ITEMID: 001-99784
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BACKLUND v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Pecuniary damage - reserved;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1937 and lives in Norrnäs.
6. The applicant was born out of wedlock. His mother, grandmother and everyone around him always considered N.S. as his father. N.S. never married or had other children.
7. On 1 October 1976 the Paternity Act came into force. The transitional provisions in the Implementing Act of the Paternity Act state that paternity proceedings with regard to a child born before the entry into force of the law had to be initiated within five years, that is, before 1 October 1981. Moreover, no claim could be examined after the death of the father. No such restrictions exist for children born after the entry into force of the Paternity Act.
8. N.S. was placed under guardianship in 2000.
9. In May 2002 the applicant requested the Korsholm District Court (käräjäoikeus, tingsrätten) to establish paternity. The court ordered DNA tests, which established with 99.4 % certainty that N.S. was the applicant's biological father.
10. On 7 April 2003 the District Court dismissed the applicant's claim. It found that as the applicant was born before the entry into force of the Paternity Act, he should have lodged his claim within the time-limit of five years, that is, before 1 October 1981. As he had lodged his claim only in May 2002, his claim was time-barred.
11. The applicant appealed to the Vasa Appeal Court (hovioikeus, hovrätten) claiming, inter alia, that the paternity of N.S. could not be established otherwise as, due to his state of health, he could no longer make a legally valid acknowledgement of paternity with respect to the applicant. This fact would place the applicant in a worse position vis-à-vis the children who were born after the entry into force of the Paternity Act. N.S's guardian supported the claim to have paternity established.
12. N.S. died in March 2004 while the case was pending before the Appeal Court. The inventory of his estate was made in June 2004. The estate, worth some 140,500 euros, was divided among N.S.'s siblings and their heirs.
13. On 8 July 2004 the Appeal Court dismissed the applicant's appeal.
14. The applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating his grounds of appeal already presented before the Appeal Court.
15. On 14 April 2005 the Supreme Court refused leave to appeal.
16. The Constitution of Finland (perustuslaki, grundlagen, Act no. 731/1999), Article 6, paragraphs 1 and 2, guarantees to everyone equality before the law and forbids discrimination of any kind:
“Everyone is equal before the law.
No one shall, without an acceptable reason, be treated differently from other persons on grounds of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. ...”
17. Article 21, paragraph 1, of the Constitution guarantees to everyone the right to have one's case dealt with by a court of law:
“Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority ...”
18. Article 106 of the Constitution gives a court of law the right to give primacy to the Constitution when the application of an Act would conflict with the Constitution:
“If, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court shall give primacy to the provision in the Constitution.”
19. According to section 20 of the Act on Children Born out of Wedlock (laki avioliiton ulkopuolella syntyneistä lapsista, lagen om barn utom äktenskap, Act no. 173/1922), a child born out of wedlock had a father, if a man acknowledged paternity, but paternity could not be established against a man's will. According to section 24 of the same Act, such defendant was deemed to be the person liable to provide child support to the child if he had had sexual intercourse with the child's mother at the time when the child was possibly conceived. However, such an action was to be dismissed if it was manifestly improbable that the child was conceived as a result of that sexual intercourse.
20. As the children born out of wedlock were put in a substantially worse position than the children born in wedlock, there was a need to guarantee equal treatment of all children before the law (see government proposal HE 90/1974). This became the main aim of the new Paternity Act of 1975 (isyyslaki, lagen om faderskap, Act no. 700/1975) which repealed the Act of 1922.
21. Section 3 of the Paternity Act provides that paternity is established either by acknowledgement or by a court decision. According to section 22, subsection 1, the child has a right to institute proceedings with a view to having paternity established.
22. Section 4 of the Implementing Act of the Paternity Act (laki isyyslain toimeenpanosta, lagen angående införande av lagen om faderskap, Act no. 701/1975) provides that the provisions of the Paternity Act shall also apply if the child was born before the entry into force of the Act, unless otherwise provided below. Section 5 provides that if a man, pursuant to the Act on Children Born out of Wedlock, enacted before the entry into force of the Paternity Act, has committed or been obliged by a final judgment to pay child support to a child born out of wedlock who has not the status of an acknowledged child, the provisions in sections 6 and 7 of this Act shall apply to the investigation of paternity, actions for the establishment of paternity and the exercise of the child's right to be heard.
23. Sections 6 and 7 of the Implementing Act of the Paternity Act provide as follows:
“The child welfare supervisor shall attend to the investigation of paternity as provided in the Paternity Act, if a child born before the entry into force of this Act has not reached fifteen years of age and the mother or the legal guardian of the child has expressed a wish that the child welfare supervisor attend to the investigation of paternity. After a man has acknowledged his paternity, the provisions in section 5, subsection 2; section 20, subsection 1; and section 21 of the Paternity Act shall apply to the obligation of the child welfare supervisor to attend to the investigation of paternity, and to the enforcement of acknowledgement.”
“A child or his or her legal guardian shall have the right of action for the establishment of paternity as provided in the Paternity Act. The child welfare supervisor shall not be entitled to exercise the child's right to be heard without a separate authorisation. Proceedings for the establishment of paternity must be initiated within five years from the entry into force of the Paternity Act. However, no proceedings may be instituted if the man is deceased.”
24. It appears from the drafting history of the Paternity Act (see Report of the Legal Affairs Committee LaVM 5/1975 vp, p. 10) that considerations of legal certainty underlay the decision to restrict the right of action. The entry into force of the Act opened up an opportunity to initiate proceedings that did not exist at the time when the children in question were conceived. The legislator considered that putative fathers' legal security required rapid elimination of uncertainty about possible claims being brought against them on the basis of the Paternity Act. The restriction that a man's death prevented the initiation of proceedings was justified by the argument that in such cases it was usually no longer possible to obtain sufficient evidence of the man's paternity.
25. The Supreme Court has held on several occasions that the five-year time-limit in question is to be strictly applied (see for example KKO 2003:107). An exception has been made in a case where the paternity of the mother's husband had to be annulled first and, as a result of that, the child would have become fatherless if the time-limit had been strictly respected (see KKO 1993:58).
26. In its precedent case KKO 1982-II-165 the Supreme Court considered that the five-year time-limit in section 7, subsection 2, of the Implementing Act of the Paternity Act was not such a time-limit that could be restored by seeking extraordinary remedies (menetetyn määräajan palauttaminen, återställandet av försutten fatalietid).
VIOLATED_ARTICLES: 8


ITEMID: 001-128055
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF KASYMAKHUNOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion;Positive obligations) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 7. The applicant was born in 1964. His current whereabouts are unknown.
8. The applicant was a member of Hizb ut-Tahrir, a radical Islamic organisation calling for the overthrow of non-Islamic governments and the establishment of an Islamic Caliphate. Hizb ut-Tahrir is classified as a terrorist organisation and banned both in Uzbekistan and in Russia.
9. According to the applicant, he left Uzbekistan for Russia in 1995. In 1998 he lost his Uzbek passport, no. CL-0084412, issued in 1995.
10. On 30 October 1999 the Andizhan Regional Department of the National Security Service of Uzbekistan opened criminal proceedings against the applicant on suspicion of membership of Hizb ut-Tahrir.
11. On 15 December 1999 the applicant was charged in absentia with attempting to overthrow the constitutional order, a criminal offence under Article 159 of the Criminal Code of Uzbekistan. The statement of charges indicated that the applicant, being an active member of Hizb ut-Tahrir, had founded several local sections of that organisation, had involved minors in its activities and had distributed its literature calling for the overthrow of governments in Central Asia and the entire world and their replacement by an Islamic State in the form of a recreated Caliphate. On the same date, the prosecutor for the Andizhan Region ordered the applicant’s arrest. The applicant was put on the list of wanted persons.
12. On 13 June 2000 the Prosecutor General’s Office of Uzbekistan informed the Prosecutor General’s Office of the Russian Federation that they had information that the applicant was living in Moscow, and requested the Russian authorities to arrest him and extradite him to Uzbekistan.
13. On 13 February 2004 the applicant was arrested with a view to his extradition.
14. On 19 February 2004 the Andizhan Regional Department of the National Security Service of Uzbekistan amended the charges against the applicant. An additional charge of founding a criminal organisation, a criminal offence under Article 242 of the Criminal Code of Uzbekistan, was brought against him.
15. On 11 March 2004 the Prosecutor General’s Office of Uzbekistan lodged a formal request for the applicant’s extradition with the Prosecutor General’s Office of the Russian Federation.
16. On 25 March 2004 the Russian authorities instituted criminal proceedings against the applicant on suspicion of membership of Hizb ut-Tahrir. He was charged with aiding and abetting terrorism, founding a criminal organisation, and use of forged documents, offences under Articles 205.1 § 1, 210 § 1 and 327 § 3 of the Russian Criminal Code. The extradition proceedings were suspended pending the criminal proceedings in Russia.
17. On 11 November 2004 the Moscow City Court found the applicant guilty as charged and sentenced him to seven years and four months’ imprisonment. On 13 January 2005 the Supreme Court of the Russian Federation upheld the conviction on appeal.
18. On an unspecified date in 2004 the applicant was transported to correctional colony no. IK-18 in the Murmansk Region. It can be seen from a letter of 1 July 2011 from the head of the correctional colony that the applicant’s personal file did not contain any passport or other identity document.
19. On 8 June 2011 the Andizhan Regional Department of the National Security Service of Uzbekistan amended the charges against the applicant, adding charges of dissemination of materials damaging to public order, membership of a religious extremist group, and smuggling of extremist materials, criminal offences under Articles 244-1, 244-2 and 246 of the Criminal Code of Uzbekistan.
20. On 10 June 2011 the applicant finished serving his prison term and on an unspecified date the extradition proceedings were resumed.
21. On 16 December 2011 the Prosecutor General’s Office of Uzbekistan submitted an updated request for the applicant’s extradition.
22. On 9 June 2011 the Kolskiy District Court of the Murmansk Region ordered the applicant’s detention pending the resumed extradition proceedings, relying on Articles 108 and 466 of the Code of Criminal Procedure (“the CCrP”). On 28 June 2011 the Murmansk Regional Court upheld the decision on appeal.
23. The applicant’s detention was extended by the Kolskiy District Court on 9 August and 8 November 2011 and 7 February, 6 April, 6 June and 8 October 2012 on the basis of Articles 109 and 466 of the CCrP. On 8 October 2012 the applicant’s detention was extended until 10 December 2012. All extension orders were upheld by the Murmansk Regional Court on appeal.
24. On 10 May 2011 the applicant applied to the Russian Federal Migration Service (“the FMS”) for refugee status. In particular, he submitted that he was being persecuted in Uzbekistan for his religious beliefs and that he feared torture and ill-treatment in Uzbekistan in the criminal proceedings against him.
25. On 3 June 2011 the Murmansk Regional Department of the FMS declared his application inadmissible, finding that he was not eligible for refugee status. He had been convicted of a serious criminal offence in Russia and was suspected of a similar offence in Uzbekistan. He had not submitted any documentary evidence or witness statements confirming that the criminal proceedings against him were politically motivated.
26. The applicant challenged that decision before a deputy head of the FMS. He submitted, in particular, that the decision of 3 June 2011 had been taken on the basis of a written questionnaire without any interview. He had not been allowed to contact a lawyer before filling the questionnaire in.
27. On 1 August 2011 the deputy head of the FMS confirmed the decision of 3 June 2011. He found that the Uzbek authorities had charged the applicant with criminal offences in connection with his membership of Hizb ut-Tahrir. Hizb ut-Tahrir had been classified as a terrorist organisation by the Russian Supreme Court and thus constituted a serious danger for the national security of all States. The applicant had earlier been convicted by a Russian court for creating and leading a section of Hizb ut-Tahrir in Russia. Moreover, he had submitted false information about the date of his arrival in Russia. He had stated in the questionnaire that he had left Uzbekistan for Russia in 1995, whereas the documents in the criminal case file showed that he had arrived in Russia in 1999. The applicant had not produced any evidence confirming his allegation that the criminal charges against him were politically motivated.
28. The applicant challenged the decision of 1 August 2011 before the Basmanniy District Court of Moscow. He reiterated his fears of being subjected to ill-treatment in Uzbekistan and his arguments that the criminal proceedings against him were politically motivated and that he was in fact being persecuted for his religious beliefs. He further cited extracts from the the Moscow City Court judgment of 11 November 2004 confirming that that court had established that he had lived in Russia since at least 1996. Finally, he asserted that he had ceased to be a member of Hizb ut-Tahrir in 2004 and no longer participated in that organisation’s activities.
29. On 14 October 2011 the Basmanniy District Court confirmed the decision of 1 August 2011. It found that the reasons for the refusal of refugee status advanced by the FMS were convincing and that the applicant had failed to substantiate his allegation that he had been persecuted for his religious beliefs. Moreover, the applicant had not applied for refugee status within a day of crossing the Russian border, as required by Russian law (see paragraph 85 below). Given that his close relatives continued to live in Uzbekistan, his return there was possible. The court also found it established that the applicant had in fact arrived in Russia in 1995.
30. On 1 March 2012 the Moscow City Court upheld the judgment of 14 October 2011 on appeal, finding that it was lawful, well-reasoned and justified.
31. On 6 June, 25 and 26 July, 15 and 23 August and 5 October 2011 the Ministry of Foreign Affairs, the FMS and the Federal Security Service informed the Prosecutor General that the applicant did not hold Russian citizenship and that there were no other obstacles to his extradition to Uzbekistan.
32. By a letter of 12 March 2012 the Prosecutor General’s Office of Uzbekistan gave an assurance that the applicant would not be extradited to a third-party State, or prosecuted or punished for any offences committed before extradition which were not mentioned in the extradition request, without Russia’s consent. It also stated that after serving his sentence he would be free to leave Uzbekistan. It further stated that Uzbek law prohibited any discrimination on grounds of sex, race, ethnic origin, language, religious or other beliefs or social status, as well as torture, violence or other forms of inhuman or degrading treatment. The Prosecutor General’s Office of Uzbekistan gave an undertaking that the relevant provisions of Uzbek law would be respected in the criminal proceedings against the applicant.
33. The applicant asked the Prosecutor General’s Office of the Russian Federation to refuse the request for his extradition. He submitted, in particular, that he would run a real risk of torture or inhuman treatment if extradited to Uzbekistan. Relying on Article 3 of the Convention and the Court’s case-law (he referred to Ismoilov and Others v. Russia, no. 2947/06, 24 April 2008; Muminov v. Russia, no. 42502/06, 11 December 2008; Khodzhayev v. Russia, no. 52466/08, 12 May 2010; Abdulazhon Isakov v. Russia, no. 14049/08, 8 July 2010; Yuldashev v. Russia, no. 1248/09, 8 July 2010; Karimov v. Russia, no. 54219/08, 29 July 2010; Gaforov v. Russia, no. 25404/09, 21 October 2010; Sultanov v. Russia, no. 15303/09, 4 November 2010; and Yakubov v. Russia, no. 7265/10, 8 November 2011), he argued that members of Hizb ut-Tahrir were at an increased risk of ill-treatment. Finally, he submitted that he had already been convicted for membership of Hizb ut-Tahrir by a Russian court and had served his sentence, and that his extradition would therefore be in breach of his right not to be tried or punished twice for the same offence.
34. On 19 April 2012 the Prosecutor General’s Office ordered the applicant’s extradition to Uzbekistan. The prosecutor listed the charges against the applicant and found that his actions were punishable under Russian criminal law. An extradition order was granted in respect of the charge of founding a criminal organisation. The prosecutor found that the said offence corresponded to the offence of leadership of a criminal organisation under Russian criminal law. However, the prosecutor rejected as grounds for extradition the charges of attempted overthrow of the constitutional order, dissemination of materials damaging to public order, membership of a religious extremist group, and smuggling of extremist materials because those offences were either time-barred, had not been punishable under Russian criminal law at the time of their alleged commission by the applicant, or had later been decriminalised.
35. The applicant challenged the extradition order before the Murmansk Regional Court. He submitted, in particular, that the charges against him were politically motivated, that he would be subjected to a serious risk of torture in Uzbekistan, and that he had been already convicted for the same offence by a Russian court. To substantiate the risk of ill-treatment he relied on the case-law of the Court cited above and on reports by the United Nations High Commissioner for Refugees (“UNHCR”), Human Rights Watch and Amnesty International according to which the human rights situation in Uzbekistan in general, and in Uzbek detention facilities in particular, was alarming because ill-treatment in order to obtain self-incriminating statements was widespread and members of prohibited religious organisations, such as Hizb ut-Tahrir, were at an increased risk of ill-treatment. The applicant also submitted to the court letters from Human Rights Watch and Amnesty International in which they expressed their concern about his impending extradition to Uzbekistan where, being a member of Hizb ut-Tahrir, he would certainly face a serious risk of torture or inhuman treatment
36. On 1 June 2012 the Murmansk Regional Court upheld the extradition order. It held that the Uzbek and Russian authorities had followed the extradition procedure set out in the applicable international and domestic law. The applicant was charged with offences punishable under Uzbek and Russian criminal law and there was no evidence that he was being persecuted for his political opinions. The Regional Court further held that the applicant’s allegations of a risk of ill-treatment were based on assumptions. The international reports and the case-law of the Court relied upon by the applicant were irrelevant because they described the general situation in Uzbekistan rather than the applicant’s personal circumstances. It was significant that the competent Russian authorities, such as the Ministry of Foreign Affairs, had not detected any obstacles to the applicant’s extradition, that his application for refugee status had been dismissed, and that assurances of humane treatment had been provided by the Uzbek authorities.
37. The applicant appealed. He reiterated the arguments he had advanced before the Prosecutor General’s Office and the Murmansk Regional Court and argued that the Regional Court had disregarded those arguments and the evidence he had adduced of the existence of a serious risk of ill-treatment. He further submitted that the diplomatic assurances that he would not be ill-treated were unreliable as there was no mechanism for monitoring compliance, or accountability for a breach of such assurances.
38. On 18 July 2012 the Supreme Court of the Russian Federation dismissed his appeal and upheld the decision of 1 June 2012, endorsing the reasoning of the Regional Court. In reply to the applicant’s argument that his extradition would be in breach of his right not to be tried or punished twice for the same offence, the Supreme Court held that he had been convicted by a Russian court for acts he had committed in his capacity as a member of Hizb ut-Tahrir between 1999 and 2004 in Russia, while his extradition was sought in respect of acts he had committed in the same capacity between 1994 and 1999 in Uzbekistan.
39. On 8 November 2012, as the date of expiry of the maximum detention period established by domestic law was approaching, the applicant made a written statement that he had no intention of returning to Uzbekistan and that if he disappeared it should be understood that he had been abducted and forcibly transferred to Uzbekistan. For the same reason of fear of abduction he also requested that his representatives, Ms Ryabinina and Mr Koroteyev, be present at the moment of his release.
40. On 10 December 2012 the prosecutor of the Murmansk Region ordered the applicant’s release because the maximum detention period established by domestic law had expired.
41. The applicant was released on the same day. In accordance with his request, his release took place in the presence of his representatives, Ms Ryabinina and Mr Koroteyev. He was issued with a release certificate bearing his identity photograph. He did not have any other identity documents.
42. On the same day the applicant took a plane to Moscow together with his representatives. He rented a flat in the village of Verbilki in the Moscow region. It was agreed between the applicant and Ms Ryabinina that he should telephone Ms Ryabinina every day.
43. On 11 December 2012 the applicant applied for temporary asylum. It appears that the proceedings are still pending.
44. On 12 December 2012 the applicant told his representative Ms Ryabinina that two cars were following him everywhere and that he feared abduction. Ms Ryabinina telephoned the Government’s Representative to inform him of that conversation.
45. The next day the applicant stayed at home fearing abduction.
46. On 14 December 2012 the applicant telephoned his landlady at about 1.20 p.m. to ask if he could borrow a screwdriver from her. She answered in the affirmative and the applicant said he would come to fetch it in the next half hour. He never went to get it and has not been seen or heard of since.
47. Late in the evening of the same day, Ms Ryabinina did not receive her usual daily call from the applicant, so she attempted to contact him. His mobile phone was switched off. Ms Ryabinina immediately informed the police and the Government’s Representative of the applicant’s disappearance. She also attempted unsuccessfully to obtain information about the applicant from the border control authorities.
48. On 15 December 2012 the applicant’s landlady let Ms Ryabinina, Mr Koroteyev and Mr U. into the applicant’s flat. His personal belongings, including his clothes, his copy of the Koran, his prayer mat and his mobile phone charger, as well as documents relating to his case, were found there. The fridge was full of food, the lights were on and some repair tools had been left on the floor. Ms Ryabinina contacted the Government’s Representative to inform him of these facts.
49. It can be seen from a document issued on 26 March 2013 by the Uzbekistan Airways (O‛zbekiston havo yo‛llari) that the applicant departed Moscow Domodedovo Airport for Tashkent, Uzbekistan, on board regular flight no. HY-602 at 11.45 p.m. on 14 December 2012. His ticket was issued on passport no. CL-0084412.
50. The applicant’s current whereabouts within Uzbekistan remain unknown.
51. On 15 December 2012 Ms Ryabinina lodged a complaint about the applicant’s disappearance with the Zaprudnenskiy police station in the Taldom District of the Moscow Region. She was immediately questioned and described the circumstances of the applicant’s disappearance.
52. On the same day the police examined the applicant’s flat and questioned his landlady. The landlady described the applicant’s telephone call of the previous day, his intention to come to her flat to borrow a screwdriver and his eventual failure to appear.
53. On 18 December 2012 Ms Ryabinina’s complaint was referred to the Taldom Town Investigations Committee.
54. On 21 December 2012 a search file was opened by the local police in respect of the applicant. Several of the applicant’s neighbours were questioned on 22 December 2012 in connection with the search. They were unable to provide any information about the applicant. The police established that the last signal had been emitted by the applicant’s mobile phone at 2.26 p.m. on 14 December 2012. The mobile phone had been inactive since. Finally, the police checked nearby hospitals, morgues and detention facilities and circulated the applicant’s description to the police duty posts at Moscow metro stations, train stations and airports. No trace of the applicant was found.
55. On 24 December 2012 the Taldom Town Investigations Committee returned Ms Ryabinina’s complaint to the Taldom District Department of the Interior because the requisite formalities had not been complied with in the referral of 18 December 2012.
56. On 29 December 2012 the Taldom District Department of the Interior referred Ms Ryabinina’s complaint to the Taldom Town Investigations Committee for a second time.
57. On 9 January 2013 the chief investigator of the Taldom Town Investigations Committee refused to open criminal proceedings into the applicant’s disappearance. He made a summary of the statements by Ms Ryabinina, the applicant’s landlady and two of his neighbours. He then found that there was no evidence of kidnapping or murder. The applicant could have gone into hiding to evade extradition and the criminal proceedings in Uzbekistan.
58. On 11 January 2013 the head of the Taldom Town Investigations Committee annulled the decision of 9 January 2013 and ordered a further inquiry. He ordered, in particular, that Ms Ryabinina and other acquaintances of the applicant be questioned, that it be established whether the applicant had bought train or plane tickets, and that a request for information be sent to the Uzbek authorities to find out whether the applicant was currently in detention in Uzbekistan.
59. On 15 January 2013 the chief investigator of the Taldom Town Investigations Committee asked the Department of the Interior of the Moscow Region to check the applicant’s name in their internal databases in order to establish whether he had recently bought train or plane tickets.
60. On 17 January 2013 the Department of the Interior of the Moscow Region replied that the applicant’s name had been on the federal list of wanted persons since 7 May 2012. The Department of the Interior did not have any information concerning train or plane tickets bought by the applicant.
61. On 20 January 2013 Ms Ryabinina sent to the chief investigator of the Taldom Town Investigations Committee a written statement describing in detail the circumstances of the applicant’s disappearance.
62. On 21 January 2013 the chief investigator of the Taldom Town Investigations Committee refused to open criminal proceedings into the applicant’s disappearance, advancing the same reasons as in the decision of 9 January 2013.
63. On 28 January 2013 the head of the Taldom Town Investigations Committee annulled the decision of 21 January 2013 and ordered a further inquiry. He ordered, in particular, that the investigative measures set out in the decision of 11 January 2013 be carried out.
64. On 7 February 2013 the chief investigator of the Taldom Town Investigations Committee sent a request for information to Uzbekistan Airways. He asked them to inform him whether the applicant had recently bought tickets from the company.
65. On 7 February 2013 the chief investigator of the Taldom Town Investigations Committee refused to open criminal proceedings into the applicant’s disappearance for a third time, for the same reasons as before. He noted that no reply had yet been received to the request for information sent to Uzbekistan Airways.
66. On 11 February 2013 the head of the Taldom Town Investigations Committee annulled the decision of 7 February 2013 and ordered a further inquiry. He noted that the chief investigator had not still carried out the investigative measures mentioned in the decision of 11 January 2013.
67. On 15 February 2013 the Taldom Town Investigations Committee opened criminal proceedings into the applicant’s disappearance.
68. On 26 February 2013 Ms Ryabinina requested that the applicant be granted the procedural status of victim and that she be recognised as his representative. On 2 March 2013 Mr Koroteyev submitted a similar request. They received no formal reply to their requests. According to the Government, the investigator replied to them orally that they were not relatives of the applicant and could not therefore claim to be victims.
69. On 2 March 2013 Mr U., who had accompanied Ms Ryabinina and Mr Koroteyev to the applicant’s flat on 15 December 2012, was questioned. He described the applicant’s flat as they had found it.
70. On the same day the investigator collected the applicant’s belongings from Ms Ryabinina. He drew up a list of those belongings, which included the applicant’s clothes and other belongings, such as a prayer mat, books, documents, photographs, a mobile phone charger, a wristwatch, a razor, a nail file and a glasses case.
71. According to the Government, on 15 and 25 March 2013 the investigator sent requests for assistance to the Uzbek authorities. He asked for assistance in questioning the applicant’s relatives and in establishing the applicant’s whereabouts. The Court has not been informed of any reply.
72. On 26 March 2013 Uzbekistan Airways confirmed that a person named Yu. S. Kasymakhunov had taken a flight to Tashkent on 14 December 2013. The investigator sent a request for further information but has not received any reply to date.
73. The criminal proceedings are still pending. As confirmed by the Government, Ms Ryabinina and Mr Koroteyev were not informed about the progress of the investigation because they did not have any procedural status in the proceedings.
74. Chapter 54 of the Russian Code of Criminal Procedure (“CCrP”) of 2002 governs the procedure to be followed in the event of extradition.
75. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the preventive measure in respect of the person whose extradition is sought. The measure must be applied in accordance with established procedure (Article 466 § 1). If a request for extradition is accompanied by an arrest warrant issued by a foreign court, a prosecutor may impose house arrest on the individual concerned or place him or her in detention “without seeking confirmation of the validity of that order from a Russian court” (Article 466 § 2).
76. An extradition decision made by the Prosecutor General may be challenged before a court (Article 463 § 1). In that case the extradition order must not be enforced until a final judgment is delivered (Article 462 § 6).
77. A court is to review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision must be taken in open court by a panel of three judges in the presence of a prosecutor, the person whose extradition is sought, and the latter’s legal counsel (Article 463 § 4).
78. Issues of guilt or innocence are not within the scope of such judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the applicable international and domestic law (Article 463 § 6).
79. Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the extradition of the following is to be denied: a Russian citizen or a person who has been granted asylum in Russia; a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in Russia in connection with the same act for which he or she is being prosecuted in the requesting State; a person in respect of whom criminal proceedings cannot be instituted or a conviction cannot become effective in view of the expiry of the statute of limitations or under another valid ground in Russian law; or a person in respect of whom extradition has been blocked by a Russian court in accordance with the legislation and international treaties of the Russian Federation. Finally, extradition must be denied if the act that serves as the basis for the extradition request does not constitute a criminal offence under the Russian Criminal Code.
80. In the event that a foreign national whose extradition is being sought is being prosecuted or is serving a sentence for another criminal offence in Russia, his extradition may be postponed until the prosecution is terminated, the penalty is lifted on any valid ground, or the sentence is served (Article 465 § 1).
81. In its ruling no. 11 of 14 June 2012, the Plenary Session of the Russian Supreme Court indicated, with reference to Article 3 of the Convention, that extradition was to be refused if there were serious reasons to believe that the person might be subjected to torture or inhuman or degrading treatment in the requesting country. Extradition could also be refused if exceptional circumstances disclosed that it might entail a danger to the person’s life and health on account of, among other things, his or her age or physical condition. Russian authorities dealing with an extradition case were to examine whether there were reasons to believe that the person concerned might be sentenced to the death penalty, subjected to ill-treatment, or persecuted because of his or her race, religious beliefs, nationality, ethnic or social origin or political opinions. The courts were to assess both the general situation in the requesting country and the personal circumstances of the person whose extradition was sought. They were to take into account the testimony of the person concerned and that of any witnesses, any assurances given by the requesting country, and information about the country provided by the Ministry of Foreign Affairs, competent United Nations institutions and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
82. Article 33 of the UN Convention on the Status of Refugees of 1951, which was ratified by Russia on 2 February 1993, provides as follows:
“1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
83. The Refugees Act (Law no. 4258-I of 19 February 1993) incorporated the definition of the term “refugee” contained in Article 1 of the 1951 Geneva Convention, as amended by the 1967 Protocol relating to the Status of Refugees. The Act defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it (section 1 § 1 (1)).
84. The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status (section 2 § 1 (1) and (2)).
85. An application for refugee status must be submitted: (1) to the Russian Consulate before arrival in Russia; (2) to the State Border Control Office at the time of crossing the Russian border; (3) to the State Border Control Office, the local Department of the Interior or the local office of the FMS within a day of an illegal crossing of the Russian border; or (4) to the local office of the FMS having territorial jurisdiction over the place of the person’s lawful residence (section 4 § 1).
86. A person who has applied for refugee status or who has been granted refugee status cannot be returned to a State where his life or freedom would be imperilled on account of his race, religion, nationality, membership of a particular social group, or political opinion (section 10 § 1).
87. If a person satisfies the criteria established in section 1 § 1 (1), or if he does not satisfy such criteria but cannot be expelled or deported from Russia for humanitarian reasons, he may be granted temporary asylum (section 12 § 2). A person who has been granted temporary asylum cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12 § 4).
88. Russia is a member State of the Shanghai Cooperation Organisation (SCO) together with China, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan. All these States signed the 2001 Shanghai Convention on Combating Terrorism, Separatism and Extremism, which requires the member States to co-operate in arresting people accused on charges relating to terrorism, separatism or extremism. In the implementation of that Convention with regard to issues concerning extradition and legal assistance in criminal cases, the Parties must cooperate in conformity with the international treaties to which they are parties and the national laws of the Parties (Article 2 § 2 of that Convention).
89. On 5 July 2005 the Concept on Cooperation between SCO member States in the Fight against Terrorism, Separatism and Extremism was adopted. It provides that the SCO States are committed to refusing asylum to people who are suspected or accused of offences relating to terrorism, separatism or extremism (section 1).
90. For a summary of the recent reports on Uzbekistan by the UN institutions and by NGOs, see Abdulkhakov v. Russia, no. 14743/11, §§ 99-107, 2 October 2012. For relevant reports on the particular situation of persons accused of membership of Hizb ut-Tahrir, see Muminov v. Russia, no. 42502/06, §§ 7374, 11 December 2008.
91. For a summary of the Council of Europe texts on the duty to cooperate with the Court, the right to individual petition, and interim measures, see Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 108-120, ECHR 2013.
92. The UN Human Rights Committee considered the sixth periodic report of the Russian Federation and adopted the following concluding observations on 28 October 2009 (CCPR/C/RUS/CO/6):
“17. The Committee is concerned about reports of extraditions and informal transfers by the State party to return foreign nationals to countries in which the practice of torture is alleged while relying on diplomatic assurances, notably within the framework of the 2001 Shanghai Convention on Combating Terrorism, Separatism and Extremism ...
The State party should ensure that no individual, including persons suspected of terrorism, who are extradited or subjected to informal transfers, whether or not in the context of the Shanghai Cooperation Organisation, is exposed to the danger of torture or cruel, inhuman or degrading treatment or punishment. Furthermore, the State party should recognise that, the more systematic the practice of torture or cruel, inhuman or degrading treatment, the less likely it will be that a real risk of such treatment can be avoided by diplomatic assurances, however stringent any agreed follow-up procedure may be. The State party should exercise the utmost care in the use of such assurances and adopt clear and transparent procedures allowing review by adequate judicial mechanisms before individuals are deported, as well as effective means to monitor the fate of the affected individuals.”
93. In their 2013 report “Return to Torture: Extradition, Forcible Returns and Removals to Central Asia”, Amnesty International expressed deep concern about section 1 of the Concept on Cooperation between SCO member States in the Fight against Terrorism, Separatism and Extremism (see paragraph 89 above), which, in their view, removes the possibility to apply for refugee status (and thus seek and obtain asylum and protection against persecution) even where a person is only suspected of an offence relating to terrorism, separatism or extremism. In Amnesty International’s opinion, this contradicts the 1951 UN Convention relating to the Status of Refugees. Amnesty International writes as follows [internal footnotes are omitted]:
“In the 2005 Declaration of Heads of SCO Member States in Astana, Kazakhstan, participating states committed to denying asylum to all individuals accused or suspected of ‘terrorism, extremism or separatism’. This is of particular concern to Amnesty International, as it effectively denies access to refugee-determination procedures – and consequently the right to seek and enjoy asylum from persecution – to any individual who is accused or merely suspected of acts of “terrorism, extremism or separatism” in one of the SCO member states, in a way that is not consistent with the Refugee Convention. The Declaration, like most formal SCO documents and agreements, makes no reference to the international obligations of its member states, including the principle of non-refoulement enshrined in the 1951 Refugee Convention and the absolute prohibition of torture or other ill-treatment.
These agreements that have been concluded within the framework of the SCO have made the extradition of refugees to member states significantly easier as states prioritize these agreements over international human rights and refugee obligations. According to human rights defenders from the Komitet Grazhdanskoe Sodeistvie (KGS) or Civil Assistance Committee in Russia ‘there has been a sharp increase in extraditions of refugees to the countries [of the CIS] of which they are citizens, since the SCO was set up.’
Co-operation between the police and security services of SCO member states has similarly increased, especially in the apprehension and detention of individuals wanted on criminal charges in a member state ...”
94. For a summary of the Committee of Ministers’ decisions under Article 46 on related cases concerning Russia adopted between 8 March 2012 and 7 March 2013, see Savriddin Dzhurayev, cited above, §§ 121-126.
95. At the 1176th meeting of the Ministers’ Deputies held on 10 July 2013, the Committee of Ministers adopted the following decision in the wake of yet another incident involving allegations of the disappearance of an applicant in respect of whom an interim measure had been indicated by the Court (CM/Del/Dec(2013)1176/H46-2E ):
“The Deputies,
Recalling the decisions adopted at their 1164th meeting (5-7 March 2013) (DH) and 1172nd meeting (4-6 June 2013) (DH) in the Garabayev group of cases against the Russian Federation (see the list below),
1. noted with grave concern that a further incident involving allegations of kidnapping and illegal transfer of an applicant protected by an interim measure indicated by the Court under Rule 39 has been reported ...
2. strongly insisted that light be shed on this incident and on the fate of the applicant as quickly as possible;
3. consequently insisted again on the pressing need to adopt as of now measures to ensure an immediate and effective protection of the applicants in a similar situation against kidnappings and irregular removals from the national territory;
4. recalled in this context the letter sent by the Chairman of the Committee of Ministers to the Minister of Foreign Affairs of the Russian Federation;
5. agreed that a draft interim resolution will be considered in the light of progress that would have been made, including the updated action plan submitted by the Russian authorities; this text will be circulated in the draft revised order of business of their 1179th meeting (24-26 September 2013) (DH).”
VIOLATED_ARTICLES: 3
34
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-92961
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF RUOTSALAINEN v. FINLAND
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general};Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage)
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1969 and lives in Lapinlahti.
6. While driving his pickup van on 17 January 2001, the applicant was stopped by the police during a road check. The police discovered a more leniently taxed fuel than diesel oil in the tank of the van.
7. On 26 February 2001 the applicant was fined for petty tax fraud through a summary penal order. The form stated, inter alia:
“Misdemeanour, modus operandi:
Petty tax fraud (motor vehicle tax misdemeanour). [The applicant] used as fuel in his car fuel more leniently taxed than diesel oil without having paid due additional tax (lisävero, tilläggsskatt).
Footnote: he had filled the tank himself.”
The fine amounted to 720 Finnish marks (FIM, or 121 euros (EUR)). The summary penal order indicated that Chapter 29, Article 3, of the Penal Code (rikoslaki, strafflagen; Act no. 769/1990) and sections 20 and 33 of the Motor Vehicle Tax Act (laki moottoriajoneuvoverosta, lagen om skatt på motorfordon; Act no. 722/1966, now repealed) had been applied. As the applicant did not contest the imposition of the fine, it became final on 6 March 2001.
8. In separate proceedings, and having received the applicant’s submission in writing on an unspecified date, on 17 September 2001 the Vehicle Administration (ajoneuvohallintokeskus, fordonsförvaltningscentralen) issued the applicant with a fuel fee debit amounting to FIM 90,000 (equivalent to EUR 15,137) on the ground that his pickup van had been run on more leniently taxed fuel than diesel oil without prior notification to the Vehicle Administration or Customs. The decision indicated that sections 2-7 of the Fuel Fee Act (laki polttoainemaksusta; lagen om bränsleavgift; Act no. 337/1993, now repealed) had been applied. The decision also included instructions on how to appeal against it and how to apply for a reduction of the imposed amount.
9. The applicant lodged both an application for a reduction of the fee and an appeal with a view to having the decision overturned, arguing, inter alia, that the fuel fee should have been claimed at the same time as the summary penal order was issued. As it had not been claimed at that time, it was no longer possible to debit the fuel fee in the light of Article 7 of the Convention.
10. On 10 October 2001 the National Board of Taxes (verohallitus, skattestyrelsen) rejected the application for a reduction of the fee. It reasoned:
“No special reasons provided for by law to grant a reduction have been put forward.”
11. The decision indicated that section 15 of the Fuel Fee Act had been applied. No appeal lay.
12. On 28 August 2002 the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), having received the observations of the Tax Ombudsman (veroasiamies, skatteombudet) and the Vehicle Administration and the applicant’s observations in reply, rejected the appeal. It reasoned:
“Section 4 of the Fuel Fee Act provides that a fuel fee (polttoainemaksu, bränsleavgift) is collected for the number of days the vehicle has been continuously located in Finland prior to the noted use, but not for more than 20 days at a time. Section 5 provides that the fuel fee for a pickup van is FIM 1,500 [some EUR 252] per diem. Section 6 provides that if the use of more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notice has been given, the fuel fee collected is treble the [normal] amount.
The pickup van owned by Pertti Jukka Tapio Ruotsalainen, [registration no.] KJM-327, has been noted to have been used during the year 2001 using fuel more leniently taxed than diesel oil. Ruotsalainen had not informed the Vehicle Administration or the Customs thereof [in advance]. In the pre-trial investigation and in his writ of appeal he has conceded that he has used incorrect fuel in his vehicle.
The imposition of a fuel fee in an administrative procedure concerns the imposition of a fee comparable to a tax. What is in issue is not the imposition of a criminal punishment or a sanction in lieu.
The imposition of a fuel fee ... is not in breach of the Constitution of Finland or the Convention.
Despite the reasons for the use submitted by Ruotsalainen and despite his financial status, the Vehicle Administration was entitled to impose a fuel fee. The fuel fee amounts to FIM 1,500 per diem, it was to be imposed in respect of 20 days and it was to be trebled. The fuel fee FIM 90,000 has been imposed in accordance with the law. There is no reason to amend the debiting decision.”
13. The decision indicated that sections 1, 3, 7 and 15 of the Fuel Fee Act and Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention had been applied.
14. The applicant requested leave to appeal, alleging a breach of Article 4 of Protocol No. 7.
15. On 26 February 2003 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused leave to appeal.
16. The Finnish system relating to the use as motor fuel of more leniently taxed oil than diesel oil is based on two main elements. First, the owners or users of motor vehicles are obliged to give prior notice to the authorities of their intention to use such fuel as motor fuel, and to pay additional tax (section 20 of the Motor Vehicle Tax Act, which has since been repealed) and/or a fuel fee (section 1 of the Fuel Fee Act as amended by Act no. 234/1998). Second, the authorities ensure compliance with those conditions by means of road checks. Tax evasion or attempted tax evasion was punishable under the Penal Code and failure to comply with the notification obligation was punishable as a motor vehicle tax offence (section 33 of the Motor Vehicle Tax Act).
17. The Fuel Fee Act’s provisions of interest for the present case read:
A vehicle referred to in section 1 shall be subject to a fuel fee as a tax corresponding to fuel tax if a more leniently taxed fuel than diesel oil is used in the vehicle. A fuel fee shall not be collected on the fuel contained in the tank of a vehicle when the vehicle is imported. A fuel fee shall, however, be collected if the fuel contained in the tank of the imported vehicle has been made identifiable as provided by virtue of the Excise Duty on Fuels Act (Act no. 948/82). A vehicle in respect of which a notification within the meaning of section 20 of the Motor Vehicle Tax Act has been given for collecting additional tax shall not be subject to a fuel fee during the tax period of the additional tax.
If a more leniently taxed fuel than diesel oil is used in a vehicle referred to in section 1, the owner or holder of the vehicle shall be obliged to notify the Vehicle Administration of such use before using it. In respect of a vehicle imported to Finland, the notification may also be given to the customs authorities.
A fuel fee shall be collected for the number of days on which, according to a notification, a more leniently taxed fuel than diesel oil is used in a motor vehicle.
If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle during a time in respect of which no prior notification has been given, a fuel fee shall be collected for the number of days on which the vehicle has been continuously located in Finland prior to the use, but not for more than 20 days at a time. If a fuel fee has been imposed on the vehicle, the time shall be counted from the first day following the previous tax period at the earliest. If the date of importing the vehicle to Finland cannot be established, the fuel fee shall be collected for a minimum of 10 days.
The fuel fee for a pickup van is FIM 1,500 [equivalent to EUR 252.28] per diem. ...
If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notification under section 3 has been given, the fuel fee collected shall be three times the normal amount.
The fuel fee shall be collected from the person who was the owner of the vehicle at the time when a more leniently taxed fuel than diesel oil was used in the vehicle. If another person holds the vehicle permanently in his or her possession, the fuel fee shall be collected from this holder. ...
...
The use of a fuel other than diesel oil shall be presumed if a tank belonging to the fuel system of a vehicle contains a fuel which has been made identifiable pursuant to the legal provisions on light fuel oil. A fuel fee shall be collected irrespective of the amount of such fuel in the vehicle.
...
For particularly weighty reasons the Ministry of Finance may, on application and on conditions set by the Ministry, grant exemption from the payment of a fuel fee, penal interest or arrears, and interest due because of deferral of payment.
The National Board of Taxes shall make a decision on the application referred to in subsection 1 if the sum whose removal or return is requested does not exceed FIM 300,000 [equivalent to EUR 16,818.79]. The Ministry of Finance may, however, take the case up for decision if it is of particular significance.
The National Board of Taxes may, on application, defer the payment of a fuel fee. The provisions on the additional tax on the motor vehicle tax shall apply to the conditions of such deferral. The Ministry of Finance may take a case concerning deferral of payment up for decision. In such cases, the Ministry shall determine the conditions of deferral in its decision concerning the application.
A decision made by virtue of this section shall not be subject to appeal.
Illegal evasion of a fuel fee, and attempted evasion thereof, are punishable under Chapter 29, Articles 1-3, of the Penal Code.”
18. According to the Government Bill for the enactment of the Fuel Fee Act and amendment of section 6 of the Excise Duty on Fuels Act and section 16 of the Motor Vehicle Tax Act (no. HE 329/1992), the fuel fee is intended to correspond to the fuel tax which would have accrued if diesel oil had been used as fuel in the vehicle.
19. Government Bills nos. HE 329/1992 vp and HE 234/1998 vp note that section 4 of the Fuel Fee Act is based on the presumption that the same fuel is used in the vehicle continuously. Since it is usually impossible to provide evidence of the type of fuel used in the vehicle before it is observed by the authorities, or to provide evidence of the extent to which the vehicle has been used, the imposition of the fuel fee has to be based on the time during which the vehicle has been used in Finland. For reasons of equity, however, the period is restricted to 20 days at a time.
20. With regard to section 15, the Government submitted that in most cases where a tax appeal is pending the National Board of Taxes refuses tax relief. This also concerns the application of section 15 of the Fuel Fee Act. If an application for tax modification has been rejected for this or another reason, the applicant may, notwithstanding the existing decision, file a new modification application with the same authority after the decision on taxation has become final. The Government did not refer to any such decision.
21. The Fuel Fee Act in force at the relevant time was replaced by a new Fuel Fee Act (Act no. 1280/2003, with effect from 1 January 2004, which was not therefore applicable to the present case). Section 3 provides that a fuel fee is imposed for the purpose of preventing the use of a fuel which gives rise to the imposition of a fuel fee, and that the use in vehicles of a fuel which gives rise to the imposition of a fuel fee is prohibited. Section 9 lays down the sums of the fuel fees imposed on different types of cars. Section 10 provides that if a notification has not been made to the competent authority, the fuel fee shall be increased by 30% at most. The fuel fee may also be increased by 50% at most if the use of the fuel which gives rise to imposing the fuel fee is repeated, or doubled at most if the use of the fuel which gives rise to imposing the fuel fee is particularly aggravated.
22. The Government Bill for the enactment of the new Fuel Fee Act (HE 112/2003, p. 7) noted that the use of more leniently taxed fuel led to the issuing of a fuel fee debit and an additional motor vehicle tax and that the aim of this was effectively to prevent the use of fuel other than fuel intended for traffic. Formally, the use of more leniently taxed fuel was not forbidden, but it was subject to fairly severe financial sanctions. The basic structure of the Fuel Fee Act and the Motor Vehicle Tax Act was identical to, for example, the Penal Code, which does not specifically forbid certain unwanted acts but only provides for the consequences of such acts. The only difference was that the sanction applicable to the use of fuels was an administrative sanction collected as a tax. The basic aim of the provisions on additional tax and fuel fee is well established in Finland. The provisions are well-known among motorists and the consequence is that, compared with other countries, more leniently taxed fuel is hardly ever used in road traffic in Finland. The Government Bill considered that the high level of the fuel fee was necessary with regard to the preventive effect of the sanctions system.
23. Chapter 29, Articles 1-3, of the Penal Code provide:
A person who
(1) gives a taxation authority false information on a fact that influences the assessment of tax,
(2) files a tax return concealing a fact that influences the assessment of tax,
(3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or
(4) acts otherwise fraudulently,
and thereby causes or attempts to cause a tax not to be assessed, a tax to be assessed too low or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for at most two years.
If in the tax fraud
(1) considerable financial benefit is sought or
(2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for at least four months and at most four years.
(1) If the tax fraud, when assessed as a whole, with due consideration to the amount of financial benefit sought and the other circumstances connected with the offence, is to be deemed petty, the offender shall be sentenced for petty tax fraud to a fine.
(2) If a punitive tax increase is deemed a sufficient sanction, the report of, or prosecution or punishment for, petty tax fraud may be waived.”
VIOLATED_ARTICLES: P7
VIOLATED_PARAGRAPHS: P7-4


ITEMID: 001-22428
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: MALONE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Nicolas Bratza
TEXT: The applicant, Paul Malone, is a United Kingdom national, born in 1945 and living in Liverpool. He is represented before the Court by Mr R. Bhatt, a lawyer practising in Liverpool. The respondent Government are represented by their agent, Mr H. Llewellyn, Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 31 March 1987 the applicant was convicted by a jury at Chester Crown Court of four armed robberies committed between 5 and 30 April 1986. He was sentenced to fifteen years’ imprisonment.
The applicant was arrested at his mother’s flat the morning after the fourth robbery. The police searched his room and claimed to have found clothing similar to that worn by the robber according to a photograph taken by a security camera at the fourth robbery. The applicant denied owning these articles and contended that they were not found in his room but were instead supplied by the police in order falsely to implicate him.
Following his arrest the applicant was taken to Ellesmere Port Police Station where he was interviewed by D.I. Holt and D.S. Goulding. At trial, the applicant claimed that during this first interview, of which no note was made, the officers told him that one of the robberies had been committed by two men and that the get-away car had been a blue Cortina, registration number ONT 911N. During the trial the police denied that there had been such a “first interview” or that mention of a blue Cortina had ever been made in the course of the investigation, except as a “ploy” to put the applicant off his guard.
A second interview was not in dispute, and the applicant signed the note recording his account of his movements on the day of the fourth robbery. The events which took place during a third interview were, however, also disputed as were certain incriminating statements which police officers claimed the applicant had made during a car journey to retrace that taken by the applicant in the red Escort. The applicant accepted that he signed a record of the conversation in the car, but claimed that the record had been written on alternate lines on a lined notebook. By the time of the trial, the blank lines had been completed, to include admissions by the applicant that he had hidden from the police and “spent some of the money”. Forensic examination carried out for the purposes of the applicant’s appeal indicated that the lines containing the incriminating comments had been added at a later date.
At trial, the applicant denied any involvement in the robberies and he gave evidence and called witnesses to show that he had been elsewhere at the relevant times. For the prosecution, in addition to the clothing and identification evidence referred to above, eleven police officers gave evidence as to admissions allegedly made by the applicant in the course of interviews. The applicant was convicted by the jury’s unanimous verdict.
On 17 June 1988 the Court of Appeal refused the applicant leave to appeal against conviction or sentence.
The applicant maintained his allegations against the police and in 1988 West Yorkshire Police opened an inquiry to investigate them.
In 1990 the applicant’s petition to the Home Office asking for his case to be referred to the Court of Appeal was rejected.
Between 1990 and 1992 the applicant secured reports by forensic scientists which cast doubt on the authenticity of some of the police interview records relied upon by the prosecution. On the basis of these reports, in 1992, he made a second petition to the Home Office.
In August 1992 the West Yorkshire Police presented a report of its investigation to the Crown Prosecution Service. The applicant was informed that on the basis of this report it had been decided that no disciplinary action or proceedings were warranted against the officers involved in his case.
In November 1992, however, further forensic reports were completed which cast fresh doubt on the authenticity of the interview records. Later that month the Police Complaints Authority ordered the Metropolitan Police to conduct an investigation into the applicant’s allegations. The investigating officers searched the lockers at Ellesmere Port police station and discovered a file marked “Malone” which contained an envelope marked “ONT 911N” and a note recording the name and address of an ambulance driver, Mr L, who had seen a dark blue car, “possibly a Mark 4 Cortina”, driving at speed from the vicinity of the last robbery at the relevant time.
On 8 December 1994 the Home Secretary referred the case to the Court of Appeal. The appeal was heard in December 1996. Mr L was traced and called to give evidence on behalf of the applicant. He testified as to an incident which had occurred at either 11 a.m. or 1 p.m. in which, while waiting in his ambulance, he had seen a blue Cortina approaching from the direction of the estate agents’ offices. As the car pulled up at the kerb opposite him, a second man, carrying what looked like a blue cash bag of the type provided by banks, ran from the direction of the estate agents and got into the passenger seat. The car then drove off at speed. Mr L told the court that his assistant had made a note of the first two digits of the car registration number, and that he had immediately reported what he had seen to the police at Ellesmere Port, stating that he thought that it had been a robbery in progress. He had never been asked to give a statement until he was contacted by the applicant’s solicitors some ten years after the event.
The Court of Appeal did not call the police officers involved in the original investigation and prosecution of the applicant to give evidence.
Lord Justice Beldam in the Court of Appeal observed in connection with the ambulance driver’s evidence and the documents found by the Metropolitan Police in the lockers at Ellesmere Port police station:
Having heard [Mr L’s] evidence, we were satisfied that at the time of the interviews referred to by the appellant no-one at Ellesmere Port Police Station knew the index number of the blue Cortina reported by [Mr L]. We are also satisfied that the index number ONT 911N was an index number known to the appellant and introduced by him into evidence at the trial. On the information available to us, it was first mentioned either in the cross-examination of DI Holt or during the evidence in chief of the appellant. We are satisfied that at no time did [Mr L] have the full index number of the blue Cortina which he reported, that in all probability interest in the blue Cortina evaporated after the far more detailed report received from [Mrs H] and that the first mention of the index number was made by the appellant as we have indicated. [Counsel for the prosecution] accepted that, had the prosecution been aware at the time of the existence of [Mr L’s] report, the defence should have been told. But in the result his description of the type of bag carried by the person he saw was so different from the white plastic bag carried by the person who carried out the robbery ... that his evidence did not detract in any way from that of [Mrs H] who had noticed and clearly described the white plastic bag carried by the man who ran past her. Further, as the defence apparently knew the registration number of the vehicle, they could have made enquiries at the time. We are satisfied that the evidence of [Mr L] would not afford any ground for allowing the appeal, and that it was not consciously withheld from the defence. In the circumstances we do not think that the failure to disclose the report of [Mr L] was material. There remains the question whether, in stating at trial that the introduction of the blue Cortina into the interview with the appellant was a ‘ploy’, DI Holt was telling only half the truth. It could, of course, have been the case that DI Holt both knew of [Mr L’s] report and used it as a ploy. If we are correct in thinking that [Mr L’s] report was not followed up in the course of the investigation, it seems to us not improbable that Inspector Holt may subconsciously have referred to the blue Cortina because he had heard a report of such a sighting but by the time of the trial he had dismissed that report from his mind as a reason why he had introduced the blue Cortina. It is, however, a matter which we bear in mind when we have to assess the overall reliability of DI Holt’s evidence.”
In addition, the Court of Appeal heard evidence from a number of expert witnesses. Having heard the evidence of two experts who had examined the security camera photographs, the court decided that the robber could have been of a height similar to the applicant. It considered that further forensic evidence relating to a pair of shoes, said to have been found in the applicant’s bedroom, served only to reinforce the view that they had been regularly worn by the applicant.
Having heard forensic evidence suggesting that alternate lines of the record of the conversation between the applicant and police officers in the car might have been added at a later date, the court said:
“In approaching this aspect of the case we remind ourselves that the allegations made against police officers that they have deliberately falsified an interview are extremely serious. We do not feel that the evidence adduced is sufficiently cogent to lead to the conclusion that DI Holt added alternate lines to the record of the discussion during the journey in the car. We are certainly not prepared to reject the whole of the evidence given by police officers of the Cheshire Police Force as suggested by [the defence counsel]. Whilst we think it unlikely that the words ‘and hide’ and ‘where I spent some of the money’ were added to the record by DI Holt after the appellant had signed the record of the conversation, we also consider that it would be surprising if the appellant, who had persistently denied that he had committed the robbery, made these statements in an unguarded moment on this car journey. Accordingly we consider that we should disregard them altogether in deciding whether the conviction of the appellant was safe.”
The Court of Appeal dismissed the appeal on 31 January 1997, because it did not find that the applicant’s conviction was unsafe (section 2(1) of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995).
The applicant had also applied to the Court of Appeal for leave to appeal to the House of Lords. He was informed by a letter dated 21 May 1997 that the Court of Appeal had refused to issue a certificate under section 33(2) of the Criminal Appeals Act 1968 (see below) and had refused leave to appeal to the House of Lords. By a letter dated 8 September 1997, the applicant’s solicitors reapplied to the Court of Appeal for leave to appeal to the House of Lords and requested the court to hear oral argument on this question, since counsel had understood that an oral hearing was to have taken place before the court decided the issue in the first place. According to the applicants’ solicitors, this request was refused by telephone some time after 27 November 1997 (the date of the introduction of the application to the European Commission of Human Rights).
In June 1997 the Police Complaints Authority informed the applicant that its investigation had produced evidence suggesting that a number of officers had given false or misleading evidence at trial and that those officers still serving with the police would be reprimanded.
In criminal cases, there is a right of appeal from the Court of Appeal to the House of Lords, if leave is granted by either court. The Criminal Appeal Act 1968 provides in section 33(2) that “leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general importance is involved in the decision and it appears to the Court of Appeal or the House of Lords (as the case may be) that the point is one which ought to be considered by the House”.
The Police Complaints Authority was created by section 89 of the Police and Criminal Evidence Act 1984 (“PACE”). It is an independent body empowered to receive complaints as to the conduct of police officers. It has powers to refer charges of criminal offences to the Director of Public Prosecutions and itself to bring disciplinary charges. Under section 105(4) of PACE the PCA is to have regard to any guidance given to it by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings.


ITEMID: 001-110483
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF STEININGER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant company, which has its seat of business in Ernstbrunn (Austria), carries out cattle and pig slaughter, and is therefore liable to agricultural marketing charges, calculated on the basis of the number of animals slaughtered, to be paid to Agrarmarkt Austria (AMA) under the Agricultural Market Act (Agrarmarktgesetz).
6. On 30 May 2006 the AMA issued a payment order against the applicant company, ordering it to pay outstanding contributions for the period of December 2005 and January 2006 in the amount of 11.730,05 euros (EUR) and, in addition, imposing a surcharge for failure to pay, amounting to 60% of the unpaid contributions. The applicant company appealed against the order. It argued in particular that the above system was contrary to the rules of the European Union on state aid. It also asked for oral hearings to be held on the appeal and also asked that the proceedings for enforcing the payment order be suspended.
7. The Federal Minister of Agriculture, Forestry, Environment and Water (Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft), acting as the appeal authority, dismissed the applicant company’s appeal on 17 July 2006 without holding a hearing.
8. As regards the applicant’s argument that the AMA contributions were levied for financing activities, the AMA quality programme, which was not in accordance with EU law, the Federal Minister found that after the decision of the European Commission of 30 June 2004 (C(2004)2037), the applicant company was in a position to know precisely which charges it had to pay. In that decision the European Commission had expressed that it had no objection to the AMA Quality programmes and quality mark registered as state aid NN 34A/2000 (“Qualitätsprogramme und das AMA-Biozeichen und das AMA-Gütezeichen”), because that state aid was in accordance with the Common Market provided for in the Treaty establishing the European Community. The Federal Minister referred further to the Administrative Court’s decision of 20 March 2006, no. 2005/17/230, according to which also the levying of AMA contributions was in accordance with the relevant provisions of EU law (se §§ 24-27 below). The Federal Minister further held that it had not been necessary to hold a hearing because a hearing was only held if a decision was taken by a panel on an appeal against the decision of a tax office or a regional directorate of finance, which was not the case here.
9. On 25 July 2006 AMA dismissed the request for suspension of the enforcement.
10. Thereupon the applicant company lodged complaints with the Constitutional Court and the Administrative Court against the Federal Minister’s decision. Before the Constitutional Court the applicant company complained, inter alia, that the surcharge imposed violated its constitutional right to property. Before the Administrative Court the applicant company complained that the appeal authority was not a court within the meaning of the case-law of the European Court of Justice which prevented it from having the lawfulness of the decision by the European Commission of 30 June 2004 reviewed by the European Court of Justice in proceedings under Article 234 of the Treaty of the European Union. As regards the imposition of the surcharge the applicant company complained that the findings of fact were insufficient. In particular the authority had failed to establish whether the objective and subjective elements of the offence (objektiven und subjektiven Tatbildvoraussetzungen) had been met. Relying on Article 6 of the Convention it complained further that no public hearing had been held and that no impartial tribunal established by law decided on the criminal charge against it (“es ist kein unparteiisches, auf Gesetz beruhendes Gericht über den erhobenen strafrechtlichen Vorwurf eingeschritten”). As the authorities imposing the surcharges had failed to hold an oral hearing, the applicant company asked the Administrative Court for a public hearing.
11. On 25 September 2006 the Constitutional Court declined to deal with the applicant company’s complaint under Article 144 of the Federal Constitution for lack of prospect of success.
12. The Administrative Court dismissed the applicant company’s complaint on 30 January 2007 and held as follows:
“The present case does not differ in the questions of relevance to the decision from the one decided by the Administrative Court on 20 March 2006, no. 2005/17/230. Pursuant to Section 43(2) of the Administrative Court Act reference is made to it.
For the reasons set out in that decision the breach of law complained of by the applicant company also does not exist in view of the present complaint, for which reason it can be dismissed without further proceedings in camera.
For the reasons set out in the decision referred to also Article 6 of the Convention is of no relevance here.”
13. The Federal Act Establishing the Market Regulation Institution “Agrarmarkt Austria”, Federal Law Gazette 376/1992 (Bundesgesetz über die Errichtung der Marktordnungsstelle “Agrarmarkt Austria”, BGBl 276/1992 – “the AMA Act”) defines “Agrarmarkt Austria (“AMA”)” as a corporate body under public law (AMA Act section 2 paragraph 1). Its tasks comprise, inter alia, the promotion of agricultural marketing (AMA Act section 3 paragraph 1 (3)).
14. According to the AMA Act section 21a AMA collects agricultural marketing charges (Agrarmarketingbeitrag) for the following aims: (i) promoting and securing the distribution of domestic agricultural and forestry products and related processed goods, (ii) opening up and maintaining markets for these products in Austria and abroad, (iii) improving the distribution of these products, (iv) promoting general measures for improving and maintaining the quality of these products (in particular agricultural products) and for providing relevant information to the consumer regarding the quality of the products and (v) promoting other marketing measures (in particular by means of offering its services and bearing personnel costs).
15. AMA finances its activities by levying charges. Under Section 21c in conjunction with sections 21e of the AMA Act, inter alia, individuals and companies operating establishments for slaughtering and butchery of cattle, calves, pigs, lambs and sheep are liable to AMA for agricultural marketing charges. The duty to pay these charges arises at the time the animals are slaughtered (AMA Act section 21f paragraph 1 (3)).
16. Section 21g of the AMA Act, in so far as relevant, reads as follows:
“(1) A debtor in respect of the charge has to submit a declaration of the charge due within the time-limit set out in section 21f para. 2 or 3, making use of a standard form provided for this purposes by AMA, in which he himself has to calculate, ... the charge to be paid ...
(2) If the debtor has not paid the charge at all, not paid in due time or not in the correct amount, AMA has to make an order for payment of the charge, issuing a formal written decision.
(3) If AMA establishes that the charge was not paid at all or not paid in the correct amount, it may increase up to double the amount due. In fixing the increased amount, it must be taken into account to what extent the debtor could be expected to be aware of the debt and whether the non-payment or insufficient payment had occurred for the first time or repeatedly. In cases of late payment AMA may impose default interest exceeding the base interest rate (Basiszinssatz) by 3%, unless this would constitute unacceptable hardship in the individual case.”
17. The collection of the charges is incumbent on the AMA. Appeals against its declaratory decisions can be made to the Federal Minister for Agriculture, Forestry, Environment and Water. The AMA and the Federal Minister are tax authorities within the meaning of section 49 para. 1 of the Federal Tax Code (Bundesabgabenordnung). The Federal Minister is also the superior supervisory authority (the AMA Act section 21i (1-3)).
18. Section 21l of the AMA Act provides that non-compliance with the duty to submit a declaration of the charges due or non-payment of the charges caused by untrue or incomplete statements is an administrative offence for which the district administrative authority may impose a fine of up to EUR 3,630 or imprisonment in default, unless the act constitutes a criminal offence falling within the jurisdiction of the ordinary criminal courts or is subject to more severe penalties according to other provisions of the administrative criminal law. The district administrative authority has to inform the AMA about the outcome of any such administrative criminal proceedings pending before it.
19. Section 41(1) of the Administrative Court Act provides:
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority’s lack of jurisdiction or from breaches of procedural rules (section 42(2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
20. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision.
21. Section 42(2) provides that
"the Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
22. Section 43(2) of the Administrative Court Act provides:
“Every decision (Erkenntnis) must be reasoned. Insofar as questions of law have been clarified in the previous case-law, it is sufficient to refer to it.”
23. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court’s view of the law (Rechtsanschauung)" (section 63(1)).
24. In its decision of 20 March 2006, no. 2005/17/230 the Administrative Court decided on a complaint against a decision of the Federal Minister of Agriculture, Forestry, Environment and Water levying AMA contributions for July 2004 - that is for the period following the European Commission’s approval of the AMA state aid programme on 30 June 2004.
25. The Administrative Court found that the Federal Minister had decided correctly when he had dismissed the appeal against the imposition of AMA charges for July 2004 and had interrupted proceedings on contributions in respect of periods before that date, pending the outcome of proceedings before the European Court of Justice concerning a similar question.
26. As regards the period after July 2004 AMA contributions were due because the European Commission had given its positive decision before that date. Insofar the appellant had argued that the decision of the European Commission was wrong and proceedings against that decision were pending before the Court of First Instance the Administrative Court found that, according to the case-law of the European Court of Justice, an alleged unlawfulness of a state aid affected the levying of contributions for financing that state aid only under specific circumstances, namely if there was a direct link between the amount of state aid granted and the amount levied as contribution. Since this was not the case as regards the AMA contributions, any alleged irregularity of the state aid had no relevance for its financing. For the same reason there was also no breach of Article 28 of the Treaty establishing the European Community (now Article 34 of the Treaty on the functioning of the European Union).
27. The Administrative Court also declined to hold an oral hearing in this case because the levying of parafiscal contributions, which was the subject mater of the proceedings at issue, did not involve the determination of a dispute on civil rights or obligations. Accordingly Article 6 of the Convention did not require an oral hearing.
28. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held:
"From the fact that it has been necessary to extend the reservation in respect of Article 5 of the Convention to cover the procedural safeguards of Article 6 of the Convention, because of the connection between those two provisions, it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5035
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: IAN EDGAR (LIVERPOOL) LIMITED v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a business engaged in the wholesale distribution of firearms. It is represented before the Court by Edwin Coe, Solicitors, of London. The facts of the case, as submitted by the parties, may be summarised as follows.
A. The particular facts of the case
The applicant business is a wholesaler and distributor of firearms and associated products. It was founded in 1947. The two sons of the founder are directors of the applicant company and between them hold 80% of the share capital. The applicant company operates from wholly-owned offices and a warehouse and owns a 17-acre site where secure licensed magazines for ammunition are located.

Controls on firearms in Great Britain, including controls on the possession of pistols, revolvers, rifles and the ammunition for them, were introduced for the first time in 1920. In 1934, fully-automatic weapons were prohibited, and in 1962, airguns and shotguns were made subject to restrictions for the first time. The controls were consolidated in the Firearms Act 1968. In 1988, semi-automatic and self-loading rifles were prohibited, and in 1992, disguised firearms were prohibited.
In March 1996, an individual entered a primary school in Scotland and shot dead a teacher and 16 children, and wounded 13 others. He had with him four handguns and 743 rounds of ammunition. The Government subsequently established a public inquiry chaired by the Hon. Lord Cullen, which presented a report to the Parliament of the United Kingdom in October 1996 (“the Cullen Report”).
Following the presentation of the Cullen Report, legislation was passed in 1997 prohibiting the possession of handguns, and schemes were set up for the payment of compensation to private individuals and to dealers in firearms in respect of handguns the possession of which was prohibited.

Between 1996, when a prohibition on handguns was first contemplated, and August 1997 (the date the application was made), sales of handguns by the applicant company decreased by 65%. Between 31 March 1996 and 31 March 1997, its turnover dropped by 22.3%. Handguns and related products formerly amounted to 30% of the applicant company’s sales.
The applicant company received £890,000 in compensation under the schemes. By the beginning of 1999, approximately £22 million had been paid out to some 1,500 dealers under the schemes, of a total of some £67 million which had been paid out to individuals, dealers and others. The Government estimate the total costs which will be involved in paying compensation under the schemes to be some £120 million.
B. Domestic law and practice
The Firearms Act 1968 has been periodically amended since it was passed, and forms the basis of the current system of control of firearms in the United Kingdom. Section 5 of the Act of 1968 prohibits the possession, purchase, acquisition, manufacture, sale or transfer of the firearms there specified. Section 1 of the Firearms (Amendment) Act 1997 (“the First Amendment Act”) added large-calibre handguns to the class of prohibited firearms in section 5 of the 1968 Act.
Section 5 of the Act of 1968, as amended by the First Amendment Act, provided:
“(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers -
...
(aba) any firearm which has a barrel length of less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signalling apparatus.”
The Firearms (Amendment) (No. 2) Act 1997 (“the Second Amendment Act”; together with the First Amendment Act, “the 1997 Amendment Acts”) extended the scope of the prohibition in section 5 to small-calibre pistols by declaring (in section 1) that the words “a small-calibre pistol” in section 5(1)(aba) of the 1968 Act as amended by the First Amendment Act should cease to have effect.
The First Amendment Act provides as follows, so far as material:
“15 Surrender of prohibited small firearms and munitions
(1) The Secretary of State may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of section 1 or 9 above.
...
16 Payments in respect of prohibited small firearms and ammunition
(1) The Secretary of State shall, in accordance with a scheme made by him, make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section 15 above.
(2) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -
(a) which they had, and were entitled to have in their possession on or immediately before 16th October 1996 by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers; or
(b) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers,
and their possession of which will become, or has become, unlawful by virtue of section 1(2) or 9 above.
17 Payments in respect of ancillary equipment
(1) The Secretary of State shall, in accordance with any scheme which may be made by him, make payments in respect of ancillary equipment of any description specified in the scheme.
(2) For the purposes of subsection (1) above, ‘ancillary equipment’ means equipment, other than prohibited ammunition, which-
(a) is designed or adapted for use in connection with firearms prohibited by virtue of section 1(2) above; and
(b) has no practicable use in connection with any firearm which is not a prohibited weapon.
(3) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-
(a) which they had in their possession on 16th October 1996; or
(b) which they had in their possession after that date, having purchased it by virtue of a contract entered into before that date.
...
18 Parliamentary control of compensation schemes
(1) Before making a compensation scheme the Secretary of State shall lay a draft of it before Parliament.
(2) The Secretary of State shall not make the scheme unless the draft has been approved by resolution of each House.
(3) This section applies to any alteration to the scheme as it applies to a compensation scheme.
(4) In this section ‘compensation scheme’ means a scheme under section 16 ... above.”
The Firearms (Amendment) Act 1997 Compensation Scheme (“the First Scheme”) was laid in draft before Parliament and approved by resolution of both Houses of Parliament. It was made on 10 June 1997. The First Scheme provided compensation for the large-calibre handguns themselves, for prohibited expanding ammunition and for certain ancillary equipment. There were three options for claiming compensation: Option A, a flat rate payment for individual items; Option B, a payment for an individual item at the price in the list of values annexed to the First Scheme; and Option C, a payment based on the market value of an individual item at or immediately before 16 October 1996 (the date of the announcement by the Government of their response to, and legislative intention following, the Cullen Report).
Under Option A, a payment of £150 could be claimed for each large-calibre handgun. Under Option B, a payment could be claimed which was based on average retail values on 16 October 1996, reduced by about 25% to reflect normal depreciation in value. Under Option C, dealers were entitled to claim the “full market value” of the large-calibre handguns and ancillary equipment which they held in stock. The full market value was to be calculated on the basis of the cost to the dealer of the item plus 25%.
By section 2 of the Second Amendment Act, the provisions of sections 16 to 18 of the First Amendment Act were applied to small-calibre pistols. The Firearms (Amendment) (No. 2) Act 1997 Compensation Scheme (“the Second Scheme”) was made in December 1997, after having been laid in draft before both Houses of Parliament and approved by resolution of each House. The Second Scheme applied in relation to small-calibre pistols held on or immediately before 14 May 1997. The date for the calculation of full market value for the purposes of Option C remained 16 October 1996. The Second Scheme made provision for compensation in respect of small-calibre pistols, on materially the same terms as provided for in the First Scheme in respect of large-calibre handguns.