supreme Administrative Court and the European Commission of Human Rights and the resolutions adopted by the university administrative boards, students whose ‘heads are covered’ (wearing the Islamic headscarf) and students (including overseas students) with beards must not be admitted to lectures, courses or tutorials. Consequently, the name and number of any student with a beard or wearing the Islamic headscarf must not be added to the lists of registered students. However, if students whose names and numbers are not on the lists insist on attending tutorials and entering lecture theatres, they must be advised of the position and, should they refuse to leave, their names and numbers must be noted and they must be informed that they are not entitled to attend lectures. If they refuse to leave the lecture theatre, the teacher shall record what has happened in a report explaining why it has not been possible to give the lecture and shall bring the matter to the attention of the university authorities as a matter of urgency so that disciplinary measures can be taken.”
13. On 12 March 1998, in accordance with the aforementioned circular, the applicant was denied access by invigilators to a written examination on oncology because she was wearing the Islamic headscarf. On 20 March 1998 the secretarial offices of the chair of orthopaedic traumatology refused to allow her to enrol because she was wearing a headscarf. On 16 April 1998 she was refused admission to a neurology lecture and on 10 June 1998 to a written examination on public health, again for the same reason.
14. On 29 July 1998 the applicant lodged an application for an order setting aside the circular of 23 February 1998. In her written pleadings, she submitted that the circular and its implementation infringed her rights guaranteed by Articles 8, 9 and 14 of the Convention and Article 2 of Protocol No. 1, in that there was no statutory basis for the circular and the education authority had no regulatory power in this sphere.
15. In a judgment of 19 March 1999, the Istanbul Administrative Court dismissed the application, holding that by virtue of section 13(b) of the Higher-Education Act (Law no. 2547 – see paragraph 50 below) a university vice chancellor, as the executive organ of the university, had power to regulate students’ dress in order to maintain order. That regulatory power had to be exercised in accordance with the relevant legislation and the judgments of the Constitutional Court and the Supreme Administrative Court. Referring to the settled case-law of those courts, the Administrative Court held that neither the regulation in issue, nor the individual measures, could be considered illegal.
16. On 19 April 2001 the Supreme Administrative Court dismissed an appeal by the applicant on points of law.
17. In May 1998 disciplinary proceedings were brought against the applicant under Article 6(a) of the Students Disciplinary Procedure Rules (see paragraph 48 below) as a result of her failure to comply with the rules on dress.
18. On 26 May 1998, in view of the fact that the applicant had shown by her actions that she intended to continue wearing the headscarf to lectures and/or tutorials, the dean of the faculty declared that her attitude and failure to comply with the rules on dress were not befitting of a student. He therefore decided to issue her with a warning.
19. On 15 February 1999 an unauthorised assembly gathered outside the deanery of the Cerrahpaşa Faculty of Medicine to protest against the rules on dress.
20. On 26 February 1999 the dean of the faculty began disciplinary proceedings against various students, including the applicant, for taking part in the assembly. On 13 April 1999, after hearing her representations, he suspended her from the university for a semester pursuant to Article 9(j) of the Students Disciplinary Procedure Rules (see paragraph 48 below).
21. On 10 June 1999 the applicant lodged an application with the Istanbul Administrative Court for an order quashing the decision to suspend her.
22. On 20 August 1999 Istanbul University submitted its observations on her application. It argued, inter alia, that the disciplinary penalty was lawful as the reason for the applicant’s one-semester suspension was that she had taken part in an unauthorised assembly.
23. On 30 November 1999 the applicant’s application to have the disciplinary penalty quashed was dismissed by the Istanbul Administrative Court, which held that in the light of the material in the case file and the settled case-law on the subject, the impugned measure could not be regarded as illegal.
24. Following the entry into force of Law no. 4584 of 28 June 2000 (which afforded students an amnesty for disciplinary offences and annulled any resulting penalties or disabilities), the applicant was granted an amnesty releasing her from all the disciplinary penalties and their effects.
On 28 September 2000 the Supreme Administrative Court held that the aforementioned legislation made it unnecessary to examine the merits of the applicant’s appeal on points of law against the judgment of 30 November 1999.
25. In the meantime, on 16 September 1999, the applicant had enrolled at Vienna University, where she pursued her university education.
26. The relevant provisions of the Constitution provide:
“The Republic of Turkey is a democratic, secular (laik) and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.”
“No amendment may be made or proposed to the provisions of Article 1 of the Constitution laying down that the State shall be a Republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.”
“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.”
“None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious body, or establishing by any other means a political system based on such concepts and opinions.”
“Everyone has the right to freedom of conscience, belief and religious conviction. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions.
...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal interest or influence thereby.”
27. The Turkish Republic was founded on the principle that the State should be secular (laik). After the proclamation of the Republic on 29 October 1923, the public and religious spheres were separated through a series of revolutionary reforms: the abolition of the caliphate on 3 March 1923; the repeal of the constitutional provision declaring Islam the religion of the State on 10 April 1928; and, lastly, on 5 February 1937 a constitutional amendment according constitutional status to the principle of secularism (see Article 2 of the Constitution of 1924 and Article 2 of the Constitutions of 1961 and 1982, as set out in paragraph 26 above).
28. The main feature of the republican system was the status accorded to women’s rights, with women being granted equality in the enjoyment of individual rights. The process began on 17 February 1926 with the adoption of the Civil Code, which provided for equality of the sexes in the enjoyment of civic rights, in particular as regards divorce and succession. Subsequently, through a constitutional amendment of 5 December 1934 (Article 10 of the 1924 Constitution), women obtained equal political rights with men.
29. At the time of the Ottoman Empire both the central government and religious groups required people to dress in accordance with their religious affiliations. The reforms introduced by the Republic on the question of dress were inspired by the evolution of society in the nineteenth century and sought first and foremost to create a religion-free zone in which all citizens were guaranteed equality, without distinction on the grounds of religion or denomination. The first enactment in this sphere was the Headgear Act of 28 November 1925 (Law no. 671), which treated dress as an issue relating to modernity. Similarly, a ban was imposed on wearing religious attire other than in places of worship or at religious ceremonies, irrespective of the religion or belief concerned, by the Dress (Regulations) Act of 3 December 1934 (Law no. 2596).
30. Under the Education Services (Merger) Act of 3 March 1924 (Law no. 430), religious schools were closed and all schools came under the control of the Ministry for Education. This Act is one of the laws enjoying constitutional status that are protected by Article 174 of the Turkish Constitution.
31. Wearing the Islamic headscarf to school and university is a recent phenomenon in Turkey, which began in the 1980s. There has been extensive discussion on the issue and it continues to be the subject of lively debate in Turkish society. Those in favour of the headscarf see wearing it as a duty and/or form of expression linked to religious identity, whereas those against regard it as a symbol of a political Islam that is seeking to establish a regime based on religious precepts and threatens to cause civil unrest and undermine the rights acquired by women under the republican system. The accession to power on 28 June 1996 of a coalition government comprising the Islamist Refah Partisi, and the centre-right Doğru Yol Partisi, has given the debate strong political overtones. The ambivalence displayed by the leaders of the Refah Partisi, including the then Prime Minister, over their attachment to democratic values, and their advocacy of a plurality of legal systems functioning according to different religious rules for each religious community was perceived in Turkish society as a genuine threat to republican values and civil peace (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II).
32. It should be noted in that connection that one of the matters taken into consideration by the Constitutional Court in two judgments concerning the dissolution of political parties was the use of religious symbols to political ends (judgments of 9 January 1998 in the Refah Partisi case and of 22 June 2001 in the Fazilet Partisi case). It considered that the opinions expressed by the leaders of those parties, inter alia, on the question whether the Islamic headscarf should be worn in the public sector and/or schools demonstrated an intention to set up a regime based on the Sharia.
33. The first piece of legislation on dress in higher-education institutions was a set of regulations that was issued by the Cabinet on 22 July 1981, which required staff working for public organisations and institutions and personnel and students at State institutions to wear ordinary, sober, modern dress. The regulations also provided that female members of staff and students should not wear veils in educational institutions.
34. On 20 December 1982 the Higher-Education Authority issued a circular on the wearing of headscarves in higher-education institutions. The Islamic headscarf was banned in lecture theatres. In a judgment of 13 December 1984, the Supreme Administrative Court held that the regulations were lawful, noting:
“Beyond being a mere innocent practice, wearing the headscarf is in the process of becoming the symbol of a vision that is contrary to the freedoms of women and the fundamental principles of the Republic.”
35. On 10 December 1988 transitional section 16 of the Higher-Education Act (Law no. 2547 – “the Higher-Education Act”) entered into force. It provided:
“Modern dress or appearance shall be compulsory in the rooms and corridors of higher-education institutions, preparatory schools, laboratories, clinics and multidisciplinary clinics. A veil or headscarf covering the neck and hair may be worn out of religious conviction.”
36. In a judgment of 7 March 1989 published in the Official Gazette of 5 July 1989, the Constitutional Court held that the aforementioned provision was contrary to Articles 2 (secularism), 10 (equality before the law) and 24 (freedom of religion) of the Constitution. It also found that it could not be reconciled with the principle of sexual equality implicit, inter alia, in republican and revolutionary values (see the Constitution – Preamble and Article 174).
In their judgment, the Constitutional Court judges explained, firstly, that secularism had acquired constitutional status by reason of the historical experience of the country and the particularities of Islam compared to other religions; secularism was an essential condition for democracy and acted as a guarantor of freedom of religion and of equality before the law. It also prevented the State from showing a preference for a religion or belief; consequently, a secular State could not invoke religious conviction when performing its legislative function.
Stressing its inviolable nature, the Constitutional Court observed that freedom of religion, conscience and worship, which could not be likened to a right to wear any particular religious attire, guaranteed first and foremost the liberty to decide whether or not to follow a religion. It explained that, once outside the private sphere of individual conscience, freedom to manifest one’s religion could be restricted on public-order grounds to defend the principle of secularism.
Everyone was free to dress how he or she wished, as the social and religious values and traditions of society also had to be respected. However, when a particular dress code was imposed on individuals by reference to a religion, the religion concerned was perceived and presented as a set of values that were incompatible with those of contemporary society. In addition, in Turkey, where the majority of the population were Muslims, presenting the wearing of the Islamic headscarf as a mandatory religious duty would result in discrimination between practising Muslims, non-practising Muslims and non-believers on grounds of dress with anyone who refused to wear the headscarf undoubtedly being regarded as opposed to religion or as irreligious.
The Constitutional Court also said that students had to be able to work and pursue their education together in a calm, tolerant and mutually supportive atmosphere without being deflected from that goal by signs of religious affiliation. It found that, irrespective of whether the Islamic headscarf was a precept of Islam, granting legal recognition to a religious symbol of that type in higher-education institutions was not compatible with the principle that State education must be neutral, as it would be liable to generate conflicts between students with differing religious convictions or beliefs.
37. On 25 October 1990 transitional section 17 of the Higher-Education Act (Law no. 2547) entered into force. It provides:
“Choice of dress shall be free in higher-education institutions, provided that it does not contravene the laws in force.”
38. In a judgment of 9 April 1991, which was published in the Official Gazette of 31 July 1991, the Constitutional Court noted that, in the light of the principles it had established in its judgment of 7 March 1989, the aforementioned provision did not allow headscarves to be worn in higher-education institutions on religious grounds and so was consistent with the Constitution. It stated, inter alia:
“In higher-education institutions, it is contrary to the principles of secularism and equality for the neck and hair to be covered with a veil or headscarf on grounds of religious belief. In these circumstances, the freedom of dress which the impugned provision permits in higher-education institutions ‘does not concern dress of a religious nature or the act of covering one’s neck and hair with a veil and headscarf’... The freedom afforded by this provision [transitional section 17] is conditional on its not being contrary ‘to the laws in force’. The judgment [of 7 March 1989] of the Constitutional Court establishes that covering one’s neck and hair with the headscarf is first and foremost contrary to the Constitution. Consequently, the condition set out in the aforementioned section requiring [choice of] dress not to contravene the laws in force removes from the scope of freedom of dress the act of ‘covering one’s neck and hair with the headscarf’...”
39. Istanbul University was founded in the fifteenth century and is one of the main centres of State higher education in Turkey. It is a secular University, comprising seventeen faculties (including two faculties of medicine – Cerrahpaşa and Çapa) and twelve schools of higher education. It is attended by approximately 50,000 students.
40. In 1994, following a petitioning campaign launched by female students enrolled on the midwifery course at the University High School for the Medical Professions, the Vice Chancellor circulated a memorandum in which he explained the background to the Islamic-headscarf issue and the legal basis for the relevant regulations. He said in particular:
“The ban prohibiting female students enrolled on the midwifery course from wearing the headscarf during tutorials is not intended to infringe their freedom of conscience and religion, but to comply with the laws and regulations in force. When doing their work, midwives and nurses wear a uniform. That uniform is described in and identified by regulations issued by the Ministry of Health... Students who wish to join the profession are aware of this. Imagine a student of midwifery trying to put a baby in or to remove it from an incubator, or assisting a doctor in an operating theatre or maternity unit while wearing a long-sleeved coat.”
41. The Vice Chancellor was concerned that the campaign for permission to wear the Islamic headscarf on all university premises had reached the point where there was a risk of its undermining order and causing unrest at the University, the Faculty and the Cerrahpaşa Hospital High School for the Medical Professions. He called on the students to comply with the rules on dress, reminding them, in particular, of the rights of the patients.
42. A resolution regarding the rules on dress for students and university staff was adopted on 1 June 1994 by the University executive and provides as follows:
“The rules governing dress in universities are set out in the laws and regulations. The Constitutional Court has delivered a judgment which prevents religious attire being worn in universities.
This judgment applies to all students of our University and the academic staff, both administrative and otherwise, at all levels. In particular, nurses, midwives, doctors and vets are required to comply with the regulations on dress, as dictated by scientific considerations and the legislation, during health and applied science tutorials (on nursing, laboratory work, surgery and microbiology). Anyone not complying with the rules on dress will be refused access to tutorials.”
43. On 23 February 1998 a circular was distributed containing instructions on the admission of students with beards or wearing the Islamic headscarf. It was signed by the Vice Chancellor of the University of Istanbul (for the text of this circular, see paragraph 12 above).
44. After the hearing on 19 November 2002 the applicant produced a letter of 1 April 2002 which the Higher-Education Authority had sent to the university authorities inviting them to grant a request by students of the Jewish faith for their attendance to be excused during Jewish holidays.
45. On 18 March 2003 the Government produced to the Court a resolution (no. 11) adopted by the University of Istanbul on 9 July 1998, which is worded as follows:
“1. Students at the University of Istanbul shall comply with the legal principles and rules on dress set out in the decisions of the Constitutional Court and higher judicial bodies.
2. Students at the University of Istanbul shall not wear clothes that symbolise or manifest any religion, faith, race, or political or ideological persuasion in any institution or department of the University of Istanbul, or on any of its premises.
3. In the institutions and departments at which they are enrolled, students at the University of Istanbul shall comply with the rules requiring specific clothes to be worn for work-related reasons.
4. Photographs supplied by students of the University of Istanbul to their institution or department [must be taken] from the ‘front’ ‘with head and neck uncovered’. They must be no more than six months old and make the student readily identifiable.
5. Anyone displaying an attitude that is contrary to the aforementioned points or who, through his words, writings or deeds, encourages such an attitude shall be liable to action under the provisions of the regulations relating to disciplinary proceedings against students.”
46. The Students Disciplinary Procedure Rules, which were published in the Official Gazette of 13 January 1985, prescribe five forms of disciplinary penalty: a warning, a reprimand, temporary suspension of between a week and a month, temporary suspension of one or two semesters and expulsion.
47. Merely wearing the Islamic headscarf on university premises does not constitute a disciplinary offence. However, failure to comply with the rules on dress may entail the application of another provision of the rules.
48. By virtue of Article 6(a) of the Rules, a student whose “behaviour and attitude are not befitting of students” will be liable to a warning. A reprimand will be issued, inter alia, to students whose conduct is such as to lose them the respect and trust which students are required to command or who disrupt lectures, seminars, tutorials in laboratories or workshops (Article 7(a) and (e)). Students who directly or indirectly restrict the freedom of others to learn and teach or whose conduct is liable to disturb the calm, tranquillity and industriousness required in higher-education institutions or who engage in political activities in such institutions are liable to temporary suspension of between a week and a month (Article 8(a) and (c)). Article 9(j) lays down that students who organise or take part in unauthorised meetings on university premises are liable to one or two semesters’ suspension.
49. The procedure for investigating disciplinary complaints is governed by Articles 13 to 34 of the Rules. Articles 16 and 33 provide that the rights of defence of students must be respected and the disciplinary board must take into account the reasons that caused the student to transgress the rules. All disciplinary measures are subject to judicial review in the administrative courts.
50. Since universities are public-law bodies by virtue of Article 130 of the Constitution, they enjoy a degree of autonomy, subject to State control, that is reflected in the fact that they are run by management organs, such as the vice chancellor, with delegated statutory powers.
The relevant parts of section 13 of the Higher-Education Act (Law no. 2547) provide:
“... (b) Vice chancellors have the following powers, competence and responsibilities:
1. To chair meetings of university boards, implement their resolutions, examine proposals by the university boards and take such decisions as shall be necessary, and ensure that institutions forming part of the university function in a coordinated manner; ...
5. To supervise and monitor the university departments and university staff at all levels.
It is the vice chancellor who is primarily responsible for taking security measures and for supervising and monitoring teaching from the administrative and scientific perspectives...”
51. Both legal commentators and the administrative courts regard the monitoring and supervisory powers conferred on the vice chancellor by the aforementioned provision as including a power to issue regulations, as well as to take individual measures. Exercise of this power is subject to the requirement of lawfulness and to scrutiny by the administrative courts. Both written instruments (legislation and the Constitution) and judge-made law (the case-law of the administrative courts and the Constitutional Court) constitute valid sources of law. Similarly, regulations issued under the proper procedure will themselves be a valid source of law with which individual measures taken thereunder must comply.
52. In its judgment of 27 May 1999 (E. 1998/58, K. 1999/19), which was published in the Official Gazette of 4 March 2000, the Constitutional Court stated, inter alia:
“The legislature and executive are bound by both the operative provisions of judgments and the reasoning taken as a whole. Judgments and the reasons stated in them lay down the standards by which legislative activity will be measured and establish guidelines for such activity.”
53. In European countries, the debate on the Islamic headscarf is concerned more with primary and secondary State schools than with higher-education institutions. In the French speaking parts of Belgium, where there are no rules concerning the headscarf and disputes on the issue are generally resolved at local level, a number of State schools have refused to allow the Islamic headscarf. In the cases which have come before them, the Belgian courts have consistently held that the principles of equality and neutrality of State education take precedence over freedom of religion and have found against the complainants and their families.
54. In France, where secularism is regarded as one of the cornerstones of republican values, the question of the Islamic headscarf in State schools has given rise to a very lively debate. After the Commission on Secularism had reported to the President of the Republic with its opinion, the National Assembly approved a bill on 10 February 2004 regulating, pursuant to the principle of secularism, the wearing of signs or dress manifesting a religious affiliation in State primary and secondary schools. Article 1 of the Act provides:
“In State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited.
The school rules shall state that the institution of disciplinary proceedings shall be preceded by a dialogue with the pupil.”
55. As regards the universities, the Commission on Secularism considered that precedence should be given to the students’ right to express their religious, political and philosophical convictions. However, it stated in its report that such expression should not lead to transgressions of the rules on the functioning of universities.
56. In other countries, in some cases after a protracted legal debate, the State education authorities permit Muslim pupils and students to wear the Islamic headscarf (in Germany, the Netherlands, Switzerland and the United Kingdom). Nevertheless, the legal position is not uniform. In Germany, where the debate has for several years focused on whether teachers should be allowed to wear the Islamic headscarf, the Constitutional Court stated on 24 September 2003 in a case between a teacher and the Land of Baden-Württemberg that the lack of any express statutory prohibition meant that teachers were entitled to wear the headscarf. In the United Kingdom the Islamic headscarf is accepted by most teaching institutions and the rare disputes that do arise are generally resolved within the institution concerned.
57. It would appear that in a number of other countries, the issue of the Islamic headscarf has yet to give rise to any detailed legal debate (Sweden, Austria, Spain, the Czech Republic, Slovakia and Poland).
NON_VIOLATED_ARTICLES: 9
NON_VIOLATED_PARAGRAPHS: 9-1


ITEMID: 001-91334
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: CARLBERG v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 1. The applicant, Mr Kenth Carlberg, is a Swedish national who was born in 1951 and lives in Täby. He was represented before the Court by Mr J. Thörnhammar, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Following a tax audit of the applicant’s taxi firm, the Tax Authority (skattemyndigheten) of the County of Stockholm considered that revenues from the firm had not been accounted for in the applicant’s tax returns for the assessment year 1994, i.e. the income year 1993. Accordingly, by decisions of 27 November 1995, the Tax Authority revised upwards his taxable income by 335,532 Swedish kronor (SEK) and increased his liability to employer’s contributions by SEK 80,616. By a further decision of 22 February 1996, the Tax Authority increased his liability to value-added tax (mervärdesskatt) by SEK 97,878. Moreover, as the information supplied by the applicant in his tax returns was found to be incorrect and the turnover of the applicant’s business had been revised upwards under a discretionary assessment procedure, the Tax Authority ordered him to pay tax surcharges (skattetillägg, avgiftstillägg) amounting to 20% or 40% of the increased tax liability, depending on the type of tax involved. As a result of the decisions, tax surcharges of SEK 97,596 (approximately 10,000 euros (EUR)) were levied on the applicant. Of this amount, SEK 61,898 related to income tax, SEK 16,123 to employer’s contributions and SEK 19,575 to value-added tax. It appears that the amounts were payable in March 1996.
4. On 22 December 1995 the Tax Authority rejected the applicant’s request for a stay of execution with regard to the employer’s contributions and related surcharges.
5. On 22 January 1996 the applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm against the Tax Authority’s taxation decisions. While, at that time, the formal decision on value-added tax had not yet been taken, the appeal letter referred to all the tax issues reviewed by the Tax Authority, i.e. income tax, employer’s contributions and value-added tax. He also requested that the execution of payment of the amounts assessed be stayed.
6. On 12 March 1996 he complained to the Tax Authority that the time until the taxes became due was too short. By letters of 1 and 6 April 1996, the Tax Authority called on the applicant to pay the disputed amounts.
7. On 17 April 1996 the Tax Authority reconsidered its decision on a stay of execution with regard to the employer’s contributions but decided not to change it. The Tax Authority did not find that the outcome of the tax case was uncertain or that payment of the amount in question would result in considerable damage for the applicant or would otherwise appear unjust, and thus concluded that the prerequisites laid down in section 49, subsection 1 (2) or (3) of the Tax Collection Act (Uppbördslagen, 1953:272) had not been fulfilled.
8. On 19 April 1996, and upon review, on 11 July 1996, the Tax Authority also refused a stay of execution with regard to the income tax and related surcharges assessed on 27 November 1995.
9. The applicant appealed against the Tax Authority’s decisions to refuse stays of execution. By judgments of 26 July 1996, the County Administrative Court rejected the appeals. It noted that the disputed amounts of income tax, employer’s contributions and corresponding surcharges and late-payment fees had already been paid, inter alia through execution levied by the Enforcement Office (kronofogdemyndigheten) on 31 May 1996. As a consequence, the amounts could only be refunded in the event of the applicant being successful in the main tax cases, and there was therefore no reason to grant a stay.
10. The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm. On 2 December 1996 the Tax Authority stated to the appellate court that all tax amounts had been paid and that there was therefore no ground on which to grant a stay. In a letter to the applicant of 9 December 1996, the Tax Authority stated, however, that late-payment fees of SEK 12,684 remained due and that the applicant had been granted a stay of execution with regard to this amount.
11. According to a case note in the appellate court’s file, the Enforcement Office had stated, on 16 April 1997, that no taxes and fees were due following the levying of execution of SEK 589,211 on 31 May 1996 and the payment by the applicant of SEK 45,419 on 27 June 1996.
12. By a judgment of 23 June 1997, subscribing to the reasons given by the County Administrative Court, the Administrative Court of Appeal rejected the applicant’s appeal.
13. On 12 February 1999 the Supreme Administrative Court (Regerings-rätten) refused leave to appeal concerning the stay-of-execution issue.
14. On 6 March 1996 the Tax Authority reported the applicant to the Regional Public Prosecution Office (regionåklagarmyndigheten) in Stockholm, claiming that proceeds in the amount of SEK 794,038 had not been accounted for in the applicant’s bookkeeping.
15. While accepting the applicant’s objections concerning certain amounts, the public prosecutor, on 17 January 1997, indicted him for a suspected bookkeeping offence relating to undeclared proceeds of SEK 421,000 as well as undeclared salaries paid to various taxi drivers.
16. By a judgment of 2 September 1997, the District Court (tingsrätten) of Södra Roslag found the applicant guilty of having intentionally failed to enter proceeds of at least SEK 350,000 as well as substantial salary payments in the books. This constituted a bookkeeping offence under Chapter 11, section 5 of the Penal Code (Brottsbalken). He was sentenced to two months’ imprisonment.
17. On 26 March 1998 the Svea Court of Appeal (Svea hovrätt) upheld the District Court’s judgment. On 13 October 1998 the Supreme Court (Högsta domstolen) refused leave to appeal.
18. As the applicant had been convicted of a bookkeeping offence, the County Administrative Board (länsstyrelsen) of the County of Stockholm, reviewed his eligibility for a traffic licence (trafiktillstånd). By a decision of 4 November 1998, it decided that an admonition was sufficient, having regard to the time that had passed since the offence had been committed. It appears that the applicant did not appeal against this decision.
19. As mentioned above, on 22 January 1996 the applicant appealed against the Tax Authority’s decisions on taxes and tax surcharges. On 23 June 1999 the Authority reconsidered its decision relating to income tax but did not change it.
20. By a judgment of 22 February 2001, the County Administrative Court upheld the Tax Authority’s decision on income tax. The court considered that the documentation on which the impugned decision was based was reliable. In this connection, it had regard to previous judgments by the Svea Court of Appeal and the Administrative Court of Appeal where the computerised control material from Taxi Stockholm, an association to which the applicant was affiliated, had been examined and found reliable. It took into account other evidence as well in finding that the applicant had failed to account for revenues from the taxi business in his tax returns. In regard to the applicant’s objection that the public prosecutor, in the criminal proceedings, had only indicted him for undeclared proceeds of SEK 421,000 whereas the basis for the Tax Authority’s taxation decision was that there were undeclared proceeds of SEK 794,038, the court noted that, whereas a criminal conviction required proof beyond reasonable doubt, the standard of proof was lower in tax proceedings. In upholding the tax surcharge, the court had regard to Article 4 of Protocol No. 7 to the Convention and the case-law of the Supreme Court and found that a criminal conviction did not prevent the imposition of a surcharge. Moreover, no grounds for remission of the surcharge were at hand.
21. On 27 March 2001 the applicant asked the County Administrative Court why his appeals concerning employer’s contributions and value-added tax had not been examined. The same day the court informed the applicant that no cases concerning these issues had been registered with the court, that the Tax Authority had stated, on 15 January 2001, that it did not have any such cases either and that the court, on the latter date, had sent a copy of the applicant’s appeal letter to the Tax Authority for possible action.
22. The applicant appealed against the County Administrative Court’s judgment to the Administrative Court of Appeal, requesting that his income tax liability be fixed in accordance with his tax returns and that the tax surcharge be set aside. He claimed that, as a surcharge was involved, in order for the hearing to be fair under Article 6 of the Convention, the standard of proof of criminal proceedings had to be applied. Moreover, the surcharge should be set aside on account of the unreasonable length of the proceedings in the case and the prohibition on double jeopardy.
23. On 25 March 2003 the Administrative Court of Appeal upheld the County Administrative Court’s judgment, subscribing to the reasons given by the latter court in regard to the income tax. With respect to the tax surcharge, the appellate court referred to case-law of the Supreme Administrative Court concerning the possibility of remission due to lengthy proceedings and the prohibition on double jeopardy. It concluded that there had not been any irregularities in the handling of the case which could involve a violation of the applicant’s rights under the Convention. As the surcharge could not be remitted on this basis or on any other ground, the applicant’s complaints in this respect were rejected.
24. On 1 October 2003 the Supreme Administrative Court refused the applicant leave to appeal in the income tax case.
25. In a letter of 16 March 2004, the applicant asked the Tax Authority what had happened to his appeals against the decisions on employer’s contributions and value-added tax. On 30 March 2004 the Tax Authority made reconsideration decisions, in which it set aside the associated tax surcharges, but upheld the amounts of employer’s contributions and value-added tax as such. On 15 April 2004, as a consequence of the reconsideration decisions, the Tax Authority adopted new taxation decisions, in which it stated that the surcharges relating to employer’s contributions and value-added tax had been quashed due to the excessive length of the proceedings and mistakes made in the handling of the applicant’s appeals. In early June 2004 the Tax Authority repaid to the applicant the quashed tax surcharges with interest.
26. The applicant appealed to the County Administrative Court in regard to the amounts of employer’s contributions and value-added tax. By a judgment of 27 September 2004, the court upheld the Tax Authority’s decisions. Following an appeal to the Administrative Court of Appeal, no further information has been provided as to the progress of the proceedings.
27. On 31 March 2006 the applicant requested compensation from the Chancellor of Justice (Justitiekanslern). He referred to the issues on which the Court, in the present case, had invited the Government to submit observations, namely the enforcement of the Tax Authority’s decisions before a court determination, the length of the proceedings, the presumption of innocence, and the Tax Authority’s original failure to examine the appeals concerning employer’s contributions and value-added tax.
28. By a letter of 5 April 2006, the Chancellor of Justice informed the applicant that, given the still unsettled Supreme Court practice as to when compensation could be given for possible violations of the Conventions, it was unlikely that the Chancellor would exercise the authority to settle compensation claims on behalf of the State out of court. Instead, the applicant was advised to initiate court proceedings in the matter.
29. On 29 August 2006 the applicant instituted compensation proceedings against the State before the District Court of Stockholm. He claimed EUR 19,000 in non-pecuniary damages, 7,000 for lack of effective access to court and 12,000 for excessive length of proceedings. He also claimed SEK 260,000 in pecuniary damages for what he perceived as the difference between a correct tax amount and the amount that had actually been fixed by the Tax Authority and SEK 202,793 in legal costs. Finally, he requested interest on the amounts as from 24 November 2005.
30. In reply, the State acknowledged that the length of the proceedings had violated the Convention and submitted that compensation in the amount of SEK 50,000 plus interest would be reasonable in this respect. The State, however, disputed the applicant’s other claims.
31. By a judgment of 2 June 2008, the District Court found that the time that had passed between the applicant’s appeals in January 1996 and the Tax Authority’s latest reconsideration decisions in March 2004 – more than eight years – had been excessive and in breach of Article 6 of the Convention. It further considered that the applicant had not had effective access to court under that provision, as the examination of his request for a stay of execution had been precluded by the immediate enforcement of the taxes and surcharges. However, noting that the complaint relating to the allegedly excessive tax amount concerned the substance of the tax case which had already been examined by the courts on the basis of the evidence presented, the District Court found no violation of the applicant’s rights under the Convention in this respect.
32. The District Court awarded the applicant compensation for the two Convention violations found with an overall amount of EUR 10,000. As to legal costs, it refused compensation for costs relating to the proceedings before the European Court. In regard to the remaining amount of SEK 121,855.50, accrued in the compensation proceedings, the District Court took into account that the applicant had been unsuccessful with one of his claims and decided to grant him two-thirds of that amount, or SEK 81,237 (approximately EUR 8,000).
33. The applicant appealed to the Court of Appeal, reiterating the claims made before the District Court. The State contested the appeal and requested that the judgment of the District Court be upheld. The case is at present pending before the appellate court.


ITEMID: 001-68711
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF AFANASYEV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant was born in 1964 and lives in the city of Kharkiv, Ukraine.
9. On 1 March 2000 the applicant was arrested on suspicion of crimes of swindling and taken to the Kyivsky District Police Station (Київський районний відділ міліції міста Харкова).
10. According to the applicant, he was handcuffed in the police station and police officers demanded that he confess. When he refused to do so, he was severely beaten several times. After each beating he was told that if he did not confess he would be subjected to further beatings. During the last beating one of the police officers, G., hit the applicant on the left ear, causing swelling and partial deafness. After the beatings, the police officers warned the applicant to “think it over” during the night, otherwise he would be beaten again the next day.
11. The applicant maintained that he had had many scratches and bruises on his body. On 2 March 2000, when the police officers wanted to transfer him to a temporary detention centre (ізолятор тимчасового утримання), the centre refused to admit him on account of his numerous injuries.
12. On 3 March 2000 the applicant was escorted to hospital where he was examined.
13. The same day the applicant was transferred to a temporary detention centre.
14. On 4 March 2000 the applicant was charged, but released on bail on condition that he did not abscond, by a decision of the Kyivsky District Prosecutor.
15. From 7 March to 5 April 2000 the applicant underwent medical examinations at the forensic medical examination department (відділ судово-медичної експертизи). The forensic expert recorded various injuries to the applicant’s body. The injuries included a damaged left ear, and bruises on the trunk, face, left arm and left leg (qualified as minor injuries by the Government). The expert also indicated the approximate dates on which the applicant had sustained these injuries, some 5 to 7 days before 7 March 2000. Those dates coincided with the applicant’s detention in the Kyivsky District Police Station.
16. On 13 April 2000 the applicant requested the Kharkiv Regional Prosecutor to institute criminal proceedings against the police officers for torture. The request was transferred to the Kyivsky District Prosecutor’s Office for consideration.
17. On 24 April and 18 May 2000, the applicant requested the Kyivsky District Prosecutor’s Office to inform him about the outcome of his complaint.
18. On 24 April 2000, the deputy prosecutor of the Kyiv District of Kharkiv issued a decree refusing to institute criminal proceedings on the ground that there was no evidence that an offence had been committed. In his decree, the deputy prosecutor stated that criminal proceedings had been initiated against the applicant on 10 February 2000. The applicant confessed voluntarily to having committed the crimes of which he was charged when he learned that his accomplices had also confessed. Furthermore, police officers had been questioned about the applicant’s allegations and had refuted the accusations against them. The deputy prosecutor concluded:
“(...) despite the fact that the forensic medical expert opinion No. 747/c of 5 April 2000 [established that the applicant suffered] minor bodily injuries giving rise to a short-term disability, no evidence has been obtained that those injuries were inflicted by officers of the Kyivsky District Police Station of Kharkiv. The [applicant’s] arguments set out in his request must be considered to have been invented by him. He was fully aware that the investigation gave rise to sufficient proof that he had committed the crimes of which he was accused. He is now trying to avoid the punishment he deserves”.
19. On 3 June 2000 the applicant appealed against this decision to the Kyivsky District Court and to the City Prosecutor’s Office. (According to the Government, it was on 3 July 2000 that the applicant complained to the Kharkiv Regional Prosecutor’s Office, and then on 14 September 2000 to the court, paragraph 21 below.)
20. On 20 July 2000 the Kharkiv City Prosecutor’s Office informed the applicant that it had rejected his request to quash the decree of 24 April 2000.
21. On 14 September 2000 the applicant lodged a complaint with the Kyivsky District Court of Kharkiv challenging the decree of 24 April 2000.
22. On 19 October 2000 the Kyivsky District Court quashed the decree of 24 April 2000 and ordered that criminal proceedings be opened against the accused police officers under Article 166 § 2 of the Criminal Code (excess of power). The court stated that the prosecutor had failed to investigate the cause of the applicant’s injuries and that the prosecutor’s refusal to institute criminal proceedings against the police officers in question had been unreasonable.
23. The criminal case was sent to the Kyivsky District Prosecutor’s Office. On 10 November 2000 this Office requested the Kharkiv Regional Prosecutor’s Office to lodge a supervisory review appeal with the Presidium of the Kharkiv Regional Court against the Kyivsky District Court’s decision of 19 October 2000. The applicant was informed of this on 26 January 2001.
24. On 25 April 2001 the Kharkiv Regional Prosecutor’s Office rejected the request, finding no grounds for such a review, and returned the case file to the District Prosecutor’s Office. The applicant was informed of this development by letter of 27 April 2001.
25. Criminal proceedings were initiated on 28 April 2001 by the Kyivsky District Prosecutor, but terminated by decree on 3 September 2001 for want of evidence that any crime had been committed. Nevertheless, according to the Government, between May and November 2001 investigators interviewed several witnesses, including the police officers and the applicant’s relatives.
26. Following the applicant’s complaint, on 29 October 2001 the Kharkiv Regional Prosecutor’s Office quashed the decree of the Kyivsky District Prosecutor and sent the case to the Kharkiv City Prosecutor’s Office. The latter in turn transferred the case on 7 November 2001 to the Zhovtnevy District Prosecutor’s Office for a further preliminary investigation.
27. On 13 November 2001 the Zhovtnevy District Prosecutor’s Office began the investigation.
28. In November and December 2001 several other witnesses were questioned and confrontations were organised.
29. On 20 November 2001 a forensic medical examination was ordered within the framework of the investigation.
30. On 4 December 2001 the expert examination concluded that the applicant had suffered bodily harm of medium severity which could have occurred in the circumstances alleged by the applicant.
31. On 12 December 2001 a supplementary forensic examination was ordered as the first was deemed incomplete.
32. According to the Government, on 25 February 2002 the second expert opinion established that the applicant had sustained minor bodily harm prior to his detention in the Kyivsky District Police Station.
33. At the request of the applicant’s lawyer, one of the medical experts was interviewed in the presence of the lawyer on 21 March 2002. The same day the lawyer requested an additional medical examination since, in his view, the second report lacked any scientific basis and was contradicted by the other evidence in the case. Although the prosecutor received the request, the lawyer never had a reply.
34. On 28 March 2002, on conclusion of the additional investigation, the Zhovtnevy District Prosecutor’s Office issued a decree terminating the criminal proceedings on the ground that there was no evidence that a crime had been committed. (The applicant was informed of this on 16 April 2002.) The prosecutor stated, inter alia, that the police officers who had been questioned had denied the accusations against them and had explained the applicant’s allegations with reference to the criminal proceedings brought against him. The prosecutor further stated that the testimonies of T. and O., confirming the applicant’s allegations, had to be disregarded since they were the applicant’s co-accused. The prosecutor also maintained that the medical examination had concluded that the applicant’s injuries could have been caused before he was detained at the police station.
35. On 16 April and 31 May 2002 the applicant and his lawyer requested the district prosecutor to provide them with the case file. By letter of 10 June 2002, the prosecutor replied that the materials in the case file had been sent to the Regional Prosecutor’s Office for examination.
36. Following the filing of several complaints by the applicant and his lawyer with the District, Regional and General Prosecutor’s Office, the Kharkiv Regional Prosecutor’s Office informed the applicant on 9 October 2002 that the criminal case, in so far as it concerned the alleged excess of power by police officers, had been closed, but that the question of the infliction of minor bodily harm had been remitted for further investigation.
37. That same day, 9 October 2002, the Kharkiv City prosecutor’s Office quashed the decision of 28 March 2002 and remitted the case to the Zhovtnevy District Prosecutor’s Office, which on 23 August 2002 recommenced the investigation.
38. Because of the contradictory findings of the previous forensic medical examinations, an additional examination was entrusted to the Central Office of Forensic Medical Examination in Kyiv.
39. On 2 June 2003 the Zhovtnevy District Prosecutor’s Office received an expert opinion dated 3 February 2003 in which it was stated that the applicant had sustained bodily injury of medium severity that could have been inflicted in the circumstances alleged by the applicant.
40. On 25 June 2003 the Kharkiv Regional Prosecutor’s Office instructed the Zhovtnevy District Prosecutor’s Office to complete the investigation as soon as possible.
41. On 9 July 2003 the Zhovtnevy District Prosecutor’s Office issued a decree terminating the criminal proceedings on the ground that the actions of the law-enforcement officers had not given rise to any criminal offence. It reclassified the criminal offence as the infliction of bodily injury of medium severity by unknown person(s) and remitted the criminal case for investigation to the Kyivsky District Police Department.
42. The applicant appealed against this decree to the Zhovtnevy District Court.
43. On 15 November 2003 the criminal investigation was stayed and it was decided to continue the operative search as the offender had not yet been identified.
44. On 31 December 2003 Zhovtnevy District Court quashed the decree of 9 July 2003 and remitted the case for an additional investigation. The court noted, in particular, that the investigating authorities had failed to take all necessary measures to identify and question independent witnesses, given that the applicant and the law-enforcement officers had made contradictory statements.
45. On 30 March 2004 the Zhovtnevy District Prosecutor’s Office passed a resolution discontinuing the criminal investigation against the police officers indicated by the applicant, and decided that the fact of the infliction of bodily harm of medium severity required further investigation.
46. The investigation is still pending because the offender has not yet been found.
47. The relevant extract of the Constitution of Ukraine provides:
Article 28
“Everyone has the right to respect for his or her dignity.
No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”
48. Article 4 of the Code provides that the court, prosecutor or investigator shall, within their competencies, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish the commission of the crime and the identity of the offenders and punish them.
49. Article 22 of the Code prohibits extracting confessions from an accused or any other participant in the proceedings through violence, threats or other illegal means.
50. Article 28 of the Code provides that the person who sustained material damage from the crime shall be entitled to lodge a civil claim against the accused person or persons who bear material liability for the actions of the accused.
51. Article 221 of the Code foresees an obligation of the court to suspend proceedings in the case, if it cannot be examined prior to the decision in another case examined under civil, criminal or administrative proceedings.
52. The relevant extract of the Law provides:
Article 2
“The right to compensation for damages in the amount and in accordance with the procedure established by this Law shall arise in the cases of:
- acquittal by a court;
- termination of a criminal case on grounds of an absence of proof of commission of a crime, absence of corpus delicti, or lack of evidence of the accused’s participation in the commission of the crime;
- refusal to initiate criminal proceedings or termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article;
- termination of proceedings for an administrative offence.”
VIOLATED_ARTICLES: 13
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