ITEMID: 001-113137
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF FALTER ZEITSCHRIFTEN GMBH v. AUSTRIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information)
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant company is the owner and publisher of the weekly newspaper Falter.
6. On 2 May 2005 the Wiener Neustadt Regional Court, sitting as a court with two professional and two lay judges (Schöffengericht) under Presiding Judge I.K., acquitted H.P., a security officer at the Traiskirchen Reception Centre, of a charge of raping K., an asylum seeker from Cameroon, basing its ruling on the principle of in dubio pro reo.
7. The reasoning of the judgment contained the following passage:
“Lastly, the statement made by witness K. during her examination [recorded on video tape in a separate room – kontradiktorische Einvernahme], to the effect that she had previously been engaged in prostitution in her country of origin, allows inferences to be drawn with regard to the statement by the accused [P.] that the witness might have become involved with him because she expected – for whatever reason – to gain some advantage.”
8. In issue no. 19/05 of Falter, an article was published on page 14 concerning the criminal proceedings against P., which read as follows:
“‘Sex with a nigger woman’
The courts: An asylum seeker lodges a criminal complaint alleging rape against a security officer. The case takes on a political dimension because it exposes conditions in the Traiskirchen centre. One year later only the victim is still before the courts. The chronicling of a judicial scandal.
F. K.
She thought she had made it to safety. Elaine B. (name changed, ed.) had been ill-treated by police officers in Cameroon, kicked by them in the abdomen and placed with 18 other women in ‘stinking, damp cells’ for having demonstrated on behalf of her son, abducted by the authorities. She had survived her escape on a container ship, during which she ‘nearly went mad’ because in mid-ocean she ‘no longer knew whether it was night or day outside’. Finally, after a lorry journey lasting several days, she found herself in Vienna, where all at once, she was ‘surrounded by white people’. She thought she was safe. Her case was so well documented that Austria, in the form of the normally very strict Federal Refugee Office, granted her asylum quickly and without red tape.
But then this country revealed its other side. Elaine B., 35, a well-groomed businesswoman and mother of three, holds on tight to her handbag during the interview and breaks down in tears repeatedly, says her life is a mess [and that] she can no longer trust the authorities here because they treat her like a liar and a prostitute.
Elaine B. caused a media stir last year when she became the first asylum seeker to lodge a complaint against a blind-drunk security officer who she claims abused his authority in the Traiskirchen centre in order to rape her. Now she faces trial for defamation. A few fellow Cameroonians, as well as the campaigning lawyer W.R. and his colleague R.H., are continuing to stand by her. ‘Otherwise I would have killed myself’, says Elaine.
It’s difficult to know where to begin in this case. With the then Interior Minister E.S. who, while the proceedings were in progress, told the National Assembly that the woman’s accusations were ‘unfounded’? With the company European Homecare, engaged by him, which ostensibly ran the centre on a much smaller budget than Caritas, but in fact used subcontractors employing drunken nightwatchmen who had to be dismissed for sexual assault? With centre director F.S., who later commented on the attacks in the washrooms of the women’s quarters by telling the court: ‘According to our information such incidents are very common and no one thinks anything of them’? Or with Judge I.K., who at the end of the drama would no longer ‘refute’ the suggestion that Elaine B. was just a ‘prostitute’ – although not even the accused security officer claimed that that was the case?
Spring 2004. With a thousand asylum seekers, Traiskirchen is hopelessly overcrowded. Another hundred arrive every day. The Interior Ministry is coming under political pressure and discredits Caritas. Security officers at the centre later state in court that female asylum seekers could be paid for quick sex. They also tell of pimps rolling up to the centre in their cars. The sexual exploitation seems to have been unbearable. In a series of articles for profil, a female journalist published an email and statements from several women complaining of sexual assaults by security staff. ‘Please help us!’ pleaded the women. The Interior Ministry stated at the time that the police were confronted with a ‘wall of silence’.
At that time Elaine B. from Cameroon demanded an interview with the head of the Traiskirchen [branch of the] Gendarmerie. She placed a pair of torn red underpants on the interview room table and described ‘through her tears’ how a drunken security officer had pursued her for days, pointing to his uniform and threatening to have her thrown out of the centre and to slit her throat. One night he had crept into the room, switched on the light and told her to go with him. Elaine B., who had not yet been granted asylum and feared his authority, wrapped a towel around herself and followed the uniformed officer into the office, where there was a bed and a roll of kitchen towel. He had prepared the kitchen towel for ‘ejaculating into’, as he later admitted. ‘At first I didn’t realise what the man wanted. I thought I’d done something wrong. But there in that room I realised that he was going to rape me’, stated Elaine B. She could smell the drink on his breath and didn’t dare cry out.
The practising Christian from Cameroon is called upon to describe the incident many more times in the most intimate detail, without contradicting herself. She describes with precision how the man locked the door and removed the key. She tells of the pains in her lower abdomen afterwards and how she washed herself with warm water for weeks. She immediately identifies the security officer in a photo. The officials record in the minutes that Elaine B. appears disturbed.
‘We were in no doubt that it happened as she described it. The woman was intimidated and seemed very anxious’, recalls District Inspector W.S., who investigated the case, a year later in court. His statement, like that of the victim, is disregarded.
Disturbing errors occur. For the first interview in the interview room no trained interpreter can be found; moreover, the traumatised woman is initially interviewed by a man. In their minutes the police officers at times refer to Elaine B. not by her name but as ‘the nigger woman’. She is repeatedly linked to prostitution.
H.P., 48, is interviewed as the presumed perpetrator. When first questioned the trained bricklayer with the thick moustache states: ‘I didn’t have sex with the nigger woman.’ The next time his recall is more accurate: ‘It’s possible that I had intercourse with the nigger woman. I’d had twelve and a half litres of beer and one and a half litres of herb lemonade mixed with red wine.’ He claims it was entirely consensual. However, he doesn’t recognise Elaine in a photo. Police officer: ‘Could the woman have left the room if she’d wanted to?’ Answer: ‘No, only I had a key’. Again the question: ‘Did you pay the nigger woman for sexual intercourse?’ Answer: ‘No way!’ Third [interview] record: ‘I’d noticed the nigger woman about a week before we had sex. I fancied her from the beginning. I went into her room and gestured to her to come out.’ According to him, she followed him out of her own accord, undressed in front of him, took hold of his penis, inserted it and then got dressed again. Then she disappeared for good – without making any demands. ‘Maybe she thought she’d be given asylum sooner’ speculates the security officer. Something else occurs to him. He had offered to buy the woman a drink in the bakery a few days before. She had stroked his back and ‘cosied up’ to him.
Elaine B. denies this version of events. She says that she had other things on her mind at the time. She is not a whore. She felt repelled by this fat man with a moustache who smelled of alcohol, she was afraid of him. Also: if she had really been hoping to be granted asylum, why would she then have defamed the security officer?
Next to take the witness stand are the employees of the bakery. The first to be examined is saleswoman R.Z.: ‘She gave him a kiss. She was fairly young, I’d say between 20 and 25. The two of them were talking quietly. I couldn’t describe the woman.’ When confronted with Elaine B. Z. says: ‘I’m not quite sure whether it’s her.’ At the second confrontation a year later she suddenly says: ‘Yes, that’s her!’ She has something else to get off her chest: ‘I have to say that we’re losing a lot of customers because of the black Africans. It’s bad for business!’ Likewise the second saleswoman. The first time she gives evidence: ‘I’m not sure’. The second time: ‘I’m 99 per cent certain.’
Elaine B. is 35 years old and speaks neither German nor English – only French. The quiet talk described could not have taken place. One detail, however, is never mentioned: at the time, the bakery was delivering tens of thousands of bread rolls to the reception centre.
The Wiener Neustadt Public Prosecutor’s Office, which sees the Africans from Traiskirchen most often in connection with drug dealing, wants to discontinue the proceedings on the basis of the statements by the bakery employees. Elaine’s lawyer, W.R., then brings a ‘subsidiary private prosecution’ (Subsidiaranklage) before the Court of Appeal. The victim can take over the role of the public prosecutor at his or her own risk. The unexpected happens: the Court of Appeal finds in the woman’s favour and orders the Justice Ministry to prosecute the security officer. ‘As the case file currently stands, both the factual element of the offence of rape and the element of coercion appear to be made out beyond doubt’, states the judgment. According to the court, the bakery employees could not have identified Elaine.
The trial with judges and lay assessors before Wiener Neustadt Criminal Court does not last long. No evidence is taken either from other asylum seekers or from the female staff in the women’s quarters. Judge I.K. acquits the security officer. Of course, if she has doubts as to the defendant’s guilt, she has to do so. But this judge and her lay assessors are in no doubt as to the woman’s guilt. They have unfinished business with the African woman and attribute the basest intentions to her – without furnishing any proof. The reasoning is diametrically opposed to that of the Court of Appeal: ‘It cannot be established that the accused performed sexual intercourse against the will of Elaine B.’ And what of the statements of the bakery employees, called into question by the Court of Appeal? ‘Clear proof’ that Elaine B. had also been lying about the sexual encounter. The fact that the bakery employees got her age wrong by ten to fifteen years? ‘The difficulty of correctly estimating the age of persons with a different skin colour is known to the courts.’ And the constantly changing replies of the security officer? ‘He is a very simple man’ and it therefore spoke in his favour ‘that he himself admitted that intercourse with the witness was not easy to achieve.’ The ‘black African’ on the other hand, appeared ‘very confident’, with the result that ‘it is hard to imagine that she could have felt so intimidated by the accused, who appears somewhat unsure of himself, that she left her quarters against her will.’ And what of the only piece of physical evidence, the torn red underpants? ‘These have no evidentiary value’ according to Judge K. Why not? Because the accused said that the underpants had been ‘beige’.
Not another word from the detectives who had been faced with a crying, completely intimidated woman. No mention of the fact that the security officer himself admitted locking Elaine in [the room] and removing the key. Not a single line about the predicament in which female asylum seekers found themselves at the time. Complete understanding, on the other hand, for the accused: ‘The accused’s objection that the woman may have hoped, since her asylum claim had not been decided, to obtain Austrian citizenship by marrying him, has not been completely refuted’. Even if this were true, why would she then lodge a complaint against him two weeks later?
The judgment fails to give rise to a scandal. ‘Flirtation in Traiskirchen’ runs the title in the Kurier. Then, what women’s shelters have been complaining of for years happens: the woman becomes the presumed perpetrator. With the approval of Justice Minister K.M., the principal public prosecutor’s office institutes preliminary proceedings for defamation. Elaine B. must appear before the investigating judge ‘or be brought by force’. She could face up to five years in prison. ‘That’s just routine, nothing unusual’ says a Justice Ministry spokesman. According to principal public prosecutor P.: ‘After [the] acquittal we have no choice but to initiate proceedings.’
Justice Minister K.M. has promised to do more to protect the victims of crime. She should study this case. She is the highest-ranking public prosecutor. She has the right to give instructions. She bears the political responsibility if this woman, in addition to everything else, faces charges.”
9. Subsequently, Judge I.K. brought an action for defamation against the applicant company under section 6 of the Media Act and Article 111 of the Criminal Code, and requested that the applicant company be ordered to pay compensation and retract the following statements made in the article, which she claimed amounted to a statement that she had grossly misused her office as a judge:
“Judge I.K. alleges that the asylum seeker had immoral motives.”
Judge I.K. alleges in the judgment – without giving any reasons – that the asylum seeker was driven by the basest motives.
“Judge I.K. acquits the security officer. Of course, if she has doubts as to the defendant’s guilt, she has to do so. But this judge and her lay assessors are in no doubt as to the woman’s guilt. They have unfinished business with the African woman and attribute the basest intentions to her – without furnishing any proof.”
Judge I.K. had no doubt about the woman’s guilt.
The judge ignored relevant evidence and delivered a scandalous judgment (“The judgment fails to give rise to a scandal.”)
10. On 1 September 2005 the first hearing in the defamation proceedings was held. The applicant company argued that the impugned statements were true and sought to prove the truth of those statements by asking the court to call several witnesses and admit as evidence the files of the proceedings concerning K.’s asylum request and the criminal proceedings against H.P. It considered that by publishing the impugned statements it had merely expressed criticism, protected by the freedom of speech, which had not concerned the acquittal itself but rather the way in which the victim of the crime had been treated in the written version of the judgment, which had neglected important evidence and had accused the victim, K., of having been a prostitute.
11. In October 2005 the applicant company sought the disqualification of Judge N.F., the judge assigned to the media proceedings, for bias. It submitted that the lawyer representing the claimant, I.K., had also represented N.F. in the past in court proceedings. As Judge N.F. had to decide on a case in which her previous lawyer was acting as representative of one of the parties, there was reasonable doubt that she would not decide the case objectively. The president of the Vienna Regional Court dismissed the motion on 17 October 2005 and held that the issue raised by the applicant was not sufficient to give rise to doubt that Judge N.F. would not decide the case objectively.
12. On 17 October 2005 a further hearing was held in the defamation proceedings. The hearing was adjourned in order to hear three witnesses proposed by the applicant company. The Regional Court refused to hear other witnesses proposed by the applicant company, as it considered that those persons could not make any statements relevant to the proceedings. The applicant company had sought to call R., who had been K.’s lawyer in the criminal proceedings, in order to clarify the meaning of statements that K. had given during her examination as a witness which had been recorded on video in order to prevent her as the victim having to face the accused (kontradiktorische Einvernahme). This request was refused by the Regional Court on the grounds that the transcript of K.’s examination had been included in the case file and therefore no additional witness was required.
13. On 12 December 2005 the Regional Court held another hearing in the defamation proceedings in which it examined two of the witnesses proposed by the applicant company. The third witness proposed did not appear. On the same date the Regional Court found against the applicant company. It held that the impugned statements had constituted defamation under Article 111 of the Criminal Code and that I.K. was therefore entitled to compensation, which it set at 7,000 euros (EUR). It also ordered the applicant company to publish a summary of the judgment.
14. The Regional Court found that the contents of the article had given a biased account of the taking of evidence at the trial of H.P., taking the side of K. and characterising any statement of a witness which did not coincide with hers as lacking credibility. According to the article, the judge had acted arbitrarily and out of racist motives and had disregarded evidence produced, whereas the rape asserted by K. had been described as proven and the assessment of evidence by the Regional Court as absurd. Such an account was not an objective critique of the judgment.
15. As regards the criminal proceedings against H.P., the Regional Court observed that: (a) they had been discontinued by the Public Prosecutor; and (b) upon a subsequent decision by the Senior Public Prosecutor H.P. had been committed for trial (Versetzung in den Anklagestand). Following three hearings at which a total of seven witnesses had been heard, the tape recording of the questioning of the victim had been viewed in part by the court and a confrontation between two witnesses and K. had taken place, the court had acquitted the accused.
16. In its judgment of 2 May 2005 the court had found that it could not be excluded that the sexual intercourse which had taken place between K. and the accused had been consensual, in accordance with the version of events given by the accused and which had, to some extent, been corroborated by the statements of witnesses who had seen the accused and K. together in a coffee shop in town. K.’s assertion that she had been the victim of an assault had not been excluded but because it contradicted the statements of witnesses it had been considered to be partially implausible. The accused had not therefore been acquitted because his innocence had been proven but rather on the basis of the principle of in dubio pro reo.
17. The Regional Court also referred to one passage of the written judgment on which the article had put much emphasis, namely a reference to a statement by K. made in the course of her questioning as a witness to the effect that she had previously been engaged in prostitution in her country of origin, which the judgment stated had allowed inferences to be drawn with regard to the statement by the accused that the witness might have become involved with him because she expected – for whatever reason – to gain some advantage.
18. The Regional Court found that the applicant company had not succeeded in proving the truth of the impugned statements. From the case file concerning the proceedings against H.P. and, in particular, the written version of the judgment it appeared that Judge I.K. had dealt with all the evidence taken and had assessed each item of evidence extensively. Therefore, it could not be established that Judge I.K. had made base insinuations (üble Unterstellungen) or disregarded evidence. The judgment had clearly indicated the court’s reluctance to accept the version of events given by K. also. In addition, the indication of K. having been a prostitute in the past had been based on a statement from the questioning of that witness and had not been made up out of thin air. The relevant part of the transcript in question read as follows:
<Original>
“Untersuchungsrichter: Es gibt einen Zeugen. Er sagt aus: “im Haus Nr. 8 gibt es Frauen die auf den Strich gehen.” Wissen Sie was davon?
Zeugin: Keine Ahnung, ich nicht, nein. Seit meiner Heimat habe ich es nie gewagt.”
<English translation>
“Investigating judge: There is one witness. He said: “at no. 8 there are women who walk the streets.” Do you know anything about it?
Witness K.: No idea, not me, no. Since leaving my country I haven’t dared it.”
An error in the translation of that statement could not be excluded, but that did not allow the conclusion that there had been no basis in the file for the above finding of Judge I.K.
19. The accusation that a judge, who was under the duty to act objectively and impartially, had without any factual basis and out of racist motives deliberately disregarded evidence in order to acquit an accused from the same country (inländischen Angeklagten) had to be qualified as defamation and there was hardly a more severe accusation which could be levied against a judge. The term scandal of justice was a value judgement, which, however, was based on assertions of fact which had been disproven in the proceedings.
20. Insofar as the applicant company had relied on Article 10 of the Convention, the Regional Court referred to the case of Prager and Oberschlick v. Austria (26 April 1995, Series A no. 313), and observed that the press had the right and the duty to impart information on matters of public interest, including questions concerning the functioning of the justice system, and to criticise any shortcomings found, but in doing so it had to be mindful of the special role of the judiciary in society. It was therefore necessary to protect public confidence in the judiciary against destructive attacks that were essentially unfounded. Taking these principles into account, the sharp critique of Judge I.K. in the impugned article, which had lacked any sufficient factual basis, had been excessive.
21. Taking the gravity of the attacks on the claimant’s professional reputation, the broad public attention the article had received and the consequences it had had for the claimant, the Regional Court found that the amount of EUR 7,000 in compensation was appropriate.
22. The applicant company appealed on 8 March 2006 against the Regional Court’s judgment. On 19 June 2006 the Court of Appeal dismissed the appeal and upheld the judgment. This judgment was served on the applicant’s company lawyer on 29 June 2006.
23. Section 6 of the Media Act (Mediengesetz), as in force at the time of the events, read as follows:
“6 (1) If the factual elements of the offence of defamation ... are established in a medium, the person affected shall be entitled to claim compensation from the owner of the medium for [any] damage sustained. ...
(2) No claim shall lie under (1), if:
...
(ii) in the case of defamation:
(a) the statements published are true;
...”
24. Article 111 of the Criminal Code (Strafgesetzbuch) reads as follows:
“1. Anyone who accuses another of having a contemptible character or attitude, or of behaving contrary to honour or morality, in such a way as to make the person concerned appear contemptible in the eyes of a third party or otherwise lower him in the public esteem, shall be liable to imprisonment not exceeding six months or to a fine ...
2. Anyone who commits this offence in a printed document, in a broadcast or otherwise in such a way as to make the defamatory statement accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or to a fine ...
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.”
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-61628
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PUHK v. ESTONIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 7-1 with regard to first law;Violation of Art. 7-1 with regard to second law;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1970 and lives in Tartu. At the material time he was the owner and manager of the company AS Maarja.
9. On 10 August 1995 the Tartu police instituted criminal proceedings against the applicant on charges of tax offences under Article 148-1 § 7 of the Criminal Code. In the course of the preliminary investigation the applicant was further charged with the offence of inadequate accounting under Article 148-4 of the Criminal Code as well as with falsification of documents.
10. On 6 October 1997 the Tartu prosecutor approved the bill of indictment, and the case was sent to the Tartu City Court (Tartu Linnakohus) for trial. The charges set out in the indictment related to acts and omissions of the applicant in the period from April 1993 to October 1995.
In particular, under Article 148-1 § 7 of the Criminal Code the acts which were the subject of the charges against the applicant concerned his failures to pay the required taxes, to file by the set deadline revenue statements for the year 1993, to inform the Tax Board of the change of his company's location, and to comply with the order of the Tax Board of 26 October 1995 to pay the required taxes. Under Article 148-4 of the Criminal Code the applicant was accused of having unsatisfactorily arranged his company's bookkeeping, in breach of the legal requirements. The existing records were incomplete and a number of documents had not been preserved, which made it impossible to determine the company's performance.
11. By a judgment of 17 February 1999 the Tartu City Court convicted the applicant of the offences under Article 148-1 § 7 of the Criminal Code and sentenced him to 4 years' imprisonment. It also found the applicant guilty of the offence under Article 148-4 of the Code and sentenced him to 4 months' imprisonment. As the latter sentence was absorbed by the former, the aggregate sentence imposed on the applicant was 4 years' imprisonment, which was suspended for 3 years.
The City Court found that the application of Article 148-1 § 7 of the Criminal Code, which had been in force as from 13 January 1995, was justified in the case on the grounds that the applicant's failure to pay the required taxes had been intentional and continuous and his criminal activity had lasted until October 1995. It ordered the applicant to pay the city tax authorities 1,596,618.42 Estonian kroons in outstanding taxes. No fine or tax surcharge was imposed apart from the requirement to pay the taxes which were due under the relevant tax laws.
As regards the offence of inadequate accounting under Article 148-4 of the Criminal Code, which was in force as from 20 July 1993, the City Court noted that the applicant's company had operated from 5 May 1993 until 1 October 1993. During that period there had been no recording of its economic activity and it was impossible correctly to determine the company's performance, income, expenditure, profit, loss, debts, solvency or amount of its assets. The applicant had failed to comply with the obligations imposed on him by the Law on personal responsibility for the organisation of accounting. The law came into effect on 20 July 1993, i.e. at the time of the operation of the company, and the applicant, being its owner and manager, had to comply with the provisions of the law. The applicant also failed to adopt rules and procedures for bookkeeping and to secure the preservation of the relevant documents, as required under the Government decree of 6 July 1990 concerning the organisation of accounting.
12. On 26 February 1999 the applicant filed an appeal against the judgment to the Tartu Court of Appeal (Tartu Ringkonnakohus). He argued that in convicting him under Article 148-1 § 7 of the Criminal Code of acts committed prior to its entry into force on 13 January 1995, the City Court had applied the criminal law retrospectively. Before that date a conviction of the offences defined in Article 148-1 could follow only if the person concerned had been previously subjected to an administrative sanction for a similar offence.
The applicant further submitted that, in making him responsible for the inadequate bookkeeping in his company during the whole period from 5 May 1993 until 1 October 1993, the City Court had also applied retroactively Article 148-4 of the Criminal Code which had only been in force as from 20 July 1993.
13. On 3 May 1999 the Court of Appeal upheld the judgment of the City Court. It found that the acts with which the applicant was charged under Article 1481 § 7 of the Criminal Code amounted to ongoing crimes. After his first criminal act on 16 April 1993 the applicant had embarked upon a criminal enterprise which had lasted until 26 October 1995, the day on which the Tax Board discovered the abuses and issued its order. Therefore, the City Court had correctly qualified his acts as falling under that law.
It also considered that the ongoing nature of the applicant's acts relating to inadequate accounting justified his conviction under Article 148-4 of the Criminal Code.
14. On 1 June 1999 the applicant lodged an appeal on points of law to the Supreme Court (Riigikohus) raising the same arguments as in his appeal to the Court of Appeal.
15. By a judgment of 7 September 1999 the Supreme Court dismissed his appeal. It held that, according to the principles of Estonian criminal law, the law to be applied to a criminal act was the law which had entered into force before the end of a criminal activity. As the applicant's criminal activity ended on 26 October 1995, his actions fell under the law in force at that time, i.e. Article 148-1 § 7 of the Criminal Code. The same reasons applied to the applicant's conviction of inadequate accounting under Article 148-4 of the Criminal Code.
16. The text of Article 148-1 of the Criminal Code, in force until 27 June 1993, was as follows:
“Concealment of income or other objects of taxation, or evasion of submission of income tax returns:
(1) Concealment of income or other objects of taxation, or 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 budget, or evasion of submission of an income tax return or failure to submit an income tax return on time, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment;
(2) The same acts, if committed by a person who has a criminal record for a criminal offence prescribed in paragraph (1) of this article, are punishable by one to five years' imprisonment.”
17. The text of Article 148-1 of the Criminal Code, in force as from 27 June 1993 until 13 January 1995, was as follows:
“Evasion of submission of income tax returns or other tax calculations, concealment of income or other objects of taxation, and tax evasion:
(1) Evasion of submission of an income tax return, or failure to submit an income tax return on time, or submission of falsified data therein by a person who is required to submit an income tax return, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to one year's imprisonment;
(2) Concealment or reduction of income or other objects of taxation or increase of expenditure for the purpose of concealment or reduction of income or other objects of taxation, or failure to submit or failure to submit on time income tax returns, tax calculations, financial statements or other documents relating to the calculation of taxes or payments and their transfer to the budget, or failure to submit or failure to submit on time accounting documents, contracts or other documents necessary for the assessment and verification of the correctness of taxes, or failure to comply with an order of the Tax Board, by a competent official who is required to perform the corresponding duties, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or up to three years' imprisonment;
(3) Failure to pay taxes or failure to pay taxes on time, or inadequate compliance or failure to comply with an order issued by the Tax Board for the compulsory collection of taxes by a bank, by a competent official who is required to perform the corresponding duties, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment;
(4) Incorrect deduction or failure to deduct personal income tax from the wages (income) of employees, or failure to transfer deducted payments to the budget in full or in a timely manner, by a competent official who is required to perform the corresponding duties, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment;
(5) The same acts, if committed by a person who has a criminal record for a criminal offence prescribed in paragraph (1), (2), (3) or (4) of this article are punishable by one to five years' imprisonment;
(6) Commission of acts prescribed in paragraph (1), (2), (3) or (4) of this article on a large-scale basis is punishable by up to seven years' imprisonment.”
18. The text of Article 148-1 of the Criminal Code, in force as from 13 January 1995, reads as follows:
“Evasion of submission of income tax returns or other tax calculations, concealment of income or other objects of taxation, and tax evasion:
(1) Evasion of submission of an income tax return, or failure to submit an income tax return on time, or submission of falsified data therein, if such acts are intentionally committed by a person who is required to submit an income tax return, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to one year's imprisonment;
(2) Concealment or reduction of income or other objects of taxation or increase of expenditure for the purpose of concealment or reduction of income or other objects of taxation, or failure to submit or failure to submit on time income tax returns, tax calculations, financial statements or other documents relating to the calculation of taxes or payments and their transfer to the budget, or failure to submit or failure to submit on time accounting documents, contracts or other documents necessary for the assessment and verification of the correctness of taxes, or failure to comply with an order of the Tax Board, if the specified acts are intentionally committed by a competent official who is required to perform the corresponding duties, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment;
(3) Failure to pay taxes or failure to pay taxes on time, or inadequate compliance or failure to comply with a precept issued by the Tax Board for the compulsory collection of taxes by a bank, if such acts are intentionally committed by a competent official who is required to perform the corresponding duties, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment;
(4) Incorrect deduction or failure to deduct personal income tax from the wages (income) of employees, or failure to transfer deducted payments to the budget in full or in a timely manner, if such acts are intentionally committed by a competent official who is required to perform the corresponding duties, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment;
(5) Submission of incorrect data or documents upon compulsory registration on the basis of an Act concerning a tax, or concealment of one's residence, place of employment or place of business from a tax authority, or evasion of payment of the taxes provided for in the Taxation Act in any other manner, if such acts are intentionally committed by a competent official who is required to perform the corresponding duties or by a natural person, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years' imprisonment;
(6) The same acts, if committed by a person who has a criminal record for a criminal offence prescribed in paragraph (1), (2), (3), (4) or (5) of this article are punishable by one to five years' imprisonment;
(7) Commission of acts prescribed in paragraph (1), (2), (3), (4) or (5) of this article on a large-scale basis is punishable by three to seven years' imprisonment.”
19. Article 148-4 of the Criminal Code, in force as from 20 July 1993, provides as follows:
“Inadequate organisation of accounting:
Violation of the requirements provided for in legislation regulating accounting or reporting concerning the economic activities, including the commercial or financial activities, or assets of an economic unit, if such violation renders it impossible to correctly ascertain the economic performance, income, expenditure, profit, loss, debts, solvency or amount of assets of the economic unit, is punishable by a fine or deprivation of the right of employment in a particular position or operation in a particular area of activity, or up to one year's imprisonment.”
20. According to the practice of the Supreme Court, if a non-payment of taxes is intentional and continuous the latest version of Article 148-1 is applicable to acts which occurred prior to its entry into force provided that part of the criminal activity took place after the critical date. Criminal liability arises on two alternative, not cumulative, grounds: (1) if a person has committed the offence intentionally or (2) if a person has previously been subjected to administrative punishment for the same offence. Article 148-1 § 7 does not contain a separate offence, but it only qualifies the elements listed in §§ 1-5. Thus, a person may be convicted under Article 148-1 § 7 only if his acts encompass the elements of the offences set out in §§ 1-5. (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).
The Supreme Court has also considered that a constant and continuous violation of the obligation to declare one's sources of income and to pay the required taxes created a persisting criminal state (Decision of the Criminal Division of the Supreme Court of 8 April 1998, case no. 3-1-1-50-98).
The Supreme Court has upheld an accused's conviction under Article 148-4 of the Criminal Code concerning inadequate organisation of accounting between 1 January 1995 and 31 March 1996 (Decision of the Criminal Division of the Supreme Court of 31 March 1998, case no. 3-1-1-48-98).
VIOLATED_ARTICLES: 7
VIOLATED_PARAGRAPHS: 7-1


ITEMID: 001-87951
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LUSTGARTEN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Laurence Lustgarten, is a United Kingdom national, who was born in 1946 and lives in Oxford. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 20 May 1999. They had no children from the marriage. On or around 1 April 2000, the applicant made a claim for widows’ benefits. On 11 April 2000 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant appealed to the Social Security Appeal Tribunal. On 17 August 2000 the appeal was adjourned pending service of a skeleton argument by the applicant and a response by the Benefits Agency. In January 2002, the applicant was informed that the file relating to his appeal had gone “missing”.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-114308
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: DZHIDZHEVA-TRENDAFILOVA v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Ms Violina Stancheva Dzhidzheva-Trendafilova, is a Bulgarian national who was born in 1953 and lives in Sofia. She was represented before the Court by Mr S. Trendafilov, a lawyer practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their agents, Ms N. Nikolova and Mr V. Obretenov, of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In the State Gazette of 5 February 2008 the Supreme Judicial Council published a notice for a competition based on performance appraisal for five posts of judge at several administrative courts (“the competition”).
5. Fifty candidates applied for the vacant posts.
6. On 15 February 2008 the applicant filed an application to take part in the competition for the vacant posts at the Sofia City Administrative Court and the Sofia Regional Administrative Court. There were two vacant posts in the former and one in the latter.
7. Thereafter, the applicant and all the other candidates were subjected to performance appraisals by the Supreme Judicial Council’s committee on proposals and performance appraisals of judges (“the committee”). Some of these were carried out in the context of a separate competition.
8. On the basis of the committee’s recommendation, on 10 and 31 July 2008 the Council determined an overall rating for each candidate in accordance with section 193(1) of the Judiciary Act 2007. All but two of the candidates obtained the rating “very good”, the highest possible rating. The applicant was one of the forty-eight candidates in that category.
9. At its session on 31 July 2008, under item 1.2 of the agenda, the Council then proceeded to rank the candidates in accordance with section 193(2) and (3) of the Judiciary Act 2007, on a proposal from the committee’s chairman, and listed them in order of merit, grade and length of service. The list contained fifty candidates and the applicant was ranked eighteenth on the list. Out of the seventeen candidates ranked higher than the applicant, at least twelve had applied for the same posts for which she had applied.
10. Finally, under item 1.3 of the agenda, the Supreme Judicial Council, relying on section 194(1) of the Judiciary Act 2007, took a vote in respect of each candidate in order to decide whether or not to promote him or her to the post of judge at the relevant administrative court, until all the vacant posts had been filled.
11. The voting, which was conducted in secret, followed the order in which candidates were ranked on the list and continued until all the vacant posts were filled.
12. According to the full text of the minutes of the Council’s session, the first twelve candidates did not obtain the requisite majority of thirteen votes and their applications were therefore rejected. Candidate number thirteen obtained one of the two vacant posts at the Sofia City Administrative Court. The voting then continued. The applicant, who was eighteenth on the list, obtained twelve votes in her favour for the posts in one of the two courts for which she had applied and eleven votes in her favour for the post in the other court. As the minimum number of votes required were thirteen (see paragraph 21 below), her applications were rejected (items 1.3.18 and 1.3.18.1 on the agenda). The voting then continued. As regards the posts for which the applicant had applied, the candidate ranked twenty-seventh obtained thirteen votes in her favour and was appointed to the post of judge at the Sofia Regional Administrative Court, and the candidate ranked fortyseventh obtained sixteen votes and was appointed to the second vacant post at the Sofia City Administrative Court (items 1.3.27.1. and 1.3.47. on the agenda). As all the vacant posts had been filled at that point, no voting took place with regard to the remaining three candidates.
13. Other than the number of votes for and against each candidate and the number of abstentions, no further information or reasons were given in the minutes of the session as to why, on what basis and in application of what criteria the Council had voted the way it did for each candidate and why certain judges had been promoted or transferred to the vacant posts while others had not.
14. On 6 August 2008 the applicant appealed to the Supreme Administrative Court against the decisions of the Council adopted under item 1.3 of the agenda of its session of 31 July 2008 (“the appeal”). She argued that the decisions had been adopted in contravention of the applicable legislation, since the Council was required under section 194(1) of the Judiciary Act 2007 to fill the vacant posts by following the order in which the successful candidates were ranked. She considered that her rights had been violated when, instead of her, the Council had promoted to the vacant posts two persons ranked below her in the list, in twenty-seventh and forty-seventh place. She further considered that the whole competition procedure had been violated because, in comparison with her, those persons were on lower grades and had a shorter period of service.
15. On 11 August 2008 the Council officially informed the applicant, by way of an extract from the minutes of the session of 31 July 2008, of its vote of that date by which it had decided not to promote her to the vacant posts. Apart from the number of votes for and against her promotion, no further information or reasons were given as to why the Council had voted the way it had.
16. On 24 and 27 October and 14 November 2008 the applicant supplemented her appeal with the extract from the minutes sent to her on 11 August 2008, together with proof of her grade, length of service and performance appraisal and copies of her employment and insurance records.
17. At a hearing on the applicant’s appeal held on 19 November 2008 the Supreme Administrative Court declared the case ready for decision.
18. In a judgment of 3 December 2008 the Supreme Administrative Court dismissed the applicant’s appeal, holding, inter alia, as follows:
“Section 193(2) of the Judiciary Act provides that the [Council] must rank [the candidates] for each post according to the results of the performance appraisals. Paragraph 3 of the same text stipulates that when several candidates for the same post have the same rating in the performance appraisals, priority is given to the candidate on the highest grade. When the candidates are also on the same grade, priority is given to [the candidate] who has served longest in the judiciary.
The ranking of the candidates for the posts of judge at the Sofia City Administrative Court and the Sofia Regional Administrative Court is in compliance with the law as regards the overall rating [in the performance appraisal], grade and length of service, whereby the requirements of section 193(3) of the Judiciary Act are also taken into account. The order in which candidates are placed [in the ranking, drawn up] in accordance with the criteria in the text cited [above] for determining priority (grade and length of service) does not oblige the [Council] to appoint candidates to the vacant posts in the order in which they were ranked. It is obliged to vote on candidates’ promotion or transfer [to the vacant posts] in the order in which they are ranked until the vacant posts are filled, as required by section 194(1) of the Judiciary Act. Acting on the basis of operational independence, the [Council] decides on promotion to a post at its own discretion, which includes [an assessment] of candidates’ inherent professional and ethical qualities. This [right to] choose is conferred on the appointing body as part of its discretionary powers and is not subject to judicial review.
The complaint concerning the lack of reasoning is manifestly ill-founded. The factual grounds and the specific reasons for adopting the impugned decisions are contained in the documentary evidence in the administrative file and the statements [made by] the members of the [Council]. The positive assessments made in the proposal of the [Council’s] committee on performance appraisals regarding the professional and ethical qualities of [the persons ranked in twenty-seventh and forty-seventh place] were the reasons for the decisions to promote them, [which] predate the adoption of these decisions.
In view of the above considerations, the court holds that the appeal by [the applicant] is manifestly illfounded and, as such, should be dismissed.”
19. The judgment was not subject to appeal and therefore became final.
20. The Act came into force in August 2007. The provisions on competitions for career development (promotion) and transfer of judges, as in force at the relevant time and until 1 January 2011, provided as follows:
...
“(1) Vacant posts in the courts ..., other than those [at entry level], shall be ... filled following a competition carried out on the basis of performance appraisal.
...”
“(1) The committee on proposals and performance appraisal of judges ... shall appraise the performance of every candidate satisfying the requirements for the available post.
...”
“(1) The chairperson of the committee on proposals and performance appraisal of judges ... shall submit to the Supreme Judicial Council a reasoned opinion, summarising the results of the performance appraisal for each candidate.
(2) The Supreme Judicial Council shall rank [the candidates] for each post in accordance with the results of the performance appraisal.
(3) If several candidates for the same post have the same result in the performance appraisal, the candidate on the highest grade shall have preference. If the candidates also share the same grade, preference shall be given to the candidate who has served longest in the judiciary.”
“(1) The Supreme Judicial Council shall adopt a decision to promote or transfer judges ... by following the order of ranking until the vacant posts are filled.
(2) The decision under paragraph 1 may be appealed against [to the Supreme Administrative Court].
...”
“A performance appraisal shall be carried out:
...
2. For the purpose of a promotion or transfer;
...”
“The assessment of [a] judge’s ... qualifications shall be carried out on the basis of general and specific criteria.”
“(1) The general criteria for the performance appraisal of a judge ... shall be:
1. the number, type and complexity of files and cases;
2. compliance with deadlines;
3. the number of decisions upheld and repealed and the grounds given;
4. the presence of readily comprehensible and justified reasoning of the decisions;
5. the findings of the inspections carried out by the Inspectorate of the Supreme Judicial Council;
6. the existence of reprimands [against] or incentives [for the judge] during the period covered by the performance appraisal;
7. [the judge’s] adherence to the professional ethical rules for judges ...;
(2) For the purpose of the performance appraisal, the overall workload in the relevant court’s area of jurisdiction ..., as well as the workload of the judge being appraised ..., compared with that of other judges ... at the same [court], shall also be taken into consideration.”
“(1) The specific criteria for the performance appraisal of judges shall be:
1. compliance with the schedule for conducting court hearings;
2. the ability to conduct court hearings and draft records of proceedings.
...”
“(1) The overall rating from the performance appraisal may be positive or negative.
(2) The categories of positive overall rating shall be:
1. Satisfactory,
2. Good,
3. Very good.
...”
“(1) The Supreme Judicial Council shall take a decision determining the overall rating [from the performance appraisal].
(2) The decision under paragraph 1 may also contain recommendations to the judge being appraised ..., the implementation of which will be taken into consideration in the next performance appraisal.
...”
“(1) In the performance appraisal methodology, the indicators relating to the examination and disposal of files and cases shall be given the greatest weight.”
21. Under section 38(8) of the Act, Supreme Judicial Council’s decisions on proposals for the promotion or transfer of judges must be taken by a majority of the Council’s twentyfive members. It follows that a minimum of thirteen votes are required for a decision to promote or transfer a judge.
22. The Council’s decisions concerning the appointment, promotion, demotion, transfer or dismissal of judges, prosecutors or investigators are adopted by secret ballot (Article 131 of the 1991 Constitution). All other decisions are adopted by open ballot (section 34(2) of the Judiciary Act 2007). Where a decision of the Council is adopted by secret ballot, it is considered – in the case of a decision not to adopt a proposal submitted to a vote – that the negative opinions, if any, expressed by members of the Council in relation to the proposal constitute the reasons for the Council’s decision (section 34(3) of the Judiciary Act 2007). In the case of a decision to adopt a proposal submitted to a vote, the grounds put forward in support of the proposal are deemed to be the reasons given by the Council (ibid.).
23. This decree, adopted by the Supreme Judicial Council, regulates in greater detail the procedure established in the Judiciary Act 2007 for organising competitions within the judiciary for entry level posts, promotions and transfers, and for appointment to senior management posts.
24. In respect of promotions and transfers, section 37(4) provides that the performance appraisal must be carried out following the methodology approved by the Council. The latter regulates in significant detail the documentary information and data to be collected in respect of each judge being appraised and the appraisal forms to be completed. It details the performance indicators to be used when appraising judges, the scores to be allocated under each item and the weight that they are to be given in the performance appraisal. In particular, it provides that judges are also appraised on their adherence to the ethical rules for judges.
25. In the examination of appeals against Supreme Judicial Council decisions refusing promotion to judges or prosecutors, the Supreme Administrative Court, in a series of judgments in 2008, 2009 and 2010, consistently interpreted the provisions of the Judiciary Act 2007 as meaning that the ranking of the candidates determined the order in which the Council had to vote but could not guarantee the outcome of the vote. In all cases the court held that the Council, as the body in which the power to appoint and promote judges and prosecutors was vested, was free to decide on these matters. Judicial review of the lawfulness of its decisions did not extend to the Council’s assessment of the candidates’ qualities (see, among many others, реш. № 11134 от 27 октомври 2008 г. по адм. д. № 10468/2008 г., ВАС, VІІ о., and реш. № 3548 от 18 март 2010 г. по адм. д. № 16558/2009 г., ВАС, VІІ о.).
26. The ethical rules for judges, adopted by the Supreme Judicial Council on 10 March 2004 and replaced on 27 May 2009 by the Judicial Officers’ Code of Ethics, detailed the special requirements imposed on judges as to the manner in which they were to conduct themselves in their professional, private and public lives.
27. The Supreme Judicial Council has the power to appoint, promote, demote, transfer and dismiss – including by way of disciplinary punishment – judges, prosecutors and investigators (Article 129 § 1 and Article 130 § 6 (1) and (2) of the 1991 Constitution). The Council consists of twentyfive members. The presidents of the Supreme Court of Cassation and of the Supreme Administrative Court and the Chief Prosecutor are members as of right (Article 130 § 1). The remaining twentytwo members have to be lawyers possessing high professional and moral qualities and having at least fifteen years of professional experience (Article 130 § 2). Eleven of them are elected by the National Assembly and eleven by the judicial authorities (Article 130 § 3). Out of the latter eleven members, the judges elect six, the prosecutors four and the investigators one (section 17(3) of the Judiciary Act 2007). The term of office of the Council’s members is five years, and is not immediately renewable (Article 130 § 4 of the Constitution). The Council’s sessions are presided by the Minister of Justice, who cannot however take part in voting (Article 130 § 5).
28. The European Commission has repeatedly expressed concern about appointment and promotion decisions in the Bulgarian judiciary. In its 2011 Report to the European Parliament and the Council on Progress in Bulgaria under the Cooperation and Verification Mechanism, it stated, inter alia: “The quality and transparency of several important appointments within the judiciary since the beginning of this year have been questioned, leading to unprecedented public protests and a debate on possible constitutional amendments. In addition, allegations of corruption within the judiciary are still not pursued in a systematic way as recommended by the Commission.”