ITEMID: 001-103065
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SORMUNEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: The applicant, Mr Seppo Sormunen, is a Finnish national who was born in 1944 and lives in Nummela. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 2000 and 2001 the local tax authorities carried out a tax inspection concerning the tax years 1997, 1998 and 1999 in two limited liability companies. According to the trade registry, the applicant was the managing director of one of the companies between 19 December 1996 and 1 December 1998 but had no formal position in the other company. Nor did he own any shares in either of the companies.
On the basis of the tax inspection, the tax authorities found on 6 September 2001 and 6 September 2002 that the applicant had evaded taxes for the tax years 1997, 1998 and 1999 as he had been the real actor and authority in both of the companies and had received benefits from them which had not been declared. These benefits were to be considered as disguised dividends given to the applicant by the companies. An additional tax and a tax surcharge (veronkorotus, skatteförhöjning), amounting in total to 41,451 euros, were imposed on the applicant.
The applicant sought rectification from the Uusimaa Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden). On 29 January 2004 the Committee rejected the applicant’s applications.
The applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), claiming that the taxation decisions should be quashed as he could not be held responsible for tax evasion.
On 29 September 2006 the Administrative Court quashed the previous taxation decisions. It found that no additional tax or tax surcharge could be imposed on the applicant as he had not owned any shares in either of the companies. No tax could be levied on the disguised dividends solely on the ground that a person had been a real actor and authority in a company. This decision became final and the taxation for the years 1997, 1998 and 1999 was rectified accordingly on 20 November 2006.
On 16 January 2004, while the taxation proceedings were still pending, the public prosecutor brought charges against the applicant for, inter alia, aggravated tax fraud. The applicant was accused of having failed to supply complete information in his tax returns for the tax years 1997, 1998 and 1999 with the intent of evading the tax due, amounting in total to 41,451 euros. The public prosecutor considered that the applicant had sought considerable financial benefit, that the offence was committed in a particularly methodical manner and that the tax fraud was also aggravated when assessed as a whole. The tax authorities concurred with the charges brought by the public prosecutor and pursued also a compensation claim, which was joined to the criminal charges.
On 25 August 2005 the Helsinki District Court (käräjäoikeus, tingsrätten) found the applicant guilty of aggravated tax fraud and sentenced him to a six-month prison sentence. He was also banned from business operations for five years and was ordered to pay compensation to the tax authorities in the amount of the evaded taxes, that is, 41,451 euros plus interest, together with costs and expenses. The court found that the applicant had not contested his failure to supply complete information in his tax returns. As the applicant had sought considerable financial benefit, the offence had been committed in a methodical manner over three years and the tax fraud had also been aggravated when assessed as a whole, the applicant was found guilty of aggravated tax fraud.
The applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten), requesting that his conviction be quashed. He referred to the decision of 29 September 2006 by the Helsinki Administrative Court, in which the court had quashed the previous taxation decisions. He claimed that there had been no obligation to declare the benefits allegedly received, as such benefits had not existed. In any event, the element of intent was missing.
On 15 May 2007 the Helsinki Appeal Court upheld, after having held an oral hearing and having voted (2-1), the District Court’s judgment in this respect. It found that, according to the Constitution, the general courts, when judging criminal cases, were not bound by the interpretation given by the administrative bodies. Criminal and taxation proceedings were different in nature. In the present case, the decision of the Administrative Court, which had been solely based on tax inspection reports, was not binding on the Appeal Court but the case was to be judged only on the basis of the evidence gathered during the oral hearing. On the basis of this evidence the court found that the applicant had evaded taxes in the amount of 41,451 euros when failing to declare the received benefits. By this tax evasion the applicant had sought considerable financial benefit, the offence had been committed in a particularly methodical manner and the tax fraud had also been aggravated when assessed as a whole. No reduction of the sentence was made on the basis of the Administrative Court’s decision of 29 September 2006.
The dissenting judge considered that the evidence presented in the Appeal Court was based in most parts on the tax inspection reports which had been confirmed by a witness. The evidence was therefore mainly the same as that relied on by the Administrative Court. Moreover, the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen) had confirmed in its case-law (KHO 1994-B-547) that no tax could be levied on a person for disguised dividends if the person had not owned any shares in the company in question. According to the practice of the Supreme Court (korkein oikeus, högsta domstolen), a conviction for tax fraud would require that a tax be levied in the administrative procedure (see KKO 2004:58). In these circumstances the dissenting judge considered that the applicant should have been acquitted on the basis of the principle of in dubio pro reo.
By a letter dated 2 July 2007 the applicant appealed to the Supreme Court. He claimed that he could not be convicted for tax fraud as he had not been ordered to pay any taxes for the same acts of which he had been accused. There was no duty to pay compensation to the tax authorities as, according to the Administrative Court, there was not even any taxable income.
On 14 February 2008 the Supreme Court refused leave to appeal.
Section 57 of the Tax Assessment Procedure Act (laki verotusmenettelystä, lagen om beskattningsförfarande, Act no. 1558/95) provides that if a person has failed to make the required tax returns or has given false information to taxation authorities and tax has therefore been incompletely or partially levied, the tax payer shall be ordered to pay unpaid taxes together with an additional tax and a tax surcharge.
According to Chapter 29, sections 1 and 2, of the Penal Code (rikoslaki, strafflagen; as amended by Act no. 1228/1997), 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, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by 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 when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years.
In the case KHO 1994-B-547 the Supreme Administrative Court found that no tax could be levied on a person for disguised dividends if the person did not own any shares in the company in question.
In the case KKO 2004:58 the Supreme Court found that a conviction for tax fraud would require that, in any event, a tax be levied. It stated the following:
“According to [Chapter 29, Section 1, subparagraph 3 of the Penal Code], a conviction for tax fraud requires that the offender has caused or attempted to cause that, in general, a tax shall not be levied. It does not require that the amount of the said tax would have to be confirmed finally by a tax decision or otherwise. In its decision, a general court is also not bound by decisions rendered in taxation or administrative law proceedings although it is natural that the said kind of decision has cogent significance in the discretion. Ultimately, a court shall consider itself the amount of tax at issue. Therefore, the fact that a dispute exists regarding the fiscal sanction does not mean that the essential elements of tax fraud could not be considered to have been fulfilled. The requirement is, however, that a tax shall be ordered in the matter. In such a situation, a taxpayer cannot, either, hinder or try to hinder a tax to be levied without the threat of a sanction by not filing an appropriate notification only on the grounds that the question of determination of tax is in his or her opinion not clear.”
The Supreme Court has taken a stand on the ne bis in idem principle in its recent precedent case KKO 2010:46 which concerned tax surcharges and aggravated tax fraud. In that case it found, inter alia, that, in addition to res judicata force, traditionally pending criminal charges already prevent in Finland the bringing of another set of criminal proceedings brought in the same matter (lis pendens). Both principles apply only within the limits of criminal proceedings, not in cases crossing from administrative proceedings to criminal proceedings or vice versa. It is the duty of the public prosecutor to make sure ex officio before pressing charges that there are no other pending criminal cases on the same matter against the accused. Such a duty does not exist in relation to cases which cross over the limits of criminal proceedings.


ITEMID: 001-58417
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF ALMEIDA GARRETT, MASCARENHAS FALCAO AND OTHERS v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-3-a - Ratione temporis);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: A. De Sousa Inês;Elisabeth Palm;Gaukur Jörundsson
TEXT: 7. The six applicants, who are Portuguese nationals, were born respectively in 1926, 1932, 1939, 1919, 1935 and 1930. They all live in Lisbon, except for the last two applicants, who live at Constância. All owned land that had been expropriated and nationalised as part of the agrarian-reform policy in Portugal.
8. In 1975 Mr Almeida Garrett was the owner of three plots of agricultural land with a total surface area of approximately 2,145 hectares.
9. Under the agrarian-reform policy, two of the plots were nationalised by Legislative Decree no. 407-A/75 of 30 July 1975. The third plot had been expropriated by Ministerial Decree no. 52/76 of 29 January 1976 issued by the Minister of Agriculture, which was published under Legislative Decree no. 406-A/75 of 29 July 1975. The aforementioned legislative decrees provided that the owner could, subject to satisfying certain conditions, exercise his right to a “reserved share” (direito de “reserva”) over part of the land to carry on agricultural activities. They also provided for the payment of compensation, for which the amount, the time-limit and the terms of payment had yet to be determined.
In accordance with the relevant legislation, the provisional compensation to which the applicant was entitled was assessed in March 1983 at 16,204,266 Portuguese escudos (PTE). On 16 September 1991 that sum was made available to the applicant in the form of government securities.
The applicant exercised his right to a reserved share in the plots of land concerned on several occasions such that by 30 September 1990 at the latest, he was already in possession of part of the land. However, another part of the land, measuring 1,176 hectares, was not returned to him.
10. On 30 December 1992 the applicant brought an action in damages against the State before the ordinary courts (Seventeenth Civil Division of the Lisbon Court of First Instance) because of its failure to pay the final compensation following the expropriation. He alleged that in view of the length of time he had been kept waiting for payment of the final compensation since the expropriation, the general law on expropriations should have been applied (not the law relating to the agrarian reform). He therefore sought payment of compensation that took into account the period that had elapsed since the expropriation.
11. In a decision of 14 January 1993 the Court of First Instance dismissed the action holding, as a preliminary point, that it had no jurisdiction ratione materiae. The applicant appealed, but the Lisbon Court of Appeal (Tribunal da Relação) upheld the impugned judgment in a decision of 9 December 1993.
12. The applicant appealed on points of law to the Supreme Court (Supremo Tribunal de Justiça), which, in a decision of 31 May 1994, dismissed the appeal holding, inter alia, as follows:
“Delays in payment of compensation for nationalisation and expropriation must not be regarded as constituting an unlawful omission by the political and administrative authorities ... It has been established that sections 15 and 16 of Law no. 80/77, which require the authorities to assess the compensation due for the nationalisation and expropriation of agricultural land situated in the area to which the agrarian reform applies, are not substantively unconstitutional as the assessment of such compensation is also within the province of the administrative authorities (see the decision of the Constitutional Court no. 39/88 of 9 February 1988) ... It must be added that Legislative Decree no. 199/88 of 31 May 1988 expressly made the administrative authorities responsible for assessing the amount of [such] compensation ... It therefore follows from the decrees that compensation due to the former owners of rights in property that has been nationalised, expropriated or requisitioned is assessed by the administrative authorities [though an appeal lies to the Supreme Administrative Court against such assessments], such that the ordinary courts have no jurisdiction ratione materiae.”
13. On 17 June 1994 the applicant lodged a constitutional appeal with the Constitutional Court (Tribunal Constitucional). On 7 June 1995 the Constitutional Court declared the appeal inadmissible. It said that before the lower courts the issue of constitutionality raised by the applicant concerned only the case-law, not the statutory provisions. Therefore, it could not hear the appeal, since it could only examine the conformity of statutory provisions with the Constitution, not the conformity of court decisions. The applicant then applied to the Constitutional Court to have that decision set aside as being null and void, but his application was dismissed on 6 July 1995.
14. On 27 February 1985 the applicant brought a claim for damages against the State in the Lisbon Administrative Court (Auditoria Administrativa, which has now become the Tribunal Administrativo de círculo). He sought, inter alia, reparation for the damage he had sustained as a result of the failure to pay the final compensation following the nationalisation and expropriation of his plots of land.
In a judgment of 29 November 1993, the Administrative Court dismissed the applicant's claims. Having referred to the relevant legislation, the Administrative Court held that no compensation for the alleged damage could be claimed other than by following the administrative procedure.
15. On an appeal by the applicant, the Supreme Administrative Court (Supremo Tribunal Administrativo) upheld the impugned judgment in a decision of 12 July 1994. After recognising the applicant's right to “fair compensation”, it pointed out that under the legislation applicable in such cases the amount of compensation had to be assessed by the authorities.
On 7 February 1995 the Supreme Administrative Court dismissed an application for interpretation of that decision. On 28 March 1995 it dismissed an application by the applicant for a declaration that that decision was null and void.
16. The applicant lodged a number of claims with the authorities concerning the delays in the payment of the provisional compensation and in the assessment of the final compensation, the first such claim being lodged in 1978. He also requested that an arbitration tribunal be set up in order to decide his dispute with the State. His requests were, however, turned down. By an ordinance issued by the Prime Minister on 5 January 1989 it was decided among other things not to accept the request for the setting up of an arbitration tribunal “in view of the publication of Legislative Decree no. 199/88” (see paragraph 34 below).
17. On 12 July 1991 the applicant requested the Ministry of Agriculture to assess the final compensation in accordance with Legislative Decrees nos. 199/88 and 199/91.
18. On 21 June 1996 the Ministry of Agriculture sent the applicant a proposal for final compensation assessed at PTE 143,659,000 and requested his observations.
19. On 17 July 1996 the applicant submitted his observations, drawing the relevant department's attention to various inaccuracies in the proposal.
20. On 21 July 1999 the Ministry of Agriculture sent a revised proposal for final compensation replacing the previous one. The revised amount came to PTE 207,302,000.
21. On an unspecified date the applicant sent his observations on the new proposal to the Ministry, drawing its attention to various factual and legal points. The proceedings concerning the assessment of the final compensation are thus still pending.
22. In 1975 the Mascarenhas Falcão family was the owner of a plot of agricultural land with a total surface area of approximately 1,197 hectares.
23. Under the agrarian-reform policy, the plot was expropriated by a ministerial decree (no. 560/75 of 17 September 1975) issued by the Minister of Agriculture and published pursuant to Legislative Decree no. 406-A/75 of 29 July 1975 (see paragraph 9 above).
In accordance with the relevant legislation, the applicants received the sum of PTE 8,652,420 in government securities in November and December 1983, as provisional compensation.
The applicants exercised their right to a reserved share in the land on several occasions, such that by March 1991 they were already in possession of the whole of the land.
24. On 9 May 1990 the applicants brought an action in damages against the State before the ordinary courts (Twelfth Civil Division of the Lisbon Court of First Instance) because of the State's failure to pay the final compensation after the expropriation. They alleged that in view of the length of time they had been kept waiting for payment of the final compensation since the expropriation, the general law on expropriations should have been applied (not the law concerning the agrarian reform). They thus sought payment of compensation that took account of the period that had elapsed since the expropriation.
25. In a judgment of 21 December 1993, the Court of First Instance declared that it had no jurisdiction ratione materiae, holding, in particular, as follows:
“It is the ... government which is empowered to assess ... final compensation ... . In view of the administrative nature of the act concerned, an administrative appeal lies against such assessments to the Supreme Administrative Court ... . It therefore follows that, since the statute does not provide for the intervention of the ordinary courts in the procedure for assessing such compensation, the conclusion that this Court has no jurisdiction ratione materiae to hear the [applicants'] claims is inescapable.”
26. The applicants appealed to the Lisbon Court of Appeal, which on 23 June 1994 dismissed the appeal, holding, inter alia:
“It is not until after [the request for assessment of the final compensation] has been presented and after the corresponding administrative procedure ... that the remedy before the administrative authorities is exhausted. It is therefore for the claimants to appeal to the courts if they disagree with the decision. In view of the administrative nature of the acts in issue, any appeal should be to the administrative courts ... . Nor do the ordinary courts have any jurisdiction to hear requests for compensation for delay or for damage sustained because of delay, since the wording of Article 1 § 1 of Legislative Decree no. 199/88 – when referring to final compensation due on the nationalisation or expropriation of land under the legislation concerning the agrarian reform – suggests that the decree also covers compensation for such damage to the extent that it results, albeit indirectly, from the expropriation itself.”
27. The applicants appealed on points of law to the Supreme Court but withdrew their appeal purportedly on account of the Supreme Court's settled case-law in such cases.
28. On 26 September 1991 the applicants had lodged a request for compensation with the Minister of Agriculture for the delay in their recovering the land over which they had exercised their right to a reserved share. On the instructions of the Minister, legal counsel from the Ministry then issued a legal opinion concerning the request. The relevant part of the opinion reads as follows:
“[The State] can have no liability in the instant case other than that which arises under Law no. 80/77 and the related statutory provisions ... . Otherwise, additional compensation would have to be added to that payable under Law no. 80/77, which would be contrary to the entire body of legislation on compensation payable under the agrarian reform.”
29. On 25 October 1991 the Minister indicated his agreement with the opinion and ordered that the applicants be notified of it.
30. The applicants then asked the Minister of Agriculture on 16 August 1991, 26 September 1991 and 18 April 1995 to award final compensation under Legislative Decrees nos. 199/88, 199/91 and 38/95.
On 18 September 1998 the Ministry sent the applicants a proposal for final compensation of PTE 1,930,315 and requested their observations. It was nonetheless stipulated that from that amount had to be deducted the sum which the applicants had already received as provisional compensation, which meant that they were not entitled to any further sum.
On 9 October 1998 the applicants submitted their observations. They drew the relevant department's attention to the fact that the proposal contained a number of inaccuracies. To date, no decision has been taken.
31. The rules governing expropriations and nationalisations carried out as part of the policy of agrarian reform were set out in Legislative Decrees nos. 406-A/75 of 29 July 1975 and 407-A/75 of 30 July 1975. The right to a reserved share entitled owners to remain in possession of part of their land. Framework legislation (Law no. 77/77 of 29 September 1977) concerning the general basis of the agrarian reform amended the rules governing the right to a reserved share and established that the nature of the landowners' interest in the reserved share was proprietary. The rules governing the right to a reserved share were further amended by subsequent framework legislation (Law no. 109/88 of 26 September 1988).
32. On 26 October 1977 Parliament adopted Law no. 80/77 laying down the procedures for compensating former owners of nationalised or expropriated property. Under section 19 of that Law, compensation, which was initially assessed provisionally before being assessed finally, was to be paid in government securities maturing over a period of several years and bearing interest at the rates prescribed in the schedule to the Law. For amounts exceeding PTE 6,050,000, payment was scheduled over twenty-three years (after a standstill period of five years) with an annual rate of interest of 2.5%. Section 24 specified that interest started to run from the date of the expropriation or nationalisation since it was due from the date scheduled for the issue of the government securities (which, in the applicants' case, by virtue of Legislative Decree no. 213/79 of 14 July 1979, was 1 September 1980). Lastly, section 13(3) provided that provisional compensation had to be regarded as a payment on account of final compensation such that the person concerned could be required to pay back provisional compensation to the State if either no final compensation was payable or the final compensation came to less than the provisional compensation.
33. As to the procedure for challenging the decisions of the authorities on this issue, section 16 of the Law provided:
“1. Without prejudice to any remedies available before other competent bodies, disputes relating to the right to final compensation and to the assessment, payment and effectiveness of such compensation shall be resolved by way of review of the relevant administrative act by an arbitration tribunal ...”
As to compensation due specifically in connection with the agrarian reform, section 37 of the Law provided that the government would determine the criteria for valuing the expropriated or nationalised property within sixty days. The government did not, however, comply with that time-limit.
34. On 31 May 1988 the government adopted Legislative Decree no. 199/88 determining how the general principles on compensation for expropriations and nationalisations set out in Law no. 80/77 would apply to the agrarian reform. The explanatory memorandum to the legislative decree included the following statement:
“Although more than thirteen years have elapsed since those nationalisations and expropriations, there has yet to be paid, or even assessed, the amount of final compensation due to the private owners who were affected by the measures, since the legislative decree that should have determined the criteria necessary for assessment purposes has never been adopted. It is this serious gap in our legal system which the government now proposes to fill in the light of the general rules adopted by Parliament in 1977.”
35. New criteria for the calculation of compensation were introduced by Legislative Decrees nos. 199/91 of 29 May 1991 and 38/95 of 14 February 1995. Compensation due to people who had recovered all or part of the land concerned by exercising their right to a reserved share was to be calculated on the basis that it was intended to cover only the damage caused by the occupation of that land during the period of deprivation of ownership.
36. The rules of procedure for determining the final compensation were set out in Articles 8 and 9 of Legislative Decree no. 199/88. The onus was on the landowners to claim compensation, thereby commencing the procedure. Claims were decided by an arbitration tribunal which included one representative of each of the Minister of Agriculture, the Minister of Finance and the landowner. The tribunal then made a proposal to the government, which determined the amount of compensation in a decree issued jointly by the Ministers of Agriculture and Finance.
That procedure was amended by Legislative Decree no. 38/95 of 14 February 1995. The amendments included a right for the authorities to initiate the procedure for assessing the final compensation ex officio. The arbitration tribunals were abolished, the task of assessing the final compensation becoming the sole responsibility of the Ministers of Agriculture and Finance, whose decision was based on a proposal by the relevant departments of the administrative authorities (the regional directorates of the Ministry of Agriculture). The landowner had the right to comment on the proposal made by the authorities before a final decision was taken by the Ministers of Agriculture and Finance.
Those two statutory provisions, Legislative Decrees nos. 199/88 and 38/95, were silent as to the remedies available to the landowner, although under administrative law it is possible to lodge an application with the administrative courts for judicial review of a ministerial act that gives cause for complaint.
37. The Constitutional Court examined the issue of the compatibility with the Portuguese Constitution of the system of payment of compensation following a nationalisation or expropriation in its decisions nos. 39/88 of 9 February 1988 and 452/95 of 6 July 1995. With regard to the authorities' delay in the payment of compensation, it held in the first of these decisions:
“... certainly all that [namely, the payment of the compensation] was done a considerable time after the nationalisations were carried out. It might be said that such delay constitutes a violation of the principle set out in Article 82 of the Constitution requiring the payment of compensation. However, that would be wrong. If, as a result of such a situation, there was a breach of the right to compensation on the ground that that right might become uncertain and therefore devoid of substance, the breach would not have been caused by any defect in the provisions under consideration but by the authorities' inaction or lack of diligence; and if it was the case that the authorities failed to act owing to the absence of statutory provisions capable of ensuring the effective application of the provisions in force and, consequently, the effective exercise of the right embodied in Article 82 of the Constitution, then any failure to abide by the Constitution would be by way of omission ... . This Court is not, however, called upon to examine that issue.”
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-96341
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VOLNYKH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1950 and lives in Kropotkin, a town in the Krasnodar Region of Russia.
5. The applicant is a retired serviceman. In 1992 when the applicant was still serving, his military unit signed a contract with a building enterprise of the Kropotkin Town Authority for the construction of an apartment house for servicemen, the applicant included. In 1993 the military unit was disbanded, and the applicant retired.
6. Not having received the flat, the applicant sued the enterprise. On 24 November 1997 the Kropotkin Town Court ordered the Town Authority to provide the applicant with a three-room flat in the 199-apartment house no. 19, 20, 21 that was being constructed in Microdistrict no. 1 of Kropotkin. This judgment became binding on an unspecified date in 1997.
7. In 1997 the authority informed bailiffs that the construction had been delayed by a difficult socio-economic situation in the country. In 1999 the authority informed the bailiffs that the construction would be finished during the first three months of 2000.
8. Frustrated with the delay, the applicant asked the court to change the mode of enforcement to a lump-sum payment of 250,000 Russian roubles. The court refused that change because the applicant had failed to prove the impossibility of a literal enforcement. The court noted that the judgment had not specified a time frame for the provision of the flat, and that the construction was in progress. The court also noted that a lump-sum payment would have prejudiced other public expenditure.
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-105918
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SOTIROV AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: The names of the applicants, two hundred and ninety-two Bulgarian nationals, are available for consultation in the Court’s file. They were represented before the Court by Mr I. Gruykin, a lawyer practising in Sofia.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are two hundred and ninety-two Christian Orthodox believers, including the person who used to be their parish priest. For many years until the impugned events they attended religious services at the St Anastassiy Temple in Varna.
In accordance with the Statute of the Bulgarian Orthodox Church (“the Church”), the “temple” is a legal person and part of the Church. It is governed by a church council, a body elected at a meeting of the parish and approved by the relevant eparchy.
Some of the applicants are members of the church council governing the St Anastassiy Temple.
Since 1991 and until the events at issue the parish priest at the St Anastassiy Temple was Mr L. Popov, one of the applicants. In accordance with the procedure set out in the Statute of the Church, priests are ordained after approval by the respective eparchy and by the Holy Synod and elections conducted by secret ballot at a meeting of the parish.
During the same period, by virtue of a decision of 9 November 1991 of the Varna and Veliki Preslav Metropolitan Cyril, Mr L. Popov was also chairman of the church council at the St Anastassiy Temple.
At the time of the impugned events, in 2003, the persons elected at a parish meeting held at the end of 2000 were the remaining members of the church council. The results of those elections were approved by the eparchy and registered at the Varna municipality in the beginning of 2001, in accordance with the Religious Denominations Act 1949, which provided for such registration.
For a number of years after the fall of communism and the beginning of the democratic changes in Bulgaria after, the Bulgarian Orthodox Church (“the Church”) was divided. Two groups of leaders claimed legitimacy and sought to unite the believers under their leadership. Over the years, successive governments supported one or other of the two leaderships. Also, each group had supporters among the clergy and the believers. A number of churches and monasteries became known as “belonging” to “the alternative Synod” presided over by metropolitan Inokentiy, since the ministers in those places recognised his leadership. After 1998, two different versions of the Statute of the Church existed. Contradictory acts registering one or the other central leadership were issued between 1992 and 2002 and some of them were later quashed by the courts (see for a detailed account of these events, the Court’s judgment in the case of Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, nos. 412/03 and 35677/04, 22 January 2009).
The applicants supported the “alternative Synod” presided over by Metropolitan Inokentiy and did not accept the leadership of Patriarch Maxim and the Synod presided over by him.
On 1 January 2003 the new Religious Denominations Act 2002 came into force. It provided, inter alia, for the ex lege recognition of the Bulgarian Orthodox Church. It also introduced a provision which stated that the Church “is headed by the Holy Synod and is represented by the Bulgarian Patriarch ...” The Act prohibited more than one denomination carrying the same name and stated, in its transitional provisions, that persons who had seceded from a registered religious institution were not entitled to use its name or assets.
On 23 March 2003 the church council governing the St Anastassiy Temple in Varna gathered and adopted a decision declaring that the temple recognised the leadership of the Holy Synod presided over by Metropolitan Inokentiy.
On 24 March 2003 Sofia Metropolitan Inokentiy, the leader of the “alternative Synod”, issued a decision which stated that Mr L.Popov was reappointed as parish priest and chairman of the church council at the St Anastassiy Temple in Varna.
On 20 May 2003 several priests and other ministers led by Archimandrite Serafim, the Protosyngel of the Varna and Veliki Preslav Eparchy, entered the area around the St Anastassiy Temple and occupied it, refusing to let in members of the church council and the parish priest. They claimed that they were the true representatives of the Church whose true head was Patriarch Maxim.
Mr L. Popov and some of the other applicants informed the police and the prosecuting authorities and requested urgent action.
The district prosecutor initially issued a decision ordering the restoration of the situation but on the next day, 21 May 2003, having received a letter from the Varna and Veliki Preslav Metropolitan Cyril, annulled his decision on the basis that urgent action was not called for. The decision of 21 May 2003 was upheld on 28 May and 9 June 2003 by the regional and appeals levels of the prosecuting service on the basis that prosecutors should not intervene in an internal Church dispute and having regard to the special procedure under Article 126zh of the Code of Civil Procedure (see below).
On 28 May 2003 Mr Popov, acting as chairman of the church council governing the St Anastassiy Temple, submitted an application to the Varna District Court for an order under Article 126zh of the Code of Civil Procedure to recover possession of the temple. Under that provision the claimant had to prove that he enjoyed the possession of a real property and that the defendant had deprived him thereof secretly or through violence.
On 18 June 2003 the District Court delivered its decision dismissing the application. It reasoned as follows.
As to the admissibility of the application, it noted that under Article 165(12) of the Statute of the Church, a church council could initiate judicial proceedings only with the authorisation of the eparchy or, in cases of eparchies comprising one sole parish and a sole priest, of the Holy Synod. In the case under examination the claimant had submitted a document demonstrating that the Holy Synod presided over by Metropolitan Inokentiy had approved the church council’s decision to bring the proceedings at issue. Given the existence of two religious communities bearing the name Bulgarian Orthodox Church, as noted by the Supreme Administrative Court in its judgment of 18 October 2000 (as to that judgment, see Holy Synod and Others v. Bulgaria, cited above, § 32), it was unclear which leadership was competent to give the requisite authorisation. This lack of clarity should not, however, hamper the possibility for each of the two communities to seek judicial protection. Therefore, the authorisation presented by the claimants was sufficient and the application was admissible.
The District Court accepted that the application was made on behalf of the local temple, which was a legal person under the Statute of the Church, and that it had been made in the name of a local unit of the Church governed by the “alternative” Synod.
It noted, however, that Mr L. Popov had been appointed parish priest and chairman of the local church council by decision approved by the Varna and Veliki Preslav Metropolitan Cyril, who had also approved other decisions of the same church council. The Holy Synod presided over by Patriarch Maxim had certified that Metropolitan Cyril was the head of the Varna and Veliki Preslav Eparchy. In these circumstances, contrary to what was claimed in the application, the claimant had not possessed the disputed property on behalf of the religious organisation presided over by Metropolitan Inokentiy but for the organisation presided over by Patriarch Maxim. Seeing that those who had entered and occupied the property belonged to the same organisation, it followed that there had been no deprivation of possessions.
Upon the appeal submitted by Mr Popov on behalf of the local temple, on 20 June 2003 the Varna Regional Court annulled the District Court’s decision and terminated the proceedings. The court noted that the claimant and the defendants belonged to the religious organisation of the Christian Orthodox community in Bulgaria. However, the State was not entitled to intervene in intra-religious matters and the courts were not competent to decide whether or not there had been a deprivation of possessions as in the particular circumstances the events concerned the manner in which the Church governed its property. The courts could only deal with matters touching upon an internal conflict in a religious organisation if there was an issue of liability other than liability under canon law.
The court further stated that even if it were accepted that the courts were competent to examine the application, it was in any event inadmissible. In particular, it was unclear whether it was made on behalf of the local temple as a legal person or on behalf of the church council which did not have legal personality separate from the temple and could not claim to have possessed the temple in its own name. That should have been clarified by the District Court.
Furthermore, there was no valid authorisation to institute proceedings, as required by Article 165(12) of the Statute of the Church. Such authorisation could be issued by the Holy Synod solely in respect of eparchies comprising one sole parish, which was not the case in the Varna and Veliki Preslav Eparchy. The authorisation in the particular case thus had to be issued by the bodies governing the eparchy. It had not been shown that such authorisation had been given.
The decision of the Varna Regional Court was final and was not amenable to further appeal.
In accordance with Article 13 of the Constitution of 1991, religious institutions are separate from the State. In its judgment no. 5 of 11 June 1992 the Constitutional Court stated, inter alia, that the State must not interfere with the internal organisation of religious communities and institutions, which must be regulated by their own statutes and rules.
The Religious Denominations Act 1949 governed the organisational structure and functioning of religious denominations between 1949 and 1 January 2003. It provided that each religious denomination had to apply for registration and approval of its statute by the Council of Ministers and to register its leadership with the Directorate. The local leaderships were registered by the municipal authorities.
In its judgment no. 5 of 11 June 1992 the Constitutional Court, while agreeing that certain provisions of the Religious Denominations Act 1949 were clearly unconstitutional, found that it was not its task to repeal legal provisions adopted prior to the entry into force of the 1991 Constitution, the ordinary courts being competent to consider them superseded by the 1991 Constitution, which has direct applicability.
The Religious Denominations Act 2002, which entered into force on 1 January 2003, provides for judicial registration of all religious denominations except the Bulgarian Orthodox Church, which is recognised as a legal person ex lege. In accordance with paragraph 2 of the transitional provisions, the Bulgarian Orthodox Church need not be re-registered under the new Act, unlike all other religious denominations.
Section 10 of the new Act provides, inter alia, that the Bulgarian Orthodox Church is a legal person whose structure is determined by its internal statute.
Section 18 provides that information about religious denominations, including the names of the persons representing them for all legal purposes, is recorded (вписване) in a public register at the Sofia City Court. The Supreme Court of Cassation has stated that this requirement applies to the Bulgarian Orthodox Church (judgment no. 120 of 11 March 2005 in case no. 496/2004; see also the same interpretation in other judgments: the Veliko Tarnovo Court of Appeal, judgment of 20 October 2003 in case no. 258/2003, and the Sliven Regional Court, judgment no. 245 of 30 June 2004 in case no. 94/2004).
Section 19 provides that local religious leaderships must register with the relevant municipality.
Section 20 provides that the central leadership may decide to seek the registration of its local organisations as legal persons by applying to the relevant regional court.
In accordance with the transitory and final provisions to the Religious Denominations Act 2002 (paragraph 2(4)), local organisations which have obtained legal personality under the previous legal regime shall be registered ex officio at the respective regional court on request by the denomination’s national leadership.
In civil or administrative proceedings involving local units of religious denominations (опред. № 8362 от 14.09.2007г. на ВАС по адм.д. № 7914/2007; oпред. № 1574 от 05.02.2009 г. на ВАС по адм. д. № 930/ 2009; реш. от 11.11.2009г. по гр. д. № 17/2009 г. на Районен съд Сливен; oпред. № 15 от 28.01.2010 г. по гр.д. № 474/2009г. на ВKC; реш. oт 18.11.2010г. по гр.д. № 314/2010 на Окръжен съд Разград), the courts have accepted such units’ locus standi without proof of registration at the relevant regional court, reasoning that the Religious Denominations Act 2002 recognised the continuity of legal status acquired under previous legislation (see also, реш. № 3429 от 19.04.2004г. на ВАС по адм.д. № 10111/2003 and oпред. № 1154 от 11.02.2003 г. на ВАС по адм. д. № 6748/2002 г., where the same interpretation of the relevant law was implicit).
In the initial period after the entry into force of the 2002 Act there was contradictory judicial practice on the question whether registration under section 20 of the 2002 Act was needed in respect of local organisations of the Bulgarian Orthodox Church. In its interpretative decision No. 1 of 23 November 2010, the Supreme Court of Cassation decided that local organisations of the Church were not subject to the registration requirement, having regard to the special status of the Bulgarian Orthodox Church as a legal person ex lege.
An account of additional relevant domestic law and practice has been set out in the Court’s judgment in the above-cited case of Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria.


ITEMID: 001-58047
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF PAUGER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;Not necessary to examine Art. 27-1-b
TEXT: 6. Mr Dietmar Pauger, an Austrian national who was born in 1941, is Professor of Public Law and Political Sciences at the University of Graz (Styria) and lives in Graz. His wife, who was a schoolteacher with the status of a civil servant in the region (Land) of Styria, died on 23 June 1984.
7. On 24 August 1984 Mr Pauger applied to the Regional Education Council (Landesschulrat) for a survivor’s pension.
8. On 30 August 1984 it dismissed his application on the ground that whereas under section 14 (1) of the Pensions Act 1965 (Pensionsgesetz 1965 - see paragraph 30 below) a widow of a civil servant could in certain circumstances claim a pension, a widower could not.
9. Mr Pauger appealed to the Styria Regional Government (Steiermärkische Landesregierung), which upheld the decision on 21 September 1984.
10. On 15 October 1984 Mr Pauger applied to the Constitutional Court (Verfassungsgerichtshof) and on 22 October to the Administrative Court (Verwaltungsgerichtshof).
11. In a separate development on 4 October 1984, after holding a public hearing, the Constitutional Court had repealed section 14 (1) of the Pensions Act 1965 with effect from 28 February 1985 on the ground that the difference in treatment between widowers and widows in respect of pension payments was in violation of the principle of equal treatment (Gleichheitsgebot).
12. On 13 February 1985 the Administrative Court dismissed the applicant’s appeal. It considered that, irrespective of the repeal of the statutory provision in question, his claim for a widower’s pension had no legal basis.
13. On 23 February 1985, after deliberating in private, the Constitutional Court declined to accept the appeal for adjudication (Article144 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz) - see paragraph 32 below) on the ground that it did not have sufficient prospects of success. It considered that it had already repealed section 14 (1) of the Pensions Act and that it could not rule on the same question again.
14. On 26 September 1985 Parliament enacted the eighth amendment to the Pensions Act 1965 (Achte Pensionsgesetznovelle - see paragraph 31 below) with retrospective effect from 1 March 1985.
15. On 13 May 1985 Mr Pauger reapplied to the Regional Education Council for a survivor’s pension.
16. On 18 November 1985 the Council awarded him a pension of 2,441.70 Austrian schillings (ATS) with effect from 1 March 1985, which represented one-third of his pension rights, in accordance with the transitional provisions under Part II, paragraph 2, of the Pensions Act as amended (see paragraph 31 below).
17. On 28 November 1985 the applicant appealed against that decision to the Styria Regional Government. He argued that the Regional Council had not ruled on whether or not his pension should be suspended, a matter that affected him inasmuch as he was employed as a university professor (section 40 (a) (1) of the Pensions Act as amended - see paragraph 31 below). He also said that both the transitional provisions under Part II, paragraph 2, of the Pensions Act as amended and section 40 (a) (1) of this Act were in violation of the principle of equality before the law and were unconstitutional.
18. On 7 January 1986 the Regional Government confirmed the amount of the pension due to the applicant. It decided, however, to suspend payment on the ground that he was gainfully employed.
19. On 22 February 1986 Mr Pauger applied to the Constitutional Court complaining that the transitional provisions of the Pensions Act, as amended, under which he was entitled only to a reduced pension until 1 January 1995, and section 40 (a) (1) of the Act, pursuant to which his pension rights had been suspended, were unconstitutional.
20. On 1 July 1987 the Constitutional Court decided to review the constitutionality of section 40 (a) of the Pensions Act (Article 140 para. 1 of the Federal Constitution - see paragraph 32 below). It did not rule on whether the transitional provisions of the Act were constitutional.
21. On 9 December 1987 the Constitutional Court held a hearing at which it heard argument by the representative of the Government and the applicant.
22. On 16 March 1988 the Constitutional Court repealed section 40 (a) of the Pensions Act with effect from 30 June 1988 on the ground that it was in violation of the principle of equal treatment. It said that no convincing reason had been given for the difference in treatment between, on the one hand, a retired civil servant or his surviving spouse with additional income and, on the other hand, a civil servant still in employment who likewise had additional income.
23. On 17 March 1988 the Constitutional Court quashed the Regional Government’s decision of 7 January 1986 (see paragraph 18 above).
24. On 21 June 1988 the Regional Government made a further ruling and upheld the Regional Council’s decision of 18 November 1985 (see paragraph 16 above) awarding the applicant a pension of ATS 2,441.70 with effect from 1 March 1985 and payable immediately.
25. On 11 August 1988 the applicant again applied to the Constitutional Court claiming that the transitional provisions of the Pensions Act under which he was only entitled to a reduced pension until 1 January 1995 were unconstitutional (section 40 (a) (1) of the Pensions Act - see paragraph 31 below). He did not ask for a hearing to be held.
26. On 3 October 1989, after deliberating in private, the Constitutional Court dismissed Mr Pauger’s appeal (section 19 (4) of the Constitutional Court Act (Verfassungsgerichtshofsgesetz) - see paragraph 33 below). It said that the transitional provisions in question reflected the continuing change in attitudes towards the equality of the sexes and was not therefore in violation of the principle of equal treatment.
27. On 5 June 1990 Mr Pauger applied to the Human Rights Committee of the United Nations relying on the same facts as he had in his application to the Commission. He alleged that there had been a violation of Article 26 of the International Covenant on Civil and Political Rights, which provides:
"All persons shall be equal before the law and shall be entitled without any discrimination to the equal protection of the law."
28. On 30 March 1993 the Human Rights Committee found that there had been a violation of the Article.
29. The relevant provisions of the Pensions Act 1965 read as follows:
"A civil servant shall acquire the right to a pension for himself and the members of his family from the day he assumes his duties ..."
"A retired civil servant shall be entitled to a monthly pension if he has completed at least ten reckonable years of service."
"Pensions shall be calculated with reference to the basic monthly salary and the total number of reckonable years of service."
30. In its 1965 version section 14 (1) of the Pensions Act provided as follows:
"The widow of a civil servant shall be entitled to a monthly pension if the civil servant himself was entitled to a retirement pension at the time of his death or if he would have been entitled to one when he retired."
31. Since 1 March 1985, when the eighth amendment to the Pensions Act 1965 came into force, the relevant provisions of this Act have been as follows:
"The surviving spouse of a civil servant shall be entitled to a monthly survivor’s pension if the civil servant himself or herself was entitled to a retirement pension at the time of his or her death or if he or she would have been entitled to one when he or she retired."
[provision already amended in 1984] "A survivor’s pension shall amount to 60% of the retirement pension calculated on the basis of the total number of reckonable years of service and of the spouse’s grade at the time he or she retired ..."
"If a civil servant or a surviving spouse has income deriving from current employment, the retirement pension or survivor’s pension shall be suspended ..."
"The monthly payments to which the widower or former spouse shall be entitled are: - from 1 March 1985, one-third of the pension; - from 1 January 1989, two-thirds of the pension; - from 1 January 1995, the full pension. This restriction shall not apply if the widower or former spouse is incapable of gainful employment or indigent."
32. The relevant provisions of the Federal Constitution read as follows:
"Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law."
"1. ... The Constitutional Court shall also rule on the constitutionality of Acts when an individual has applied to it claiming that his or her rights have been breached by such Acts on account of their unconstitutional character ...
...
7. If an Act has been abrogated on the basis that it is unconstitutional or if the Constitutional Court has held under paragraph 4 that an Act was unconstitutional, its decision shall be binding on all courts and administrative authorities.
Except in relation to the case before the Court, abrogation of an Act shall not have retrospective effect, unless specifically so provided in the judgment. If in its abrogation decision the Court has set a time-limit under paragraph 5 [for a maximum of one year], the Act shall remain applicable to facts occurring until the expiry of the time-limit, except for facts relating to the case before the Court."
"1. The Constitutional Court shall hear appeals against the decisions of administrative authorities, including those of independent administrative tribunals, where the applicant claims that the decision has infringed a right secured by the Constitution or that his rights have been violated by the enforcement of a regulation contrary to the law, an Act contrary to the Constitution or an international treaty incompatible with Austrian law. An appeal shall only lie once all other remedies have been exhausted.
2. Up to the time of the hearing the Constitutional Court may by means of a decision decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
33. The relevant provisions of the Constitutional Court Act read as follows:
"1. The judgments of the Constitutional Court, except for those referred to in sections 10 and 36 (c), shall be delivered following a public hearing to which the plaintiff, the opposing party and all other parties to the proceedings shall be summoned.
2. ...
3. The Constitutional Court may decide at a private sitting, without further proceedings or a hearing, upon a proposal by the reporting judge:
1. to decline to accept a case for adjudication under Article 144 para. 2 of the Federal Constitution;
2. to dismiss an application for:
(a) manifest lack of jurisdiction of the Constitutional Court,
(b) failure to comply with a statutory time-limit,
(c) failure to rectify a procedural defect,
(d) raising a point which is a matter of settled precedent,
(e) lack of standing;
3. to strike the case out of its list where the application has been withdrawn or the case has been settled. (paragraph 86)
4. [paragraph amended by the Act of 26 June 1984] The Constitutional Court may decide not to hold a hearing when it is apparent from the written pleadings submitted to it by the parties and from the files relating to the earlier proceedings that a hearing is not likely to assist the Court in its understanding of the case. Upon a proposal by the reporting judge it may also decide, without a hearing, at a private sitting:
1. to dismiss an appeal if there has clearly been no violation of a right secured by the Constitution;
2. cases where the question of law has been sufficiently clarified by the previous case-law of the Constitutional Court;
3. to allow an appeal that has led to the setting aside of a regulation contrary to the law, an Act contrary to the Constitution or an international treaty incompatible with Austrian law.
5. ..."
"Appeals shall only lie under Article 144 para. 1 of the Constitution once administrative remedies have been exhausted and within six weeks of the decision taken at last instance being served on the plaintiff."
"The appeal and the documents appended thereto shall be communicated to the authority that took the decision in issue, giving it a period of not less than three weeks within which to submit its observations."
"1. When the observations in reply have been received or the time-limit has expired ... the President of the Constitutional Court shall set the date of the hearing.
2. The hearing shall be held in the presence of the applicant, the authority in question (section 83 (1)) and any other party to the proceedings."
34. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains a reservation which provides as follows:
"The provisions of Article 6 of the Convention (art. 6) shall be so applied that there shall be no prejudice to the principles governing public court hearings laid down in Article 90 of the 1929 version of the Federal Constitutional Law."
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93143
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MODRIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mrs Mara Modrić, is a Croatian national who was born in 1962 and lives in Split. She was represented before the Court by Mrs I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 June 2003, at around 1 p.m., the applicant went to dispose of rubbish in bins placed in an open parking area in front of the apartment building where she lived in Split when suddenly her neighbour, a certain B.L., approached her, slapped her in the face and allegedly began to strangle her while threatening to kill her.
The applicant managed to escape and ran home. Once inside her flat, she telephoned the police and reported the incident. About half an hour later two police officers arrived at the applicant’s flat and interviewed her. It appears that they also interviewed B.L. The police officers instructed the applicant to see a doctor, which she did the same day.
The police lodged a complaint against B.L. with the Split Minor Offences Court (Prekršajni sud u Splitu) and proceedings were instituted against B.L. before that court. The applicant was not informed of these proceedings, nor called as a witness. On 29 October 2003 the said court issued a minor offences order against B.L., under section 162 of the Minor Offences Act. It found that B.L. had committed a breach of the peace by attacking the applicant verbally and physically on 10 June 2003, an offence under section 14 of the Public Order (Minor Offences) Act, and sentenced him to pay a fine in the amount of 378 Croatian kunas (HRK) and the costs of the proceedings in the amount of HRK 120. The relevant part of this order reads:
“Defendant B.L ...
is guilty
because on 10 June 2003 at 11,45 a.m. in Split, ... in the parking area in front of a building, he committed a breach of the peace by verbally and then physically attacking Mara Modrić and pushing her and hitting her in the face and neck, after which he went away,
He committed a breach of the peace by shouting, uttering insults and fighting
and thus committed a minor offence under section 13 of the Public Order (Minor Offences) Act ... “
The applicant was not informed of this decision.
On 23 October 2003 the applicant lodged a criminal complaint against B.L. with the Split State Attorney’s Office (Općinsko državno odvjetništvo u Splitu) alleging that on 10 June 2003 B.L. had approached her in a car park in front of the apartment building where she lived, had slapped her and begun to strangle her while threatening to kill her. The applicant enclosed the police report and medical documentation of 10 June 2003 showing that she had visible finger marks on her throat and pain in that area, especially if touched or when swallowing.
In a letter of 9 February 2004 the Split State Attorney’s Office informed the applicant that it had decided not to open an official investigation. It informed her that she nevertheless had the right to seek a decision in writing declaring her criminal complaint inadmissible. The applicant sought a decision in writing. Her request was complied with and the applicant’s criminal complaint was declared inadmissible on the grounds that she had failed to comply with the three-month time limit under Article 47 § 1 of the Code of Criminal Procedure since she had lodged her criminal complaint on 23 October 2003 although she had learnt about the incident in question more than three months earlier, namely, on 10 June 2003.
The applicant then lodged a request for an investigation with a Split County Court investigating judge. She qualified the acts of violence at issue as criminal offences under Articles 98 (inflicting bodily injury), 129 (making threats), 199(1) (verbal insult), 329(1) (vigilantism) and 331 (violent behaviour) of the Criminal Code. On 14 December 2004 a three-judge panel of the Split County Court dismissed the request. The relevant part of that decision reads as follows:
“After the Split State Attorney’s Office had declared the applicant’s criminal complaint against B.L. inadmissible in respect of the criminal offence under Article 331(1) of the Criminal Code, the injured party, Mara Modrić, acting as subsidiary prosecutor, took the place of the prosecutor by lodging a request for an investigation ...
The investigating judge did not consent to the [applicant’s] request. As regards the criminal offence of violent behaviour, he stated that B.L.’s actions did not constitute the elements of that criminal offence. The prosecution in respect of all the other charges had become time-barred since the injured party had filed her criminal complaint outside the statutory time-limit.
The request of the injured party, acting as subsidiary prosecutor, is unfounded.
The investigating judge is right in his statement that B.L’s actions did not satisfy the elements of the criminal offence of violent behaviour. The information in the case file shows that B.L. attacked the applicant because he was irritated with her attitude towards his child. Since the crucial element of the offence of violent behaviour is an unmotivated attack, and [the attack of B.L. against the applicant] was obviously motivated, there was no ground for granting the injured party’s request in respect of the criminal offence of violent behaviour.
The other charges against B.L., which are to be the subject of a private prosecution, have become time-barred in view of the fact that the offence was committed on 10 June 2003 and the injured party lodged her criminal complaint on 23 October 2003, that is to say, after the expiry of the three-month time-limit from the day on which she learnt of the offence and of the identity of the perpetrator.
The time-limit for making an application for prosecution under Article 47(1) of the Code of Criminal Procedure is three months from the date on which the applicant learnt of the criminal offence and the identity of the perpetrator. The injured party failed to comply with that time-limit, however. Therefore, her request for an investigation against B.L for the criminal offences under Articles 98, 199(1), 329(1) and 129(1) of the Criminal Code is unfounded.
...”
An appeal by the applicant on 24 December 2004 was declared inadmissible by the Split County Court investigating judge on 18 January 2005 as not provided for under domestic law.
An appeal by the applicant against the latter decision was dismissed by a three-judge panel of the Split County Court on 3 February 2005.
On 17 March 2005 the applicant lodged a further appeal, which was declared inadmissible in a decision of the Split County Court investigating judge as not provided for under domestic law. An appeal by the applicant against that decision was dismissed by a three-judge panel of the Split County Court on 26 April 2005.
The applicant then lodged a constitutional complaint against the decision of the Split County Court of 26 April 2005. On 24 November 2005 the Constitutional Court (Ustavni sud Republike Hrvatske) declared it inadmissible, relying on section 62 of the Constitutional Court Act, on the ground that it did not concern the merits of the case but was lodged against a procedural decision of the Split County Court of 26 April 2005 and concerned the applicant’s appeals which were inadmissible under domestic law.
The relevant part of section 62 of the Constitutional Court Act (Official Gazette no. 49/2002, of 3 May 2002, Ustavni zakon o Ustavnom sudu Republike Hrvatske) reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...
The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows:
“(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens.
(2) The law may exceptionally make provision for criminal proceedings in respect of certain criminal offences to be instituted upon a private prosecution or for the State Attorney’s Office to institute criminal proceedings upon [a private] application.”
“Whosoever inflicts bodily injury on another person or impairs another person’s health shall be fined or sentenced to imprisonment for a term not exceeding one year.”
“Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of a private prosecution.”
“(1) Whosoever threatens another person with harm in order to intimidate or frighten that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months.
(2) Whosoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year.
...
(4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.”
“Whosoever places another person in a degrading position for such purposes as violent abuse, ill-treatment or particularly insolent behaviour in public shall be sentenced to imprisonment for a term of three months to three years.”
The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows:
“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...
(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of the criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall bring a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.
(4) Where the State Attorney finds that there are no grounds on which to institute or conduct criminal proceedings, the injured party, acting as subsidiary prosecutor, may take his place under the conditions prescribed by this Act.”
Articles 47 to 61 regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party, as acting subsidiary prosecutor (oštećeni kao tužitelj), takes over criminal proceedings in respect of criminal offences normally prosecuted by the State where the relevant prosecuting authorities have decided – for whatever reason – not to prosecute.
“(1) ... an application for prosecution or a request to prosecute shall be brought within three months from the date on which [the person concerned] learnt of the criminal offence and the identity of the perpetrator.
...”
“(1) A request to prosecute shall be lodged with the competent State Attorney’s Office and a private prosecution with the competent court.
(2) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also thereby lodged a request to prosecute.
(3) Where the injured party has lodged a criminal complaint or a request to prosecute but the [competent authorities] establish that the criminal offence in question should be prosecuted by means of a private prosecution, the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time-limit prescribed for [bringing] a private prosecution...”
Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of that party’s right to take over the proceedings, and to inform that party of the steps to be taken.
“(1) Citizens shall report criminal offences subject to public prosecution.
...”
“(1) A [criminal] complaint shall be lodged with the competent State Attorney’s [Office] in writing or orally.
...”
“Where the allegations set out in the criminal complaint do not concern a criminal offence subject to public prosecution, the competent State Attorney shall declare it inadmissible in a reasoned decision ...”
Article 205, paragraph 1, allows a private prosecutor and the injured party, acting as subsidiary prosecutor, to lodge a request for prosecution and other submissions with an investigating judge of a competent court.
“(1) Subject to any contrary provision in this Code, parties to the proceedings and any other person whose rights have been infringed may lodge an appeal against decisions of an investigating judge and other decisions adopted by the first-instance court.
(2) Subject to any contrary provision in this Code, an appeal is not allowed against a decision of a panel adopted before or during the investigation.
...
(4) An appeal is never allowed against decisions of the Supreme Court.”


ITEMID: 001-92302
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: RADIONOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicants, Mrs Tatyana Ivanovna Radionova and Ms Mariya Sergeyevna Radionova, are Russian nationals, mother and daughter, who were born in 1958 and 1987 respectively. They live in Krasnoyarsk. They were represented before the Court by Mr A. Mezentsev. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1997 the second applicant joined the ballet dance department of a state-run choreography school in Krasnoyarsk.
According to the applicants, on 5 March 1999 her classical dance teacher, Ms M., allegedly hit her on her forehead, temple and chest for performing an exercise incorrectly. The next day she was taken to town hospital no. 20 and diagnosed with concussion. She received in-patient treatment.
The hospital reported the incident to the police. The Krasnoyarsk Tsentralniy district police department conducted an inquiry. In particular, it questioned the second applicant, the teacher and the second applicant's parents. M. stated that she had regularly corrected the second applicant's posture during her lessons but had never hit her. The police department considered that the acts of M. were to be classified as battery, which was punishable under Article 116 of the Criminal Code and pertained to cases of private prosecution which, under Article 27 of the Code of Criminal Procedure, had to be instigated by court on a victim's request. Therefore, on 17 March 1999 the police refused to instigate criminal proceedings.
According to the applicants, on 23 October 1999 the same teacher M. allegedly pushed the second applicant onto her back and insulted her in her classmates' presence.
On 29 October 1999 the second applicant saw a psychiatrist, who diagnosed her with neurotic depression syndrome and an anxiety neurosis with suicidal intentions, which had originated in a psychologically traumatic situation. She received appropriate treatment.
On 29 October 1999 the first applicant lodged a complaint with the school administration in respect of the events of 5 March and 23 October 1999 requesting that an end be put to her daughter's exposure to violence and moral pressure by the teacher.
On 30 October 1999 the first applicant complained about the incident of 23 October 1999 to the Krasnoyarsk Zheleznodorozhniy district police department.
On 1 November 1999 the school administration informed the first applicant that the teacher would continue the class but would avoid physical contact with the second applicant.
On 2 November 1999 the Zheleznodorozhniy district police department decided not to pursue the matter.
On 17 November 1999 the first applicant complained about M.'s behaviour to the Committee of Art and Culture of the town authority.
On 25 November 1999 the Krasnoyarsk Tsentralniy district prosecutor's office examined the first applicant's appeal and ordered the police to initiate criminal proceedings.
In November 1999 the second applicant left the choreography school.
On 8 December 1999 the Committee of Art and Culture informed the first applicant that they had not detected any wrongdoing by the teacher or the school administration in respect of her daughter.
In the course of the criminal proceedings instituted by the police investigators questioned witnesses, including Ms G. and the second applicant's other classmates, and ordered a number of forensic medical examinations.
According to medical experts' report no. 465 of 27 January 2000, on 5 March 1999 the second applicant had suffered concussion which could have been caused by a hard blunt object. The resultant damage to her health was classified as mild, because the injury had been followed by a short-term health disorder which had not exceeded 21 days.
According to experts' report no. 129 of 11 February 2000, drawn up following a thorough psychological and psychiatric examination of the second applicant by three psychiatrists and one psychologist, the second applicant had not and did not suffer from a chronic mental disorder. In October and November 1999 she had suffered from an anxiety neurosis which had originated in a stressful situation, from which she had fully recovered.
According to medical experts' report no. 2079 of 24 May 2000, no injuries or mental disorder as a result of the incident of 23 October 1999 had been established.
On 12 July 2001 an investigator of the Tsentralniy district police department ordered a comprehensive medical examination with a view to establishing the second applicant's injuries or mental disorders, their cause and gravity, and if there was a causal link with the incident of 5 March 1999. According to the investigator's records, on 8 August 2001 the first applicant refused to allow her daughter to undergo the examination.
The proceedings were terminated by the police several times on the ground that there was no evidence of M.'s guilt. Those decisions were quashed on the first applicant's appeals by the Krasnoyarsk Tsentralniy district prosecutor's office and by the Krasnoyarsk Tsentralniy district court on the ground that the investigation was incomplete.
On 1 November 2001 the district prosecutor wrote to the police department pointing out the defects of the investigation in the case and the investigator's negligence. The prosecutor indicated that the police administration should take measures to eliminate the breaches of law and take disciplinary action against the investigator in charge.
According to the applicants, as a result of the concussion the second applicant suffered from asthenoneurotic syndrome, which caused frequent headaches and nausea. In connection with that, she underwent in-patient treatment on several occasions in 2000 and 2001. She was kept under observation by a neuropathologist.
According to the investigator's records, on 9 January 2002 the first applicant again refused to allow her daughter to undergo the medical examination.
On 15 January 2002 the police terminated the proceedings in view of the absence of evidence that M. had committed the crime, the lack of a causal link between the damage to the second applicant's health and the events of 5 March and 23 October 1999 and the first applicant's refusal to allow the second applicant to undergo the medical examinations.
On 5 March 2002 the District Court dismissed a complaint by the first applicant against this decision. The court found that the first applicant had failed to submit the second applicant's medical records necessary for obtaining the additional expert's opinion ordered by the police.
An appeal by the first applicant was disallowed on 25 April 2002 by the Krasnoyarsk Regional Court. The appeal court ruled that under Article 78 of the Criminal Code the time-limit for the prosecution of minor offences provided by Articles 115, 116 and 156 of the Criminal Code involving minor damage to the health was two years, and that this term had expired in this case.
On an unspecified date the first applicant brought an action against the Tsentralniy district police department for non-pecuniary damage allegedly caused by the inefficient investigation. On 14 May 2002 the Tsentralniy District Court of Krasnoyarsk did not find that the conduct of the police in the course of the investigation had been unlawful. It stated that the damage to the second applicant's health (the craniocerebral injury and the depressive neurosis) had been caused at the choreography school and not by the investigating authority. The court dismissed the claim as unsubstantiated. On an appeal by the first applicant, the Krasnoyarsk Regional Court upheld the judgment on 12 August 2002.
In another set of proceedings brought by the applicants, on 26 December 2003 the Krasnoyarsk Zheleznodorozhniy District Court awarded the applicants 8,000 Russian roubles (RUB) by way of compensation for nonpecuniary damage to be paid by the choreography school. It found no causal link between the second applicant's concussion diagnosed on 6 March 1999 and her subsequent illnesses and the alleged attacks by M. on 5 March and 23 October 1999. It found that the concussion had been selfinflicted by the second applicant's striking herself accidentally on the left temple with a purse with metal coins, as was confirmed by seven witnesses. The court stated that the damage had been caused on the school premises and during the lessons as a result of the insufficient supervision by the teaching staff and that the school should therefore be held responsible. The judgment was executed in May 2004.
On 3 March 2005 the Krasnoyarsk regional prosecutor's office quashed, on the direction by the Prosecutor General's office, the decision to terminate the criminal proceedings of 15 January 2002 on the ground that the investigation was incomplete. It was noted that the comprehensive medical examination ordered by the investigating authority had never been carried out and that an additional interview be held with the second applicant's former classmate Ms G., who had initially confirmed that M. had hit the second applicant but had later retracted her statements.
The proceedings recommenced. The applicants appealed against the prosecutor's decision of 3 March 2005 arguing that the prosecutor's office should have acknowledged the violation of the second applicant's rights by the flawed investigation instead of reopening the proceedings against the law. On 12 April 2005 the Tsentralniy District Court examined the appeal. It noted the defects of the “endless investigation, of which the applicants had undoubtedly got tired”, the fact that the last decision to discontinue the proceedings had only been quashed after the Representative of the Russian Federation at the European Court of Human Rights had intervened, and at the same time stressed the need to conduct an objective investigation in order to deliver a lawful and well-founded decision in the case in the interests of the applicants and M. It upheld the prosecutor's decision. The applicants appealed to the Krasnoyarsk Regional Court.
The proceedings appear to be pending.
On 7 July 2000 the first applicant was allegedly assaulted by third persons. As a result of the incident she had a bruise on her left eye. She called the police, who kept her waiting for two hours before registering her complaint. On 16 July 2000 the police refused to institute criminal proceedings. The applicant brought proceedings against the police claiming damages on account of their failure to respond properly to her complaint. By a final decision of the Krasnoyarsk Regional Court of 23 December 2002 she was awarded 500 Russian roubles in compensation.