ITEMID: 001-117133
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF BERNH LARSEN HOLDING AS AND OTHERS v. NORWAY
IMPORTANCE: 3
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home)
JUDGES: Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. B.L.H., a holding company, Kver and I.O.R. (together with two further companies) had their business address at Hopsnesveien 127, Bergen (Western Norway), at premises owned by Kver. The companies used a common server and e-mail server (hereinafter referred to as “the server”) for their respective information technology systems. The server was owned by Kver. It contained the applicant companies’ electronic archives and private information (including private e-mail correspondence) of employees and other persons working for the companies, which did not have their own administration. They received administrative support from a small number of persons working in Bergen Underwater Services AS operating at the same address.
6. B.L.H.’s data were stored on the server in the user areas dedicated to three persons: Mr S., who was B.L.H.’s Managing Director, and two other persons. They were employed by Bergen Underwater Service AS – a subsidiary company of B.L.H. – which carried out management services for several companies, including B.L.H. The data in question were accessed by entering those persons’ user areas, through their respective user names and passwords.
7. In January 2003 the Bergen tax office (ligningskontor) warned B.L.H. that the company’s accounts for the tax year 2001 would be audited. On 9 March 2004 a meeting was held between representatives of B.L.H., on the one hand, and the Bergen tax office and Hordaland County tax office (fylkesskattekontor), on the other. The meeting took place at B.L.H.’s offices in Bergen. During the meeting the tax authorities presented B.L.H. with a list of questions and demanded that B.L.H. allow the auditors to make a copy of all the data on the server, which contained, inter alia, information on B.L.H.’s accounts.
8. The representatives of B.L.H. complied with the request to grant access to the server, including offering the tax authorities the necessary passwords. They refused, however, to comply with the tax authorities’ further demand to supply a mirror copy of the (entire) server.
9. The Managing Director, Mr S., argued, inter alia, that B.L.H. did not own the server but only rented server capacity and that also other companies made use of the server. The Managing Director of Kver, the company owning the server, was called but he too refused to allow the tax authorities to take a mirror copy of the server.
10. Information and documents stored on the server were in part linked to other companies (with the necessary access control), in part to employees working for the different companies. Access to the home directorates and e-mails (including the map "private files and pictures") belonging to the different employees were protected by passwords.
11. Thus the server contained information belonging to the applicant companies and also information belonging to other companies and persons.
12. Following the refusal by B.L.H. and Kver to supply a mirror copy of the server, alternatives to a complete copy of the server were discussed. The discussion related first and foremost to whether the tax authorities would have to limit themselves to demanding copies of the part of the server administered by B.L.H. or persons working for B.L.H. The Managing Director of B.L.H., Mr S., explained to the tax authorities how they could obtain (all and only) the documents belonging to B.L.H.
13. When Kver, as a co-user and the owner of the server, opposed the tax authorities’ demand to seize the entire server, the tax authorities responded by issuing a notice that Kver would also be subject to a tax audit. They further ordered Kver to “hand over all electronically stored information”.
14. After further discussions, the parties compromised and agreed that the previous months’ backup tape would be handed over to the tax authorities and sealed pending a decision on their complaint. The backup tape contained 112,316 files in 5,560 folders, totalling 41 gigabytes. In the applicant companies’ submission, which the Government did not dispute, only a minor part of that information was relevant for the tax audit of B.L.H.
15. Both Kver and B.L.H. immediately lodged a complaint with the Directorate of Taxation, a central tax authority under the Ministry of Finance, and requested the speedy return of the backup tape.
16. On 25 March 2004 Kver informed the Bergen tax office that three other companies, including I.O.R. (the third applicant company), also used the server and had therefore been affected by the seizure of 9 March 2004. On 26 March 2004 the tax office notified those companies that they would also be audited.
17. On 1 April 2004 I.O.R. lodged a complaint with the Directorate of Taxation.
18. The Directorate gave a decision on each of the applicant companies’ complaints on 1 June 2004.
19. As regards Kver and I.O.R., the Directorate withdrew the tax office’s notice that an audit would be carried out and its demand that those companies hand over data. The Directorate observed that the tax audit concerned B.L.H. and that section 4-10 of the Tax Assessment Act (ligningsloven) did not authorise the measures at issue where the purpose of the audit was to collect information about third parties.
20. The Directorate confirmed the tax office’s demand that B.L.H. hand over or give access to the server. Its decision further stated that a representative of this company would have the opportunity to be present during the review of the server by the tax office. The tax office’s access to each area of the server was to be limited to those areas that were (also) used by B.L.H.
21. In reaching the above conclusion, the Directorate noted that the Ministry of Finance had observed, in its letter to the Directorate of 20 May 1997, that the term “document” in sections 4-8 and 4-10 of the Tax Assessment Act was not limited to information appearing on paper, plastic cards and so on, but also covered texts and figures stored electronically on a computer. Furthermore, the duty to hand over documents also applied to electronically stored documents. The tax authorities could choose whether to ask for paper printouts, electronically readable media, or for the documents to be forwarded to their own computers.
22. In the Directorate’s view, the question at issue concerned the delimitation of the tax authorities’ access to the “company’s archives” under section 4-10 (1) (b) of the Act (see paragraph 68 below). In instances where the documents were stored on a server, the server was to be considered as an archive for the purposes of that provision. In the present instance, the tax office had “seized” (“tatt beslag i”) the server and the question was to what extent the tax office could inspect it. Whether an obligation could be imposed under section 4-10 to hand over each document in the archive required consideration in the specific circumstances.
23. The Directorate moreover noted that a tax subject was not under a duty to produce documents which exclusively concerned the rights and business relationships of other tax subjects. A further limitation was that the documents in question should be relevant to the tax subject’s tax assessment. Accordingly, documents of exclusively private character fell outside that definition. That distinction was important in ascertaining the extent to which the tax authorities could themselves go through the server (the archive) or whether it was for the tax subject to decide which areas of the server should be handed over.
24. Section 4-10 (1) (b) had been added to give the tax authorities an opportunity to act with assertiveness (“gå offensivt til verks”) when inspecting archives in order to find documents of importance to the activity concerned. It was thus clear that the authority to audit did not just amount to the passive reception of information handed out by the person subjected to the audit.
25. Moreover, the Directorate noted, section 4-10 of the Act applied to the tax audit of a specific tax subject. The handing over of documents relating to other tax subjects ought to be based on Chapter 6 of the Act. In instances where the archives were physically separated (into different parts of the server), section 4-10 did not authorise the imposition of access to the archives of other companies. In the present instance, Chapter 6 did not apply.
26. To the extent that a joint archive was not physically divided but was mixed, the tax subject could not refuse the tax authorities access to the archive. In discussions on the draft legislation, it had been emphasised that the purpose of an audit should not be undermined by the tax subject withholding documents. In the Directorate’s view, this ought also to apply in relation to access to the tax subject’s archives. The tax subject could thus not refuse the tax authorities access to its archives on the ground that they contained documents concerning other tax subjects. The duty to hand over all documents contained in the archives should, however, be limited to documents of importance to the tax subject’s tax assessment, see section 410 (1) and (2).
27. In practice, in order to solve the problem of the tax subject avoiding the inspection of documents in the archives (the server) that were insignificant for its tax assessment, the tax subject would be allowed to be present during the review of the archive (see section 4-10 (3)). Accordingly, the Directorate stated, a representative of B.L.H. was to be present during the tax authorities’ review.
28. Under section 11-1 of the Tax Assessment Act, the applicant companies instituted proceedings before the Oslo City Court, asking it to quash the Directorate of Taxation’s decision of 1 June 2004 in respect of B.L.H. and to order the return of the backup tape to Kver. On 10 June 2005 the City Court found in favour of the State and rejected the applicant companies’ appeal.
29. In its judgment, the City Court found that the measure imposed by the tax authorities could comprise the copying of data for subsequent inspection at the tax office to the same extent as on-site access to data on the server could be imposed. It also found that the server in the present instance should be considered in the same way as mixed paper archives.
30. The applicant companies appealed to the Borgarting High Court, which by a judgment of 30 April 2007 upheld the City Court’s decision on essentially the same grounds. The High Court noted inter alia that the case concerned an inspection by the tax authorities of a taxpayer in connection with a notified tax audit, an area in which the principle of legality (legalitetsprinsippet) applied, as did other legal safeguards, including the prohibition of self-incrimination derived from Article 8 of the Convention.
31. On 2 June 2007 the applicant companies appealed to the Supreme Court, disputing in the main the High Court’s application of the law. It had failed to appreciate that the relevant provisions of section 4-10 (1) laid down clear limits for the manner of conduct of a tax inspection, which could be carried out only of the archives of the tax-subject in question, and a demand to hand over documents should be limited to pertinent material contained therein. These limits had been transgressed in the present case.
32. The threshold for accepting access beyond the relevant company’s own archives ought to be high, not least because, by reviewing the server, the right to inspect B.L.H. had been extended to other tax subjects that were not being audited, and to any private and confidential information stored on the server. They referred to Article 8 of the Convention, according to which interference with “home” and “correspondence” was not permitted unless it was “in accordance with the law” and “necessary in a democratic society”. They submitted that, according to the European Court’s judgment in Société Colas Est and Others v. France (no. 37971/97, ECHR 2002III), Article 8 also protected companies.
33. By empowering the authorities to demand copies of the server this would also give them full access to personal data belonging to employees working for different companies as well as any private correspondence that they might have stored on the server or received on their respective e-mail addresses. This aspect of the case also appeared to breach Article 8 of the Convention, as well as laws and regulations on the processing of personal data.
34. Since the imposition of an inspection of the archives of entities others than B.L.H. lacked a basis in section 4-10 (1) (b) of the Tax Assessment Act and Article 8 of the Convention, the tax authorities had acted contrary to the national legal provisions relied on.
35. The application of the mixed-archive doctrine to their case had no legal basis, nor did it follow from clear and established practice. The tax authorities had not documented that there was a mixed archive in the instant case or made any attempt to carry out a prior on-site review in order to determine whether it would be possible to separate B.L.H.’s archives from those of the other companies. It ought to be a condition for a company accepting the seizure of its archives that adequate attempts be made to restrict the seizure to those areas that concerned the activity at issue. Where a partial inspection on the spot revealed that one or more documents had no corroborative significance, the tax authorities could not, according to the Supreme Court’s case-law, seize the archives for further investigation. The same would also follow from Article 8 of the Convention.
36. There had been no legal basis for the authorities to take a full backup copy of the server. The Tax Assessment Act had come into force at a time when archives had been paper based. In the absence of the tax subject’s consent and any prior review, the tax authorities were not entitled to take away an entire paper archive in order to go through all the material at the tax office. The same ought to apply in relation to electronically stored documents, the only difference being that they had to be printed out rather than being photocopied. In this manner the intents and purposes of the Act would be fully taken into account. The copying of the server in order to subsequently review the entire archives constituted an interference that could not be justified as proportionate and necessary for the purposes of Article 8 of the Convention.
37. In additional written pleadings to the Supreme Court dated 6 July 2007, the applicant companies stated, inter alia:
“In this context, it is noted that the references to Article 8 of the Convention in the notice of appeal do not constitute a new submission. As the Attorney General also indicates, reference to the Convention was made during the oral proceedings in the lower courts. In the High Court the respondent made reference to a decision of the Icelandic Supreme Court which considered the relationship between Article 8 of the Convention and the country’s competition law. The decision is enclosed in the joint case documents before the High Court, on page 109 et seq.”
38. In its judgment of 20 November 2007 (Norsk Retstidende 2007 p. 1612) the Supreme Court upheld the High Court’s judgment by four votes to one and held that no award should be made for costs.
39. Mrs Justice Stabel, whose opinion was endorsed in the main by the other members of the majority, observed that the case raised three questions, all related to section 4-10 (1) (b) of the Tax Assessment Act concerning the inspection of records located on a computer server: First, whether the tax authorities could demand access to all the records, regardless of content; secondly, whether this also applied in cases where the records included material belonging to other taxpayers; and, thirdly, whether the tax authorities could demand access in order to copy material for subsequent inspection at the tax office.
40. Section 4-10 (1) (a) of the Tax Assessment Act empowered the tax authorities to order a tax subject to hand over specific documents of significance for a tax assessment. Sub-paragraph (b) provided, in addition to the on-site visit and review of the taxpayer’s assets, a legal basis for the imposition of a review of the company’s archives. With the exception of the rule on review of archives (“arkivgjennomsyn”) in sub-paragraph (b), those provisions were essentially a continuation of the earlier ones of the Taxation Act on the duty to provide information and allow special inspections. Since the rule on review of archives had been added during the consideration of the Bill by the Parliamentary Committee on Financial Matters’, the preparatory work had been rather sparse. On the other hand, the Committee had pointed out that an order to produce a document pursuant to subparagraph (a) presupposed knowledge about the existence of the document, and that the refusal to allow access to review archives constituted a hindrance to effective inspection.
41. From the context, it transpired that the purpose of the provision in section 4-10 (1) (b) was to provide a basis for the tax authorities to assess whether a tax subject possessed documents which he or she could be ordered to produce under sub-paragraph (a). The duty to produce documents was not limited to accountancy documents. What was decisive was whether the documents were significant for the taxpayer’s tax assessment and the authorities’ review of the latter. It was clear that also electronic documents were covered by sub-paragraph (a).
42. Sub-paragraph (b) should naturally be interpreted in the light of its purpose. The aim of an inspection was to find out whether an archive contained documents that could be significant for tax assessment purposes. Access should therefore comprise all archives which the tax authorities had reason to assume contained information of significance for the tax assessment, not just those archives or parts of archives that included accountancy material. In the interests of efficiency of the tax audit, access at that stage should be relatively wide. Therefore, the companies’ argument that it should be up to each tax subject to give binding indications as to which parts of the archive contained documents of significance for the tax assessment or the audit had to be rejected.
43. Access to archives could not be compared to search and seizure, as argued by the applicant companies. Measures taken under Chapter 4 of the Tax Assessment Act formed part of ordinary administrative procedures with a view to ensuring that a correct tax assessment was made. An accountancy audit could be initiated independently of any suspicion of the commission of a criminal offence. An order imposed pursuant to section 4-10 also involved compulsion of a different character than enforcement measures (“tvangsmidler”) in the context of criminal proceedings, where the prosecution executed the measure by way of enforcement (“tvangsgjennomføring”). The principle of the duty to submit tax returns, supplemented by the tax subject’s duty to provide information under section 4-2, presupposed that it should be possible to verify and depart from the information provided by the tax subject. The consequences of a tax subject’s refusal to cooperate were exclusively administrative (discretionary tax assessment).
44. As to the applicants’ argument that the server contained archives belonging to several companies, Mrs Justice Stabel observed that where several companies shared an archive and the areas belonging to the different users were clearly separated, the authorisation to access the archives was limited to the tax subject concerned. The problem arose where it was not possible, at least in advance, to ascertain whether the respective parts were clearly separated, typically where the data were stored electronically on a common server. On this point she agreed with and cited the Directorate of Taxation’s distinction between separate and common (mixed) archives in its decision of 1 June 2004:
"When several tax subjects share an archive, one must, in the opinion of the Directorate, distinguish between cases in which the archives are clearly physically separated and cases in which there is a common (mixed) archive. Whether or not an area will be considered as clearly separate must be assessed in the specific case. The Directorate emphasises that, at present, there is insufficient information in this case to make that assessment."
45. Mrs Justice Stabel further agreed with the High Court that, as a starting point, where full access was not given to the tax authorities, it should be possible to impose full access if the archive was organised in a manner making the tax authorities dependent on indications by the tax subject in order to identify relevant information. It would be up to the companies whether they wished to organise clearly separate archives or to maintain mixed archives which, in practice, would lead to an extension of the tax authorities’ powers.
46. In the present case, the companies had disputed that there had been a mixed archive of the type described. They had argued that B.L.H.’s representative should be able to identify which users had been working on matters pertaining to them and which files had been relevant to their activities. However, it followed from the facts established by the High Court that B.L.H. did not have its own administration but was serviced by a small number of persons in Bergen Underwater Services AS located at the same address, as was the situation of the other companies using the server in question which was owned and run by Kver. B.L.H. did not have its own user area, but the persons who provided services to the company stored the company’s documents under their own user names and passwords.
47. It would have been impossible for the tax authorities to identify immediately the areas of the server where the relevant information was stored. The archive was not organised with clear separations between the different companies, and the distinction between each service person’s user area was not such as to enable the tax authorities to identify information of significance for the tax assessment. In this situation, the High Court had correctly considered that the tax authorities could not depend on B.L.H. indicating the files that might be relevant for the tax assessment of the company. Therefore, the authorities ought to be vested with powers to review all the data on the server. Like the High Court, she also attached some weight to the fact that it had been fully possible to organise the cooperation regarding the use of the server differently, for example by applying consistently own user names.
48. As to the third question, the manner in which the review of the relevant data should take place, Mrs Justice Stabel took note of the fact that the backup tape containing all the information on the server had been prepared, sealed and taken to the tax office, pending a final judgment in the case. A backup tape contained all the files stored in the archive but, unlike a mirror copy, not the computer programmes and deleted material, as the tax authorities had initially wanted.
49. The question was whether the imposition of a duty to allow access with a view to take copies for subsequent inspection at the tax office could be deduced from the right to demand access to the company’s archives. The answer did not follow directly from section 4-10 (1) (b) of the Tax Assessment Act. Unlike sub-paragraph (a), which expressly stated different alternatives for access to documents, sub-paragraph (b) made no mention of how the review should take place. That provision was supplemented by section 4-10 (3), which authorised the tax authorities to demand the presence of a representative of the tax subject in order to provide the necessary guidance, assistance and access to the company’s premises.
50. The question of copying was twofold: did the tax authorities have a right to require a copy and, if so, could the tape then be inspected at the tax office?
51. Very little preparatory work had been carried out on that provision and that particular point had not been dealt with. Since archives had been almost exclusively paper based at the time when the provision had been enacted, the question of copying a whole archive had been unlikely to arise. In view of its purpose, there was no reason to interpret the provision to the effect that it hindered the imposition of a requirement to take a copy where the review of a copy was desirable. The central question was whether the measure imposed by the tax authorities could also include the taking of material to the tax office.
52. The rationale behind sub-paragraph (b) – namely to remove obstacles to an effective audit occasioned by the requirement on the tax authorities to show that the archives contained documents that were significant for tax assessment purposes – militated strongly in favour of an interpretation adapted to the current situation. According to the Directorate of Taxation, an on-site inspection would be particularly time-consuming, and if the authorities were unable to take copies for inspection at the tax office, they would face difficulties in implementing the audit.
53. It could be questioned whether access would entail such an additional burden for the tax subject that the above interpretation would be incompatible with the principle of legality (legalitetsprinsippet). In the view of Mrs Justice Stabel, it was difficult to see that this could be the case. Indeed, the inspection as such would be less burdensome in that the tax subject would at no time be deprived of access to the archive. The requisite safeguards were preserved as the tax subject had a right, under section 35 (1) of the Tax Assessment Act, to be notified about and to be present during the authorities’ review of the tape. If the measure was the subject of a complaint, the material had to be sealed pending examination of the complaint (section 3-6 (4)). In most instances, there was reason to believe that it would also be in the tax subject’s interest that the review took place at the tax office. In any event, there was little reason to oppose that.
54. Mrs Justice Stabel agreed, however, that the protection of privacy (“personvernhensyn”) had to be taken into consideration, because the review of the archive was not limited to accountancy documents but included other documents in the archives which the tax authorities had reason to believe might be of relevance for the tax assessment. However, the tax authorities could also access such sensitive information even if the review were carried out on the tax subject’s premises. Even though, theoretically, there would always be a danger of abuse, which might be somewhat greater if the copied material were taken to the tax office, that risk was hardly so great as to be decisive.
55. It had not been alleged that the backup copy contained more data than what would have been accessible had the review been carried out on-site. The legal safeguards described above would be observed during the review. It was further understood that once the review had been completed, the copy would be destroyed and all traces of the contents would be deleted from the tax authorities’ computers and storage devices. In addition, the review was to provide a basis for orders pursuant to section 4-10 (1) (a). The tax authorities would not be authorised to withhold documents from among the material that had been taken away unless the tax subject accepted the measure.
56. The dissenting member of the Supreme Court, Mr Justice Skoghøy, agreed with the view held by the majority that the tax authorities could require B.L.H. to give access in order to enable them to carry out an inspection of the server used jointly by the applicant companies.
57. As to the further issue of whether the tax authorities could demand a copy of the server on which the archive was stored with a view to subsequent review at the tax office, Mr Justice Skoghøy observed as follows. In his view, section 4-10 (1) (b) could not reasonably be understood to mean that it authorised the tax authorities to demand a copy of the archive. The provision was limited to “review”. To demand a copy was something else and much more far-reaching.
58. The reason why the majority in Parliament in 1980 had been in favour of conferring on the tax authorities a power to search and seize material was that they had believed that the authorities should be able to ensure that important documents had not been “hidden or destroyed (notably burned)”. If the tax authorities were allowed to demand a copy of the archive, they would in reality be empowered to seize, a power which the majority in Parliament in 1984 had not wished to give them when removing a provision to that effect before the entry into force of the relevant part of the Tax Assessment Act.
59. He agreed with the majority that the right to review archives under section 4-10 (1) (b) comprised not only archives containing accountancy material but all archives that potentially contained documents of significance for the tax assessment. This meant that the archived material which the tax authorities could demand to review included a great quantity of sensitive personal data. If the tax authorities were to be empowered to demand the copying of archives, the risk of dissemination and abuse of sensitive personal data would increase considerably beyond what followed from a review on the taxpayer’s premises. This applied especially to the copying of electronic archives. The search facilities for an electronic archive were different from those used for a traditional paper-based archive. Even if electronically stored data were deleted, they could be reconstructed. Also, electronically stored data might be disseminated far more easily and effectively than information on paper. The right of the tax subject to be present when the tax authorities opened and reviewed the archive did not constitute a guarantee against abuse. There was no way of ensuring that that right had been respected. Therefore, weighty considerations of legal security and protection of privacy militated against conferring on the tax authorities a right to demand a copy of the archive. As the majority in Parliament had pointed out in the context of the legislative amendment in 1984, the requirements of legal security and protection of privacy were an overriding political aim in a democratic society. In particular, since the parliamentary majority had voted strongly against search and seizure, and since copying for subsequent review at the tax office was in reality a form of seizure, Mr Justice Skogøy found that the tax authorities clearly should not be empowered to require a copy without the question being first considered by the legislator and a clear statutory power given for copying.
60. On that ground, Mr Justice Skoghøy voted for quashing the Directorate of Taxation’s decision of 1 June 2004 in respect of B.L.H. authorising the copying of the server.
61. On 28 January 2008 the Tax Administration (skatteetaten, Skatt Vest) notified the applicant companies of their intention to open the tape with a view to ordering the production of documents. It notified them of the dates, time and place of the review, its object, certain preparatory processing not involving searching or opening of documents, and the identity of the companies concerned. It also invited them to appoint a common representative to attend the said preparations, and the opening and review of the tape.
62. In a letter to the applicant companies dated 30 April 2008, the Tax Administration responded, inter alia, to certain complaints made by the applicant companies in their letter of 22 February 2008.
63. In response to the applicant companies’ complaint that the backup tape had been secretly copied, the Tax Administration reiterated that they had already informed the applicant companies in a letter of 19 June 2007 that after their meeting on 5 June 2007, the contents of the tape had been copied to hard disk. This had been necessary in order to be able to open and read the files, and the data would be carefully secured pending further proceedings. Except for in the limited context of the criminal investigation described in paragraph 65 below, the files had not been opened and read.
64. As regards the applicant companies’ demand that either the two hard disks in question be handed over to B.L.H., or the copied material be deleted, the Tax Administration replied that they could not see that the Supreme Court’s judgment of 20 November 2007 would prevent them from copying the contents of the backup tape to hard disk, or that the actual review could be carried out on this instead of the backup tape. They referred to the Supreme Court’s reasoning summarised in paragraph 49 above. The copying of the data onto an independent, free and unused hard disk was necessary in order to be able to carry out an appropriate review of the contents of the backup tape. In that connection, the tax office took note of the Supreme Court’s understanding that, once it had been reviewed, the copy would either be returned or destroyed, and all traces of the contents would be deleted from the tax authorities’ computers and storage devices. The Supreme Court’s reasoning thus appeared to be based on the presumption that the contents of the server could be copied temporarily as described. The tax office would not hand over the hard disks or delete information from the backup tape stored on them until completion of the review.
65. In reply to a request by the applicant companies for the names of personnel who had dealt with the case, including those who had viewed documents on the backup tape, the tax office stated that the correspondence, faxes and e-mails that the tax authorities had produced in connection with the case indicated sender’s identity. Moreover, representatives of the tax office had presented themselves by name during meetings and telephone conversations that had taken place. Furthermore, in the context of a separate tax investigation of the applicant companies and other companies within the same ownership sphere that were linked to a certain Mr X and criminal proceedings against the latter, the regional tax office had filed a complaint against him to the police alleging that he had committed aggravated tax fraud. During the criminal investigations the police had obtained a judicial order authorising the seizure of the backup tape. The tax office accepted to assist the police, in accordance with relevant agreements and instructions. The assistance had consisted of the reviewing of the backup tape, during the period between January and March 2006, by certain named expert accountants and a tax lawyer. After completion of the work, the police had demanded that the Office delete all documents stored electronically and shred all paper copies taken. That had been done immediately. In the proceedings before the High Court in the present case, the parties agreed to distinguish these from the afore-mentioned criminal proceedings.
66. The Tax Administration agreed with the applicant companies that it would be problematic with respect to the duty of confidentiality if the representative(s) of all taxpayers present were to be given the opportunity to view the computer screen during the review of documents. For that reason – and because it would have made working conditions difficult if the officer had the said representative(s) just behind his back while working on the backup tape – it had been decided that the representative(s) would not have access to the screen or to read printed documents continuously during the inspection (section 3-13 (1), first sentence, and section 3-5 (1), second sentence, of the Tax Assessment Act). The representative(s) would therefore be directed to another part of the premises where they could observe the processing but not the documents being reviewed.
As the officers identified documents that the taxpayer would be ordered to produce, the documents would be printed out and listed. After completion of the review, the printed and listed documents would be sorted for each taxpayer in the case complex. The representative of the individual taxpayer would then be given access to the document which concerned him and would, in so far as desirable, be able to comment.
67. Pursuant to section 4-1 of the Tax Assessment Act (ligningsloven) of 13 June 1980 the tax subject had a general duty to provide relevant information to the tax authorities carefully and loyally and ought to contribute to his or her tax liability being clarified in due time and being complied with. He or she ought to draw the attention of the authority concerned of errors in the assessment and payment of the taxes.
68. The disputed measures in the present case had been taken pursuant to section 4-10 (1), which – supplementing the duty of information above – authorised the tax authorities to order a taxpayer:
"(a) To present, hand out or dispatch its books of account, vouchers, contracts, correspondence, governing board minutes, accountancy minutes and other documents of significance with respect to the tax assessment of the taxpayer and the audit thereof. ...
(b) To grant access for on-site inspection, survey, review of the companies’ archives, estimation etc. of property, constructions, devices with accessories, counting of livestock, stock of goods and raw materials, etc."
Under section 4-10 (3), when required by the tax authorities, the taxpayer had a duty to attend an investigation as described in section 4-10 (1), to provide necessary guidance and assistance and to give access to office and business premises.
69. Section 3-5 (1) of the Tax Assessment Act gave the taxpayer the right to be present during the review of the archive:
"The taxpayer or the party who has an obligation to disclose information shall be given reasonable notification and have the right to be present and express views during the investigation that takes place pursuant to section 4-10 (1) (b), or section 615. This applies only in so far as it may be implemented without risking the objective of the investigation."
Pursuant to section 3-5 (2), when an investigation had been carried out according inter alia to section 4-10, a report or protocol was to be drawn up describing the factual information collected, in so far as it pertained to the relevant tax subject.
70. A duty of confidentiality of tax information was set out in section 31 (1):
“Everyone who assumes or has assumed a task, post or commission linked to the tax administration shall prevent that persons who are not concerned obtain access to or knowledge of what he in the performance of his work has learned about a person’s assets or income or other financial-, business- or personal matters. Upon taking up such task, post or commission he shall give a written declaration on whether he is aware of and will comply with the duty of confidentiality.”
71. Section 3-6 laid down a right to complain in cases where the taxpayer had been ordered to give access to archives pursuant to section 410 (1) (b):
"A person ordered to provide information or to cooperate with an inspection pursuant to Chapter 4 or 6, may lodge a complaint if he considers that he has no duty to comply, or is prohibited by law from doing so. ... "
"The order shall be complied with even if the complaint has not been decided, unless the person who has issued the instruction grants a stay of implementation of the measure. Such a stay shall be granted where the person who has given the order finds that the complaint raises reasonable doubt as to the legality of the order. A stay shall be granted where the order concerns the presentation of documents which are sealed and deposited according to regulations issued by the Ministry."
72. Various provisions supplementing the Tax Assessment Act may be found in the Regulations on Accountancy Audit of 23 December 1983 no. 1839. Pursuant to Article 3, the tax subject ought to be informed about his or her duty to provide information and his right to complain about an order to assist in the audit.
73. Article 4 of the Regulations provided that in the event of a complaint about an order to produce documents the documents in question ought to be placed in a sealed envelope. The person conducting the review could, where appropriate, decide that the envelope should be deposited with him or her until the complaint has been decided. If the complaint was upheld, the envelope ought to be returned. If not, the complainant ought to be informed accordingly. Unless it would lead to considerable delay, the tax subject ought to be given an opportunity to be present when the seal is broken.
74. Article 5 required – in conformity with section 3-5(2) of the Act – the person conducting the review to draw up a report setting out in detail the information that should be included in the report. Under Article 6 a copy was to be sent to the tax subject.
75. According to Article 7, documents provided to the tax authorities pursuant to section 4-10 of the Act ought to be returned as soon as possible, possibly after copies had been taken of specific documents deemed to be of significance for the tax assessment or the tax audit.
76. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). Article 5, which deals with quality of data, provides:
“Personal data undergoing automatic processing shall be:
a. obtained and processed fairly and lawfully;
b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes;
c. adequate, relevant and not excessive in relation to the purposes for which they are stored;
...
e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.”
77. Article 7 on “Data security” states:
“Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.”
78. Article 8, providing for “Additional safeguards for the data subject”, reads:
“Any person shall be enabled:
a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;
b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;
c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this convention;
d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.”
79. Article 9, setting out the conditions for “Exceptions and restrictions”, provides:
“1. No exception to the provisions of Articles 5, 6 and 8 of this convention shall be allowed except within the limits defined in this article.
2. Derogation from the provisions of Articles 5, 6 and 8 of this convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of:
a. protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences;
b. protecting the data subject or the rights and freedoms of others.
3. Restrictions on the exercise of the rights specified in Article 8, paragraphs b, c and d, may be provided by law with respect to automated personal data files used for statistics or for scientific research purposes when there is obviously no risk of an infringement of the privacy of the data subjects.”
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-82217
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MORGUNENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1937 and lives in Kryvyy Rig. He was an employee of the “Kryvbaszalizrudkom” OJSC (“the Company”; ВАТ “Кривбасзалізрудком”). The “Ukrrudprom” State Company (ДВАТ «Укррудпром») owned 100% of the Company's share capital.
5. In March 2000 the applicant instituted civil proceedings in the Dzerzhynsky District Court of Kryvyy Rig (Дзержинський районний суд м. Кривий Ріг), seeking his reinstatement as an overman (гірничий майстер) and compensatory redress for allegedly unlawful dismissal.
6. On 2 November 2001 the court ordered the applicant's reinstatement and partly allowed his claims for compensation, having awarded him 12,231.37 hryvnyas (UAH). The Company appealed, but reinstated the applicant.
7. On 4 June 2002 the Dnipropetrovsk Regional Court of Appeal upheld the applicant's reinstatement, however, recalculated the compensation and awarded him UAH 7,038.38. The judgment was not appealed against in cassation within the statutory time-limit and became final.
8. On 30 July 2002 the Zhovtnevy District Bailiffs' Service (Відділ Державної виконавчої служби Жовтневого району м. Кривий Ріг) instituted the enforcement proceedings.
9. On 30 August 2002 the enforcement proceedings were stayed on account of the pending bankruptcy proceedings against the Company.
10. On 26 April 2004 the enforcement proceedings were resumed, as the bankruptcy proceedings had been discontinued.
11. In May 2004 the judgment given in the applicant's favour was enforced.
12. A description of the relevant domestic law can be found in Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104461
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: HEIKKINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: The applicant, Mr Mika Antero Heikkinen, is a Finnish national who was born in 1972 and lives in Helsinki. He was represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki.
On 17 December 2005, in the middle of the night, the applicant and his friend stole a car and used it in a burglary. During their escape from the crime scene at high speed the applicant, who was under the influence of alcohol and drugs, shunted the car of the security guard who was trying to stop them. Some time later the police arrived with two vehicles and tried to stop the applicant by shunting his car off the road, one vehicle hitting the car sideways and one at the rear. The applicant tried to escape by driving at the police cars from the front and behind. When the applicant’s car became stuck in bushes, police officer J.H. stepped out of his car, which was in front of the applicant’s car, and started to approach him on foot, moving towards the front of the car. When he was some three metres from the applicant’s car, the applicant managed to free his car from the bushes and drove suddenly towards J.H. J.H. quickly side-stepped in order not to be run over and fired a total of six shots at the car in an attempt to stop the applicant. Three of the shots hit the upper edge of the front wheel on the driver’s side, and the last three shots were fired at the side of the vehicle as it passed. One of these shots hit the applicant in the back of the shoulder, making him lose control of the car. The car hit first the police car, then a nearby building. Initially, the applicant suffered from varying degrees of muscular weakness on his left side but he quickly regained mobility and later made a full recovery. His most recent medical check-up was in August 2006.
During the investigation of the shooting, a reconstruction of the events was organised, based on sound recordings. In the context of the investigation, all the persons involved in the incident as well as some tactical and operational experts were questioned.
On 5 June 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) found J.H. guilty of negligent breach of official duty and of causing bodily harm. He was sentenced to 40 day-fines, totalling EUR 1,160. The applicant was convicted of violent resistance to a civil servant and a person upholding order, stealing a vehicle, driving under the influence of alcohol and without a valid licence, theft and aggravated endangering of road safety. He was sentenced to imprisonment of one year and one month and ordered to pay substantial to several parties.
The court noted that J.H. had been in a situation which he could have perceived as dangerous for himself and for others and that he had only had approximately one second in which to react. He had known that the applicant had earlier driven at 180 km/h and he had seen the applicant shunt the police vehicles violently with his car when trying to escape. J.H.’s intention, after the applicant’s car had become stuck in the bushes, had been to force the applicant out of the car but as the events developed very suddenly, he had acted instinctively and in self-defence. The court found that as J.H. had perceived the situation as being one of self-defence, the use of firearms had been justified. However, as the applicant had been injured, J.H. was convicted of negligent breach of official duty and of causing bodily harm.
On 19 December 2007 the Helsinki Court of Appeal (hovioikeus, hovrätten), after having held an oral hearing, acquitted J.H. of all charges. The court found that even though, according to the internal rules, the stopping of a vehicle should be carried out by methods other than by using firearms, that rule did not cover situations qualifying as self-defence. Although in theory the policemen may have had other less drastic means available to them to stop the applicant’
On 27 October 2008 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.
Chapter 4, section 4, of the Penal Code (rikoslaki, strafflagen, Act no. 515/2003) provides about self-defence the following:
“An act that is necessary to defend against an ongoing or imminent unlawful attack is lawful as self-defence, unless the act manifestly exceeds what in an overall assessment is to be deemed justifiable, taking into account the nature and strength of the attack, the identity of the defender and the attacker and the other circumstances.
However, if the defence exceeds the limits of self-defence (excessive self-defence), the perpetrator is exempt from criminal liability if the circumstances were such that the perpetrator could not reasonably have been expected to have acted otherwise, taking into account the dangerousness and sudden nature of the attack and the situation also otherwise.”
Chapter 4, section 6, of the same Code provides the following:
“Separate provisions in an Act apply to the right to use forcible measures in the performance of official functions or for another comparable reason and to the right to assist persons appointed to maintain order.
In the use of forcible measures, recourse may be had only to such measures necessary to perform the function and that can be deemed justifiable when assessed as a whole, taking into account the importance and urgent nature of the task, the dangerousness of the resistance and the situation also otherwise.
If the limits provided in subsection 2 have been exceeded in the use of forcible measures, the perpetrator is nonetheless free of criminal liability if there are very weighty grounds to deem that the perpetrator could not reasonably have been expected to have acted otherwise, taking into account his or her position and training, the importance of the function and the unexpected nature of the situation.”


ITEMID: 001-94117
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SİNGAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1966 and lives in Ağrı.
5. On 28 January 1995 the applicant was arrested in Istanbul on suspicion of being a member of an illegal organisation. On 15 February 1995 he was remanded in custody.
6. On 24 April 1995 the public prosecutor filed a bill of indictment against the applicant and nineteen other accused with the Istanbul State Security Court. On 2 May 1995 the trial commenced. On 10 May 2001 the applicant was released pending trial.
7. By Law no. 5190, in June 2004 State Security Courts were abolished. Subsequently, the Istanbul Assize Court acquired jurisdiction over the case.
8. On 23 October 2008 the Istanbul Assize Court ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time limit under Articles 102 and 104 of the Criminal Code had expired.
VIOLATED_ARTICLES: 6


ITEMID: 001-60750
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF BĚLEŠ AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award;Non-pecuniary damage - finding of violation sufficient
JUDGES: Gaukur Jörundsson
TEXT: 11. On 20 January 1997 eleven members of the Homeopathic Association, including the applicants, brought an action against the Medical Society under section 15 of the Citizens' Associations Act (Law no. 83/1990) and Article 80 (c) of the Code of Civil Procedure. They sought declarations that the amendment of 20 November 1996 to the internal rules and, consequently, the decision to expel their association were nullities (neplatnost) and that the Homeopathic Association remained a member of the Medical Society. They maintained that the Medical Society's decision had damaged the reputation of the Homeopathic Association and had caused patients to become wary of doctors practising homeopathy (a fact which they submitted gave them a relevant interest for the purposes of Article 80 (c) of the Code of Civil Procedure). They said that the decision had been arbitrary, unlawful and subjective, as it had been taken without the benefit of expert professional or scientific advice and was liable to cause unjustified discrimination against certain healing methods.
12. In a judgment of 2 October 1997, Prague 2 Municipal Court (obvodní soud) dismissed the applicants' action without examining the merits, holding:
“The Court finds that [the applicants] are not entitled [in their action for a declaration of nullity under Article 80 (c) of the Code of Civil Procedure] ... to an order negating the alleged illegality of the resolution adopted by the organ of the society or any inconsistency with the internal rules [of the Medical Society]. [Section 15(1) of Law no. 83/1990] only gives the court power to review an impugned decision, not to vary or uphold it. The review procedure is now set out in Chapters I and II of Part Five of the Code of Civil Procedure, which defines jurisdiction in administrative appeals on points of law and requires the review [of a decision] within the meaning of section 15 to be interpreted by analogy. Support for that view is also to be found in other provisions of Law no. 83/1990, which confer on the district court certain powers with respect to associations formed under that Act (see sections 11(2) and 13(3), it being understood that section 12(4) refers to the provisions of the Code of Civil Procedure governing the review of decisions by other authorities).”
13. On 19 December 1997 the applicants appealed against that judgment, arguing in particular that section 15 of Law no. 83/1990 did not specify under which provisions of the Code of Civil Procedure they should have brought their action and that, since the Medical Society was not an administrative authority, Part Five of the Code of Civil Procedure, which only applied to the judicial review of decisions of the administrative authorities, could not be applicable in their case. They further submitted that having found that it had no jurisdiction to decide the case on the basis of the pleaded provision, the court should have declined jurisdiction, not dismissed their claim. They were not required by the provisions of the Code of Civil Procedure governing the conditions of form applicable to actions to bring their claims under specific statutory provisions or to specify the procedure the court should follow, as the court was required first and foremost to consider the substance of their claim.
14. In a judgment of 16 April 1998, the Prague City Court (městský soud) upheld the Municipal Court's judgment. It found that the applicants should have brought an action for a review of the impugned resolutions. Had they done so, the Municipal Court would have decided the case in accordance with Article 250j § 1 of the Code of Civil Procedure, either dismissing the action if it considered that the resolutions were lawful or quashing the resolutions on one of the grounds set out in section 15(2), if that was appropriate. The City Court also dismissed an application by the applicants for leave to appeal on points of law (dovolání) against its decision.
15. On 29 January 1998 the applicants lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud). They filed a supplemental pleading on 9 July 1998. They submitted that, by an erroneous construction of section 15 of Law no. 83/1990, the Prague 2 City Court had restricted, and even deprived them of, their right to the protection of the courts, as guaranteed by Article 36 of the Charter on Fundamental Rights and Freedoms (Listina základních práv a svobod). They complained that the City Court had failed to respond to their arguments that Part Five of the Code of Civil Procedure was inapplicable in their case. They further submitted that the impugned decisions of the Medical Society had infringed their right to freedom of choice of their profession for the purposes of Article 26 of the charter and Article 8 of the Convention, to scientific freedom, as guaranteed by Article 25 of the charter, and to freedom of association, as guaranteed by Article 20 of the charter and Article 11 of the Convention. They added that the domestic courts' failure to examine the merits of their action meant that the alleged violations were continuing.
16. On 12 August 1998 the Constitutional Court declared the applicants' appeal inadmissible for failure to exhaust statutory remedies by appealing on points of law. It referred to Article 239 § 2 of the Code of Civil Procedure.
17. Article 10 of the Constitution of the Czech Republic (as worded at the material time) provided that treaties on human rights and fundamental freedoms that had been ratified and promulgated and were binding on the Czech Republic had immediate mandatory effect and prevailed over statute.
18. Article 96 § 1 of the Constitution laid down that all parties to proceedings had equal rights before the courts.
19. Article 36 § 1 of the Charter on Fundamental Rights and Freedoms provides that everyone has the right to seek justice under a set procedure from an independent and impartial court, or in specified cases, another authority.
20. Article 38 § 1 of the Charter provides that no one may be denied access to the judge with statutory jurisdiction to hear his or her case. The jurisdiction of the courts and judges shall be determined by statute.
21. Section 15(1) provides that if a member of an association considers that an unappealable decision of an organ of the association is unlawful or contrary to the rules of the association, he or she may, within thirty days after becoming aware thereof, but in any event no later than six months after the decision was taken, seek judicial review of the decision by a district court (okresní soud).
22. Section 15(2) provides that applications for judicial review have no suspensive effect. Nevertheless, the court may stay implementation of the impugned decision if appropriate.
23. Article 5 imposed a duty on the courts to inform the parties of their procedural rights and obligations.
24. Article 42 § 4, which set out the requirements regarding the form of legal actions, laid down, inter alia, that applications had to be dated and had to state the name of the applicants and the case, and the purpose of the application and the court to which it was made. In addition to those general requirements, Article 79 § 1 required the names, occupations and addresses of the parties (and the names and head offices of legal entities) and, if applicable, of their representatives, to be stated in the application, followed by a description of the relevant facts, the evidence relied on by the applicants and the relief sought.
25. Article 43 § 1 empowered the president of the division to invite applicants to correct or supplement an application that did not comply with the formal requirements, or was imprecise or incomprehensible. In such cases, the president was also required to inform the applicants of the procedure to be followed and to grant them time in which to remedy the defects in the application.
26. Under Article 80 (c) of the Code of Civil Procedure, a court hearing a civil action had power to determine whether or not a legal relationship or right existed, provided that an imminent legal interest (naléhavý právní zájem) had been shown.
27. Part Four of the Code of Civil Procedure concerned appeals and applications for judicial review: ordinary appeals, applications for proceedings to be reopened and appeals on points of law. Article 236 § 1 laid down that an appeal on points of law (dovolání) lay solely against immediately enforceable appeal court decisions (rozhodnutí), and then only if the statutory conditions were satisfied.
28. Article 239 § 1 provided that an appeal court that had upheld a decision of the court below must grant leave to appeal on points of law if it considered that its decision gave rise to a question of crucial legal importance justifying such leave (rozhodnutí po právní stránce zásadního významu). It could grant such leave on its own initiative.
29. Article 239 § 2 provided that if an appeal court refused to grant an application for leave to appeal on points of law that had been made by one of the parties before the decision upholding the decision at first instance was adopted, leave to appeal could only be obtained if the Supreme Court itself considered that the appeal court's decision gave rise to a question of crucial legal importance.
30. Part Five of the Code of Civil Procedure concerned jurisdiction in administrative proceedings. Article 244 laid down that, as part of their administrative-law jurisdiction, the courts must, on application or appeal, review the lawfulness of decisions of the administrative authorities.
31. Section 43(1)(e) lays down that, save as otherwise provided in the Act, the judge rapporteur shall dismiss a constitutional appeal without holding a hearing or requiring the parties to attend if, inter alia, it is inadmissible (nepřípustný).
32. Section 72(1) provides that anyone claiming to be a victim of a violation by a “public authority” of a fundamental right or freedom recognised in a constitutional law or international treaty within the meaning of Article 10 of the Constitution shall have standing to bring a constitutional appeal.
Under section 72(2), constitutional appeals must be lodged within sixty days after the appellant has been served with the decision on the final statutory remedy available for the protection of his or her rights.
33. Section 75(1) provides that a constitutional appeal shall be inadmissible if the appellant has not used all available statutory remedies, other than an application to reopen proceedings. Section 75(2)(a) gives the Constitutional Court a discretion not to declare a constitutional appeal inadmissible for failure to exhaust statutory remedies if the issue at stake goes significantly beyond the appellant's own interests and the appeal was lodged within one year after the impugned decision or event.
34. In its decision no. IV ÚS 93/98 of 28 April 1998, the Constitutional Court declared a constitutional appeal inadmissible for failure to exhaust statutory remedies (see section 75(1) of the Constitutional Court Act – Law no. 182/1993) on the ground that an appellant whose case in a constitutional appeal was identical in substance to that he had pleaded in the ordinary courts and had been planning to plead in the Supreme Court was at risk of not satisfying the exhaustion of remedies rule if he failed to exercise his right to lodge an appeal on points of law under Article 239 § 2 of the Code of Civil Procedure.
35. In its decision no. III ÚS 53/98 of 8 September 1998, the Constitutional Court found, inter alia, that, even though the applicants had been refused leave to appeal on points of law by the appeal court, they were still entitled to seek leave under Article 239 § 2 of the Code of Civil Procedure, as they satisfied the necessary conditions. Since they had not made use of that available remedy, their constitutional appeal could not be declared admissible.
36. In its decision no. II ÚS 113/97 of 8 October 1998, the Constitutional Court held that an appellant whose application for leave to appeal on points of law has been dismissed by the appeal court is nevertheless entitled to apply for leave to the Supreme Court under Article 239 § 2 of the Code of Civil Procedure. Unless he does so, he will not have exhausted the statutory remedies provided to protect his rights.
37. In its reasoning in decision no. III ÚS 224/98 of 8 July 1999, the Constitutional Court stated, inter alia, that if a party to the proceedings is refused leave by the appeal court to appeal on points of law, he must apply to the Supreme Court for leave under Article 239 § 2 of the Code of Civil Procedure, otherwise his constitutional appeal will be inadmissible.
38. In its decision no. III ÚS 148/99 of 15 September 1999, the Constitutional Court declared a constitutional appeal inadmissible on the ground that if a party's application to the appeal court for leave to appeal on points of law was dismissed, he would still be regarded as having failed to exhaust statutory remedies unless he applied to the Supreme Court for leave, despite the fact that it was his application to the appeal court that had made the application to the Supreme Court necessary.
39. In its decision no. I ÚS 22/93 of 5 January 1995, the Constitutional Court considered, inter alia, the question of the admissibility of a constitutional appeal that had been lodged outside the statutory time-limit in a case in which the appellant was not sure whether he would be granted leave to appeal on points of law. The Constitutional Court held that when an appellant decides to appeal on points of law against a decision of the appeal court in circumstances in which it is unclear whether leave to appeal will be granted, he must lodge a constitutional appeal at the same time, in order to ensure that it is brought within the statutory time-limit.
40. In its decision no. I ÚS 213/96 of 26 November 1996, the Constitutional Court said that if an appellant was unsure whether an application he had just lodged for leave to appeal on points of law would be granted, then in order to avoid being out of time with his constitutional appeal, he should lodge his constitutional appeal at the same time, without waiting for the decision on the application for leave, since, if leave was refused, the final decision in his case would be the appeal court decision.
41. Furthermore, applications nos. 73577/01 and 73403/01 (Vodárenská Akciová Společnost, A.S. v. the Czech Republic and Turek v. the Czech Republic, respectively), which have been lodged with the Court and communicated to the respondent Government, show that the effectiveness of lodging an appeal on points of law simultaneously with a constitutional appeal may prove to be purely theoretical. In these cases, the applicants lodged both forms of appeal at the same time, but their constitutional appeals were declared inadmissible for failure to exhaust domestic remedies, as appeals to the Supreme Court were still pending. They subsequently lodged fresh appeals with the Constitutional Court, once the Supreme Court had refused them leave to appeal. However, their constitutional appeals were again declared inadmissible, this time on the ground that they were out of time.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76684
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF DOBREV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 3;Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 7. The applicant was born in 1978 and is a resident of Varna. At the time of the events, he lived in Plovdiv.
8. On 17 August 1999 a burglary was committed where, inter alia, a television and a video recorder were stolen.
9. On an unspecified date a preliminary investigation was opened.
10. On 26 August 1999 the apartment where the applicant was living was searched by the police, with the apparent subsequent approval of the Prosecutor's Office. Neither the applicant nor any other representative of the household was present. The search was conducted in the presence of two witnesses, neither of them was indicated to be the residence's manager or a representative of the municipality. Various items were seized among which were three photo cameras, a hi-fi system and a wrench.
11. On the same day, 26 August 1999, the applicant was arrested in Plovdiv and taken into police custody. He was then transferred to Pazardzhik.
12. On 28 August 1999, under an order issued by an investigator and approved by the Prosecutor's Office, the applicant was placed under twenty-four hours' preliminary detention as of 5 p.m. and held at the Pazardzhik Regional Investigation Service. The applicant was suspected of having committed the burglary on 17 August 1999 because the stolen television and a wrench, allegedly used to perpetrate the offence, had been found in his apartment. In addition, at the time of his arrest the applicant had apparently attempted to abscond.
13. On 29 August 1999 the Prosecutor's Office extended the preliminary detention of the applicant for another two days until 5 p.m. on 31 August 1999.
14. On 31 August 1999 the applicant, together with two other individuals, was charged with having committed the burglary of 17 August 1999. He was remanded in custody upon a decision of an investigator which was confirmed later in the day by the Prosecutor's Office. In ordering the remand in custody, the investigator stated that the applicant lacked a permanent address, that he had committed numerous other burglaries, that he might re-offend and that he might abscond as he had apparently done in 1998 when a national arrest warrant had been issued against him.
15. On 8 October 1999, under an order issued by an investigator, the charges against the applicant were amended to include another four burglaries and his detention on remand was maintained. In ordering the continued detention, the investigator cited the gravity of the offences with which the applicant had been charged, the likelihood that he might abscond and his personality.
16. On 12 November 1999 the applicant appealed against his detention. He maintained that his continued detention was unwarranted as there was no danger that he would abscond or re-offend because, inter alia, he had a permanent address in another city and his brother could pay his bail. The applicant also relied on Article 5 of the Convention in his submissions.
17. The Pazardzhik District Court dismissed the applicant's appeal on 18 November 1999. The court found that the applicant had been charged with a serious offence which warranted mandatory detention. In addition, the court concluded that the applicant might abscond because he did not have any personal identity documents, had no permanent address and was apparently residing in an apartment rented by one of his friends. It also found that it was likely that he would re-offend considering the fact that he had perpetrated the offences with which he had been charged during the operational period of a previous one-year suspended sentence. In respect of the arguments pertaining to Article 5 of the Convention, the court examined them and found that the applicant's continued detention was in conformity with the exceptions provided in the said provision.
18. The applicant filed another appeal against his detention on 22 November 1999 arguing that there was no longer a danger that he might abscond or re-offend because his brother was willing to pay his bail, support him financially and provide him with employment.
19. On 26 November 1999 the Pazardzhik District Court dismissed the applicant's appeal. The court found, inter alia, that the applicant had failed to provide evidence that he even had a brother and was unable to indicate where the said brother lived, what kind of business he was running and where.
20. On 22 December 1999 the applicant filed his third appeal against his detention arguing that he had been in detention for more than four months and that there was no longer a danger that he might abscond or re-offend because his brother was willing to pay his bail, support him financially and provide him with employment.
21. An indictment was filed against the applicant on an unspecified date.
22. The judge rapporteur of the Pazardzhik District Court, also on an unspecified date, ruled that the court would examine the applicant's latest appeal at its hearing scheduled for 25 February 2000. For undisclosed reasons the hearing was postponed to 4 April 2000.
23. The Pazardzhik District Court dismissed the applicant's third appeal at its hearing on 4 April 2000. The court found that the applicant had been charged with a serious offence and that he might abscond because he did not have a permanent address and was residing in an apartment rented by one of the co-accused. It also found that it was likely that he would re-offend considering the fact that he had perpetrated the offences with which he had been charged during the operational period of a previous one-year suspended sentence. The decision was upheld on appeal by the Pazardzhik Regional Court on 13 April 2000.
24. In response to a fourth appeal of the applicant against his detention filed on an unspecified date, the Pazardzhik District Court found in his favour on 17 May 2000. On appeal by the prosecuting authorities the decision was quashed by the Pazardzhik Regional Court on 30 May 2000. The latter court found that the applicant might abscond because he did not have a permanent address and was residing in an apartment rented by one of his friends. It also found that it was likely that he would re-offend considering his past criminal tendencies and that he lacked employment.
25. The subsequent development of the criminal proceedings is unclear. It is also unknown whether, and when, the applicant was released or granted bail. However, as of the date of the applicant's submissions of March 2005, the case was still pending before the court of first instance.
26. The applicant contended, which the Government did not challenge, that as from 26 August 1999 he was detained for a period of two months at the Pazardzhik Regional Investigation Service and was then transferred to the Pazardzhik Prison where he remained at least until 30 May 2000.
27. In the applicant's submission the cells were small, overcrowded and below street level. There was no natural light or fresh air in the cells. Quite often there were rodents and cockroaches. A bucket was provided for the sanitary needs of the detained. There was no hot water, soap or other toiletries. The applicant was not permitted to go out of his cell for exercise. The food provided was of insufficient quantity and substandard. The applicant was not allowed to read newspapers or books.
28. In the applicant's submission the conditions in the Pazardzhik Prison were slightly better than those in the Pazardzhik Regional Investigation Service. Similarly, though, the food was insufficient and of the same inferior quality; the cells were small and overcrowded; fresh air and light were insufficient and a bucket was provided for the sanitary needs of the detained. Limited exercise was provided in the prison yard.
29. Under the Ministry of Internal Affairs Act, as in force at the relevant time, the police were empowered, on the basis of an order to that affect, to arrest and take a person into custody who, inter alia, had committed an offence or whose identity could not been ascertained due to lack of appropriate personal identity documents (section 70 (1)). A person taken into police custody had the right to be assisted by a lawyer and to appeal against his detention to the domestic courts, which were required to immediately rule on such an appeal (section 70 (3) and (4)). Police custody could not be longer than twenty-four hours (section 71).
30. In a reported case of 2003, the Supreme Administrative Court upheld a finding of a lower court that an order for taking a person into police custody had been unlawful due to lack of legal grounds (реш. № 10516 от 21 ноември 2003 г. по адм. д. № 4159/2003 г., V отд. на ВАС).
31. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice at the relevant time are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).
32. As of that date the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation).
33. The relevant part of the amended Article 152 provides:
“(1) Detention pending trial shall be ordered [in cases concerning] offences punishable by imprisonment..., where the material in the case discloses a real danger that the accused person may abscond or commit an offence.
(2) In the following circumstances it shall be considered that [such] a danger exists, unless established otherwise on the basis of the evidence in the case:
1. in cases of special recidivism or repetition;
2. where the charges concern a serious offence and the accused person has a previous conviction for a serious offence and a non-suspended sentence of not less than one year imprisonment;
3. where the charges concern an offence punishable by not less than ten years' imprisonment or a heavier punishment.
(3) Detention shall be replaced by a more lenient measure of control where there is no longer a danger that the accused person may abscond or commit an offence.”
34. It appears that divergent interpretations of the above provisions were observed in the initial period of their application upon their entry into force on 1 January 2000.
35. In June 2002 the Supreme Court of Cassation clarified that the amended Article 152 excluded any possibility of a mandatory detention. In all cases the existence of a reasonable suspicion against the accused and of a real danger of him absconding or committing an offence had to be established by the authorities. The presumption under paragraph 2 of Article 152 was only a starting point of analysis and did not shift the burden of proof to the accused (TR 1-02 Supreme Court of Cassation).
36. At the relevant time, Article 191 of the CCP provided that in the course of an enquiry (i.e. when there is insufficient evidence to initiate formal criminal proceedings) a search of premises could be conducted only in the course of examining a crime scene and if its immediate execution was the only possibility to collect and secure evidence.
37. At the relevant time, Article 134 of the CCP provided that a search of premises may be carried out if there is probable cause to believe that objects or documents, which may be relevant to a case, would be found in them. Such a search could be ordered by the trial court (during the trial phase) or by the prosecutor (during the pre-trial phase) (Article 135).
38. A search of premises was to be conducted in the presence of witnesses and the person using them or an adult member of his family. In case the person using them or an adult member of his family could not be present, the search was to be conducted in the presence of the residence's manager or a representative of the municipality (Article 136).
39. There was no special procedure through which a search warrant issued by a prosecutor could be challenged. Thus, the only possible appeal was a hierarchical one to the higher prosecutor (Article 182), which did not have suspensive effect (Article 183).
40. The State Responsibility for Damage Act of 1988 (the “SRDA”) provides that the State is liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for unlawful pretrial detention, if the detention order has been set aside for lack of lawful grounds (sections 1-2). The relevant domestic law and practice under sections 1 and 2 of the SRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 7680, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56 60, 8 April 2004).
41. In respect of conditions of detention, despite some initial uncertainty as to the applicability of the SRDA in respect of such complaints, in a number of recent cases the domestic courts have ruled that the State's liability does arise under the SRDA and its section 1 in particular (реш. от 17.02.2003 г. по гр. д. № 1380/2002 г. на Пловдивският АС; реш. № 126 от 08.06.2005 г. по въззивно гр. д. № 205/2005 г. на Добричкият ОС; реш. № 380 от 19.07.2005 г. по гр. д. № 177/2005 г. на Габровският РС; реш. 04.05.2005 г. по гр. д. № 21393/2003 г. на Софийският РС; реш. № 444 от 08.07.2005 г. по гр. д. № 1031/2004 г. на Ловешкият РС; реш. № 4 от 18.02.2005 г. по гр. д. № 3267/2004 г. на Русенският РС).
42. In respect of unlawful searches of premises, the only reported case dates from 2002 where the Sofia City Court examined, on appeal, an action for damages stemming from an allegedly unlawful search and seizure conducted by the authorities in the home of the claimant. In that particular case, the court rescinded the judgment of the lower court and remitted the case solely because the latter court had failed to examine the action under Article 1 of the SRDA, but had rather examined it as a tort action. Accordingly, the Sofia City Court instructed the lower court to re-examine the said action solely under the SRDA (реш. от 29 юли 2002 г. по гр. д. № 169/2002 г., СГС, IVб отд.).
43. The CPT visited Bulgaria in 1995, 1999, 2002 and 2003. The Pazardzhik Regional Investigation Service and the Pazardzhik Prison were visited in 1995. There are also general observations about the problems in all Investigation Service detention facilities in the 1995, 1999 and 2002 reports.
44. The CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were slightly better, the conditions were as follows: cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation was inadequate; the cleanliness of the bedding and the cells as a whole left much to be desired; detainees could access a sanitary facility twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in buckets inside the cells; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained.
45. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided.
46. The CPT also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that, as a result, detainees' contacts with the outside world were very limited. There was no radio or television.
47. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading”. In reaction, the Bulgarian authorities agreed that the CPT delegation's assessment had been “objective and correctly presented” but indicated that the options for improvement were limited by the country's difficult financial circumstances.
48. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc.), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees at least one hour's outdoor exercise per day was to be examined as a matter of urgency.
49. The CPT established that the Pazardzhik Regional Investigation Service had fifteen cells, situated in the basement, and at the time of the visit accommodated thirty detainees, including two women in a separate cell.
50. Six cells measuring approximately twelve square metres were designed to accommodate two detainees; the other nine, intended for three occupants, measured some sixteen-and-a-half square metres. This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the CPT. However, all the remaining shortcomings observed in the other Investigation Service detention facilities – dirty and tattered bedding, no access to natural light, absence of activities, limited access to sanitary facilities, etc. – also applied there. Even the thirty-minute exercise rule, provided for in the internal regulations and actually posted on cell doors, was not observed.
51. In this report the CPT found, inter alia, that the prison was seriously overcrowded and that prisoners were obliged to spend most of the day in their dormitories, mostly confined to their beds because of lack of space. It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities.
52. The CPT noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements.
53. In most investigation detention facilities visited in 1999, with the exception of a newly opened detention facility in Sofia, conditions of detention were generally the same as those observed during the CPT's 1995 visit, as regards poor hygiene, overcrowding, problematic access to toilet/shower facilities and a total absence of outdoor exercise and outofcell activities. In some places, the situation had even deteriorated.
54. In the Plovdiv Regional Investigation detention facility, as well as in two other places, detainees “had to eat with their fingers, not having been provided with appropriate cutlery”.
55. During the 2002 visit some improvements were noted in the country's investigation detention facilities, severely criticised in previous reports. However, a great deal remained to be done: most detainees continued to spend months on end locked up in overcrowded cells twenty-four hours a day.
56. Concerning prisons, the CPT drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates.
VIOLATED_ARTICLES: 3
5
8
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
5-5


ITEMID: 001-101663
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: POSTOVA BANKA, A.S. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Poštová banka, a.s., is a private banking company, limited by shares. It was set up under the laws of Slovakia in 1992 and has its registered office in Bratislava. The applicant company was represented before the Court by Mr J. Havlát, a lawyer practising in Bratislava. The respondent Government were represented by Ms M. Pirošíková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 November 2000 the applicant company filed a criminal complaint (trestné oznámenie) with the Bratislava Regional Office of Investigation. It concerned a transaction involving the forced sale for an allegedly inadequate price by a judicial enforcement officer, via a stock-exchange broker, of shares of a private company for the settlement of an acknowledged debt to the applicant company. It was submitted that the sale had been manipulated in favour of the buyer and that, as a result, the debtor’s capacity to discharge its other obligations towards the applicant company had been impaired. The complaint was aimed at bringing a criminal prosecution against four individuals and securing the shares in question. The applicant company later submitted further information and precisely quantified its claim for damages.
On 7 March 2002 the investigator set the case aside on the ground that there was no indication that an offence had been committed. The decision indicated that it could be challenged by means of an interlocutory appeal (sťažnosť) within three days of its notification.
The applicant company was informed of the decision of 7 March 2002 by a letter delivered on 13 March 2002. The decision as such, however, was not served on the applicant company at that time.
In June 2002 the police investigator informed the applicant company’s representative that he was not entitled to consult the file. The proceedings were at the preliminary investigation stage and the file therefore contained no evidence which could be used in subsequent criminal proceedings. The possibility of inspecting criminal files extended exclusively to files which contained such evidence.
The applicant subsequently unsuccessfully sought service of the decision of 7 March 2002 and access to the file by making complaints to the public prosecution service at various levels.
On 5 August 2004 the applicant company lodged a complaint with the Constitutional Court against the public prosecution service, contending that its measures had denied the applicant company’s procedural rights as a victim in that the decision of 7 March 2002 had not been served on the applicant company and the company had not been allowed to consult the file. The applicant company relied, inter alia, on Articles 6 (§ 1) and 13 of the Convention and sought that the contested measures be quashed and that its costs and expenses be reimbursed.
In a letter of 8 August 2005 in response to the applicant company’s constitutional complaint, the Deputy Prosecutor General acknowledged that the applicant company’s complaint was justified. The applicant company, in its procedural capacity as victim, had been entitled to be served with the impugned decision and to inspect the file. Concrete measures were being taken with a view to swiftly serving the investigator’s decision on the applicant company and allowing its representative to inspect the file at any time. In his conclusion, the Deputy Prosecutor General expressed the conviction that the reasons for the applicant company’s constitutional complaint had thereby fallen away.
On 19 October 2005 the Constitutional Court dismissed the complaint as manifestly ill-founded. The decision stated that the investigator had set the case aside because no damage had been caused to the applicant company. Thus, the latter had not acquired the status of victim within the meaning of Article 43 § 1 of the Code of Criminal Procedure. Accordingly, no breach of the procedural rights accruing to victims could have occurred in respect of the applicant company. The Constitutional Court’s decision was served on the applicant company on 28 November 2005.
In the meantime, on 16 September 2005 the decision of 7 March 2002 had been served on the applicant company, which had subsequently lodged an interlocutory appeal contesting the investigator’s factual and legal findings.
On 3 October 2005 the applicant company’s legal representative consulted the file. The applicant company subsequently made a substantial submission setting out the reasons for the appeal.
In their observations on the admissibility and merits of the application, the Government submitted a copy of a decision of the Bratislava Regional Office of Public Prosecution of 14 November 2005 whereby it had dismissed the applicant company’s appeal as unfounded, holding that despite extensive inquiry no elements had been established which justified a conclusion that any particular individual had committed a criminal offence.


ITEMID: 001-88564
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF EMİNE ARAÇ v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of violation sufficient
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: 5. The applicant was born in 1973 and lives in Istanbul.
6. On 24 September 1998 the applicant, a student in the Faculty of Theology of İnönü University in Malatya, sought to enrol in the Faculty of Theology of Marmara University. For that purpose she provided, among other materials, an identity photograph which showed her wearing a headscarf.
7. On 1 October 1998 the Faculty of Theology of Marmara University replied to the applicant, informing her that the identity photograph she had supplied did not comply with the regulations in force and that where this was the case, the person concerned could not be enrolled.
8. On an unspecified date the applicant lodged an application for judicial review with the Istanbul Administrative Court. She requested, in particular, that the refusal of the administrative authorities be set aside as being in breach of her rights.
9. In a judgment of 23 September 1999, the Administrative Court rejected the application, finding that the authorities’ refusal had been in accordance with the regulations in force. The court considered, in particular, that the applicant had submitted an identity photograph which did not conform to the regulations, which stipulated that “photographs must show the subject facing forward and be less than six months old, so that the person concerned is readily identifiable; the head and neck must also be uncovered” (Article 4 § 1 (f) of the Guide for University Applicants adopted by the Higher Education Board on 17 April 1998).
10. Following an appeal by the applicant on points of law, the Supreme Administrative Court upheld the judgment of 23 September 1999, finding it to have been in accordance with the law and the procedural rules. The relevant parts of the Supreme Administrative Court judgment read as follows:
“Summary of the request: ...
Opinion of Mrs Serpil K. Erdoğan, investigating judge of the Supreme Administrative Court: the judge is of the opinion that the appeal should be dismissed and the first-instance judgment upheld.
Opinion of Mr H. Hüseyin Tok, State Counsel (savcı) at the Supreme Administrative Court: the grounds of appeal set out in the statement of grounds do not correspond to those enumerated in Article 49 § 1 of the Code of Administrative Procedure. In view of the juridical and legal arguments on which the first-instance judgment was based, these grounds cannot be said to require the quashing of the impugned judgment ...”
11. Article 42 of the Constitution reads as follows:
“No one may be deprived of the right to instruction and education.
The scope of the right to education shall be defined and regulated by law.
Instruction and teaching shall be provided under the supervision and control of the State in accordance with the principles and reforms of Atatürk and contemporary scientific and educational methods. No educational or teaching institution may be set up that does not follow these rules.
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1