ITEMID: 001-59449
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF J.B. v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant, a Swiss national born in 1914, is a retired ski instructor and mountain guide living in X, Switzerland.
9. In 1987 the Federal Tax Administration (Eidgenössische Steuerverwaltung) consulted the case file of the financial manager, P. It was noted that between 1979 and 1985 the applicant had made investments with P. and his companies. However, these amounts had not been declared in the taxation periods between 1981/82 and 1987/88.
10. In view of this, on 11 December 1987 the X District Tax Commission (Bezirkssteuerkommission) instituted tax-evasion proceedings (Steuerhinterziehungsverfahren) in respect of the applicant’s federal taxes. He was requested to submit all the documents which he had concerning these companies.
11. On 22 December 1987 the applicant admitted that he had “in fact made investments with P. and his companies from 1979 to 1985 and that he had not properly declared the income in his personal tax return”. However, the applicant did not submit the requested documents.
12. On 24 June 1988 the applicant was again asked to declare the source of the income, amounting to 238,000 Swiss francs (CHF), which he had invested with P. The applicant did not reply.
13. On 2 September 1988 the District Tax Commission decided to issue an assessment to supplementary tax (Nachsteuer) on the interest derived from the income which the applicant had invested with P. in the years 1979 to 1985. In letters dated 29 September and 11 October 1988, the applicant was informed of the assessment of his taxes (Steuerveranlagung) and of the supplementary tax due.
14. Following an intervention of the Federal Tax Inspector, the President of the District Tax Commission withdrew the supplementary tax decision in two letters dated 7 and 20 October 1988. At the same time the President again requested the applicant to explain the source of the invested income. A further such request was served on the applicant on 19 January 1989.
15. The applicant not having reacted to any of these requests, the Cantonal Administration for Direct Federal Taxes (kantonale Verwaltung für die direkte Bundessteuer) imposed on the applicant on 28 February 1989 a disciplinary fine (Ordnungsbusse) of CHF 1,000. It relied on Article 131 § 1 of the decree of the Federal Council on the imposition of a direct federal tax (Bundesratsbeschluss über die Erhebung einer direkten Bundessteuer). The applicant duly paid the fine.
16. On 7 April 1989 and on 19 June, 17 July and 16 August 1990 the District Tax Commission again admonished the applicant as he still had not submitted the required information.
17. On 3 August and 5 September 1990 the applicant replied that, in his view, the decision to impose supplementary taxes on him had acquired legal force (Rechtskraft) on 29 September and 11 October 1988, so that he was not obliged to provide further information.
18. Thereupon, on 29 November 1990 the Cantonal Administration for Direct Federal Taxes imposed a second disciplinary fine, of CHF 2,000, on the applicant in respect of federal taxes, based on Article 131 § 1 of the decree of the Federal Council.
19. On 4 December 1990 and 22 January 1991 the Cantonal Tax Administration imposed a third disciplinary fine, of CHF 2,000, in respect of cantonal taxes.
20. The applicant’s appeal against the second disciplinary fine, imposed on 29 November 1990, was dismissed by the Tax Appeals Commission (Steuerrekurskommission) of the Canton of Valais on 18 December 1992.
21. In its decision, the Tax Appeals Commission found that the applicant had intentionally not complied with the order of the tax authorities to provide information. However, according to Article 131 § 1 of the decree of the Federal Council, persons liable to pay taxes were obliged to cooperate with the tax authorities, in particular to submit accounts, documents and other receipts in their possession which could be of relevance when determining the taxes. Moreover, the decision to impose supplementary taxes on the applicant had not acquired legal force as it had been withdrawn on 7 and 20 October 1988 by the President of the District Tax Commission.
22. The applicant filed an administrative-law appeal with the Federal Court in which he complained, inter alia, under Article 6 of the Convention that as an accused he should not be obliged to incriminate himself.
23. Meanwhile, the applicant also filed an objection against the third disciplinary fine, imposed on 4 December 1990 and 22 January 1991, although the proceedings before the competent district court (Bezirksgericht) were suspended pending the outcome of the proceedings before the Federal Court.
24. On 7 July 1995 the Federal Court dismissed the applicant’s administrative-law appeal, the decision being served on the applicant on 12 December 1995.
25. In its decision, the Federal Court considered it undisputed that the applicant had made investments with P. and his companies which he, the applicant, had not declared. The tax authorities had not been in a position to assume that the means invested stemmed from income and assets which had already been taxed. They had therefore quite correctly asked the applicant to demonstrate the source of these moneys.
26. The Federal Court then recapitulated the relevant case-law. Tax-evasion proceedings constituted true criminal proceedings in respect of which the procedural guarantees, including those of Article 6 of the Convention, applied. Thus, the offence of tax evasion led to a fine which had to be paid in addition to the taxes evaded. The fine constituted a sanction which had both preventive and repressive functions; its amount was up to four times the amount of the taxes evaded and it had the same effect for the person concerned as a criminal conviction.
27. On the other hand, in the Federal Court’s opinion the obligation to pay a supplementary tax did not amount to a criminal sanction. The supplementary tax was not separate in nature from the original tax debt; rather, it was an additional tax resulting from an examination of the tax assessment of the person concerned and serving to bring in outstanding taxes. As such, it had no punitive function. The judgment continued:
“even though the supplementary tax is not a criminal sanction within the meaning of Article 129 of the federal decree, the tax will be determined in tax-evasion proceedings in respect of which the guarantees of criminal procedure will apply. The question thus arises whether the person who has to pay taxes may be obliged, in the tax-evasion proceedings and with a view to the determination of the supplementary tax, to supply information on his financial circumstances.”
28. The Federal Court then reiterated the principle of tax proceedings, according to which the burden of proof fell on the tax authorities to demonstrate that a person had not declared certain taxable income. It could not be said that the person concerned was obliged to incriminate himself. Rather, the person had merely to provide information as to the source of untaxed income which the tax authorities already knew existed. If in such a situation the person concerned had the right to remain silent, the entire tax system would be called into question. The regular tax-assessment proceedings would then have to be conducted according to the principles of criminal proceedings. The right to remain silent would complicate control, or even render it impossible. This could not be the purpose of Article 6 of the Convention.
29. According to the Federal Court, there were a number of provisions in criminal law obliging a person to act in a particular way so as to enable the authorities to obtain his conviction. Reference was made in particular to lorries which had to be equipped with a tachograph recording speed and driving hours. If there was an accident, the lorry driver was obliged to hand over the device. Similarly, a motorist might be obliged to submit to a blood or a urine test, and he would be punished if he refused to do so.
30. The Federal Court noted an essential difference from Funke v. France (judgment of 25 February 1993, Series A no. 256-A), namely, that in that case the tax authorities believed that certain documents existed although they were not certain of the fact. In the present case, the authorities were aware of the income which the applicant had invested. The purpose of their intervention was to ascertain whether this income itself stemmed from income or assets which had been duly taxed. All the applicant had to do was to explain the source of this income. In fact, he should have done so during the regular tax-assessment proceedings.
31. Finally, the Federal Court referred to Salabiaku v. France, according to which presumptions of fact and law were compatible with Article 6 § 2 of the Convention as long as they were confined within reasonable limits and the rights of the defence were maintained (judgment of 7 October 1988, Series A no. 141-A, pp. 15-16, § 28).
32. The Federal Court concluded that there was no breach of the applicant’s right to the presumption of innocence or of his right not to incriminate himself.
33. On 5 June 1996 the cantonal authorities imposed a fourth fine, of CHF 5,000, on the applicant, although this fine never acquired legal force.
34. Following the Federal Court’s decision of 7 July 1995, an agreement was reached between the applicant and the cantonal tax authorities on 28 November 1996 which closed all tax and criminal tax proceedings for the years 1981/82 until 1995/96. On the one hand, the agreement fixed the amount to be paid by the applicant, namely a total sum of CHF 81,878.95, including a fine amounting, after reduction by one-third, to CHF 21,625.95. On the other hand, it was agreed that all pending proceedings were cancelled, including the proceedings concerning disciplinary fines; and that the fine already paid was to be deducted from the total amount of taxes and criminal penalties. Finally, the agreement stated :
“... the proceedings which are already pending before the Strasbourg organs of the European Convention on Human Rights against the decision of the Federal Court on account of a disciplinary fine will not be affected by this agreement.”
35. Supplementary-tax proceedings (Nachsteuerverfahren) serve the purpose of imposing a supplementary tax (Nachsteuer) where certain taxes have not been duly paid. Tax-evasion proceedings (Steuerhinterziehungsverfahren) may lead, in addition to the supplementary tax, to a fine the amount of which will depend on the amount of the tax evaded.
36. The Federal Council’s decree of 1940 on the imposition of a direct federal tax in force at the relevant time referred in its Part 9 to “contraventions” (Widerhandlungen).
37. Articles 129 and 130 in Part 9 concerned “tax evasion” and provided for liability to a fine. For instance, Article 129 § 1 concerned persons who evaded taxes by not filling in the tax return correctly. Article 130 bis concerned “tax and inventory fraud” (Steuer- und Inventarbetrug) and provided for liability to a fine or to imprisonment.
38. Article 131 § 1 of the decree stated:
“A person ... liable to pay taxes or to give information who contravenes, intentionally or negligently, the official decisions and orders made pursuant to this Decree, in particular as to:
– handing in a tax return;
– submitting or presenting accounts, preparing or submitting vouchers and other receipts;
– complying with a summons or a prohibition to act;
– giving information; or
– making payments and furnishing securities;
will be fined between CHF 5 and 10,000. The same punishment will be incurred if the obligation under Article 90 §§ 5, 6 and 8 to provide information is not complied with.”
39. Article 90 §§ 5, 6 and 8 of the federal decree concerned the obligation, inter alia, of third parties to provide information. Article 89 stated that the taxpayer should provide truthful information and that he could be requested to submit documents etc. which might be relevant for the assessment of taxes. Article 132 regulated the procedure in case of tax evasion and provided that the cantonal tax administration would undertake any necessary investigations.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61135
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF CHALKLEY v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress;Nicolas Bratza
TEXT: 7. The applicant was born in 1961.
8. In March 1994 the applicant was suspected by police officers in the Cambridge Constabulary of involvement in robbery. The view was taken by the Cambridgeshire Regional Crime Squad that it was necessary to place a hidden battery-powered listening and recording device in the applicant’s home. An application was therefore made to the Chief Constable for the instalment of such a device, which was authorised on 21 June 1994, pursuant to the non-statutory Home Office Guidelines of 1984.
9. In order to install the device, the police decided to arrest the applicant and his partner in connection with another matter (credit card fraud) and to remove them and their children from their home. Enquiries into the credit card fraud had previously lapsed without any arrest or questioning of the applicant or his partner. However, DC Harrison of the Regional Crime Squad and WDC Fletcher, an officer in the intelligence bureau of the Cambridgeshire County Constabulary, decided to revive the investigation for the purpose of removing the applicant and his partner from their home for long enough to enable the installation of the listening device.
10. WDC Fletcher briefed three officers about purported grounds for arresting the applicant and his partner for credit card fraud, without informing them of the intended installation of the device.
11. At 6.15 a.m. on 8 July 1994 the three officers arrested the applicant’s partner in her home and shortly thereafter arrested the applicant. Both were taken to the police station. The officers seized the keys to the applicant’s home and car. Officers from the Regional Crime Squad then used the house key to enter the applicant’s home and install the listening device. They also had a copy of the key cut to enable them to enter the house at a later date.
12. The applicant and his partner were released from police custody on the evening of 8 July 1994 after being interviewed. Neither was charged, but both were released on police bail and required to report back to the police station on 24 August 1994. The applicant’s keys to his home and car were returned to him.
13. On 24 August 1994 the applicant and his partner attended the police station in accordance with their bail and were interviewed again. Neither was charged at that time or subsequently with credit card fraud. During their interview police officers entered their home using the duplicate key in order to renew the battery in the listening device.
14. During September 1994, police officers again entered the applicant’s home to renew the battery in the listening device.
15. As a result of conversations that were recorded between the applicant and J, his co-defendant in the criminal proceedings, both men were arrested in September 1994. They were charged with conspiracy to commit robbery and burglary between 1 January 1993 and 9 December 1994.
16. The trial was at Peterborough Crown Court in October 1996. An application was made, in a voir dire procedure, on behalf of the defendants for the tape recorded evidence to be excluded under section 78 of the Police and Criminal Evidence Act 1984 on the basis that it had been obtained unlawfully and in breach of Article 8 of the European Convention on Human Rights. This application was rejected by the trial judge on 24 October 1996. The judge found that the officers who carried out the arrests on 8 July 1994 did have reasonable grounds for suspecting those whom they arrested and that if further information had arisen at the interviews or from the other enquiries which were carried out it was possible that charges would have been brought for those matters. He did find that the removal of the applicant’s keys was in breach of the search and seizure requirements of PACE, that the taking and use of the house key constituted a civil wrong, that there was a trespass to the applicant’s home and that minor criminal damage had taken place. However, balancing the various factors, including the fact that the tape-recordings amounted to confessions of serious crimes involving the possible use of firearms, that there was no suggestion of improper inducement or incitement to commit the offences and that there was no dispute about the content of the conversations, the judge ruled the evidence admissible.
17. As a result of the ruling on admissibility, the applicant and his co-defendant changed their pleas to guilty. They were each sentenced to ten years’ imprisonment.
18. On 18 December 1997, after being granted leave to appeal, the applicant’s appeal against conviction was dismissed by the Court of Appeal (R. v. Chalkley and Jeffries [1998] 2 All ER 155).
On 15 June 1998 the House of Lords refused the applicant’s petition for leave to appeal.
In early 2001, the applicant was released on licence.
19. Guidelines on the use of equipment in police surveillance operations (The Home Office Guidelines of 1984) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices. The Guidelines were available in the library of the House of Commons and were disclosed by the Home Office on application.
20. In each case, the authorising officer had to satisfy himself that the following criteria were met: (a) the investigation concerned serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, have been unlikely to succeed if tried; (c) there was good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism; d) the use of equipment was operationally feasible. The authorising officer had also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance was commensurate with the seriousness of the offence.
21. The 1997 Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1998.
22. Since 25 September 2000, these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 (“RIPA”). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police.
VIOLATED_ARTICLES: 13
8


ITEMID: 001-105711
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KAGGOS v. GREECE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Anatoly Kovler;George Nicolaou;Mirjana Lazarova Trajkovska
TEXT: 4. The applicant, a retired military officer, was born in 1930 and lives in Mytilini.
5. On 15 November 1996 the applicant lodged an application with the Army Solidarity Fund (Ταμείο Αλληλοβοηθείας Στρατού) (hereafter “the Fund”) asking for an additional retirement premium, following the amendment of the date of his retirement. On 29 November and 18 December 1996 the Administrative Council of the Fund rejected his application at first instance and on appeal respectively.
6. On 22 January 1997 the applicant lodged a recourse with the Athens First Instance Administrative Court challenging the decisions of the Fund.
7. In a judgment dated 29 May 1998 the Athens First Instance Administrative Court partially upheld the applicant's claim and awarded him 7,739,869 drachmas (GRD) (i.e. 22,714 euros) (judgment no. 5835/1998).
8. On 5 November 1998 the Fund lodged an appeal.
9. On 27 September 2001 the Athens Administrative Court of Appeal accepted the Fund's appeal and quashed the first instance decision, after having concluded that the legal requirements for the award of an additional retirement premium had not been satisfied (judgement no. 4030/2001). The applicant was served with the decision on 25 February 2003.
10. On 11 March 2003 the applicant lodged an appeal on points of law.
11. On 7 July 2006 the Supreme Administrative Court quashed the appellate decision and remitted the case to the Court of Appeal (judgment no. 2034/2006).
12. On 6 June 2008 the Athens Administrative Court of Appeal rejected the appeal lodged by the Fund against judgment no. 5835/1998 of the First Instance Administrative Court (judgment no. 1947/2008). The applicant was served with the decision on 26 May 2009.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23653
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: CIOBANU v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Mihai Ciobanu, is a Romanian national who was born in 1910 and lived in Romania. He died on 31 December 1996. He is represented before the Court by Vasila and Petre Constantin, respectively his daughter and her husband. They both live in Bucharest. The respondent Government are represented by their Agent, Mr Bogdan Aurescu.
The facts of the case, as submitted by the parties, may be summarised as follows.
In November 1994, the applicant, a war veteran, lodged with the Bucharest Court of Appeal an action against the Local Council of Bucharest (hereinafter “the Local Council”) and the Local Council of the 3rd district of Bucharest seeking the allocation of 0,05 ha of land. The action was brought pursuant to Law no. 44/1994 on war veterans.
By a judgment of 6 June 1996 the Court of Appeal ordered the Local Council to assess the availability of plots of land located within the city area and to allocate one to the applicant pursuant to Article 13 of Law no.44/1994. The appeal lodged by the Local Council was rejected on 6 February 1998 by a final decision of the Supreme Court.
In March 1998 the representatives of the applicant lodged in his name with the Bucharest Court of Appeal an action against the Local Council and the mayor of Bucharest, seeking damages on account of the delay in enforcing the judgment. On 23 April 1998 the Court of Appeal imposed on the mayor a fine of ROL 500 per day of delay from 6 March 1998 until the enforcement of the judgment. This judgment was upheld by the Supreme Court in a final decision of 23 November 1998.
On 15 August 2001, the representatives of the applicant informed the Court, in his name, that the judgment of 6 June 1996 had still not been enforced.
On 9 September 1994, the applicant appointed as his representatives Vasila and Petre Constantin, his daughter and her husband. The applicant granted them the power to file applications with the Romanian courts and to pursue the enforcement of any court decisions adopted as a consequence of any such actions.
Thereafter, the applicant was represented before the national courts by his daughter and her husband.
According to the death certificate submitted by the Government and uncontested by Vasila and Petre Constantin, the applicant died on 31 December 1996.
The application lodged with the Court on 16 December 1998, on behalf of the applicant, was signed on his behalf by his daughter, Vasila Constantin. The representatives did not inform the Registry at any time in the course of the proceedings before the Court of the death of the applicant.
By letter of 10 November 2000, following a request by the Registry, Mrs Vasila Constantin submitted the power of attorney designating her and her husband as the applicant’s representatives in the Convention proceedings. This document was signed by Vasila and Petre Constantin on behalf of the applicant.
They reminded the Court, among other things, that the letter of authority of 9 September 1994, which was valid according to Romanian legislation, remained valid until the death of the representatives. As a consequence, they considered the Court’s request redundant.
The relevant provisions of the Romanian Civil Code read as follows in their part concerning the power of a person to represent the interests of another person.
“The power of representation is extinguished when: (...)
3. the representative or the principal dies...”
The relevant provisions of the Romanian Code of Civil Procedure read as follows in their parts concerning the power to represent another person in legal proceedings:
“The authority to act in legal proceedings does not cease to exist upon the death of the principal... It continues to be valid until the heirs withdraw it...”


ITEMID: 001-89244
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ECHEGARAY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Luis Ecehegeray, is a Peruvian national who was born in 1947 and lives in Surrey. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's wife died on 27 June 1995. His claim for widows' benefits was made on 27 November 2000 and was rejected on 4 December 2000 on the ground that he was not entitled to widows' benefits because he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant's late wife had not paid sufficient national insurance contributions to qualify her spouse for such benefits.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-80966
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BAGHERI AND MALIKI v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Mr Mohammad Hossein Bagheri and Ms Malihe Maliki, are a married couple. They are Iranian nationals who were born in 1964 and 1969 respectively and live in Zwolle. They were represented before the Court by Ms S. Land, a lawyer practising in Zwolle.
On 2 September 1995, the applicants applied for asylum in the Netherlands. They claimed that the first applicant had attracted the negative attention of the Iranian authorities for having publicly criticised the latter. The second applicant’s asylum claim was mainly based on the first applicant’s alleged problems. On 26 January 1996, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicants’ asylum request. Their objection (bezwaar) against this decision was declared inadmissible by the Deputy Minister on 14 August 1996 for having been filed out of time. The applicants’ subsequent appeal was rejected on 11 June 1998 by the Regional Court (arrondissementsrechtbank) of The Hague sitting in ‘s-Hertogenbosch.
On 14 October 1998, the applicants filed a new asylum request based on newly emerged facts and circumstances within the meaning of Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht). This new request was rejected on 6 December 1999 by the Deputy Minister, who noted, inter alia, that the first applicant had submitted and relied on a summons issued by the Shiraz Islamic Revolutionary Tribunal, addressed to his father and relating to the applicant, whereas – according to an individual official report (individueel ambtsbericht) drawn up on 26 January 1998 by the Minister of Foreign Affairs on an inquiry carried out – this document was not authentic. As the applicants had failed to react to the conclusion set out in this individual report, the Deputy Minister concluded that no credence could be attached to the applicants’ asylum account. The applicants unsuccessfully challenged this decision in administrative appeal proceedings. The final, negative decision on this second asylum request was taken on 10 March 2003 by the Regional Court of The Hague sitting in Almelo.
On 8 August 2005, the applicants filed a third asylum request based on, inter alia, an allegedly authenticated copy of a judgment given on 20 July 2002 by the Teheran Islamic Revolutionary Tribunal in which the first applicant had been convicted and sentenced for political opposition activities.
The final, negative decision on this third asylum request was given on 31 January 2006 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) in which it rejected the applicants’ appeal against the refusal of the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor of the Deputy Minister of Justice) to grant them asylum. As regards the copy of the judgment relied on by the applicants, the Administrative Jurisdiction Division held that the copy submitted did not constitute a “new fact” warranting a reconsideration of the applicants’ asylum claim as – for want of reference materials – its authenticity could not be determined by the Netherlands Royal Constabulary (Koninklijke Marechaussee) whilst the applicants had not demonstrated by means of evidence and arguments that it was an authentic Iranian document and had given contradictory accounts about the manner in which it had been obtained.
On 20 September 2006, the respondent Government were requested under Rule 49 § 3 (a) of the Rules of Court to draw up an individual official report on, inter alia, the authenticity of the Iranian judgment of 20 July 2002 relied on by the applicants in their third asylum request.
Following certain steps taken by the respondent Government, apparently aimed at the applicants’ actual expulsion to Iran, the Chamber decided on 12 October 2006 to indicate to the Government, under Rule 39 of the Rules of Court and until further notice, not to expel the applicants. The Chamber further endorsed the request to the Government under Rule 49 § 3 (a).
By letters of 8 and 15 March 2007, the respondent Government informed the Court that, according to the findings of an inquiry carried out in Iran, the judgment of 20 July 2002 was not an authentic document.
The applicants’ brief comments in reply contained in their letter of 2 April 2007 did not address the findings of the inquiry conducted in Iran. The applicants merely informed the Court that they seemed to be eligible for a Netherlands residence permit under a general amnesty arrangement set out in the new Government’s coalition agreement (coalitieakkoord) of 7 February 2007.


ITEMID: 001-70231
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: WLODARSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Piotr Włodarski, is a Polish national, who was born in 1949 and lives in Jeziorany. The respondent Government are represented by Mr Jakub Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 April 1993 the Olsztyn Regional Court, in proceedings concerning a claim for division of marital property of the applicant and his former wife, Ms B.W., changed a decision of the lower court given in the case. The court established the value of the property as being PLZ 571,728,979 and reduced the payment to be made by the applicant to B.W. from PLZ 298,024,950 million to PLZ 273,102,449 millions.
The applicant, considering that the court had committed errors in the calculation of the value of various components of the property, requested the Minister of Justice to lodge an extraordinary appeal against this judgment. The applicant also paid to B.W. the sums fixed by the judgment.
On 23 September 1994 the Minister of Justice lodged an extraordinary appeal with the Supreme Court. The Minister argued that the courts had wrongly calculated the value of the property, in that the value of certain parts of the property had been calculated twice, once as regards their book-keeping value (i.e. the price to be paid for replacement property items) and then as regards their market value, and these amounts had been erroneously added. As a result, the applicant was ordered to pay amounts which exceeded by tens of millions of old zlotys (PLZ) the real value of the part of the property for which his former wife had to be reimbursed.
On 26 October 1994 the Supreme Court allowed the extraordinary appeal. As a result, the court quashed the second-instance decision of 15 April 1993 and amended the decision of the lower court by establishing the value of the property as being approximately PLZ 421,093,669, fixing the share of each spouse at PLZ 210,546,834 and reducing the amount that the applicant should have paid to B.W. from PLZ 298,024,950 to PLZ 198,820,794. The court considered that the Minister’s extraordinary appeal was correct in pointing out the calculation errors committed by the lower courts.
The court went on to state that as a result of these errors the applicant’s obligations had been increased in a manner which was obviously not justified. The contested decisions constituted a miscarriage of justice since they had granted substantial compensation involving millions of zlotys without there being any legal or factual basis therefor. Consequently, they also breached the interests of the Republic and the decisions had to be rectified.
The applicant subsequently claimed that B.W. should pay back to him the amounts she had received on the basis of the judgment of 1993. On 29 August 1995 the Gliwice District Court gave a judgment by which B.W. was obliged to pay these amounts to the applicant. This judgment was not appealed against and became final and enforceable.
On 16 January 1996 the applicant lodged a request to have enforcement proceedings instituted in respect of this judgment. As he did not pay a fee for the launching of the enforcement proceedings, he was summoned to do so. By a letter of 25 March 1996 the applicant requested the bailiff to return the enforcement order to him. This was done on 2 April 1996. As no fee had been paid, the bailiff did not institute enforcement proceedings.
In March 1996 the applicant requested the Ministry of Justice to take steps in order to have the damage he had sustained as a result of the erroneous judicial decision compensated. He reiterated his request on 7 June 1996.
On 25 July 1996 the applicant wrote a letter to the President of the Olsztyn Regional Court, requesting that the damage he had suffered as a result of the erroneous judicial decision be compensated.
In a reply of 20 August 1996, he was informed that the liability of the State Treasury, provided for by Article 418 of the Civil Cod, arose only if the fault of the State agent was confirmed by a criminal or disciplinary decision. In the light thereof, his request could not be granted.
By a letter of 1 September 1996 the applicant informed the Ministry of Justice that his efforts to have the damage compensated had proved unsuccessful. He referred to the letter of the President of the Regional Court, relying on Article 418 of the Civil Code. He reiterated that the Supreme Court had found that the contested judicial decisions “constituted a miscarriage of justice since they had granted substantial compensation involving millions of zlotys without there being any legal or factual basis therefor”. Consequently, they also breached the interests of the Republic and the decisions had to be rectified. He requested that steps be taken in order to have the damage he had suffered compensated.
This letter apparently remained unanswered.
In a letter of 4 June 1997 the applicant again requested the Ministry of Justice to take steps in order to satisfy his claims for compensation in respect of the damage which he had sustained, having paid to Ms B.W. the sums fixed by the judgment of 15 April 1993, which had subsequently been quashed by the Supreme Court as being in manifest breach of law.
In reply of 27 June 1997 the Ministry stated that the judgment of the Supreme Court did not give rise to any compensation claims against the Ministry. If the applicant so wished, he could raise his claims in civil proceedings. It would be for the court alone to rule on his claim.
On 10 March 1998 the applicant reiterated his request to the Ministry. In a reply of 22 April 1998 the Ministry referred to its reply of 27 June 1997.
Articles 417 et seq. of the Civil Code (Kodeks cywilny) of 1964 provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1 read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”
According to the old case-law of the Polish Supreme Court, a plaintiff seeking damages under Section 417 of the Civil Code had to show that the act in question was unlawful and that the State agent had committed a fault (the Supreme Court judgments: No. I PR 468/70 of 29.12.1970, unpublished, No. I CR 24/71 of 19.4.1971, unpublished and No. I CR 152/74 of 11.4.1974, unpublished).
Under the former Article 418 of the Code, if damage was caused by the State official as a result of his/her giving a decision or other official act, the State Treasury was liable only if the giving of the said decision amounted to an infringement of the law which was punishable under criminal law or under any disciplinary regulations, and if the fault of the perpetrator had been confirmed by a judgment of a criminal court or of a competent disciplinary authority, or was otherwise recognised by a superior authority.
Under Article 77 § 1 of the Constitution of Poland of 1997, everyone is entitled to compensation for damage caused by unlawful acts of a public authority. Pursuant to § 2 of the same Article, a statute shall not bar access to court to persons seeking redress for any breach of their rights or freedoms.
Article 45 of the Constitution provides that everyone shall have the right to a fair and public hearing of his/her case, without undue delay, before a competent impartial and independent court.
In its judgment of 4 December 2001 the Constitutional Tribunal ruled on the compatibility of Articles 417 and 418 of the Civil Code with the Constitution. It ruled that Article 417 was compatible with Article 77 of the Constitution, if it was so construed as to mean that the State Treasury was liable for damage caused by unlawful acts of public officials in carrying out his/her duties.
In the same judgment the Tribunal held that Article 418 of the Code was incompatible with Article 77 of the Constitution in that it placed undue restrictions on access to a court in cases in which the civil liability of the State was claimed for acts carried out in the exercise of the State powers, other than de facto acts, which were covered by the general principle of Article 417 of the Code (published in Journal of Laws (Dziennik Ustaw), Dz.U. Nr 145, poz. 1638).
The judgment of 4 December 2001 took effect on 18 December 2001. As a result, Article 418 was repealed.


ITEMID: 001-75463
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF RIENER v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Violation of P4-2 (prohibition against leaving Bulgaria);Not necessary to examine Art. 8;Violation of Art. 13+8;Violation of Art. 13+P4-2;No violation of Art. 8 or Art. 13 (refusal of requests to renounce citizenship);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 8. The applicant, Mrs Ianka Riener, was born in 1946 in Lubimetz, Bulgaria, and lives currently in Sofia.
9. The applicant moved to Austria in 1985 and in 1986 married an Austrian national. In December 1989 she obtained Austrian nationality. Until December 2004 she remained a Bulgarian national (see paragraphs 48-52 below).
10. The applicant has a daughter, born in 1963 in Bulgaria, currently an Austrian national living in Austria with her husband and children (the applicant’s grandchildren).
11. The applicant was co-owner and commercial director of a company registered in Austria. In January 1991 she also registered in Bulgaria as a foreigner conducting economic activities there. Her main business was the importation of coffee in Bulgaria.
12. Between 1991 and 1995 the applicant spent most of her time in Bulgaria. She has remained there ever since.
13. By decision of 1 July 1992 a district fiscal authority in Sofia found that the applicant owed 26,494,582 “old” Bulgarian levs (“BGL”) of unpaid excise tax and BGL 4,104,925 of interest (the total amount due having been at the time the equivalent of about 1 million United States dollars (“USD”). The applicant’s ensuing appeals were dismissed on 20 August 1992 by the Sofia fiscal authority and on 7 April 1993, after a hearing on the matter, by the Sofia City Court. On 7 October 1994 the Supreme Court dismissed the applicant’s petition for review (cassation) of the above decisions. The applicant then instituted proceedings seeking to declare the fiscal decisions null and void. This was refused by the Sofia Regional Court on 28 October 1996.
14. In 1992 and 1993 the fiscal authorities attached certain monies in bank accounts of the applicant and her company. It appears that not more than BGL 400,000 (less than 2 % of the debt) was thus collected in 1992.
15. In 1993 the fiscal authorities attached another USD 50,000. A smaller amount of money was seized from the applicant in relation to a criminal investigation against her, opened in 1991. The investigation was discontinued in 1993 and the money restored to her later (see paragraphs 53-56 below).
16. On 1 March 1995 the Sofia fiscal authority asked the Passport Department at the Directorate of the Police (Napravlenie “Pasporti i vizov rezhim, DNP) (“the Passport Police”) to impose on the applicant a travel ban under section 7 of the Law on Passports for Travelling Abroad (Zakon za zadgranichnite pasporti) (“the Passport Law”), until the payment of her debt, as established by the courts.
17. On 7 March 1995 the Passport Police issued an order which stated inter alia that a prohibition was imposed against the applicant leaving the country and that her document for travelling abroad should be seized. The order referred to the fiscal decisions in the applicant’s case, stated that she had Bulgarian and Austrian nationality, and relied on section 29(1)(v) of the Law on the Sojourn of Aliens in Bulgaria (Zakon za prebivavane na chuzhdentzite v Balgaria).
18. On 4 April 1995 the Bulgarian border control authorities seized the applicant’s Austrian passport when she attempted to leave Bulgaria and to enter Greece. The applicant did not have a Bulgarian passport.
19. Upon the applicant’s complaint, on 20 April 1995 the Passport Police informed her that a travel ban under section 29(1)(v) of the Law on the Sojourn of Aliens had been imposed, in relation to the applicant’s obligation to pay BGL 26,499,582.
20. On 26 May 1995 the applicant submitted an appeal to the Ministry of the Interior. She stated that the measure was unlawful as on other occasions she had been considered a Bulgarian citizen. On 22 June 1995 the Ministry replied stating that the measure against her had been based both on section 7(e) of the Passport Law and on section 29(1)(v) of the Law on the Sojourn of Aliens and had been lawful.
21. On 28 June 1995 the applicant submitted an appeal to the Sofia City Court. She stated, inter alia, that she was a Bulgarian citizen and measures under section 29 of the Law on the Sojourn of Aliens could not be applied against her. She also claimed that the authorities held an adequate security as they had attached funds of the Austrian company worth USD 50,000. Insofar as section 7(e) of the Passport Law had been invoked, this provision concerned the possibility to refuse the issuance of, or to seize, a Bulgarian passport, not an Austrian one.
22. On 24 April 1996 the City Court held a hearing, which was attended by the parties and their representatives. The applicant’s husband was also present.
23. On 13 June 1996 the Sofia City Court dismissed the appeal. It found that the applicant’s obligation to pay a significant amount in taxes, as established by the courts, was a sufficient ground, under section 7(e) of the Passport Law, to seize any passport which is used for international travel. Unpaid tax was also a ground to impose a prohibition against leaving Bulgaria under section 29(1)(v) of the Law on Sojourn of Aliens. Although this provision did not provide expressly for a confiscation of a foreign passport, if applied in conjunction with the relevant regulations, it clearly allowed such measure in respect of a person against whom there had been a decision prohibiting his departure from Bulgaria. Since the applicant had double citizenship the authorities correctly relied both on the Law on the Sojourn of Aliens and on the Passport Law.
24. On 25 June 1996 the applicant submitted to the Supreme Court a petition for review (cassation). On 17 March 1997, the Supreme Administrative Court, to which the case was transmitted following a reform in the judicial system, dismissed the applicant’s petition for review (cassation). It appears that another appeal against these decisions was dismissed by the Supreme Administrative Court on 13 June 1999.
25. By partial decision of 12 April 1996 and final decision of 11 April 1997 (DR 89, p. 83) the former European Commission of Human Rights declared inadmissible the applicant’s application in which she claimed, inter alia, that there had been violations of her right to freedom of movement and to respect for her private and family life on account of the restrictions on her travelling outside Bulgaria. The Commission found that the former complaint was incompatible ratione materiae with the provisions of the Convention as Bulgaria had not been a party to Protocol No. 4 of the Convention and that the latter complaint, examined under Article 8 of the Convention, was manifestly ill-founded, the applicant not having substantiated details about her family circumstances or whether or not she actually lived with her family between 1991 and 1995. The Commission also noted that there were no obstacles against the applicant’s family joining her in Bulgaria. In these circumstances there was no interference with her rights under Article 8 of the Convention.
26. In 1996 and 1997 the value of the Bulgarian currency depreciated sharply and the inflation rate ran high. Statutory default interest rates also increased significantly but did not compensate fully for the inflation and the depreciation of the currency. As a result, persons owing monetary debts denominated in Bulgarian currency saw the burden of their debt diminish.
27. According to calculations made by the fiscal authorities, as of 25 June 1997 the applicant’s outstanding debt was BGL 317,482,761 (the equivalent of approximately USD 160,000 at that time).
28. On 18 July 1997 the applicant requested the Ministry of the Interior to terminate the prohibition against her leaving the country. On 5 August 1997 the request was refused. The decision stated that the prohibition was still in force and that the matter could not be re-examined, all administrative and judicial avenues of appeal having been exhausted.
29. The applicant appealed against that refusal to the Sofia City Court which, on 11 November 1997, granted the appeal and set aside the refusal of the Ministry of the Interior. The court noted that the prohibition had been based on the Law on the Sojourn of Aliens. However, the applicant also had a Bulgarian nationality and, therefore, was not an alien. The authorities should have applied the Passport Law. Furthermore, the fiscal authorities were holding a significant amount as security, which could probably satisfy their claim against the applicant. It appears that the latter conclusion of the court was not based on a precise calculation of the debt. The Sofia City Court’s judgment of 11 November 1997 never entered into force as the Ministry of the Interior successfully appealed (see paragraphs 38-40 below).
30. On 14 November 1997 the passport police issued a new order prohibiting the applicant’s leaving Bulgaria. The order referred to new enforcement proceedings opened by the fiscal authorities in respect of the same debt. It was based on section 29(1)(v) of the Law on the Sojourn of Aliens.
31. Following these developments, there were two separate sets of judicial proceedings and two administrative proceedings, all concerning the travel ban imposed on the applicant:
32. On an unspecified date in 1997 the applicant appealed to the Sofia City Court against the order of 14 November 1997.
33. On 20 May 1999 the Sofia City Court dismissed her appeal, noting that the applicant owed significant amounts and that insufficient security had been provided.
34. Upon the applicant’s cassation appeal, on 21 June 2000 the Supreme Administrative Court upheld the lower court’s decision. Addressing the applicant’s argument that the new Aliens Law, in force since December 1998, should be applied, the court stated that that law did not have retroactive effect. The courts’ task was to assess the lawfulness of the impugned administrative order in accordance with the law as in force at the moment when it was issued. Furthermore, it was not true that there had been “violations of international law”.
35. Separately, in 2000 the applicant also submitted administrative appeals against the order of 14 November 1997. She relied, inter alia, on Protocol No. 4 to the Convention, in force for Bulgaria as of 4 November 2000.
36. Her appeal to the Ministry of the Interior was dismissed on 12 December 2000. The reply stated that the travel ban could only be lifted in case of payment of the debt or if sufficient security were deposited. As to the Fourth Protocol to the Convention, its Article 2 provided that freedom of movement could be restricted by national law. The former Law on the Sojourn of Aliens and the new Aliens Law provided for such restrictions.
37. The applicant’s appeal to the Ministry of Finance was dismissed on 2 January 2001. She received a letter explaining that the measures against her were lawful as she had not paid her debt. Furthermore, the applicant could not rely on the Fourth Protocol to the Convention, which had entered into force for Bulgaria in 2000, because the impugned order had been issued on 14 November 1997.
38. On an unspecified date in 1997 the Ministry of the Interior appealed against the Sofia City Court’s judgment of 11 November 1997 (see paragraph 29 above). In these proceedings the Ministry’s request for a stay of execution was granted on 23 December 1997 by the Supreme Administrative Court. In her submissions to the courts the applicant relied, inter alia, on Articles 8 and 13 of the Convention.
39. On 22 December 1999 the Supreme Administrative Court set aside the Sofia City Court’s judgment of 11 November 1997 and dismissed the applicant’s request for the termination of the travel ban. The court found that the deposit held by the fiscal authorities as security was insufficient. It also found that prohibitions on leaving the country could be imposed on Bulgarian and foreign nationals alike and that it was not unlawful to rely on the Law on the Sojourn of Aliens. Although certain aspects of the legislation as in force at the time the prohibition had been imposed might have been unclear, the applicant was not entitled to rely thereon with the purpose to leave the country without having paid her debt. The court also stated that the prohibition would remain in force as long as the reasons for which it had been imposed remained valid.
40. The applicant’s subsequent request for reopening of these proceedings was dismissed on 19 March 2001.
41. The prohibition against the applicant leaving Bulgaria remained in force. Throughout the relevant period, by way of yearly internal notes the fiscal authorities informed the passport police that the applicant had not paid yet.
42. On 13 February 2002 the applicant’s Austrian passport was returned to her without prejudice to the prohibition on her travelling outside Bulgaria, which remained in force.
43. On 10 February 2003 the applicant again requested that the travel ban be lifted, arguing that the statutory limitation period in respect of her debt had expired.
44. By letter of 13 February 2003 the Passport police refused. The applicant filed an appeal with the Sofia City Court, but it was never examined.
45. On 26 August 2004 the Sofia tax authority sent a letter to the Ministry of the Interior, Directorate of Migration, stating, inter alia:
“Having regard to the fact that the absolute prescription period with regard to the [applicant’s] fiscal debt, which was established by administrative decisions of 1 July 1992 and 9 October 1992, has expired and taking into consideration the fact that the [applicant] has made an objection with reference to the expiry of the prescription period, [it follows that] the fiscal administration’s right to seek the collection of the debt is extinguished... Therefore, there are no longer valid grounds for the prohibition against [the applicant] leaving the country... You are requested to repeal [that] administrative measure...”
46. On 27 August 2004 the Ministry of the Interior repealed the prohibition. On 1 September 2004 the applicant received a copy of the order.
47. The applicant remained in Bulgaria. In her letter of 23 September 2005 to the Court she explained that she stayed because she needed to organise the liquidation of her husband’s company in Bulgaria and that she would leave as soon as the liquidation procedure was completed.
48. In 1989, 1994 and 1995 the applicant’s requests to renounce her Bulgarian citizenship were refused by way of unreasoned decisions.
49. In February 2001 the applicant submitted again a request to the Ministry of Justice, seeking to renounce her Bulgarian citizenship. By decree of the President of Bulgaria of 12 October 2001 the request was refused. The decree is not amenable to judicial review (see paragraph 70 below). The applicant nevertheless attempted to institute judicial proceedings, challenging the fact that the Ministry of Justice had given a negative opinion on her request, before its transmission to the President. Those proceedings ended by final decision of 22 April 2004 of the Supreme Administrative Court, whereby the applicant’s appeal was declared inadmissible.
50. Despite the refusal of her request, as she did not wish to be regarded as a Bulgarian citizen, the applicant refused to apply for Bulgarian identity papers and as a result encountered certain difficulties in respect of health care, housing, etc in the period 2001–2004. The applicant wished to have papers of a foreigner residing in Bulgaria. However, she was repeatedly informed that in accordance with the relevant law Bulgarian citizens who held a second citizenship were considered as Bulgarian citizens for purposes of their relations with the Bulgarian authorities.
51. On 19 June 2003 the applicant requested again to renounce her Bulgarian citizenship. In 2003 the Austrian Embassy in Sofia inquired with the Bulgarian authorities about the applicant’s situation, expressed the view that the statutory prescription period for the applicant’s debt had expired and considered that the applicant’s request to renounce her Bulgarian citizenship could be granted.
52. By decree of 8 December 2004, the Vice President of Bulgaria granted the applicant’s request to renounce her Bulgarian citizenship. The applicant was informed thereof by letter of 25 January 2005.
53. On 23 November 1998 the Sofia District Court gave judgment in a case concerning the applicant’s appeal against the attachment order made by the fiscal authorities in 1993. The attachment order was declared unlawful and set aside. As a result, on 6 January 1999 the fiscal authorities lifted the attachment of USD 50,000 which was paid to the applicant’s bank account.
54. In September 1999 the applicant brought an action against the fiscal authorities and several courts claiming damages as a result of numerous allegedly unlawful acts against her.
55. On 15 May 2003 the Sofia City Court dismissed the claims. The court acknowledged, inter alia, that the attachment imposed by the fiscal authorities in 1993 had been declared unlawful in 1998 and that the seizure of an amount of money in 1991 by the investigation authorities had also been annulled. As a result, in principle the applicant was entitled to compensation under the State Responsibility for Damage Act. However, she had failed to prove the amount of the loss suffered. Her action was, therefore, unsubstantiated and ill-founded. As far as alleged losses resulting from the travel ban were concerned, the court found that the prohibition on the applicant leaving Bulgaria was lawful and no issue of State liability arose.
56. The applicant appealed to the Sofia Appellate Court. The outcome of those proceedings is unknown.
57. Article 35(1) of the Constitution provides that “[e]veryone shall have the right to ... leave the country” and that this right “may be subject to restrictions provided for by act of Parliament, in the interest of national security, for the protection of public health and the rights and freedoms of others.”
58. At the time when the initial prohibition was imposed, the relevant legal provisions were those of the Law on the Passports for Travelling Abroad (the Passport Law) and the Law on the Sojourn of Aliens.
59. The Passport Law, in sections 7(e) and 8, provided that the issuance of a passport might be refused, or the passport seized, if, inter alia, the person concerned had “significant pecuniary obligations, established by the courts, owed to the State or to Bulgarian legal persons or nationals, except if the [person’s] possessions cover the obligations or if a duly executed collateral is submitted.”
60. Section 29 of the Law on the Sojourn of Aliens insofar as relevant, provided that an alien might be refused permission to leave the country where he or she owed the payment of a fine or another pecuniary obligation to the State. Paragraph 2 of section 29 provided:
“The alien may be authorised by the competent state organ to leave the country if there are guarantees that he [or she] will fulfil the obligations ... or if a security has been deposited...”
61. In December 1998 the Law on the Sojourn of Aliens was superseded by the Aliens Law.
62. Its section 43 provides that a prohibition on leaving the country may be imposed on aliens or persons who hold at the same time a Bulgarian and a foreign nationality.
63. In the initial text of the 1998 Aliens Law, one of the grounds for such a prohibition was unpaid debts. According to section 43 as in force since 2002, only unpaid debts owed to the State and exceeding 5,000 “new” Bulgarian levs (“BGN”) (approximately EUR 2,500) may serve as grounds for a ban on leaving the country.
64. On 1 April 1999 the Passport Law was superseded by new legislation, the Law on the Bulgarian Identity Documents.
65. Under section 75(5) of the new law, Bulgarian citizens who owe significant amounts to the State may be prevented from leaving the country.
66. Under all relevant provisions, the only grounds on which a prohibition on leaving the country may be lifted are payment of the debt or the deposit of sufficient security. The prohibition is not subject to a statutory maximum of duration.
67. In accordance with section 22 of the Fiscal Procedure Act, in force until 1 January 2000, the statutory prescription period for fiscal and other public receivables was five years. That provision remains applicable to all fiscal receivables that became due before 1 January 2000 (Decision no. 8179 of 25.08.2003 in case no. 7256/02 of the Supreme Administrative Court).
68. In accordance with section 6 §§ 3 and 4 of the Collection of State Receivables Act 1989, in force until June 1996 (applicable in respect of receivables that became due before June 1996) and section 4 §§ 3 and 4 of the Collection of State Receivables Act 1996, as in force between June 1996 and 1 January 2000, a fresh five years’ prescription period starts to run whenever the fiscal authorities undertake action to seek payment. It appears that as long as judicial proceedings concerning the fiscal receivable are pending, it is considered that action to seek payment is being undertaken (Decision no. 2352 of 16 March 2004 in case no. 4396/03 of the Supreme Administrative Court). Regardless of any suspension or renewal of the prescription period, fiscal receivables that became due before 1 January 2000 are considered prescribed after fifteen years (“absolute prescription period”) (section 6 § 5 of the Collection of State Receivables Act 1989 and section 4 § 5 of the Collection of State Receivables Act 1996).
69. As of 1 January 2000, the new Fiscal Procedure Code regulates prescription periods in respect of receivables that became due after its entry into force. The “absolute prescription period” under the Code is ten years.
70. In accordance with section 20 of the Bulgarian Citizenship Act, a Bulgarian citizen living permanently abroad and having acquired a foreign nationality may file a request for renunciation of Bulgarian nationality. The request is processed by the Ministry of Justice. A final decision is taken by the President of the Republic. The law does not require reasons to be given for a refusal of a request to renounce Bulgarian nationality. The President’s decree is not amenable to judicial review (procedural decision of the Supreme Administrative Court no.1183 of 23.02.2001 in case no. 9708/2000).
71. Under the relevant fiscal law, renunciation of Bulgarian nationality is not among the grounds on which an individual may be relieved from the obligation to pay tax liabilities.
72. In the law of several member states a possibility for imposing a ban on leaving one’s country due to tax obligations is expressly provided for: Croatia, Moldova, the Netherlands, Slovakia, Georgia, Poland, Russia, Ukraine and Norway. In Greece and Hungary the legal provisions allowing restrictions on the right to leave one’s country due to tax debts have now been abolished.
73. In most states the possibility to resort to a travel ban for unpaid taxes is not unconditional. In particular, in Croatia, a passport application can be denied if there is a justified suspicion that the applicant was going to evade a tax obligation. In the Netherlands, the law states that a travel document can be refused or invalidated if there is good reason to believe that the person is neglecting his obligation to pay taxes. In Slovakia, a passport can be withdrawn or its issue refused to a citizen upon a court’s or tax authority’s request when the person avoids the enforcement of the decision, or obstructs it or there is reason to believe that he or she will do so (an alien’s freedom to leave the country can also be restricted). In Poland “unfulfilled obligations established by a court” can serve as grounds for a travel ban only if there is a serious risk that the person’s travel abroad will render the fulfilment of the obligation impossible. In Norway, under the Enforcement of Civil Claims Act 1992, a debtor may be barred from leaving the country if that is essential for the enforcement of a court decision and seizure of property does not provide sufficient security (a prohibition order cannot be issued if, in view of the nature of the case and all of the circumstances involved, it would be a disproportionately severe measure and the order automatically ceases to have effect after 3 months).
74. A further area in which countries resort to travel bans, is bankruptcy proceedings. The laws of several countries stipulate that a court may impose a prohibition against a debtor leaving the country in order to secure his presence before the court (e.g. Estonia, Denmark, Finland, Italy, Norway). Most member States’ legal systems provide for prohibitions against leaving the country in respect of defendants in criminal proceedings.
75. In common-law jurisdictions, travel bans may be imposed by way of injunction.
76. In the United Kingdom, the tax authorities may seek from the courts a Mareva injunction (an order preventing the other party from disposing of assets outside the country), an injunction under section 37(1) of the Supreme Court Act 1981 to restrain the other party from leaving the jurisdiction (“Bayer injunction”) or the writ of “ne exeat regno”, an ancient writ which has much the same effect.
77. The simple fact that the person concerned has failed to pay would not be enough to satisfy the criteria for an injunction. In order to obtain an injunction under s. 37(1) restraining someone from leaving the country, the claimant must persuade the court that it is “necessary and convenient” to grant the order, for example, that the other party has information which he is refusing to disclose and which, if he is allowed to leave the United Kingdom, he will never disclose. A writ of “ne exeat regno” may be issued if several conditions are satisfied, such as, inter alia, cause to believe that the other party’s absence from the jurisdiction would materially prejudice the claimant in pursuing the action.
78. Because the orders above are interferences with the liberty of the subject, they should last no longer than necessary – e.g. until the other party has disclosed all the information that they were refusing to disclose. The orders can be discharged on grounds that one of the requisite conditions was not in fact fulfilled but also on ‘equitable’ grounds.
79. While the right to travel abroad is recognised as an implicit constitutional right in national case law, the courts have also recognised restrictions, in particular where there are “undischarged obligations”.
80. In civil contexts, Irish courts, like English courts, may make use of Mareva injunctions or Bayer injunctions, as described above. The High Court has held that such orders could be granted only in exceptional and compelling circumstances. Probable cause for believing that the defendant is about to absent himself from the jurisdiction with the intention of frustrating the administration of justice and/or an order of the court is a condition for granting an injunction. The injunction should not be imposed for punitive reasons. The injunction ought not to be granted where a lesser remedy would suffice and it should be interim in nature and limited to the shortest possible period of time. The defendant’s right to travel should be out-balanced by those of the plaintiff and the proper and effective administration of justice.
81. Article 12 of the ICCPR, which served as a basis for the drafting of Article 2 of Protocol No. 4 to the Convention, reads, in so far as relevant:
“... (2) Everyone shall be free to leave any country, including his own.
(3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant...”
82. The preparatory work of paragraph 3 of Article 12 reveals that, before agreeing on the general formula, the drafters had attempted first to come up with an exhaustive list of all grounds for restriction. The first draft thus contained no less than 14 reasons for which freedom of movement could be restricted, including tax debts. The list was eventually abandoned in favour of a general restriction clause.
83. The UN Human Rights Committee has not dealt specifically with the issue of tax debts either in its General Comment No. 27 (1999) on Article 12 of the ICCPR or in its observations on State reports in the context of the monitoring procedure. General Comment No. 27 (1999) contains some observations on the interpretation of Article 12:
“Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.
The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided.”
84. In the context of the complaint procedure, in the case of Miguel González del Río v. Peru, the Committee was called to examine the proportionality of the restriction on the applicant’s freedom to leave his country imposed in judicial proceedings which had been delayed. It held as follows:
“The Committee considers that pending judicial proceedings may justify restrictions on an individual’s right to leave his country. But where the judicial proceedings are unduly delayed, a constraint upon the right to leave the country is thus not justified. In this case, the restriction on Mr. González’ freedom to leave Peru has been in force for seven years, and the date of its termination remains uncertain. The Committee considers that this situation violates the author’s rights under article 12, paragraph 2...”
85. The national citizenship laws generally provide that a renunciation request can be accepted only if the person concerned has acquired the citizenship of another state or has given assurances of acquiring one. Many states also require that the person concerned has his habitual residence abroad.
86. In a number of states renunciation requests may be refused in connection with military service duties (Austria, Estonia, France, Croatia, Germany, Greece, Latvia and Moldova) or if the person concerned is subject to criminal proceedings or has to serve a sentence imposed by a court (Albania, Austria, Bulgaria, Greece, Hungary, Lithuania, Romania, Russia, Slovakia and Ukraine).
87. The laws of Bulgaria, Croatia, Hungary, Romania and Slovakia provide explicitly that a person may not be released from citizenship if he or she has tax debts to the State. Also, under the laws of Albania, Estonia, Finland, Latvia and Russia, “unfulfilled obligations to the State” – which apparently may include tax debt – are grounds for refusing a renunciation request.
88. In Ireland the law explicitly separates renunciation of citizenship from any liability, specifying that renunciation does not free the person from any obligation or duty imposed or incurred before the severance of the link to the nation. In the United States of America, similarly, the act of renouncing citizenship may have no effect on the person’s tax obligations.
89. The ECN, which entered into force for several states in 2000, was signed by Bulgaria in 1998 and ratified in February 2006 (entry into force for Bulgaria on 1 June 2006). Its Article 8 provides:
“Loss of nationality at the initiative of the individual
1. Each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless.
2. However, a State Party may provide in its internal law that renunciation may be effected only by nationals who are habitually resident abroad.”
90. According to the Explanatory report, it is not acceptable to refuse renunciation merely because persons habitually resident in another State still have military obligations in the country of origin or because civil or penal proceedings may be pending against a person in that country of origin. Civil or penal proceedings are independent of nationality and can proceed normally even if the person renounces his or her nationality of origin (paragraphs 78 and 81 of the report).
91. Article 11 of the ECN requires that “... decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing.”
VIOLATED_ARTICLES: 13
8
P4
VIOLATED_PARAGRAPHS: P4-2
NON_VIOLATED_ARTICLES: 13
8


ITEMID: 001-108573
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KIRYAKOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy
TEXT: 6. The applicant was born in 1949 and lives in Lysychansk.
7. On 15 April 2002 criminal proceedings were instituted into an alleged abuse of authority by officers of the State Melnikova coal mine on account of acquisition of portable telephones for the mine despite the fact that it was badly in arrears with the payment of salaries to its employees.
8. On 17 June 2002 the applicant, the director of the above-mentioned mine at the material time, was officially charged with abuse of authority in connection with the above-mentioned proceedings.
9. On 18 June 2002 the applicant was placed under an undertaking not to abscond. Subsequently the applicant was also suspended from his duties as director of the Melnikova mine pending the pre-trial criminal investigation of the charges against him.
10. On 23 June 2002 R., the mine’s accountant, was also charged with the abuse of authority within the same proceedings.
11. On 30 June 2002 the pre-trial investigation was completed and on 10 July 2002 the case was transferred to the Lysychansk Town Court for trial.
12. On 24 July 2002 new criminal proceedings concerning charges of tax evasion by way of alienation of the mine’s promissory notes by the applicant and R. were joined to the previous proceedings.
13. On 14 August 2002 new criminal proceedings concerning charges of another episode of tax evasion (alienation of the mine’s machinery as scrap metal without the consent of the State tax authorities) were instituted against the applicant and R. On the same date these proceedings were joined to the first criminal proceedings against them.
14. On 3 September 2002 the bill of indictment in respect of the tax evasion charges was transferred to the Lysychansk Town Court for trial.
15. On 19 November 2002 the Lysychansk Town Court acquitted the applicant and R. of the charges of abuse of position in connection with the acquisition of the portable telephones, finding that this action had been taken in the mine’s interest. It convicted them of abuse of authority with respect to the other facts of the case. The court further sentenced the applicant to four years’ suspended imprisonment and a term of probation of one year.
16. On 7 February 2003 the Lugansk Regional Court of Appeal (“the Court of Appeal”) upheld that judgment.
17. On 1 April 2004 the Supreme Court of Ukraine examined the cassation appeals lodged against the above judgments and remitted the case for a fresh appellate review. It found, in particular, that the Court of Appeal had provided insufficient reasoning for rejecting the applicant’s arguments that his actions had been lawful.
18. On 6 August 2004 the Court of Appeal quashed the judgment of 19 November 2002 with respect to the episodes on the basis of which the applicant had been convicted, and remitted the case to the prosecutor’s office for further investigation.
19. On 1 December 2004 the prosecutors’ office dropped the charges in respect of the alienation of scrap metal.
20. On 14 December 2004 the case in respect of the alienation of promissory notes was referred to the Lysychansk Town Court for a re-trial.
21. On 14 January 2005 the Lysychansk Town Court remitted the case to the prosecutor’s office for further investigation. It found, in particular, that the charges were insufficiently substantiated, as it was not evident whether the applicant had pursued criminal motives in selling the promissory notes or what damage to public or private interests had been caused by his actions.
22. On 11 March 2005 the Court of Appeal upheld that decision.
23. On 13 May 2005, following additional inquiries, the case was transmitted to the Lysychansk Town Court for a re-trial.
24. On 18 October 2005 the Lysychansk Town Court remitted the case to the prosecutor’s office for additional investigation.
25. On 23 December 2005 the Court of Appeal upheld that decision.
26. On 18 July 2006 new criminal proceedings were instituted against the applicant on suspicion of forgery of official documents (that is, the falsification of documents concerning his participation in a fire-prevention training course). On the same date these proceedings were joined to the previous proceedings against him.
27. Also on the same date, the prosecutor’s office dropped the charges of tax evasion in respect of the sale of the promissory notes and terminated the criminal proceedings against the applicant in this regard.
28. On 18 August 2006 the applicant was charged with forgery.
29. On 26 September 2006 the case was remitted to the Lysychansk Town Court for trial.
30. On 28 March 2007, after several hearings, the court remitted the case to the prosecutor’s office for additional investigation, referring to numerous shortcomings in the previous investigation and lack of reasoning in the indictment.
31. On 11 September 2007 the prosecutor’s office terminated the criminal proceedings concerning forgery for want of evidence that the applicant had forged the documents rather than having duly taken part in the training programme. On the same date the applicant was released from the undertaking not to abscond.
32. On 14 September 2007 the Lysychansk Town Court revoked the ruling of 18 July 2006 by which criminal proceedings had been instituted against the applicant on suspicion of forgery, having found that it had been made without a sufficient legal basis. According to the case-file materials that ruling was not appealed against.
33. By order of the Ministry of Fuel and Energy of Ukraine of 3 July 2002 the applicant was suspended from the performance of his duties as director of the Melnikova mine pending the pre-trial investigation of the criminal charges against him.
34. On 2 October 2002 he instituted civil proceedings in the Lysychansk Town Court challenging the validity of the above-mentioned suspension order.
35. On 22 January 2004 the court decided to leave the applicant’s claim without consideration on account of his failure to appear at the hearing.
36. On 14 November 2005 the applicant appealed against that decision, requesting the restoration of the time-limit for lodging this appeal alleging procedural irregularities in the consideration of his case.
37. On 22 December 2005 the Lugansk Regional Court of Appeal restored the time-limit for lodging the appeal.
38. On 9 February 2006 the Lugansk Regional Court of Appeal quashed the decision of 22 January 2004 and remitted the case to the Lysychansk Town Court for consideration on the merits.
39. On 28 August 2006 the court invalidated the disputed suspension order as unlawful.
40. According to the case-file materials, that decision was not appealed against.
41. On 28 March 2003 the applicant was dismissed from his post as director of the Melnikova mine by order of Ministry of Fuel and Energy.
42. On 29 September 2005 the Severodonetsk Town Court ordered the applicant’s reinstatement, to be executed immediately, irrespective of the fact that the judgment was still subject to appeal. On 16 February 2006 the Lugansk Regional Court of Appeal upheld that judgment.
43. On 27 February 2006 the reinstatement order was issued in respect of the applicant, following which the applicant was obliged to take part in a State-run fire-prevention training course and obtain the relevant certification as a pre-requisite for execution of his functions as director.
44. On 7 August 2006 the applicant was dismissed from his post as the director of the mine with reference to his failure to comply with the above requirement. The applicant appealed in court, alleging that the new dismissal had been unlawful and that the previous reinstatement judgment had in fact never been enforced. He further claimed 39,125 hryvnias (UAH) in unpaid salary and UAH 30,000 in non-pecuniary damage.
45. On 27 November 2006 the Lysychansk Town Court allowed the applicant’s claims in part. In particular, it found that the applicant had not been properly reinstated and that his second dismissal had been unlawful. The court again ordered the applicant’s reinstatement and awarded him UAH 36,289 in unpaid salary for the period from October 2005 until November 2006 and UAH 1,200 for non-pecuniary damage. In addition, the court issued a separate ruling (окрема ухвала) drawing the attention of the Lysychansk Prosecutor to the unlawful conduct of the State officials in obstructing execution of the judgment of 29 September 2005. The applicant did not appeal against that judgment.
46. On 22 March 2007 the Court of Appeal upheld the judgment of 27 November 2006 following the defendant’s appeal.
47. On 20 September 2007 the Supreme Court of Ukraine rejected the defendant’s request for leave to appeal in cassation.
48. On an unspecified date the applicant complained to the court about the non-enforcement of the judgment of 27 November 2006 and claimed an unspecified amount in unpaid salary and UAH 30,000 for moral damage.
49. On 13 September 2007 the Lysychansk Town Court allowed the applicant’s claim in part. It found that the applicant had not been properly reinstated and awarded him UAH 16,266 in unpaid salary and UAH 600 for non-pecuniary damage. The defendant’s appeal having been dismissed on procedural grounds, this judgment became final.
50. On 27 December 2007 the State bailiffs’ service terminated enforcement proceedings, finding that the judgment had been enforced in full.
51. On 8 January 2008 the applicant was issued with an employee identification number and a power of attorney to act on the mine’s behalf as its director, and was introduced to the mine’s staff. On the same date he was issued with an order to attend a fire-prevention training course and obtain the necessary certification for performing his duties.
52. On 3 March 2008 the applicant was suspended from performing his duties as the mine’s director on account of his failure to obtain the above certification.
53. On an unspecified date the applicant challenged the lawfulness of his suspension in the Lysychansk Town Court and complained that he had still not been properly reinstated to his director’s duties and claimed UAH 10,000 in non-pecuniary damage.
54. On 6 November 2008 the Lysychansk Town Court found that the applicant had failed to substantiate his arguments concerning the non-enforcement of the reinstatement order, in particular since on 8 January 2008 he had been assigned an employee identification number. At the same time, the court annulled the suspension order of 3 March 2008, finding that the company had failed to organise the applicant’s training properly, and awarded the applicant UAH 300 for non-pecuniary damage. According to the case-file materials this judgment was not appealed against and became final.
55. In November 2002 the applicant instituted civil proceedings in the Lysychansk Town Court challenging the failure of the prosecutor’s office to notify the Ministry of Fuel and Energy in good time of the termination of the pre-trial investigation in his case. On 2 January 2003 the court allowed his complaint. On 2 June 2003 the Court of Appeal quashed that decision and terminated the proceedings, finding that such complaint should have been lodged within the framework of criminal rather than civil proceedings. On 14 October 2004 the Supreme Court of Ukraine upheld the ruling of the Court of Appeal.
56. The applicant also tried to institute criminal proceedings against the former and acting directors of the company on account of the non-enforcement of his reinstatement order and other allegedly unlawful acts in respect of him. However, his efforts were to no avail.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69913
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SCUTARI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 7. The applicant, Mr Alexei Scutari, was born in 1930 and lives in Edineţ.
8. In 1949 the Soviet authorities nationalised the property owned by his parents and deported his family to Siberia.
9. On 8 December 1992 the Moldovan Parliament enacted Law No. 1225-XII “on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime”. The Law enabled the victims of Soviet repression to claim compensation for their nationalised property.
10. In 2001 the applicant brought an action against the Local Treasury Department in respect of the latter's refusal to pay him compensation.
11. On 26 July 2001 the Orhei District Court found in favour of the applicant and ordered the Local Treasury Department to pay him compensation of 41,705 Moldovan Lei (MDL) (the equivalent of 3,700 euros (EUR) at the time).
12. The applicant obtained an enforcement warrant which the bailiff failed to enforce. On an unspecified date the applicant wrote to the Ministry of Justice, complaining about the non-enforcement of the judgment of 26 July 2001. In a letter of 7 May 2003, the Ministry of Justice assured the applicant that everything possible was being done to enforce the decision, but that the Local Treasury Department did not have any money in its account.
13. On 20 February 2004, after the case had been communicated to the Government, the judgment was enforced. The applicant wrote a receipt addressed to the head of the Edineţ Department of Execution of Judgments in which he confirmed that he had received the money in accordance with the judgment of 26 July 2001 and that he had no more claims against the debtor and against the Department of the Execution of Judgments.
14. The relevant domestic law has been summarised in Prodan v. Moldova, no. 49806/99, § 31, ECHR 2004...
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1