ITEMID: 001-60168
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF FRETTE v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 14+8;Violation of Art. 6-1;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 9. In October 1991 the applicant made an application for prior authorisation to adopt a child. A social inquiry was opened by the Paris Social Services, Child Welfare and Health Department. On 18 December 1991 the applicant had a first interview with a psychologist from the Department, during which he revealed that he was a homosexual. He submits that during the interview he was strongly urged not to continue with the adoption process.
10. In a decision of 3 May 1993 the Paris Social Services Department rejected the applicant's application for authorisation to adopt. The reasons given for the decision were that the applicant had “no stable maternal role model” to offer and had “difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child”. The decision was taken on the basis of various inquiries leading, among other things, to a social services report of 2 March 1993, which included the following statements:
“... Mr Fretté seems to us to be a sensitive, thoughtful man who shows consideration for others. He discusses his emotional life and his homosexuality with a great deal of honesty and simplicity. He spoke to us of a number of relationships which have had a major impact on his life, particularly one with a male friend who has now died. It should be added that he is now the auxiliary guardian of this friend's child. ...
His humanistic, altruistic cast of mind prompts him to take an interest in the problems of the Third World. He sponsors two Tibetan children, one of whom is a baby.
He is able to talk sensibly and intelligently about the boy over whom he has guardianship. He is not personally responsible for the boy, who is in the care of his grandmother, but he plays a highly active part in his upbringing. His ideas about bringing up children are well thought out and imbued with a spirit of tolerance.
Mr Fretté has been thinking about adopting since 1985. He is aware that his homosexuality may be an obstacle to being granted authorisation to adopt because of the prevailing views of society.
In his opinion, his choice of emotional and sexual lifestyle has no bearing on his desire to bring up a child. His application is a personal undertaking not a militant gesture.
Since 1985 he has met many homosexual men with children.
He even once considered having a child with a female friend but the plan came to nothing because of a lack of maturity on both sides. This friend is nonetheless still very interested in Mr Fretté's plan to adopt and has even promised to act as a female role model for the child.
Mr Fretté's application to adopt a child is motivated by a desire to provide a child with affection and a proper upbringing. In his view the essential thing is to love and care for a child, adoption, for him, being no more than a social and legal procedure.
Mr Fretté has the support of the friends around him. It seems, however, that his family either do not know of his plans or have misgivings about them.
His desire for a child is genuine but he has difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child. For example, it was only when we visited his home that he realised how unsuitable his flat is for a child to live in. As a result he began considering the possibility of moving.
When questioned as to how he regarded his role in society as a single father he said he did not have an answer. He considers himself capable of managing the day-to-day life of a child and thinks that he will in due course find the answers to the questions about his homosexuality and the absence of an adoptive mother that will occur to the child as he or she grows up.
Mr Fretté is perfectly aware of the importance of telling the child about his parentage. He shows understanding towards women who are impelled to abandon their children. He refuses to have any fixed ideas about the characteristics of the child he would like to adopt.
Nonetheless, he has been thinking that he would prefer as young a baby as possible and that he may begin searching in Korea or Vietnam.
Mr Fretté has undoubted personal qualities and an aptitude for bringing up children. A child would probably be happy with him. The question is whether his particular circumstances as a single homosexual man allow him to be entrusted with a child.”
11. On 21 May 1993 the applicant asked the authorities to reconsider their decision but his application was dismissed by a decision of 15 October 1993 indicating, among other things, that the applicant's “choice of lifestyle” did not appear to be such as to provide sufficient guarantees that he would offer a child a suitable home from a family, child-rearing and psychological perspective.
12. On the same day the applicant lodged an application for judicial review of that decision with the administrative court, seeking to have the decisions dismissing his application for authorisation quashed.
13. In a judgment of 25 January 1995 the Paris Administrative Court set aside the decisions refusing the applicant authorisation, citing the following grounds, inter alia:
“In dismissing Mr Fretté's application for authorisation to adopt a child, the main reasons given by the authorities were that Mr Fretté had 'no stable maternal role model' to offer and found it difficult 'to envisage the practical consequences of the upheaval occasioned by the arrival of a child'. The first reason is a circumlocution, by which the authorities could only have meant to refer to Mr Fretté's unmarried status, which could be lawfully relied on in support of the impugned decision but, under the provisions of Article 9, paragraph 2, of the decree of 23 August 1985, could not lawfully constitute the sole reason for the decision. Neither is there any evidence in the case file to substantiate the second reason given, which seems in fact to be erroneous in view of the information provided in the reports drawn up by the social services.
The reason given for the decision of 15 October 1993, by which the Director of Social Services, Child Welfare and Health dismissed Mr Fretté's appeal and confirmed the initial decision examined above, was Mr Fretté's 'choice of lifestyle'. Through this euphemistically worded reason the authorities were alluding to Mr Fretté's homosexuality. As the authorities themselves acknowledge in their defence pleadings, this aspect of Mr Fretté's personality could only have constituted a reason to refuse authorisation if it had been combined with conduct that was prejudicial to the child's upbringing.
The social services report prepared by Mrs S. and Mrs D. credits Mr Fretté with 'undoubted personal qualities and an aptitude for bringing up children', finds that 'a child would probably be happy with him' and only raises a question as to the compatibility of Mr Fretté's adoption plans with the 'particular circumstances' of his being 'a single homosexual man'. The social inquiry conducted by the French Vice-Consul's deputy in London noted Mr Fretté's educational skills, which he shows as much in his private life as in his professional activities. The psychiatrist, Dr D., detected 'no psychological impediment' to Mr Fretté's plan and although the psychologist, Mrs O., recommended that authorisation be refused, she gave no reason for her opinion and drew attention elsewhere in her report to 'Mr Fretté's affective qualities and aptitude for bringing up children and his deep understanding of adoption-related issues'.
Whereas the social services reports produced included information, particularly with regard to Mr Fretté's family, which, since they could have no valid bearing on the authorities' decision, infringed his right to respect for his private life, none of the documents included in the case file made it possible to establish or even suggest that Mr Fretté's lifestyle reflected a lack of moral rigour or emotional stability, or a risk that he would abuse the adoption process, or any other conduct indicating that his plan to adopt presented a risk to any child he might adopt.
Thus, those who took the contested decisions in the instant case wrongly interpreted the provisions cited above. Mr Fretté's application to have the aforementioned decisions of 3 May and 15 October 1993 set aside is well-founded.”
14. The Paris Social Services appealed against that judgment to the Conseil d'Etat.
15. The Government Commissioner, Mrs C. Maugüe, made her submissions at the hearing of 16 September 1996. She submitted that the Paris Social Services' application to have the contested judgment set aside was well-founded, addressing the court as follows:
“The case raises the following question: In spite of Mr F.'s undoubted personal and intellectual qualities, did the authorities have good reason to consider that he did not provide sufficient guarantees to offer a child a home because of his choice of lifestyle?
In the light of the information in the case file, this question is elevated to a matter of principle. This case does not turn on its own facts because the documents in the case file leave me in no doubt that in many respects Mr F. has a genuine aptitude for bringing up children. The only thing that prompted the authorities to refuse authorisation was the fact that Mr F. was a homosexual and therefore that he did not provide sufficient guarantees that he would offer a child a suitable home from a psychological, child-rearing and family point of view. However, nothing in the case file suggests in any way that Mr F. leads a dissolute life and neither is there any reference in it to any specific circumstance that might pose a threat to the child's interests. Accepting the lawfulness of the refusal of authorisation in the instant case would implicitly but necessarily doom to failure all applications for authorisation to adopt by homosexuals ...
It is certain that a number of factors would tend to indicate that the Paris Social Services made an error in assessing the evidence.
The first and undoubtedly the strongest argument is that since the major reform of the laws on adoption introduced by the Act of 11 July 1966, single persons, whether men or women, have been entitled to adopt. ...
Deciding ... by judicial interpretation that an unmarried homosexual man does not provide sufficient guarantees from a psychological and family perspective to adopt a child introduces discrimination between adoption candidates on grounds of their choice of private life which was not expressly intended by Parliament.
The second argument in favour of the Administrative Court's ruling is that a person's right to lead the sex life of his or her choice should not, of course, be contested. This is one of the key components of the right to respect for private life guaranteed, inter alia, by Article 8 of the European Convention on Human Rights and Article 9 of the Civil Code. There is no longer any discrimination against homosexuality at domestic level ...
Pau Court of Appeal, 25 April 1991, no. 91-40734). Conversely, another court found that a father who had 'immoral homosexual relations incompatible with the exercise of parental authority' could not exercise that authority (Rennes Court of Appeal, 27 September 1989, no. 89-48660). Similarly, in a judgment in which it was found that, because of the father's homosexual practices, it would be particularly dangerous for the moral and physical well-being of his children to spend their holidays with him, it was held that there were serious grounds to justify refusing the father that right (First Civil Division of the Court of Cassation (Cass. civ. I), 13 January 1988, no. 86-17784). More recently the Court of Cassation granted a homosexual donor parental authority over a child born by artificial insemination to a mother who was herself involved in a homosexual relationship (Cass. civ. I, 9 March 1994, Mme L. c. M. L.; D 1995.197 note E. Monteiro; D 1995 summary 131, observations by D. Bourgault-Coudeyville). The courts do not therefore presume that because someone is a homosexual, he or she is disqualified from exercising parental rights. The discussion focuses mainly on the child's interests and the dangers that such circumstances may pose to the child's mental health.
Lastly, authorisation is merely an administrative decision taken prior to the adoption process. ...
2.2. Nonetheless, I consider, for a number of reasons, that the Paris Social Services did not commit any error in assessing the evidence when it held that Mr F. did not provide the necessary guarantees. A number of factors led me to this conclusion.
Firstly, the right of everyone to the sex life of their choice should not be confused with a hypothetical right to have children. ...
Secondly, the pertinence of the comparison with the case-law on custody of children and parental authority is clearly limited. The examples cited above relate only to a previously established family tie or one which corresponds to an actual line of descent. It is one thing to preserve a filial tie between a child and parents who are separating or who wish to confirm their links with him or her but another to allow the establishment of a family tie between a child and an adult out of nothing ...
Thirdly, the question whether a child is in danger of being psychologically disturbed by his relationship with an adult who cannot offer him or her the reference point of a distinct father and mother, in other words a model of sexual difference, is a very difficult one which divides psychiatrists and psycho-analysts. Adopted children are all the more in need of a stable and fulfilling family environment because they have been deprived of their original family and have already suffered in the past. This makes it all the more important that they do not encounter any further problems within their adopted family. ...
There is no agreement on the answer to that question. If there is any consensus it lies instead in the growing awareness that the rights of the child set the limits of the right to have children and that the child's interests cannot always be reconciled with current developments. This being so, I believe that when dealing with such a sensitive question, whose implications are more ethical and sociological than legal, it is up to Parliament to take a stance on what amounts to a choice for society. The courts, for their part, should not be anticipating shifts in public opinion, but responding to them.
This brings me to my fourth argument, which is that the question whether one or more homosexuals should be entitled to adopt is not one which Parliament can be said to have determined. ...
Fifthly, there should be no underestimating the part that authorisation plays in the adoption procedure. Admittedly, this is only one stage in the adoption process but it is a crucial one because the adoption cannot go ahead without it. ...
It should be added, as a concluding remark regarding authorisation, that I am aware that what I propose has the drawback that it appears to encourage candidates for adoption to conceal the truth if they feel that their choice of lifestyle amounts to an absolute impediment to their being granted authorisation. However, there are two reasons why I think that this problem can be overcome. Firstly, the question will not arise very often because, as was mentioned above, the scarcity of children eligible for adoption compared to the demand usually prompts the social services to reject requests from single candidates. Secondly, the aim of the inquiries conducted prior to the granting of authorisation is precisely to ensure that the candidate can offer a child a suitable home and this inevitably means that the experts investigate his or her private life. Although the inquisitorial nature of these inquiries has sometimes been condemned (see for example J. Rubellin-Devichi, Revue française de droit administratif, 1992, pp. 904 et seq.), they do have the merit of ensuring that authorisation is then granted in full knowledge of the facts.
My final argument is that if you have any remaining scruples about the fact that in considering the legality of a refusal of authorisation you are ruling on a matter which it is usually for the ordinary courts to decide in their capacity as the judges of matters of personal status, your scruples may be partly allayed by the fact that the position you will be taking will not entirely prevent the ordinary courts from authorising the adoption of a child by a homosexual in certain cases if they consider it compatible with the child's interests. When the new law on adoption was introduced recently, a new Article 353-1 was added to the Civil Code, the second paragraph of which provides that if authorisation is refused or not granted within the statutory time, the courts may approve the adoption if they consider that the applicants are capable of providing the child with a suitable home and that this is compatible with the child's interests. ...
It follows from the foregoing that the Paris Social Services are justified in maintaining that the Paris Administrative Court was wrong to rule in the judgment appealed against that the two impugned decisions should be set aside.”
16. In a judgment of 9 October 1996 the Conseil d'Etat set aside the Administrative Court's judgment and, ruling on the merits, rejected the applicant's application for authorisation to adopt. It decided, inter alia, as follows:
“In a decision of 3 May 1993, upheld by a further decision of 15 October 1993 in response to an application for reconsideration, the chairman of the Paris Council ... rejected Mr Fretté's application for authorisation to adopt a child on the ground that although the applicant's choice of lifestyle was to be respected, the type of home that he was likely to offer a child could pose substantial risks to the child's development. From the information in the case file, particularly the evidence gathered when Mr Fretté's application was being considered, it emerges that Mr Fretté, regard being had to his lifestyle and despite his undoubted personal qualities and aptitude for bringing up children, did not provide the requisite safeguards – from a child-rearing, psychological and family perspective – for adopting a child. The Paris Administrative Court was thus wrong, when setting aside the contested decisions, to rely on the argument that, in refusing the authorisation sought by Mr Fretté on the aforementioned ground, the chairman of the Paris Council had applied these provisions incorrectly.
However, since the appeal procedure has had the effect of transferring all the issues of fact and law to the Conseil d'Etat, it is for the latter to examine the other submissions made by Mr Fretté before the Paris Administrative Court. ... The grounds given for the contested decisions satisfy the requirements of the law. ...”
17. The relevant provisions of the Civil Code provide as follows:
“Adoption may be applied for by a married couple who have not been judicially separated and have been married for more than two years or are both over twentyeight years of age.”
“Adoption may also be applied for by any person over twenty-eight years of age.” (the age-limit was thirty at the material time, namely prior to the adoption of Law no. 96-604 of 5 July 1996)
18. The Family and Social Welfare Code lays down the rules on the taking of children into State care and the conditions for their adoption. It describes the authorisation procedure as follows:
“ ... Children in State care may be adopted by persons given custody of them by the social services wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt by the head of the children's welfare service under the conditions laid down by decree ...”
“Persons wishing to provide a home for a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in Article 63 of this Code.”
19. Decree no. 85-938 of 23 August 1985 established the arrangements for appraising applications for authorisation to adopt a child in State care as follows:
“Any person wishing to obtain the authorisation contemplated in the second paragraph of Article 63 of the Family and Social Welfare Code must submit an application to that end to the head of the children's welfare service of the département in which he or she resides.”
“In order to assess the application, the head of the children's welfare service shall conduct all the investigations required to ascertain what kind of home the applicant is likely to offer the children from a psychological, child-rearing and family perspective ...”
“Decisions to refuse authorisation must be supported by reasons as laid down in section 3 of the Law of 11 July 1979 cited above. The applicant's age or matrimonial status or the presence of children in his or her household may not constitute the sole reason for a refusal.”
“The decision by the head of the children's welfare service shall apply for three years. A further application for authorisation may be made when that period has expired. Further applications shall be assessed under the same procedure. ...”
20. According to data collected by the French authorities, some 11,500 applications for authorisation were made in 1999. About 8,000 applications were examined that year and the usual average of some 10% were rejected. At the time there were around 2,000 children in State care awaiting adoption. In 1999 the authorities issued some 4,000 visas to foreign children following their adoption by persons residing in France.
21. At the material time, Article 55 of the Decree of 30 July 1963 on the organisation and functioning of the Conseil d'Etat required lawyers to be advised at least four days before the sitting if any cases in which they were due to appear were on the list of cases to be heard and to be notified of the issues raised in reports to the Conseil d'Etat. The obligation to notify therefore applied only in respect of lawyers.
22. As regards private individuals, a decision of the Conseil d'Etat of 16 March 1966 (Paisnel, Reports, p. 216) pointed out:
“There is no rule stating that appellants must receive [notice of the date on which their case is to be heard]. If they have not appointed a legal representative, it is for them to ask to be notified of the date on which their case is to be heard or to consult the notice boards installed for this purpose at the registry of the Judicial Division.
This rule, which provides that the parties are summoned to the hearing only if they have appointed a lawyer, should be seen in the light of the rule laid down in section 67 of the Ordinance of 31 July 1945, under which only members of the Court of Cassation and the Conseil d'Etat Bar (the avocats aux conseils) may plead during hearings before these courts.”
23. Since 1 January 2001 all parties to proceedings before the Conseil d'Etat have been automatically informed of the date of the hearing. As in the past, the lists of cases for hearing are displayed at the Judicial Division secretariat and so are accessible to the public.
24. At the hearing the Government Commissioner speaks after counsel for the opposing parties have addressed the court and so the parties to the case cannot speak after him (see Kress v. France [GC], no. 39594/98, § 48, ECHR 2001-VI). Even if they are not represented by a lawyer, they do, however, have the possibility, hallowed by usage, of sending the trial bench a “memorandum for the deliberations” to supplement the observations they have made orally or to reply to the Government Commissioner's submissions. This memorandum for the deliberations is read out by the reporting judge before he reads out the draft judgment and before the discussion begins.
25. By section 45 of the Ordinance of 1945, cases for which it is not compulsory to be represented by a lawyer include applications for judicial review of the decisions of the various administrative authorities.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-113965
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: UHL v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens
TEXT: 1. The applicant, Mr Pavel Uhl, is a Slovak and Czech national, who was born in 1975 and lives in Prague.
2. In 2008 the City of Prague started issuing a multifunctional smart card called “Opencard” for Prague residents and visitors. It can be used for numerous services offered by the City or other providers, including the Prague public transport system.
3. There were two kinds of Opencard: ordinary or anonymous. An ordinary card is free of charge and anybody can apply by completing an application form that includes personal details such as name, date of birth, place of residence, email address, telephone number and a photo. Applicants must also sign a consent form on the processing of personal details and provision of information in which they consent to the further processing of the personal data from the application form and from using the card by both the City of Prague and any provider of a service which the applicant would use in the future with the Opencard system. Withdrawal of consent by the applicant results in suspension of the card’s use for services. An anonymous card without any personal identification information costs 200 Czech korunas (CZK) (8 euros (EUR)) but its use is limited to certain services.
4. From 2009 an Opencard could be used as a public transport pass. A yearly pass that could be downloaded onto the card cost CZK 4,750 (EUR 190). Those without an Opencard could not buy a yearly pass but instead could buy four three-monthly passes, which together cost CZK 5,920 (EUR 237).
5. On 16 November 2010 the Office for Personal Data Protection concluded its investigation into the Opencard system and found that the City of Prague had not adequately informed users of the future processing of their personal data and that they were therefore in violation of the Personal Data Protection Act (no. 101/2000). The Office also reiterated its previous opinion that there should be an alternative way to access the services for those not wishing to use an Opencard. It also ordered the City of Prague to offer each Opencard user the possibility of using a card without the necessity of consenting to further processing of his or her personal data.
6. As a result the City of Prague introduced in December 2011 a third type of Opencard, which is personal. Personal data are printed on the card but not stored or further processed. Adults holding this Opencard can buy long-term passes for public transport under the same conditions as holders of Opencards who gave consent to the processing of their personal details. This new type of card costs CZK 250 (EUR 10).
7. The current price (from 1 July 2011) of a yearly pass for Prague public transport is CZK 4,750 (EUR 190) for holders of both types of personal Opencard and CZK 6,100 (EUR 244) for holders of an anonymous Opencard or for those without an Opencard.
8. The applicant did not want to provide his personal details to the City of Prague and consent to processing, and therefore did not apply for an Opencard.
9. On 8 December 2008 he asked the Prague Public Transport Company (a joint-stock company 100% owned by the City of Prague) whether he could buy a yearly pass for the same price as users of the Opencard system. He explained that he did not wish to consent to the processing of his personal data. As he received no reply he bought four consecutive threemonth passes.
10. On 13 October 2009 he requested the Public Transport Company to reimburse him CZK 1,170 (EUR 47), corresponding to the difference between the price of a year pass and the price he had to pay for the four three-month passes. Having received no reply, the applicant brought civil proceedings for unjust enrichment.
11. On 30 June 2010 the Prague 9 District Court rejected this claim. It held that the income from fares was further redistributed and thus the defendant was not its only receiver and was therefore not responsible for any loss suffered by the applicant. No appeal lay against that decision.
12. The applicant lodged a constitutional appeal alleging a violation of his right to privacy and fair trial. He argued that the brief judgment of the District Court was beyond any legal logic and in effect lacked any reasoning. He further maintained that there was no other remedy in the domestic law to protect him from violations of his private life and that he could only claim compensation for the financial loss he had sustained as a result of refusing to give his personal details.
13. On 16 June 2011 the Constitutional Court dismissed the applicant’s constitutional appeal as manifestly ill-founded. It held that the subject matter of the proceedings was only CZK 1,170 and, applying the de minimis non curat praetor rule, there could be an interference with fundamental rights only exceptionally in such instances. It did not find any special circumstances in the present case that would require it to hold otherwise. It added that it was obvious that the applicant’s primary concern was not unjust enrichment but protection of his personal data; however, an action for unjust enrichment was not a means to protect those rights.


ITEMID: 001-67357
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SVETLANA NAUMENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 with regard to the length of the proceedings;Violation of Art. 6-1 with regard to the right to a court;Violation of Art. 6-1 with regard to impartiality;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Zoryana Bortnovska
TEXT: 9. The applicant, Mrs Svetlana Borisovna Naumenko, was born on 26 January 1956 and currently resides in Odessa.
10. On 5 May 1991 the applicant was recognised as having been a relief worker at the 1986 Chernobyl Nuclear Plant disaster. The appropriate certificate (an identity card) was issued to the applicant by the Ministry of Health of the Ukrainian Soviet Socialist Republic.
11. In November 1991 the applicant was recognised as falling within the second category of invalidity in relation to her participation in the relief work at Chernobyl.
12. On 22 April 1992 the Ministry of Health of the Ukrainian Soviet Socialist Republic annulled the certificate issued on 5 May 1991 because the applicant had not stayed and worked in the “Chernobyl alienation zone” (тридцятикілометрова зона або зона відчудження)*.
13. On 7 November 1992 the Ministry of Health dismissed a petition filed by the chief doctor of the Odessa City Ambulance Service (the applicant's place of employment) requesting that the employees (including the applicant) of the Odessa City Ambulance Service who had worked in the alienation zone be given the status of relief workers.
14. On 1 September 1993 the Ministry of Chernobyl Affairs informed the chief doctor of the Odessa City Ambulance Service that there were no documents proving that the employees had stayed in the alienation zone.
15. In February 1994 the applicant lodged complaints with the Illichevsk District Court of Odessa, seeking to establish that she had indeed stayed in the alienation zone. On 3 March 1994 the Illichevsk District Court of Odessa delivered a judgment in which it accepted that the applicant had stayed in the alienation zone on 27 and 29 May 1986. The judgment became enforceable on 14 March 1994.
16. On 6 October 1994 the Odessa Regional Court dismissed as groundless the motion filed by the Chairman of the Odessa Regional Council's Commission on the Status of Victims of the Chernobyl Catastrophe to reverse the judgment of 3 March 1994.
17. On 28 December 1994 the Odessa Regional Council issued a certificate (an identity card) acknowledging the applicant's status as a victim of the Chernobyl disaster, as established by the decision of 3 March 1994.
18. On 8 June 1995 the Cabinet of Ministers adopted Resolution no. 404 introducing amendments to its earlier Resolution of 25 August 1992 no. 501 on the Procedure for the Issue of Certificates (Identity Cards) to Victims of the Chernobyl Catastrophe. By virtue of these amendments, court judgments could not serve as a basis for the issue of certificates (identity cards) nor provide proof of being a victim of the disaster and thereby give entitlement to special State benefits and social payments.
19. On 14 December 1995 the Commission on Disputes of the Ministry of Chernobyl Affairs refused to confirm the applicant's status as a Chernobyl victim since the relief work had taken place outside the alienation zone.
20. On 18 January 1996 the Odessa Regional Council's Commission on the Status of Victims of the Chernobyl Catastrophe (the “Commission”) annulled the decision of 28 December 1994 by which a certificate was issued to the applicant.
21. On 6 March 1996 the Chairman of the Department of Social Security of the Odessa Regional Council adopted a decision withdrawing the certificate from the applicant, suspending her social security payments and annulling the benefits awarded to her as a victim of the Chernobyl disaster.
22. On 18 June 1996 the Commission adopted a decision annulling the certificate.
23. In August 1996 the applicant lodged a complaint with the Supreme Court.
24. On 9 August 1996 the Supreme Court informed the applicant by letter that the refusal to issue a certificate could be appealed in accordance with the procedure established by law.
25. On 12 January 1999 the applicant instituted proceedings in the Primorsky District Court of Odessa in order to annul the decision of 18 January 1996 and to oblige the Commission to recognise her status as a Chernobyl victim and to re-issue the certificate.
26. On 26 January 1999 the District Court allowed her claims and declared the actions of the Commission unlawful. It also annulled the Commission's decisions and ordered it to issue a document recognising the applicant's status as a Chernobyl victim. The decision became enforceable on 6 February 1999.
27. On 6 February 1999 the Commission annulled its decision of 18 January 1996 and confirmed the applicant's status as a relief worker. The applicant's name was entered in the register of disabled Chernobyl relief workers.
28. In April 1999 the Deputy Chairman of the Odessa Regional Council's Commission on the Status of Chernobyl Victims filed a motion with the President of the Odessa Regional Court, requesting the President to lodge a protest against the decision of 26 January 1999 with a view to quashing it.
29. On 7 May 1999 the President of the Odessa Regional Court dismissed this petition as unsubstantiated.
30. On 14 January 2000 the Commission issued a Chernobyl victim identity card to the applicant. The applicant's name was also entered in the list of persons who had requested improved living conditions.
31. On 21 March 2000 the applicant filed a motion with the Primorsky District Court of Odessa for an interpretation of its judgment of 26 January 1999. She also requested that the Commission calculate her benefits and pension as from 18 January 1996 and compensate her for arrears in benefits from that same date.
32. On 28 March 2000 the Primorsky District Court of Odessa allowed the applicant's claims and ruled that the amount of compensation, arrears and benefits was to be calculated and paid to the applicant as from 18 January 1996.
33. On 15 June 2000 the applicant requested the Primorsky District Court of Odessa to issue her a writ of execution in respect of the ruling of 28 March 2000. On 13 July 2000 the Primorsky District Court of Odessa allowed the applicant's request and issued this writ.
34. The execution proceedings commenced on 19 July 2000, i.e. two days after the Illichevsk District Execution Service of Odessa Region had received the writ.
35. On 11 August 2000 the Illichevsk District Execution Service held that it had no jurisdiction over the enforcement of the ruling in the applicant's case.
36. On 29 August 2000 (28 August 2000 according to the Government) the Deputy President of the Odessa Regional Court lodged a protest with the Presidium of the Odessa Regional Court, requesting that the case be re-examined and the judgment of the Illichevsk District Court of Odessa of 3 March 1994 establishing the fact of the applicant's stay in the alienation zone reversed.
37. On 6 September 2000 the Presidium of the Odessa Regional Court allowed the protest and quashed the decision of 3 March 1994. It also remitted the case to the Illichevsk District Court of Odessa for re-consideration.
38. On 16 July 2001 the Illichevsk District Court of Odessa upheld the applicant's complaint, finding that she had stayed in the alienation zone on 27 and 29 May 1986.
39. On 14 August 2001 the Odessa Regional State Administration lodged an appeal against the judgment of 16 July 2001.
40. On 12 October 2001 the case file was transferred to the Odessa Regional Court of Appeal. However, it was sent back to the Illichevsk District Court of Odessa on 25 October 2001 since it was necessary to rule on the request for leave to appeal against the decision of 16 July 2001.
41. On 12 November 2001 the Illichevsk District Court of Odessa found that the Odessa Regional State Administration had failed to comply with the formalities envisaged by law for the introduction of appeals. The Administration was given until 20 November 2001 to rectify this shortcoming.
42. On 23 November 2001 the Odessa Regional Council rectified the shortcoming and appealed against the decision of 16 July 2001, seeking its annulment.
43. On 6 December 2001 the Illichevsk District Court of Odessa extended until 10 December 2001 the time-limit for the Odessa Regional State Administration to lodge a petition.
44. On 28 December 2001 the Odessa Regional Court of Appeal sent the case file to the Illichevsk District Court of Odessa requesting it to rule on the formal defects in the appeal that had been introduced out of time.
45. On 29 January 2002 the Illichevsk District Court of Odessa allowed the Administration's motion to extend the time-limit for filing an appeal with the Odessa Regional Court of Appeal.
46. On 1 February 2002 the Illichevsk District Court of Odessa sent the case file to the Odessa Regional Court of Appeal.
47. On 22 February 2002 the Odessa Regional Court of Appeal decided to initiate appeal proceedings in the case and scheduled a hearing on the merits for 14 May 2002.
48. On 14 May 2002 the Odessa Court of Appeal quashed the decision of 16 July 2001 and remitted the case to the same first-instance court.
49. On 17 July 2002 the case file was remitted to the Illichevsk District Court of Odessa for further consideration.
50. Between 12 August 2002 and 23 September 2002 the case could not be heard as the judge was on leave.
51. The case was scheduled for examination on 18 October 2002.
52. The hearing was adjourned to 8 November 2002 as the Ministry of Health, the State enterprise RUZOD and the Ministry of the Interior had failed to comply with the court's order of 17 July 2002 to provide relevant documentary evidence of the applicant's involvement in relief work at Chernobyl. The evidence requested by the court did not arrive until 18 October 2002.
53. On 8 November 2002 the Illichevsk District Court of Odessa held a hearing in the applicant's case. On the same date the court postponed the hearing until 29 November 2002 in order to summon specific witnesses.
54. On 29 November 2002 the hearing was rescheduled for 19 December 2002 as the Administration had requested that additional witnesses be summoned.
55. On 19 December 2002 the court heard the additional witnesses. It also scheduled another hearing for 16 January 2003 in order to allow time for the transfer of the case file relating to the applicant's status as a Chernobyl relief worker from the Primorsky District Court of Odessa.
56. On 16 January 2003 the hearing was rescheduled as the Administration's representative did not have a valid letter of authority. The next hearing was scheduled for 22 January 2003.
57. On 22 January 2003 the applicant lodged a motion with the court seeking the adjournment of the hearing in her case so that she could provide additional information about her claims. The hearing was rescheduled for 10 February 2003.
58. On 6 March 2003 the Malinovsky District Court of Odessa (the case having been transferred to this court in accordance with the territorial division of the districts of Odessa) found that the applicant had been a relief worker at the Chernobyl Nuclear Power Plant in 1986 and had stayed in the “alienation zone”. There was no appeal against this decision and it became final on 8 April 2003.
59. On 13 March 2003 the Malinovsky District State Execution Service initiated execution proceedings in the case.
60. The decision of 6 March 2003 was executed on 8 May 2003 once the applicant had received the Chernobyl victim certificate.
61. On 12 May 2003 the Malinovsky District State Execution Service terminated the execution proceedings since they had been completed.
62. On 13 November 2003 the Malinovsky District Court of Odessa gave an interpretation of the judgment of 6 March 2003 to the effect that the applicant stayed in the alienation zone from 26 May to 4 June 1986.
63. 24 May 2004 the Malinovsky Distrtict Court of Odessa awarded the applicant UAH 13,253.01 in unpaid pension for the period from 1 September 1996 to 1 November 2003. It also held that the applicant's monthly salary should be UAH 307,65.
64. Relevant provisions of the Constitution read as follows:
“... The main principles of judicial proceedings are:
1) legality;
...9) the mandatory nature of court decisions.”
65. Relevant provisions of the Code of Civil Procedure read as follows:
“Court decisions, rulings and resolutions may be reviewed in supervisory review proceedings following a protest lodged by the officials designated in Article 328 of the Code of Civil Procedure of Ukraine.”
“The following persons have the right to lodge a protest against an enforceable court judgment, ruling or resolution:
...2) presidents of the Supreme Court of the Crimea, regional courts, Kyiv and Sevastopol city courts and their deputies - against decisions and rulings of the district (city), inter-district (county) court, and also against the cassation rulings of the civil division of the Supreme Court of the Crimea, regional courts, and the Kyiv and Sevastopol city courts; ...”
“The following courts hear cases in supervisory review proceedings: ...
3. The Presidium of the Supreme Court of the Crimea, regional courts, Kyiv and Sevastopol city courts: as regards protests lodged by the President of the Supreme Court of Ukraine, the General Prosecutor of Ukraine and their deputies, Presidents of the Supreme Court of the Crimea, regional, Kyiv and Sevastopol city courts and their deputies - against the judgments and rulings of the district (city), inter-district (county) courts and against judgments of the district (city) courts, inter-district (county) courts and against the cassation rulings of the Supreme Court of the Crimea, regional courts, Kyiv and Sevastopol city courts; ...”
“Officials who have the right to lodge a protest may suspend execution of the relevant judgments, rulings and resolutions until the end of the supervisory review proceedings.
The lodging of a protest against a judgment adopted following a complaint about unlawful actions by an official who interferes with the citizen's lawful rights suspends execution of that decision until the end of the supervisory review proceedings.”
“Parties and other persons participating in the case have the right to lodge written explanations regarding the protest.
Persons informed about the place and time of consideration of the case can at their request participate in the proceedings. Their absence does not influence the consideration of the case.”
“When considering a case in supervisory review proceedings, the court has the right by its ruling or resolution to:
1) leave a judgment, ruling, resolution without changes, and refuse a protest;
2) annul a judgment, ruling or resolution in whole or in part and remit the case for re-consideration to the court of first or cassation instance;
3) annul a judgment, ruling or resolution fully or partially and terminate proceedings in a case or leave it without consideration;
4) leave one of the previously adopted judgments in the case, or one of the rulings or resolutions without satisfaction;
5)
“The directions of the court that made the supervisory review are binding on the court which later re-examines the case. These directions are binding within the limits established by Article 319 of this Code.
When considering a case in supervisory review proceedings or annulling the cassation decision, the court has no authority to determine the conclusions that could be made in the course of re-consideration of the case by the cassation court.”
66. Relevant provisions of the Law of 21 June 2001 read as follows:
“1. This Law shall enter into force on 29 June 2001...
3. Appeals in civil cases lodged before 29 June 2001 shall be considered in accordance with the procedure adopted for the examination of appeals against local court judgments.
4. Protests against judgments lodged before 29 June 2001 shall be sent to the Supreme Court of Ukraine for consideration in accordance with the cassation procedure.
5. Judgments that have been delivered and which have become enforceable before 29 June 2001 can be appealed against within three months in accordance with the cassation procedure (to the Supreme Court of Ukraine).”
67. Relevant provisions of the Law of 28 February 1991 read as follows:
“Relief workers dealing with the consequences of the Chernobyl nuclear power plant disaster are those citizens who took part directly in any work related to dealing with the disaster itself or its consequences in the alienation zone in 1986-1987 regardless of the number of days worked, and in 1988-1990 – for not less than 30 calendar days, including the evacuation of persons and property from this zone, and those temporarily present there or assigned there from their place of employment within the designated terms for the execution of works in the alienation zone, including military servicemen, civil servants (якщо це державні службовці), the public, enterprises, institutions and organisations regardless of their jurisdiction and those who worked not less than 14 calendar days in 1986 in the acting ambulance stations for the decontamination of the population and the deactivation of the equipment or buildings. The list of these stations is drawn up by the Cabinet of Ministers of Ukraine.”
“Persons who are considered victims of the Chernobyl nuclear power plant disaster are the following: ...
5) persons who worked for at least 14 days from the time of the accident until 1 July 1986 or for at least three months during 1986-1987 outside the exclusion zone in particularly harmful working conditions (taking into account radioactivity factors), where this work was related to the elimination of the consequences of the Chernobyl nuclear plant disaster and was carried out on the basis of instructions received from the Government. The types of work and territories to be covered are determined by the Cabinet of Ministers of Ukraine.”
68. Relevant provisions of the Resolution no. 501 of 25 August 1992 read as follows:
“... persons assisting in eliminating the consequences of the nuclear power plant disaster shall be issued certificates on the basis of one of the following documents:
a) a certificate of assignment to the alienation zone;
b) a military certificate;
c) a certificate of proof of bonus payments for participation in the relief work;
d) (excluded on the basis of the Resolution of the Cabinet of Ministers of Ukraine no. 404 of 8.06.1995) a decision of a court establishing direct participation in any work for a certain period related to dealing with the consequences of the nuclear power plant disaster, its consequences in the alienation zone, including the evacuation of persons and property from this zone...
The decision to issue or not to issue the relevant certificate shall be adopted within one month from the date of receipt of the necessary documents by the body issuing such a certificate.”
69. Relevant provisions of the Resolution no. 106 of 23 July 1991 read as follows:
“... Commentary: The town of Ivankiv to which the applicant was assigned from the place of his employment (Odessa) is not included in the list of localities...”
70. Relevant provisions of the Resolution no. 404 of 8 June 1995 read as follows:
“1. (delete paragraph 10 from the Resolution of the Cabinet of Ministers of Ukraine No. 501 of 25 August 1992).
2. Commissions on disputed issues regarding the determination of the status of persons who assisted in dealing with the consequences of the nuclear power plant disaster, created at the Ministry of Chernobyl Affairs ... shall verify the issue of certificates to victims of the Chernobyl nuclear plant disaster on the basis of judicial decisions and shall take action where they find a violation of the procedure for establishing such status.”
71. Relevant provisions of the Resolution of the Plenary Supreme Court of 31 March 1993 read as follows:
“2. ... – in accordance with the Law of Ukraine on the Status and Social Security of Victims of the Chernobyl Nuclear Power Plant Disaster and the Resolutions of the Cabinet of Ministers of Ukraine of 25 August 1992 on the Procedure for the Issue of Certificates to Victims of the Chernobyl Nuclear Plant Disaster, adopted in accordance with the Law, certificates may be issued on the basis of a court judgment establishing the person's specific participation in any kind of work for a certain period of time (determined by the legislation) related to eliminating the consequences of the disaster and its consequences in the alienation zone, including the evacuation of persons and property from such zones, and/or the works in the acting ambulance stations for decontamination of the population and deactivation of equipment. All other issues concerning the status of the victims of the Chernobyl nuclear power plant disaster shall be determined on the basis of the relevant documentation of the commissions of the executive bodies of the Kyiv and Zhytomyr Regional Municipal Councils, and disputes shall be settled by the commissions of the Executive Committees of Kyiv and Zhytomyr and of the Ministry of Chernobyl Affairs.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5706
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: VARGA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Slovak national, born in 1963 and living in Košice. He is represented before the Court by Mr A. Fuchs, a lawyer practising in Košice. The respondent Government are represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 September 1993, while he was serving a prison term in the Košice-Šaca prison, the applicant sent an envelope by registered mail. The address on the envelope read as follows:

“Head of the Post Office
POST OFFICE
Košice
040 20“.
The envelope had registration number R 925. It contained another envelope. The latter was addressed to the applicant’s parents and contained a letter which the applicant wanted to be sent to Amnesty International.
The main envelope also contained an accompanying letter for the head of the Košice 20 post office. In the letter the applicant addressed the head of the Košice 20 post office “Dear Madam” and requested her to deliver the enclosed envelope to his parents at their expenses. The applicant explained that he was serving a prison sentence and that he could not send letters to certain addresses.
On 15 September 1993 the applicant’s registered mail arrived at the Košice 1 post office which is the main post office in the city. An employee in charge of correspondence addressed to the Slovak Post opened the main envelope. After having read the applicant’s request addressed to the head of the Košice 20 post office, she re-directed the applicant’s mail, in the original envelope, to the head of the Košice 12 post office which is in charge of delivering mail in the quarter where the applicant’s parents live. The Košice 20 post office is situated in the same quarter, but it is not charged with delivering mail to addressees.
The applicant’s registered letter R 925 arrived at the Košice 12 post office on 16 September 1993. Its head could not comply with the applicant’s request that the enclosed envelope be delivered to his parents at their expenses as postal regulations require that the postage be paid in advance.
On 27 January 1994 the applicant was released from prison. He complained to the post that his registered mail had not been delivered.
Following the applicant’s complaint the head of the Košice 12 post office sent the envelope addressed to the applicant’s parents back at the applicant’s address in the Košice-Šaca prison by ordinary mail in accordance with the relevant regulation. On 17 March 1994 the head of the Košice 20 post office informed the applicant accordingly.
On 23 March 1994 the director of the Košice-Šaca prison administration informed the applicant that according to the register of prisoners’ mail his registered letter R 925 had not been returned to the prison.
On 21 October 1994 the head of the Supervision Department of the Slovak Post informed the applicant that his registered letter had been delivered to the addressee, i.e. the head of the post office concerned, and that he had therefore no right to compensation for its loss. The applicant was further informed that the head of the post office had not been entitled to deliver the enclosed envelope to the applicant’s parents at their expenses as requested by the applicant since Slovak Post did not provide such a service.
The letter by the head of the Supervision Department also stated that the head of the Košice 12 post office had sent the envelope in question back at the applicant’s address in the Košice-Šaca prison by non-registered mail. Since Slovak Post kept no records of the distribution of such mail, it was impossible to establish where the letter had been lost.
On 11 April 1995 the applicant complained about the interference with his correspondence to the Constitutional Court (Ústavný súd). On 13 April 1995 the applicant was requested to submit documentary evidence. He was further informed that in the proceedings before the Constitutional Court he had to be represented by a lawyer.
On 24 April 1995 the applicant supplemented his submissions to the Constitutional Court. He stated that he was indigent and requested that a lawyer be appointed to represent him.
On 7 September 1995 a judge of the Constitutional Court requested that the applicant appoint, within thirty days, a lawyer representing him in the proceedings. The letter further stated that the Constitutional Court lacked jurisdiction to appoint a lawyer ex officio.
On 19 September 1995 the applicant requested the Slovak Bar Association that a lawyer be appointed to represent him before the Constituional Court. He explained that several lawyers had refused to represent him and that he was indigent.
On 29 November 1995 the applicant informed the Constitutional Court that he was detained and that the Slovak Bar Association had not yet appointed a lawyer to him.
On 16 January 1996 the Constitutional Court rejected the applicant’s petition. It held that the applicant’s submissions were not sufficient for proceedings before the Constitutional Court to be started. The decision stated that the applicant had not been deprived of his liberty throughout the time during which his petition had been prepared for a preliminary examination. In the Constitutional Court’s view, the applicant had had enough time to specify, possibly with the assistance of a lawyer, the evidence which he proposed to take and the decision which he sought to obtain.
At the relevant time the indication of addresses on mail was governed by Section 11 of the Postal Regulation of 1989 (Vyhláška o právach a povinnostiach pošty a jej používateľov). The relevant provisions read as follows:
Paragraph 2 provides that the address must be indicated accurately with a view to preventing any doubts as to the place and person to whom the mail is to be delivered. Post offices charged with the delivery of mail are authorised to determine whether an address is indicated correctly and accurately.
Pursuant to paragraph 3, mail with inaccurate or incomplete address shall be returned to the sender.
Paragraph 5 (a) provides that address on mail which is to be delivered within the country shall indicate, in the first place, the addressee, i.e. the first name and surname of a person or the name of a company or organisation.


ITEMID: 001-23859
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: NOBILI MASSUERO v. ITALY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Ferdinando Nobili Massuero, is an Italian national who lives in Rome. He was represented before the Court by Mr F. Spagnolo, a lawyer practising in Rome.
The respondent Government were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's father was the owner of a flat in Rome, which he had let to A.G.
In a registered letter of 5 June 1984, the applicant's father informed the tenant that he intended to terminate the lease on expiry of the term on 31 July 1987.
In a writ served on the tenant on 4 July 1986, the applicant's father reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. By a decision of 12 February 1987, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 3 July 1988.
On 4 July 1988, the applicant's father served notice on the tenant requiring him to vacate the premises.
On an unspecified date the applicant's father informed the tenant that the order for possession would be enforced by a bailiff on 16 September 1988.
Between 16 September 1988 and 7 October 1999, the bailiff made fifty attempts to recover possession. Each attempt proved unsuccessful, as the applicant's father was not entitled to police assistance in enforcing the order for possession.
In the meanwhile, on 9 July 1998, the applicant's father died and the applicant inherited the flat.
On 3 November 1999, the applicant appointed a lawyer in order to be represented in the procedure with the aim of repossessing the flat.
On the same day, the applicant recovered possession of the flat outside the framework of the eviction proceedings in a meeting held between him, his lawyer and the tenant's representative.


ITEMID: 001-79719
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF NARINEN v. FINLAND (No. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1957 and lives in Klaukkala. He is a former partner in a limited partnership company, which was wound-up in 1993.
5. On 4 February 1994 the company's estate reported an offence against the applicant. The applicant was first interrogated by the police on 4 July 1995 on suspicion of, inter alia, offences of debtor's fraud, dishonesty and bookkeeping. In June 1997 he was charged on twenty-one counts.
6. The Helsinki District Court (käräjäoikeus, tingsrätten) held the first hearing on 30 September 1997. In the following 14 hearings it heard 21 witnesses named by the prosecutor and 5 witnesses named by the applicant.
7. At the 16th hearing on 4 March 1999 the District Court delivered its judgment. It convicted the applicant of, inter alia, two aggravated debtor's frauds, two offences of debtor's dishonesty and five bookkeeping offences and sentenced him to one year and eight months' imprisonment. He was ordered to pay the company's estate some 723,400 Finnish Marks (FIM; corresponding to 122,000 euros (EUR)) in compensation and to reimburse its legal expenses.
8. He appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), requesting an oral hearing. On 16 February 2001 he asked the court to speed up the proceedings and to dismiss the charges because of the length of the proceedings.
9. On 25 March 2002, without having held an oral hearing, the Court of Appeal upheld the District Court's judgment with some minor amendments. His conviction was reduced to eighteen months' imprisonment. It rejected the applicant's further claims with the reasoning that the proceedings had not exceeded a reasonable time.
10. On 2 October 2002 the Supreme Court refused the applicant leave to appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58044
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF OBERSCHLICK v. AUSTRIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;R. Pekkanen
TEXT: 7. Mr Oberschlick, a journalist living in Vienna, was at the material time editor of the periodical Forum.
8. On 7 October 1990 on the occasion of a "peace celebration" (Friedensfeier) at the foot of the Ulrichsberg, Mr Haider, leader of the Austrian Freedom Party (Freiheitliche Partei Österreichs - FPÖ) and Governor (Landeshauptmann) of the Land of Carinthia, gave a speech glorifying the role of the "generation of soldiers" who had taken part in the Second World War. In it he said that all soldiers, including those in the German army, had fought for peace and freedom and that people should therefore not differentiate between "good" and "bad" soldiers of that generation but should rather be grateful to all of them for having founded and built today’s affluent, democratic society. Mr Haider then criticised an Austrian writer who had, in his view, disparaged all those killed in the Second World War, and continued as follows:
"Ladies and gentlemen, freedom of opinion is taken for granted in a democracy, but it reaches its limits where people lay claim to that spiritual freedom they would never have got if others had not risked their lives for them so that they may now live in democracy and freedom."
9. This speech was reproduced in full in Forum and commented on by the applicant and the aforementioned Austrian writer. Mr Oberschlick’s passage, entitled "P.S.: ‘Trottel’ statt ‘Nazi’" ("P.S.: `Idiot’ instead of `Nazi’"), read as follows:
"I will say of Jörg Haider, firstly, that he is not a Nazi and, secondly, that he is, however, an idiot. That I justify as follows: [L.] [...] wholly convinced me that being called a Nazi is an advantage to Jörg Haider. That is why I ask my friends to forgive my abstaining from using that description for that very good reason.
...
As [Haider] denies those of us who in his eyes did not have the legitimising good fortune [legitimierende Glück] to have risked our lives in the uniform of honour [Ehrenkleid] of the Third Reich for the Hitlerian freedom to wage wars of conquest [Raubkrieg] and impose the final solution, [and as he denies us] the right ‘to lay claim to a purely "spiritual" freedom of opinion’, let alone a "political freedom", and he himself has never had the good fortune to serve in the uniform of honour of the SS or the German army [Wehrmacht], thus excluding himself along with the vast majority of Austrians from any exercise of freedom, he is, in my eyes, an idiot."
10. On 26 April 1991 Mr Haider brought an action for defamation (üble Nachrede) and insult (Beleidigung) against the applicant in the Vienna Regional Criminal Court (Landesgericht für Strafsachen - "the Regional Court"). He also applied for an order for the immediate seizure of the relevant issue of the periodical and for an announcement of the institution of proceedings to be published in Forum.
11. On 30 April 1991 the court allowed the application for an announcement to be published, but on 21 May 1991 Mr Oberschlick appealed against that decision.
12. On 23 May 1991 the court found the applicant guilty under Article 115 of the Criminal Code (see paragraph 19 below) of having insulted Mr Haider and sentenced him to pay twenty day-fines of 200 Austrian schillings (ATS), with ten days’ imprisonment in default. In the court’s view, the word Trottel was an insult (Schimpfwort) and could only ever be used as a disparagement (Herabsetzung); it therefore could never be used for any objective criticism (sachliche Kritik). In the written version of the judgment the court ordered the seizure of the relevant issue of Forum.
13. On 30 August 1991 the applicant lodged an appeal (Berufung) against that judgment. In his submission, the court had held that the expression in question constituted an insult to Mr Haider because it had disregarded the context in which it had been used. If the court had taken into account the whole of the article and its line of argument, it would have realised that the term complained of was justified since it served as a conclusion to the finding that Mr Haider had in his speech excluded himself from the enjoyment of freedom of opinion.
Mr Oberschlick also complained that the seizure of the relevant issue of Forum had not been ordered when judgment was given.
14. On 16 September 1991 the applicant asked for the record of the hearing to be rectified and supplemented.
15. On 18 October 1991 the Regional Court rectified part of the record and refused the further amendments sought by the applicant as irrelevant. On 10 December he lodged an appeal (Beschwerde) against that decision.
16. In the meantime, on 5 December 1991, the Regional Court had rectified its judgment and removed from it the order for the seizure of Forum.
17. On 18 March 1992 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal against the order to publish an announcement about the proceedings instituted by Mr Haider (see paragraph 11 above). On the same day the Court of Appeal declared inadmissible the appeal against the decision to rectify the record of the hearing (see paragraph 15 above).
18. On 25 March 1992 the Court of Appeal upheld the Regional Court’s judgment but reduced the rate of the day-fine to ATS 50 (see paragraph 12 above).
It noted that the word in issue appeared in the title of the article. Only those who had read not just the lines written by the applicant but also Mr Haider’s speech and the comments accompanying it in Forum would understand that Mr Oberschlick had called the speaker an "idiot" as, in his view, he had in his speech excluded himself and the vast majority of Austrians from the enjoyment of freedom of opinion. Those who had not would link the term Trottel not with the conclusion that could be drawn from Mr Haider’s words but with his own person. It thus amounted to an insult that overstepped the limits of acceptable objective criticism (die Grenze sachlich zulässiger Kritik) and Mr Oberschlick must have been aware of that. At the most, he could have described the consequences of Mr Haider’s remarks as stupid (vertrottelt).
Admittedly, politicians who supported opinions that were open to criticism had to accept that they would be subject to especially hard-hitting attacks, even personal ones. The right to freedom of opinion must not, however, lead to insults replacing arguments of substance in political debate. The fact that a politician resorted to insults did not justify his detractors doing the same, unless personally provoked. Taking Article 10 of the Convention (art. 10) as the basis for a right to insult someone would bring about a general debasement (generelle Verrohung) of political debate.
19. The relevant provisions of the Criminal Code read as follows:
"1. Anyone who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true."
"1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision.
...
3. Anyone who, solely from indignation at the behaviour of another person, allows himself to be provoked into insulting, mistreating or threatening to mistreat that person in a way that is excusable in the circumstances, shall have a defence if his indignation is understandable to the average person, regard being had in particular to the time that has elapsed since the event that provoked it."
VIOLATED_ARTICLES: 10


ITEMID: 001-71329
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KARPOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (non-enforcement);Pecuniary damage - Government to pay judgment debt;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Zoryana Bortnovska
TEXT: 4. The applicant was born in 1948 and lives in Shostka, the Sumy Region, Ukraine.
5. In October 1998 the applicant instituted proceedings in the Shostka City Court against the Department of Education of the Shostka Municipal Council (the Department), seeking to recover additional salary for her time-in-service and healthcare benefits.
6. On 8 December 1998 the Shostka City Court ordered the Department to pay the applicant UAH 1,201 in compensation. The judgment was not executed due to the Department’s lack of funds.
7. In July 1999 the applicant instituted proceedings in the Shostka City Court against the Shostka State Execution Service seeking to oblige it to execute the decision of 8 December 1998 and to receive compensation for moral damage caused by the non-execution of that judgment.
8. On 29 July 1999 the Shostka City Court rejected these claims as being unsubstantiated. It also found that the judgment was not executed due to the lack of funds in the State budget.
9. On 8 September 1999 the Sumy Regional Court upheld that decision.
10. Between 1999 and 2001 the applicant unsuccessfully complained to the Presidents of the Sumy Regional Court and the Supreme Court of Ukraine with a view to having supervisory review proceedings initiated in her case.
11. On 14 March 2001 the writ of execution was returned to the applicant unenforced due to the lack of funds on the accounts of the education department.
12. On 17 May 2001 the Regional Court informed the applicant that there were no grounds for initiating supervisory review proceedings upon her complaints.
13. On 2 July 2001 the Department responsible for the public water supply of the Shostka Municipal Council (the “DPW”) instituted proceedings in the Shostka City Court against Mr V.S. Kireyev (“V.S.K”.), seeking the payment of UAH 796.25 for the water supplied to him and his use of the water mains. On 21 February 2002 the Shostka City Court allowed the DPW’s claims and ordered V.S.K. to pay the debt. On 29 May 2002 the Sumy Regional Court of Appeal upheld that decision.
14. In August 2001 the State “Sumyteplocomunenergo” company (the “SCS”) instituted proceedings in the Shostka City Court against V.S.K., seeking the payment of UAH 113.76 for his use of heating facilities. On 25 January 2002 the Shostka City Court allowed the SCS’s claims and ordered V.S.K. to pay the debt. On 29 April 2002 the Sumy Regional Court of Appeal upheld that decision.
15. On 28 August 2001 the DPW instituted proceedings in the Shostka City Court against the applicant, seeking the payment of UAH 311.44 for the water supplied to her and for her use of the water mains. On 21 February 2002 the Shostka City Court allowed the DPW’s claims and ordered the applicant to pay the debt. On 29 May 2002 the Sumy Regional Court of Appeal upheld that decision.
16. On 2 July 2001 the SCS instituted proceedings in the Shostka City Court against the applicant, seeking the payment of UAH 773.85 for the use of heating facilities. On 1 March 2002 the Shostka City Court allowed the SCS’s claims and ordered the applicant to pay the debt. On 29 May 2002 the Sumy Regional Court of Appeal upheld that decision.
17. The relevant domestic law is set out in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69430
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: DHADLY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Mohinder Singh Dhadly, is a United Kingdom national, who was born in 1923 and lives in London. He is represented before the Court by Mr G. Blades, a lawyer practising in Lincoln. The respondent Government are represented by Mr J. Grainger, Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
Under the terms of a tenancy commencing from 25 August 1996, the applicant lived in a house owned by his son. The latter lived in the United States of America, and the property was managed by his mother, the applicant's estranged wife, under a power of attorney granted to her by the son.
In August 1996 the applicant submitted a claim for housing benefit to the local authority, which was refused as follows:
“I regret to inform you that I cannot award Housing Benefit because, in my opinion, you do not have a true liability to pay rent. Regulation 7 [see below] ... covers this matter. The basis on which I have made this decision is as follows:
i. You have been unable to provide a rent book or written statement of your current rent arrears.
ii. There is no indication that your landlord has taken any formal action to recover the property due to non-payment of rent. It is unusual for a landlord to allow rent arrears to accrue for this length of time without taking action.
iii. You appear to have lived 'rent free' in the property between June and August 1996, when your tenancy commenced.
Moreover, even if a liability to pay rent did exist it could be argued that your situation as a tenant has been created primarily in order to obtain Housing Benefit. Regulation 7 (1)(b)... covers this matter.”
The applicant appealed to an adjudicator who refused the appeal, holding, in accordance with section 130 of the Social Security, Contributions and Benefits Act 1992 (“section 130”: see below), that the applicant was not legally required to pay rent. The applicant appealed to the Housing Benefit Review Board (“HBRB”). The HBRB heard evidence from the applicant and his estranged wife and dismissed the appeal on 21 November 1997, holding under Regulation 7 that the applicant's liability to pay rent had been created to take advantage of the housing benefit scheme.
The applicant, acting as a litigant in person, applied for leave to seek judicial review of this decision, and was initially refused. He appealed to the Court of Appeal, which held that it was arguable that the HBRB had failed properly to apply the burden of proof in favour of the applicant. The Court of Appeal therefore granted leave to apply for judicial review.
On 20 October 1999 Mr Justice Richards in the High Court quashed the HBRB's decision and remitted it to the HBRB for re-determination. He held that, although the HBRB had purported to be acting under Regulation 7, the reasons given in support of the decision suggested that the HBRB believed that the applicant was not under a liability to pay rent. Moreover, the reasoning of its decision appeared, wrongly, to place the burden of proof on the applicant. He also commented that the HBRB had not adequately considered certain evidence which supported “... a reasonably cogent case in favour of the existence of a genuine tenancy, ie a true or genuine liability to pay rent”.
On 3 August 2000, after a hearing on 26 July 2000 at which the applicant had refused to present his case, the HBRB again rejected the applicant's claim for housing benefit, finding under section 130 that “there was ample evidence that the purported rental agreement did not establish a genuine liability to pay rent”.
The applicant sought judicial review. He contended that the HBRB was under an obligation to follow the comment in Mr Justice Richard's judgment that he had a “reasonably cogent case”, and thus grant his claim for housing benefit. He was granted leave on 7 June 2001, on the ground that the HBRB's decision did not set out the evidence on which it had based its finding that the applicant was under no legal obligation to pay rent.
On 2 July 2001 HBRBs ceased to exist and were replaced by new statutory Appeal Tribunals, which had no councillor members (see statement of domestic law below).
On 9 August 2001 the local authority applied to the High Court for a stay of the judicial review proceedings. The HBRB had withdrawn its decision of 3 August 2000 and had offered to pay the applicant's reasonable costs and rehear and re-determine his claim for housing benefit. The applicant opposed the stay because he believed that the HBRB should undertake to grant his application for housing benefit.
On 2 October 2001 Mr Justice Stanley Burnton ordered the stay because there was no purpose in continuing the proceedings: the local authority had already offered everything the applicant could have hoped to achieve through judicial review. He explained that, under English law, a court on an application for judicial review of a decision by a body such as the HBRB could only quash the HBRB's decision, if wrong in law, but could not substitute its own decision as to whether housing benefit should be granted. Even if Mr Justice Richard's judgment could be interpreted as finding that the applicant was under a genuine obligation to pay rent, the High Court had no power to make such a finding, but could only remit the case to the HBRB for a fresh determination.
The applicant appealed to the Court of Appeal. His appeal was refused on 21 November 2001, on the ground, inter alia, that:
“... [the applicant] misreads Mr Justice Richard's judgment and indeed, as I think, partly misunderstands the nature of judicial review proceedings. Judicial review proceedings - at least these judicial review proceedings - are concerned with the decision-making process and not with the actual decision made. In the circumstances of housing benefit, Parliament has set up a structure for determining whether it should be paid and to whom, and that structure does not involve decisions by the court. The court is concerned to review the process and the reasoning, but not to make the decision ... .”
On 15 December 2001 the Court of Appeal refused the applicant leave to appeal to the House of Lords.
The local authority then referred the applicant's claim to the new statutory Appeal Tribunal (see paragraphs 4 and 5 of the statement of Domestic Law, below), without, however, first informing the applicant or seeking his consent. The case was listed for hearing on 9 August 2002, but in a letter dated 21 July 2002 the applicant withdrew the appeal.
Housing benefit is payable to people on low incomes by the local authority. By section 130 of the Social Security, Contributions and Benefit Act 1992,
“(1) A person is entitled to housing benefit if:
(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home ...”
Regulation 7 of the Housing Benefit (General) Regulations 1987 provides:
“(1) The following persons shall be treated as if they were not liable to make payments in respect of a dwelling:
(a) a person who resides with the person to whom he is liable to make payments in respect of the dwelling ... ;
(b) a person whose liability to make payments in respect of the dwelling appears to the appropriate authority to have been created to take advantage of the housing benefit scheme except someone who was, for any period within the eight weeks prior to the creation of the agreement giving rise to the liability to make such payments, otherwise liable to make payments of rent in respect of the same dwelling.”
At the relevant time, a claim to housing benefit was first considered by officials employed by the local authority and working in the housing department. If the benefit was refused the claimant was entitled to a review of the decision, first by the local authority itself, then by a HBRB, which comprised up to five elected councillors from the local authority.
After the coming into force of the Human Rights Act 2001, the compatibility of HBRBs with Article 6 of the Convention became open to challenge in the domestic courts. In Bewry (R. on the application of) v. Norwich City Council [2001] EWHC Admin 657, the Secretary of State conceded that the HBRB lacked the appearance of an independent and impartial tribunal. The determination of the central issues of fact in the case depended on an assessment by the Review Board as to whether the claimant was telling the truth. The High Court found that judicial review proceedings were insufficient to remedy the problem, since the High Court could not “cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it [had] no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence”.
On 2 July 2001 HBRBs ceased to exist. They were replaced by a new system in which determinations of the kind previously made by HBRBs are now made by a new statutory Appeal Tribunal. Members of such Appeal Tribunals do not include councillors.
Under the transitional provisions contained in Regulation 4(3) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) (Transitional and Savings) Regulations 2001, any decision which would fall to be made by a HBRB but for the coming into force of the new system should be made by an Appeal Tribunal. In the Bewry case, which involved a decision by the HBRB before the new system became operative, the relief granted was the quashing of the HBRB's decision and an order remitting the case to an Appeal Tribunal under the transitional regulations.


ITEMID: 001-23273
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: M.A. AND OTHERS v. FINLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are 35 Directors of a limited liability company (hereinafter “the Company”). All applicants are Finnish citizens, except applicant N.L. who is a citizen of the United Kingdom. Before the Court they are represented by Mr Markku Fredman, a lawyer practising in Helsinki. The respondent Government were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1994 all the applicants were employed by the same employer, the Company. On 7 April 1994 the Annual General Meeting of the Company decided that a bond loan with warrants be issued. The Terms and Conditions for the Bond Loan with Warrants for share subscription (hereinafter “the Terms”) were determined, inter alia, as follows:
“I Loan Terms
1. The maximum amount of the bond loan with warrants shall be 200,000 Finnish Marks (FIM).
2. The Loan shall be offered for subscription to the management of [the Company]. It is proposed that shareholders’ pre-emptive right to subscription be disapplied since the loan is intended as part of the incentive programme for the management of [the Company] and its various units.
3. The bonds shall be dated 15.4.1994. The term of bonds shall be five years. The loan shall be repaid in one instalment on 15.4.1999 against presentation of the bonds at the Company’s head office.
...
5. The annual interest rate on the loan shall be (2)%. ...
6. Subscription may take place on 15.4.1994 at the Company’s head office.
...
7. [The Company] shall issue not more than 200 bonds made out to a named person each with a nominal value of FIM 1,000 and carrying 1,000 warrants. The bonds and warrants shall be kept by an agent designated by [the Company] for the account of the subscriber until 1.12.1998.
...
II Terms and Conditions of Share Subscription
1. Each warrant shall entitle the holder to subscribe for one [Company] preferred share with a nominal value of FIM 20. ...
2. Shares may be subscribed during the period 1.12.1998 31.1.2000. Share subscription shall take place at [the Company’s] head office or at a place later indicated by [the Company]. When subscribing for a share a warrant shall be surrendered. payment of shares subscribed shall be effected on subscription.
3. The share subscription price shall be FIM 374.
...
5. Warrants pertaining to bonds may not be transferred to a third party prior to 1.12.1998 without the written permission of the Board of Directors. After this date warrants may be freely transferred.”
The Annual General Meeting noted that the loan formed a part of an incentive programme directed to the management of the Company. The purpose of the programme was to strengthen the management’s commitment to continuous and long-standing service for the Company.
In April 1994, about 45 employees, including all the applicants, subscribed for bonds under the incentive programme. The applicants’ loan-share varied between FIM 2,000 (EUR 336.38) and 12,000 (EUR 2,018.26), carrying the same amount of warrants. At the time, the mid-rate of the Company’s stock was FIM 374 (EUR 62.90).
Under Section 66 (1) of the Income Tax Act (tuloverolaki, inkomstskattelag 1535/1992, hereinafter “the 1992 Act”), an employee receives ordinary income under employee stock purchase programmes when subscribing for the company’s shares for a price that is under the fair market value of the stock. However, under programmes that are designed for the whole personnel, or for the majority of it, no taxable income arises if the price reduction is 10% or less compared with the fair market value of the stock.
Under Section 66 (3) of the 1992 Act, as it stood, the benefit of subscribing for shares based on debenture loan or stock option was taxable income if the subscription price was lower than the fair market value at the moment when the loan was issued. However, applying the 1992 Act, the potential profits in the future, based on appreciation of stock, were regarded as capital gains.
Applying the 1992 Act, as it stood in April 1994, the applicants did not receive any ordinary income at the option grant. The potential gains would in due course be taxed as capital gains.
In 1994 the capital gains tax rate was 25%. The rateable value for capital gains was determined by deducting the acquisition price from the sales price. There was a legal presumption that the acquisition price was 30% of the sales price unless the taxpayer showed that some other acquisition price be applied.
On 16 September 1994 the Government introduced a Bill (hereinafter “the Bill”), proposing amendments to the 1992 Act. The amendments concerned, inter alia, Section 66 (3), of the 1992 Act. According to the Bill, profits based on appreciation of stock were to be regarded as a benefit related to employment. The incentive stock options programme for directors of a company was a new way of paying salary; the employer gave a promise regarding a right to a certain subscription for shares, and the value of that right would most likely, at the exercise of the right, be significantly higher than at the option grant. From the angle of income tax, it represented a postponed salary, which should be taxed as ordinary income. Due to practical problems relating to the assessment of the benefit at the option grant, the Government proposed that the benefit would be taxed at the exercise of the stock option (i.e. purchase of shares) or when the stock option was transferred. The Government stated that the amendments were intended to enter into force as from the beginning of 1995. The amended Act would be applied to existing stock option arrangements where the option was exercisable in 1995 or later.
On 19 October 1994 the Board of Directors of the Company decided, relying on Chapter II, Section 5, of the Terms, to grant to subscribers of the bond loan a permission to transfer the warrants pertaining to bonds (stock option certificates) before 1 December 1998 when the subscribtion for shares would otherwise have started. As a result, a subscriber of the bond loan could transfer his or her stock options already in 1994, during which the 1992 Act in its original form was still assumed to be applicable.
On 3 November 1994 the Parliament discussed during its question time the news according to which certain companies were planning to bring forward the opportunity to exercise their stock options. In his answer to the Parliament, the Minister of Finance took up the possibility of retrospective legislation. According to his answer, an earlier implementation of the proposed amendment would be justified at least in cases where the original subscription time was brought forward.
On 7 November 1994 the applicants exercised their stock options by selling them. The selling price was FIM 366 (EUR 61.56) per option, i.e. the net value of the stock options after the income taxes paid by the applicants was FIM 19,266,448 (EUR 3,240,383.94) altogether.
On 9 December 1994 the Parliament’s Finance Committee (valtiovarainvaliokunta, finansutskottet) gave its report on the Bill. The Finance Committee found that the proposed amendment was based on good reasons relating to fiscal policy. However, it found that the proposed entry into force was problematic. It reported that after the Bill had been introduced, companies had started to make strenuous efforts to modify their incentive programmes so as to make possible an earlier exercise of the stock options than laid down in the terms of the subscription. The Finance Committee found that, when considering the general equality aspects in levying taxes and the need to protect the incentive programmes from such artificial modifications that were made only by reason of taxation, the proposed amendment should enter into force earlier in order to make the described plans unprofitable.
Taking into account expert opinions, the Finance Committee found that the goal could not be achieved by applying Section 56 of the Income Tax Act (concerning tax evasion). Therefore the Finance Committee found that the implementing provision should include an explicit clause as regards arrangements which permitted an earlier exercise of stock options. On the other hand, the so-called pure cases (i.e. cases in which the company had not initiated any artificial arrangements with the aim of making possible an earlier exercise of the options) should be left outside the scope of an earlier implementation. The Finance Committee stated that the provision regarding the earlier implementation should be applied, inter alia, in cases where the Board of Directors of a company had, after 16 September 1994, exercised its right to give a permission to exercise the stock option. It found that the proposed implementation would not be contrary to the right of property, at least if the “pure” cases were left outside the earlier implementation, which would apply only to irregular arrangements that aimed at producing an undeserved tax benefit.
The proposed amendment to the 1992 Act was adopted on 21 December 1994, ratified on 29 December 1994 and published on 31 December 1994. The implementing provision included a clause to the effect described above. The decisive date as regards permission, given by Boards of Directors, to an earlier exercise of stock options was set at 16 September 1994, i.e. the date of introducing the Bill.
Under the new provision of the Income Tax Act (hereinafter “the 1994 Provision”) and according to its implementation provision, the relevant tax authorities found that the applicants had received taxable income by selling their stock options in November 1994. A corresponding income tax was levied on them.
Unlike capital gains tax, the income tax was progressive. The applicants’ incomes in 1994 were such as to put them in the highest tax band, resulting in marginal tax rates of 60% or more. In practice, the application of the amended tax legislation imposed on the applicants, respectively, a tax burden varying from FIM 333,060 (EUR 56,016.67 euros) to FIM 1,998,360 (EUR 336,100.02), and amounting in total FIM 21,000,000 (EUR 3,531,946.46) more than would have applied under the previous legislation.
The applicants lodged claims for rectification with their respective Tax Rectification Boards (verotuksen oikaisulautakunta, skatterättelsenämnd). They referred, inter alia, to Article 1 of Protocol No. 1 to the Convention. The first decision was made on 18 December 1995 and the last on 11 February 1997. The Tax Rectification Boards rejected their claims. The tax authorities found that the relevant profits were to be taxed as ordinary income. In assessing the taxable gains, they did not accept that a 30% deduction, based on the presumption of the acquisition price, be made from the sales price. Instead, they found that the assessment of the taxable gains was to be made by deducting the purchase price and sales cost from the sales price. Since in the relevant cases there were no purchase prices, only the sales costs were deducted.
The applicants appealed to the County Administrative Courts (lääninoikeus, länsrätt). They requested that the profit on sale be taxed by applying the 1992 Act, i.e. as capital gains and not as ordinary income. They also requested that the legal presumption as regards the acquisition price be taken into account and a corresponding amount be deducted when assessing the taxable gains. They maintained, inter alia, that the interpretation, based on retrospective legislation, according to which the profits on sale of the stock options were taxed as ordinary income, infringed the principle of equality as well as the right of property and, furthermore, was contrary to Article 1 of Protocol No. 1 to the Convention.
On 13 February 1997 the first decision was given by the County Administrative Court of Turku and Pori. It rejected the appeals lodged by the applicants living in the relevant county.
The above-mentioned applicants, living in the County of Turku and Pori, applied to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) for leave to appeal.
On 6 October 1998 the Supreme Administrative Court granted leave to appeal to one of the applicants, but rejected the appeal on merits. The court decided to publish the judgment in its yearbook of precedents (1998:53). The key words in the summary of the precedent are, inter alia, “right of property” and “equality”. After adopting the first judgment, the Supreme Administrative Court refused the other four applicants, who had already received a judgment from the County Administrative Court, leave to appeal.
The Supreme Administrative Court stated in its reasoning, inter alia, that the relevant tax on income was not a confiscatory measure which could be regarded as infringing the right of property. It noted that the applicant’s taxable income, based on the sale of the stock options, corresponded to the actual gains from that sale. The Supreme Administrative Court found that it had not been contrary to Article 1 of Protocol No. 1 to the Convention to tax an income, made by selling stock options, as any other ordinary earnings.
Had the applicants sold their stock options on 1 December 1998, which was the originally planned first possible day to transfer the warrants pertaining to bonds, the total net value of the stock options after income tax would have been FIM 189,349,569 (EUR 31,846,311.39). Had the stock options been sold on 30 December 1999, the total net value after income tax would have been FIM 882,739,513 (EUR 148,466,128.30).
On 21 October 1998 the Supreme Administrative Court gave a decision in another case in which it found that the profits from a sale of a stock option in December 1994 were to be taxed as capital gains since the original loan conditions had not been altered and since the relevant company had agreed to the transfer prior to 16 September 1994.