ITEMID: 001-110263
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF HAKOBYAN AND OTHERS v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate facilities;Adequate time;Article 6 - Right to a fair trial);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - National law;Minor offences;Review of conviction;Criminal offence);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 5. The applicants were born in 1967, 1969 and 1956 respectively, and live in the town of Armavir, the village of Nairi and the village of Nalbandyan respectively, Armavir Region of Armenia.
6. The applicants were members of the main opposition parties at the material time in Armenia. The first applicant was the Chairman of the Armavir Town Office of the National Unity Party. The second applicant was a member of the Republic Party. The third applicant was a member of the Armavir Regional Branch of the National Unity Party.
7. In February and March 2003 a presidential election was held in Armenia which was won by the incumbent President. The international election observation mission concluded that the overall election process fell short of international standards. It appears that mass protests followed. The main opposition candidate challenged the election results in the Constitutional Court, which on 16 April 2003 recommended that a referendum of confidence in the re-elected President be held in Armenia within a year.
8. As the April 2004 one-year deadline approached, the united opposition stepped up its campaign to challenge the legitimacy of the reelected President. A series of protest rallies were organised in Yerevan in March and April 2004, calling for the referendum of confidence. According to the applicants, several demonstrations were scheduled for 5, 9 and 12 April 2004 which they intended to attend.
9. The first applicant alleged that on 30 March 2004 at around 8 a.m. he was visited at his home by a plain clothes police officer who informed him that the Chief of the Armavir Town Police Department wished to speak with him. He complied with the order and was taken to the police station. According to the first applicant, he did not question the police officer’s demands since three weeks earlier he had already been invited by the Chief of the Police Department who wanted to become familiar with the leaders of the opposition parties.
10. According to the first applicant’s arrest record and other police materials, the first applicant was taken to the police station by several police officers on 30 March 2004 at around 2 p.m. The arrest record stated that the first applicant had been brought to the police station for inspection purposes in order to confiscate illegal ammunition in his possession.
11. At the police station an administrative case was initiated against the first applicant under Article 182 of the Code of Administrative Offences (“the CAO”) for disobeying the lawful orders of police officers.
12. One of the arresting police officers reported to the Chief of the Police Department that:
“... on 30 March 2004 ... [the first applicant] who, according to information obtained, kept at his house illegal ammunition, was brought to [the police station]. While being brought to [the police station, the first applicant] disobeyed our lawful order, flatly refused to come to the station and used foul language addressed both at us and the regime. The row lasted about five minutes, after which [the first applicant] was brought to [the police station]. [The first applicant] was brought to [the police station] for preventive purposes and for surrendering the ammunition in his possession.”
13. The first applicant was subjected to a personal search but nothing of an illegal nature was found in his possession. He alleged that a written statement was then presented to him, in which it was stated that he had refused to obey the orders of the police officers when asked to accompany them to the police station, had become annoyed at them, had used offensive language and had prevented their work for about three to five minutes. He refused to sign that statement.
14. Shortly thereafter the first applicant was brought before Judge A. of the Armavir Regional Court who, after a brief hearing, sentenced him under Article 182 of the CAO to seven days of administrative detention. The judge’s entire finding amounted to the following:
“On 30 March 2004 at around 2 p.m. [the first applicant] disobeyed the lawful orders of the police officers when asked to go with them to the Armavir Town Police Department on suspicion of illegal possession of ammunition, for which on the same day at 2 p.m. he was taken to the Armavir Town Police Department. The commission of the offence by [the first applicant] is corroborated by the [police] report, [the arrest record], the record of an administrative offence and other relevant information.”
15. According to this decision, the first applicant’s detention period was to be calculated from 2 p.m. on 30 March 2004.
16. According to the record of the court hearing, the judge informed the first applicant of his right to challenge the judge and the clerk and his right to have a lawyer. The first applicant did not wish to lodge any challenges or to have a lawyer. The judge then proceeded with examination of the materials of the case. The judge heard the police officer presenting the case and the first applicant who claimed that he had not committed any administrative offence and refused to make further submissions. The judge continued the examination of evidence and decided to impose an administrative penalty.
17. According to the first applicant, the hearing lasted about one minute, without examination of witnesses and without him being able to make any submissions or being represented by counsel, his request to see a lawyer having been refused.
18. The first applicant was taken to the detention facility of the Armavir Town Police Department to serve his sentence. According to the register of administrative detention, the first applicant was admitted to the detention facility at 4 p.m.
19. The third applicant alleged that on 2 April 2004 at 6.30 a.m. he was visited at his home by four police officers who told him to accompany them to the Armavir Town Police Department. The third applicant asked for reasons, to which the police officers replied that they were not authorised to explain and that he would be informed of the reasons at the police station. The third applicant then accompanied the officers to the police station.
20. According to the third applicant’s arrest record and other materials of the case, the third applicant was taken to the police station at an unspecified hour on 2 April 2004 on suspicion of having been involved in a traffic accident. The arrest record added that, when being brought to the police station, the third applicant obstructed the lawful work of the police officers for about five to seven minutes.
21. The third applicant alleged that at the police station he asked to see the Chief of the Police Department. Three hours later he met with the Chief who told him that he was to be detained and that nothing could be done about this as it had been ordered from above. He was then taken to the investigation department where an administrative case against him was initiated under Article 182 of the CAO for disobeying the lawful orders of police officers for about five to seven minutes. Only then did he find out the reason for his arrest.
22. The Government contested the above allegations. They claimed that the third applicant had been informed orally of the reason for his arrest, namely his use of foul language and disobeying the lawful orders of the police officers, at the time of his arrest.
23. One of the arresting police officers reported to the Chief of the Police Department that:
“...on 29 June 2003 at around 11 p.m. in the area of the 17th km of the MargaraEjmiatsin highway the driver of a car, whose model and licence number are unknown, ran over [a third person, A.A.], causing grave physical injuries.
For the purpose of a check, based on operative information obtained, we visited the village of Nalbandyan in Amavir Region in order to take the resident of the same village, [the third applicant], together with his [car], to the police station.
It turned out that the car was not at home, while [the third applicant] showed a disrespectful attitude, started to argue and use foul language, calling the Armenian state oppressive. We finally managed to calm [him] down and to bring him to the police station.”
24. The third applicant noted in his arrest record and his written statement that he had “not committed any offence”. He refused to sign any of the other materials. None of the materials in the third applicant’s administrative case indicated the time of his arrest.
25. Shortly thereafter the third applicant was brought before Judge H. of the Armavir Regional Court who, after a brief hearing, sentenced him under Article 182 of the CAO to four days of administrative detention. The judge’s entire finding amounted to the following:
“For the purposes of verifying the information obtained, according to which [a person had been hit in a traffic accident] sustaining serious physical injuries, [the police officers] visited the village of Nalbandyan ... in order to take [the third applicant and his car] to the police station ... [D]uring the visit [the third applicant] behaved disrespectfully and started to argue, use foul language and behave disrespectfully towards the Armenian public authorities, hindering the work of the police for about three to five minutes. The police officers managed to calm [the third applicant] down and to bring him to the Armavir Town Police Department. [The third applicant] denied committing the offence. The commission of the offence by [the third applicant] is corroborated by the record of an administrative offence, the [police] report and [the arrest record].”
26. According to this decision, the third applicant’s detention period was to be calculated from 5 p.m. on 2 April 2004.
27. According to the record of the court hearing, the judge informed the third applicant of his right to challenge the judge and to have a lawyer. The third applicant did not wish to lodge any challenges or to have a lawyer. The judge then proceeded with the examination of the materials of the case. The judge heard the third applicant who claimed that he had not committed any administrative offence and pleaded not guilty. He denied having used foul language or behaved disrespectfully towards the State. Thereafter, the judge examined the materials prepared by the police. No further evidence was produced or motions filed by the third applicant. The judge departed to the deliberation room, after which he returned and announced the decision.
28. According to the third applicant, the hearing lasted about two minutes and the judge refused to listen to any of his arguments.
29. The third applicant was taken to the detention facility of the Armavir Town Police Department to serve his sentence, sharing a cell with the first and the second applicants. According to the register of administrative detention, the third applicant was admitted to the detention facility at 5 p.m.
30. The first and the third applicants alleged that on 6 April 2004, the final day of their detention, at around 2 p.m. they were taken together to the Armavir Regional Court. After waiting in the corridor of the courthouse for about 10 to 20 minutes, they were both taken back to the temporary detention facility at the Police Department. Two hours later they were again taken to the Armavir Regional Court where they were brought before Judges H. and A. respectively. At the conclusion of brief hearings conducted in the same manner as those on 30 March and 2 April 2004, they were sentenced under Article 182 of the CAO to seven days of administrative detention for disobeying the lawful orders of police officers.
31. The Government contested this allegation, relying on the following materials of the case.
32. According to the register of administrative detentions, the first and the third applicants were released from detention on 6 April 2004 at 2 p.m. and 5 p.m. respectively upon expiry of their sentences.
33. According to their respective arrest records and other police materials, the first and the third applicants were re-arrested at 4.30 p.m. and 5.30 p.m. respectively in front of the police station for using foul language and disobeying the lawful orders of the police officers who tried to calm them down. At the police station administrative cases were initiated against them under Article 182 of the CAO.
34. A police officer’s report made in the first applicant’s case stated that:
“... on 6 April 2004 at 4.30 p.m. I was approaching the building of the Armavir Police Department[. A person was standing in the yard of the Department] and using swearwords. I approached him in order to call him to order, however, [he] maliciously disobeyed my lawful orders[. I] tried for about two to three minutes to call him to order. The mentioned [person] was brought to the police station where it was established that he was ... [the first applicant] who had just been released from administrative detention...”
35. A police officer’s report made in the third applicant’s case stated that:
“... on 6 April 2004 at 5.30 p.m. I was approaching the building of the Armavir Police Department[. A person was standing in the yard of the Department] and using random swearwords. I approached him in order to call him to order, however, [he] maliciously disobeyed my lawful orders, using foul language for two to three minutes. The mentioned [person] was brought to the police station where it was established that he was ... [the third applicant] who had just been released from administrative detention...”
36. According to the Government, at 5.30 p.m. the first applicant was taken to the Armavir Regional Court where a new sentence was imposed on him. The third applicant was also taken to the Regional Court shortly after his arrest and subjected to a new administrative penalty.
37. The judges’ findings in respect of both applicants were virtually the same and stated that on 6 April 2004 the first and the third applicants, at 4.30 p.m. and 5.30 p.m. respectively, had randomly used swearwords in front of the Armavir Town Police Department. The police officers had tried to call them to order but the first and the third applicants had maliciously disobeyed their lawful orders and used foul language for about three minutes. The first and the third applicants denied their guilt which was, however, corroborated by the records of an administrative offence, the police reports and the arrest records.
38. According to the respective court decisions, the first applicant’s detention period was to be calculated from 7 p.m. on 6 April 2004, while the third applicant’s detention period was to be calculated from 5.30 p.m. on the same day.
39. According to the records of the court hearings, the trials were conducted in a manner similar to that reflected in the records of the hearings of 30 March and 2 April 2004 (see paragraphs 16 and 27 above).
40. The first and the third applicants were then taken to the detention facility of the Armavir Town Police Department where they fully served their sentences, sharing a cell with the second applicant. According to the register of administrative detention, the first applicant was admitted to the detention facility at 7 p.m. on 6 April 2004, while the third applicant at 5.30 p.m. on the same date. The time of their release was indicated as 7 p.m. and 5.30 p.m. respectively on 13 April 2004.
41. On 2 April 2004 between 7.30 and 8 a.m. the second applicant was visited at his home by several police officers. The police officers informed the second applicant that he was suspected of hiding a wanted person in his home. The officers proceeded to conduct a search of the house. The person for whom they were searching was not found.
42. The second applicant alleged that, following the search, the police captain invited him to accompany them to the Village Council. He replied that the Village Council opened at 9 a.m. and that he would go there on foot. The police officers then tried to force him into their car and take him to the Armavir Town Police Department.
43. At the police station an administrative case was initiated against the second applicant under Article 182 of the CAO. The police officers drew up a record of the second applicant’s arrest, in which it was stated that he had been “brought to the police station on 2 April 2004 at 8 a.m. for disobeying the lawful orders of the police officers, using foul language and obstructing the work of the police for about five minutes”.
44. One of the arresting police officers reported to the Chief of the Police Department that:
“... on 2 April 2004 ... I and [two other police officers] visited the village of Nairi ... where, according to information obtained, [a wanted person] was hiding in [the second applicant’s] home. During our visit to [the second applicant’s] home, [the second applicant] disobeyed our lawful orders, used foul language, answered our questions with a question and obstructed our work for about five minutes.”
45. The second applicant made a written statement in which he submitted that:
“... during the search a disagreement arose in the discussion between me and a police officer: the police officers were inviting me to the Village Council to which I replied that I wanted to go there on foot, which they did not accept. Thereafter, I followed them to [the police station]. The disagreement between me and the police officers lasted about two to three minutes.”
46. The same day at 5 p.m. the second applicant was brought before Judge H. of the Armavir Regional Court who, after a brief hearing, sentenced the second applicant under Article 182 of the CAO to seven days of administrative detention. The judge’s entire finding amounted to the following:
“On 2 April 2004 [the police officers] visited [the second applicant’s] flat where, according to information obtained, [a wanted person] was hiding. During the visit [the second applicant] obstructed the police officers for about three to five minutes, did not follow their lawful orders and used foul language, for which he was taken to Armavir Town Police Department. [The second applicant] admitted and regretted having committed the offence. The commission of the offence by [the second applicant] is also corroborated by the record of an administrative offence, the [police] report, and [the arrest record].”
47. According to this decision, the second applicant’s detention period was to be calculated from 5 p.m. on 2 April 2004.
48. According to the record of the court hearing, the trial was conducted in a manner similar to other hearings (see paragraphs 16, 27 and 39 above). The second applicant admitted to having committed an administrative offence and pleaded guilty.
49. The second applicant contested the version of the trial presented in the above record and alleged that no witnesses were examined during the hearing and his request to be represented by a lawyer was refused. At no time did he admit to having committed an offence.
50. The second applicant was taken to the detention facility of the Armavir Town Police Department to serve his sentence, sharing a cell with the first and the third applicants. According to the register of administrative detention, the first applicant was admitted to the detention facility at 5 p.m.
51. The second applicant alleged that on 9 April 2004 at around 4 p.m., one hour before the expiry of his sentence, he was taken to the investigator’s office. There he was presented with a second charge. At 5.05 p.m. he was taken from the detention cell and brought before Judge S. of the Armavir Regional Court. A brief hearing took place, conducted in the same manner as that on 2 April 2004.
52. The Government contested this allegation. They submitted that the second applicant was released from detention on 9 April 2004 at 5 p.m. following the expiry of his sentence. At 5.10 p.m. he was re-arrested at the crossroads of Hanrapetutyun and Shahumyan Street which was about 50 to 100 metres away from the Police Department where he had been serving his first sentence. At 6 p.m. he was brought before Judge S.
53. According to the register of administrative detention, the second applicant was released from detention at 5 p.m. on 9 April 2004 upon expiry of his sentence. According to the record of the second applicant’s arrest, he was “brought to the police station on 9 April 2004 at 5.10 p.m. for using foul language at the police officers and maliciously disobeying their lawful orders for five to seven minutes”. The applicant refused to sign this record and to make a written statement.
54. A police officer’s report stated that:
“... on 9 April 2004 at around 5.10 p.m. at the crossroads of Hanrapetutyun and Shahumyan Street ... I noticed a citizen who was swearing loudly. I approached him to call him to order but he started to swear at me and the police. For three to five minutes I tried to call him to order but he disobeyed my lawful orders, for which I brought him to the police station where it turned out that he was [the second applicant] who had just been released from administrative detention.”
55. Judge S. sentenced the applicant under Article 182 of the CAO to four days of administrative detention. The judge’s entire finding amounted to the following:
“On 9 April 2004 at around 5.10 p.m. on Hanrapetutyun Street ... [the second applicant] for about three to five minutes maliciously disobeyed the lawful order of [the police officer] ... [The second applicant] did not accept the charges brought against him. He stated that he had not used foul language and swearwords. The charges brought against [the second applicant] are corroborated by [the police report, the arrest record and the record of an administrative offence].”
56. According to this decision, the second applicant’s detention period was to be calculated from 5.10 p.m. on 9 April 2004.
57. The second applicant was taken to the detention facility of the Armavir Town Police Department where he served his sentence in full. According to the register of administrative detention, the second applicant was admitted to the detention facility at 6.30 p.m. on 9 April 2004 and he was released upon expiry of his sentence in April 2004 (exact date illegible) at 5.10 p.m.
58. While serving their second administrative sentences the applicants complained to the Armenian Ombudsman that within the period from 30 March to 3 April 2004 they had been unlawfully taken to the Armavir Town Police Department in the early morning, from where, after having been presented with trumped-up charges, they were transported to the Armavir Regional Court. Judges A. and H., without trying to clarify any circumstance or to examine any witnesses in connection with the “charges” against them, adopted pre-ordered decisions subjecting them to four and seven days of administrative detention. Upon expiry of their respective administrative sentences, they had not been released from detention but instead new trumped-up “charges” were brought against them, following which Judges A., H. and S. subjected them to another four and seven days of administrative detention. The applicants claimed that such actions by the authorities were directly linked with the demonstrations held in Yerevan and that they were being detained for their political views.
59. According to the applicants, following their release from detention, they continued to be visited frequently by police officers. Several days after their release they were each visited by the Head of the Armavir Town Police Department who attempted to persuade them not to become involved actively in opposition politics. The applicants were invited to appear at the police office on this occasion and periodically thereafter whenever a political demonstration was due to take place. They did not take up these invitations due to the fear that they would be detained once again on allegedly falsified charges.
60. The applicants allege that, as a result of the frequent police visits, the first applicant had to move away from his home. The second applicant was subjected to almost daily visits, causing great stress to his family. On the afternoon of 22 May 2004 his home was surrounded by police with dogs. He left his home unnoticed, following which the police entered his home and carried out a search. As a result of these visits, the second applicant was unable to undertake farming work on his land, attend to daily chores or partake in social life, spending most of his time hiding from the police.
61. On 20 April 2004 the first and the third applicants complained to the Ombudsman about the continuing observation by the police. On 27 April and 24 May 2004 the second applicant also complained to the Ombudsman about the same and about the events of 22 May 2004.
62. On 25 April 2004 the Ombudsman decided to admit the applicants’ case for examination.
63. For a summary of the relevant provisions of the CAO see the judgment in the case of Galstyan v. Armenia (no. 26986/03, § 26, 15 November 2007). The provisions of the CAO which were not cited in the above judgment, as in force at the material time, provide:
’s personality, the application of these measures would be deemed insufficient, of administrative detention not exceeding 15 days.”
64. The relevant extracts from the Resolution provide:
“1. Since the end of March 2004, a series of protests have been organised by the opposition forces in Armenia, calling for a ‘referendum of confidence’ in President Kocharian. The possibility of such a referendum was first mentioned by the Armenian Constitutional Court following the presidential elections in February and March 2003. The Constitutional Court later clarified its proposal and the authorities are calling the opposition demands and protests an attempt to seize power by force.
2. The demonstrations, although announced, were not authorised by the authorities, who have threatened the organisers with criminal prosecution. Following the demonstrations on 5 April, the General Prosecutor opened criminal investigations against several members of the opposition and arrested many more, in connection with the opposition parties’ rally. On the same occasion, several journalists and politicians were beaten up by unknown persons while the police stood by and took no action.
3. New demonstrations took place on 9, 10 and 12 April in Yerevan. In the early morning of 13 April, the security forces violently dispersed some 2,000 to 3,000 protesters who were attempting to march towards the presidential palace, calling for President Kocharian’s resignation. The police reportedly used truncheons, water cannons and tear gas, causing dozens of injuries. A number of protesters were arrested, including members of parliament, some of whom are members of the Assembly, and some were allegedly mistreated by the police while in custody. The security forces also assaulted and arrested several journalists who were covering the opposition rally.
4. Tensions in Armenia continue to run high; new protests are planned for the week of 26 April. For the time-being there seems to be little room for dialogue between the authorities and the opposition, even if some offers have been made and some members of the ruling majority – for example, the Speaker of the Armenian Parliament – have begun criticising the heavy-handed crackdown on demonstrations.
5. With regard to the conduct of the authorities, the Parliamentary Assembly ... is particularly concerned with the fact that:
i. arrests, including those carried out on the basis of the Administrative Code, ignored the demand to immediately end the practice of administrative detention and to change the Administrative Code used as a legal basis for this practice; ...
9. The Assembly calls upon the Armenian authorities to: ...
iii. immediately release the persons detained for their participation in the demonstrations and immediately end the practice of administrative detention and amend the Administrative Code to this effect...”
65. The Report contains an explanatory memorandum to the draft of the PACE Resolution 1374. The relevant extracts from the explanatory memorandum provide:
“Since the end of March, opposition forces in Armenia decided to jointly organise mass protests to force a ‘referendum of confidence’ in President Kocharian. The possibility of such a referendum was first mentioned by the Armenian Constitutional Court following the presidential elections in February and March last year, which were strongly criticised by the international community. ...
The Armenian authorities reacted to the opposition call for protests with a campaign of political intimidation and administrative and judicial harassment. Once the protests started, the reaction was even more ruthless. Demonstrations were violently dispersed, journalists were beaten up, a large number of opposition supporters were arrested and premises of the opposition parties were raided by the police.
...
In January 2004 the Assembly adopted its second monitoring report since the accession of Armenia to the Council of Europe in January 2001. Resolution 1361, adopted on this occasion, takes note of some encouraging developments that took place in the last two years...
However, the Resolution ... sharply criticised the [presidential and parliamentary] elections carried out in 2003. Moreover, it listed a number of serious concerns with regard to the democratic and human rights conduct of the Armenian authorities and expressed its expectations that these issues will be speedily dealt with in accordance with Council of Europe standards and principles.
Regrettably, the reaction of the Armenian authorities in the events of March and April [2004] demonstrate that the Assembly’s request for further progress was ignored and that, with regard to some of the Assembly’s key concerns, the situation has even worsened.
Administrative detention
With regard to the scandalous and continued use of administrative detention, Resolution 1361 urged the authorities to amend the Administrative Code to put an end to this practice which is incompatible with the organisation’s standards. The Assembly also asked the authorities to submit this new draft to Council of Europe expertise by April 2004.
Instead of immediately ending this practice and preparing the necessary legislative drafts to this effect, the Armenian authorities resorted to a wide use of administrative detentions during the recent events. While it is difficult to verify the exact number of persons who were arrested and the legal basis used for their detention, most reports indicate that their number was between two and three hundred.
The Assembly repeats its demand for an immediate end to the practice of administrative detention. The Administrative Code must be revised without any further delay. ...”
66. The relevant extracts of the Briefing Paper provide:
“At the end of March 2004, Armenia’s political opposition united in mass peaceful protests to force a “referendum of confidence” in President Robert Kocharian and to call for his resignation. In response, the Armenian government embarked on a campaign to break the popular support for the political opposition with mass arrests, violent dispersal of demonstrations, raids on political party headquarters, repression of journalists, and restrictions on travel to prevent people from participating in demonstrations. Hundreds of people were detained, many for up to fifteen days; some were tortured or ill-treated in custody...
The origin of the opposition’s demands was the government’s failure to date to redress the deeply flawed 2003 presidential election, which Kocharian, the incumbent, won. Disturbingly, the government is now repeating, with increasing violence, a pattern of repression that surrounded last year’s election. At that time, the international community warned the Armenian government that its intimidation of the opposition through the use of arrests and administrative detentions must stop. However, in March and April 2004, the Armenian government not only began a fresh campaign of detentions, but added to the intimidation with security force violence. ...
At the end of March 2004, two of the main opposition groups, the Artarutiun (Justice) Alliance, which consists of nine parties – including the Republic Party, the People’s Party, and the National Unity Party – joined forces and announced its campaign of action. Following this move, the opposition intensified its efforts, making further announcements and mobilising in Armenia’s provinces. The authorities responded by restricting freedom of movement, carrying out detentions, and threatening criminal charges against opposition campaign organisers. ...
From [5 April] the number of rallies in Yerevan steadily increased, as did the number of opposition supporters detained or otherwise intimidated. The Republic Party estimated that from the end of March until [12 April], police had detained, searched, or harassed more than 300 of its supporters. ...
From the end of March until mid-April 2004, police restricted the movement of opposition supporters trying to travel to Yerevan to attend rallies by setting up road blocks, stopping cars, questioning the passengers, and denying permission to travel further to those they believed were opposition supporters. ...
On the morning of [5 April], between [10.30 a.m. and 12.00 noon], police stopped nine members of the National Unity Party in three cars at a check point as they were leaving Vanadzor, Armenia’s third largest city, on the main road to Yerevan. They were intending to participate in a rally at [3.00 p.m.] in Yerevan. Police held the nine men at the Vanadzor police station, reportedly telling them, ‘we have saved you from being beaten in Yerevan’. Police took three of the men to the local courts, which sentenced them to five days of administrative detention for not following police orders. ...
It is difficult to estimate the total number of opposition supporters detained since the beginning of April 2004. By April 17, the Justice Alliance had documented the detentions of 327 opposition supporters, and the Republic Party estimated that about 300 of its members had been either detained, harassed, or searched...
[Some opposition supporters] were detained and held for from several hours to fifteen days. Many were held and then released with no documentation or registration of the arrest ever having occurred. Others were taken to court, and given penalties of up to fifteen days in custody for petty offences under the Administrative Code.
The trials were cursory, flouting all international protections for a fair trial, and repeating a pattern of abuses with administrative detentions documented during the 2003 presidential elections. Defendants in administrative cases were denied access to lawyers, not able to present evidence, and routinely convicted on the basis of several minutes of police evidence. Practical barriers to appeal make it virtually impossible to take the cases to higher courts. ...”
67. The Report contains a chapter devoted to Armenia whose relevant extracts provide:
“Opposition demonstrations in April [2004] were part of a two-month campaign of mass public protests launched by opposition political parties demanding the resignation of President Robert Kocharian. ... During their campaign hundreds of opposition supporters, including prominent opposition party members, were reportedly arbitrarily detained throughout the country and dozens were sentenced to 15 days’ administrative detention after trials that were said to have fallen far short of international fair trial standards...”
68. The relevant extracts of the Report provide:
“3.4 Right to Freedom of Movement
The early stages of the Defender’s activities coincided with the demonstrations that were held in the country during March and April of 2004.
The opposition began to hold demonstrations and meetings with constituents in several regions starting in early February. The authorities did not interfere with these meetings.
The first time the authorities interfered with the demonstrations was at the end of March in Gyumri, which involved the arrest of demonstration participants and the commencement of criminal cases against them. ...
The Defender found a number of human rights violations in police actions regarding demonstrations held in the capital city in April.
On the days of the demonstrations, the police reportedly limited the movement of public transport into the capital city, which violated citizens’ right to freedom of movement within the country. ...
During this period, individuals were frequently apprehended for administrative infractions and taken to police stations where administrative detention was ordered against them by the court.
A review of these cases shows that the legislation on administrative infractions was abused: “foul language” was cited as a basis for sentencing a person to administrative detention. ...
3.5 Right to Conduct Meetings, Gatherings, Rallies and Protests
The Defender took from the courts a number of cases related to administrative infractions and conducted a thorough study. The findings were sent to the Prosecutor General of Armenia and, in light of the apparent abuses of power in such cases, it was recommended that the guilty parties be punished. Some of the Defender’s findings were isolated and sent to the Armavir Region Prosecutor for corroboration and processing. The regional prosecutor later announced that no crime was identified. The police officers in question were given warnings for some of the less significant violations.”
69. The local weekly, Ayb-Fe, published an interview with the Chairman of the International Association of Armenian Advocates (IAAA), Mr T. TerYesayan, which included a list of opposition political activists, compiled jointly by the opposition forces and the IAAA, who had been allegedly detained by the authorities in April and May 2004. The list contained a total of 476 names and featured the first, second and third applicants at spots 98, 190 and 100 respectively.
VIOLATED_ARTICLES: 11
5
6
P7
VIOLATED_PARAGRAPHS: 11-1
5-1
6-1
6-3
P7-2
VIOLATED_BULLETPOINTS: 6-3-b


ITEMID: 001-115061
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: IMAMOVIC v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: The applicants, Mr Azem Imamovic (the first applicant) and Ms Sevleta Imamovic (the second applicant), are nationals of Bosnia and Herzegovina who were born in 1958 and 1959, respectively, and are currently in Sweden. They were represented before the Court by Mr M. Ekelöf, a lawyer practising in Växjö.
The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants arrived in Sweden for the first time in 2001 together with their two daughters, born in 1980 and 1984, respectively. They applied for asylum and submitted that they should be granted residence permits on humanitarian grounds. They claimed that they had fled from the war to Germany in September 1993. In 1998 they had returned and had been subjected to harassment by other villagers who had considered them traitors for fleeing. In addition, they claimed that the first applicant, who had run a small shop, had been harassed by the health department and other authorities.
On 26 November 2001 the Migration Board (Migrationsverket) rejected the application and held that the alleged harassment did not constitute grounds for asylum. The Board also noted that the applicants had failed to seek assistance from the domestic authorities before leaving Bosnia and Herzegovina.
The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden) which, on 23 October 2002, upheld the Migration Board’s decision in full.
During 2002 and 2003, the applicants repeatedly applied to the Migration Board for re-examination of their case due to the continuous deterioration of their physical and mental health. All these motions were rejected both by the Migration Board and the Aliens Appeals Board.
At some point during 2003 the applicants left Sweden and travelled to Finland and Norway to apply for asylum. However, they were transferred back in accordance with the Dublin Regulation.
In December 2003 the applicants again applied for asylum. On 22 October 2004 the Migration Board rejected the application. The Aliens Appeals Board upheld the decision on 17 February 2005.
On 4 October 2006 the applicants turned again to the Migration Board and applied for a re-examination of their case. They added that their family had spent almost five years in Sweden and that their oldest daughter and her children had been granted residence permits. They also referred to their deteriorating health, in particular the first applicant’s poor mental health and his suicidal tendencies.
On 13 October 2006 the Migration Board decided to stay the enforcement of the deportation order until further notice. However, on 5 February 2007, the Board rejected the application and decided that the enforcement of the deportation order should proceed.
Upon appeal, the Migration Court (Migrationsdomstolen) upheld the decision and, on 11 May 2007, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal.
The applicants were registered as missing on 21 August 2007 and the deportation order became time-barred on 17 February 2009.
On 19 March 2009 the applicants applied for asylum again. They maintained their earlier story and added the following. The first applicant suffered from severe mental illness and had received voluntary psychiatric care. He had also been considered for mandatory psychiatric care in a closed ward. Furthermore, he suffered from a severe heart condition. He submitted eight medical certificates issued between 2006 and 2009 from four different psychiatric clinics.
According to a certificate issued on 2 October 2009 by S.P., a psychologist at the Psychiatric Clinic in Mullsjö/Habo, the insulting treatment to which the first applicant and his family had been subjected in Bosnia and Herzegovina had caused him trauma and long lasting psychological harm. Due to this he suffered from memory loss, difficulties with sleeping and concentrating, moments of absence, anxiety attacks and a deep sense of depression. He had also developed hallucinations urging him to commit suicide. At one point he had tried to jump off a building, but had been stopped by a family member. He expressed fears of being left alone and not being able to resist the urge to commit suicide. This state was most probably aggravated by the uncertainty of his situation, not knowing whether he would be allowed to stay in Sweden or not. His physical health had also been affected by his mental illness and there were reasons to believe that this had been a factor causing him to suffer a heart attack in 2008.
According to another medical certificate, issued on 8 October 2010 by I.P., senior physician and specialist in general medicine and general psychiatry at Ryhov hospital in Jönköping, the first applicant had tried to commit suicide on several occasions and could therefore never be left on his own. He suffered panic attacks, mostly at night, and therefore had trouble sleeping. In connection with the attacks, he had trouble communicating properly, even with his closest family. Heavy medication had not helped and his prognosis was considered negative.
The second applicant suffered from diabetes and a skin disease. She submitted a medical certificate to this effect issued on 2 April 2009.
On 10 December 2009 the Migration Board rejected the application. It observed that the applicants had not submitted any new information regarding their need for protection and thus there was no need for it to make a new evaluation. It further considered that the medical certificates regarding the first applicant did not clearly indicate his mental state or what kind of care he needed. The certificates only showed that he suffered from mental illness, but not that it was life threatening. Furthermore, the Board noted that country information showed that health care was available in Bosnia and Herzegovina. The applicants’ health problems were therefore not sufficient grounds to grant them asylum. Lastly, the Board noted that one of the applicants’ daughters had been granted a permanent residence permit in Sweden in 2004. However, it stressed that the general rule was that an application for residence permit on the grounds of family relations should be submitted before entering Sweden. The Board held that no exception to this rule was applicable in the present case. It was not unreasonable to expect the applicants to file such an application from Bosnia and Herzegovina.
The applicants appealed against the decision and requested the Migration Court to hold an oral hearing where they could submit oral evidence as to their deteriorating health.
On 9 March 2010 the Migration Court rejected the motion for an oral hearing and requested the applicants to submit further written observations.
The applicants claimed that the Migration Board had not duly considered the fact that there was an imminent risk that the first applicant would commit suicide and that he was highly dependent on his older daughter for his mental well-being. They also added that the second applicant did not have the means or the ability to care of her husband alone if they were to return to Bosnia and Herzegovina.
On 30 August 2010 the Migration Court, by a majority, upheld the Board’s decision. It noted that the applicants’ allegations of persecution had been assessed by the domestic authorities in Sweden on several occasions since they had first applied for asylum in 2001. Moreover, no new information had been submitted and therefore there was no reason to depart from the earlier assessments. Regarding the first applicant’s health, the court found that his mental and physical state was not severe enough to constitute a sufficient ground for asylum. The court observed that his mental illness seemed to have developed only after arriving in Sweden and also seemed to be connected to the pressure of going through the asylum proceedings. His state had not improved although he had received medication. In conclusion the court held that his illness was not life threatening and hence not serious enough to allow him to stay. Furthermore, it shared the Migration Board’s assessment that the applicants could reasonably be expected to apply for residence permits from their home country.
The presiding judge gave a dissenting opinion and considered that the first applicant’s severe mental illness and his connection to his older daughter, who had a residence permit in Sweden, constituted sufficient grounds for allowing him and his wife to stay. The presiding judge also pointed out that several attempts to enforce the applicants’ deportation had failed, inter alia, due to the first applicant’s state of health and, consequently, nothing indicated that future enforcement attempts would be more successful.
The applicants appealed to the Migration Court of Appeal. They submitted a new medical certificate issued on 15 September 2010 by S.P., in which the progression of the first applicant’s illness, his current state and acute suicidal tendencies were described in detail.
The Migration Court of Appeal refused leave to appeal on 24 September 2010.
In the meantime, on 19 June 2010, the Migration Board granted the applicants’ younger daughter, her husband and their two children residence permits in Sweden.
On 1 October 2010 the applicants requested the Court to apply Rule 39 of the Rules of Court in order to stop their deportation to Bosnia and Herzegovina.
On 28 October 2010 the President of the Section to which the case had been allocated granted the applicants’ request for interim measures until further notice. On the same day, the Migration Board, with reference to the Court’s decision, stayed the enforcement of the applicants’ deportation order until further notice.
Subsequently, the applicants again applied for a re-examination of their case before the Migration Board, first on 8 February 2011 and then on 13 April 2011. However, both motions were rejected.
Before the Court, the applicants submitted several medical certificates, issued between October 2010 and August 2011 by two different doctors, regarding the applicants’ state of health.
As regards the first applicant, the certificates stated, inter alia, that he was suffering from post-traumatic stress disorder and that the practical enforcement of the deportation order could endanger his life since mental pressure would strongly increase the risk of an immediate heart attack. According to a medical certificate issued in June 2011, his health had further deteriorated. It also stated that the first applicant had not had any contact with psychiatric clinics before he came to Sweden.
As regards the second applicant’s state of health, a certificate issued on 7 March 2011 was submitted. It stated that she suffered from diabetes and anxiety related to the deportation, which had caused her trouble sleeping and feelings of depression.
The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.
Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act).
Moreover, if a residence permit cannot be granted on the above grounds, a permit may nevertheless be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (Chapter 5, section 6 of the Aliens Act). During this assessment, special consideration should be given to, inter alia, the alien’s state of health. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for granting a residence permit.
According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the Aliens Act).
Under Chapter 5, Section 3 a, first paragraph, point 2 of the Aliens Act a residence permit may be given to an alien who is a close relative of someone who is resident in or who has been granted a residence permit to settle in Sweden, if he or she has been a member of the same household as that person and there exists a special relationship of dependence between the relatives that already existed in the country of origin.
By virtue of Chapter 5, Section 18, of the Act, an alien who wants a residence permit in Sweden on account of family ties or serious relationships must have applied for and been granted such a permit before entering the country. An application for a residence permit may not, as a general rule, be approved after entry. However, exemptions from this rule can be made for example if the alien has strong ties to a person who is resident in Sweden and it cannot reasonably be required that he or she travel to another country to submit an application there (Chapter 5, Section 18, second paragraph, point 5). As regards this exemption, the preparatory works to the provision (Government Bill 1999/2000:43, p. 55 et seq.) state that the main emphasis should be placed on the question of whether it is reasonable to require that the alien return to another country in order to submit an application there. Relevant elements, which may be favourable for the alien, may be whether he or she can be expected, after returning home, to encounter difficulties in obtaining a passport or exit permit and this is due to some form of harassment on the part of the authorities in the country of origin. It may also be whether the alien will be required to complete a long period of national service or service under unusually severe conditions. It may also be relevant whether the alien has to return to a country where there is no Swedish foreign representation and where major practical difficulties and considerable costs are associated with travelling to a neighbouring country to submit the application there. Relevant elements, which may count against the alien, may be that he or she is staying in the country illegally, that their identity is unclear or if there are strong ties to the country of origin. An exemption may also be made if there are some other exceptional grounds (Chapter 5, Section 18, second paragraph, point 6).
The requirement that, in principle, residence permits for family members have to be granted before entry into Sweden was introduced as one of a number of measures aimed at reducing the possibilities of obtaining a residence permit by means of marriages or relationships of convenience. Subsequently, the Swedish Government and Parliament have underlined on several occasions that the requirement that residence permits be obtained before entry into Sweden is an important part of measures to maintain regulated immigration. Moreover, the preparatory works to the Aliens Act state that it is important that aliens staying in Sweden illegally do not enjoy a better position than those who comply with decisions by the authorities to return to their country of origin in order to apply for a permit from there (Government Bill 1999/2000:43).
The Country of Origin Information Centre (Landinfo), an independent human rights research body set up to provide the Norwegian immigration authorities with relevant information has, in a note concerning health care in Bosnia and Herzegovina, dated 22 November 2010, observed that extensive reforms have been made in the health care sector. Among other things, centres for psychiatric health care have been built, offering specialist treatment for patients suffering from mental ill-health. Persons suffering from mental health problems can seek help either at the nearest centre for psychiatric health, or at the social services. Persons with serious mental health problems are referred to hospital or to a psychiatric ward at a central hospital. As for heart disease, most problems can be treated in the country and medication for unstable heart disease is available there.
According to the European Commission’s Bosnia and Herzegovina 2010 progress report, published on 9 November 2010, there has been some progress in the area of mental health. The South-Eastern Europe Health Network accepted the application of the Bosnia and Herzegovina Ministry for Civil Affairs to set up the regional centre for cooperation and development in the area of mental health for South-Eastern Europe. The regional centre was operational. Both Entities adopted mental health strategies and new mental health centres were opened. However, establishment of community-based services, provision of aid to dependent persons and mental health care for children and young people needed further attention.
According to the European Commission’s Bosnia and Herzegovina 2011 progress report, published on 12 October 2011, progress was reported in the area of mental health. The country amended the Law on Protection of Persons with Mental Disorders, improving the protection of human rights and dignity of persons with mental disorders as well as the legal protection of legally incapacitated adults. The Regional Health Development Centre for Mental Health in South- Eastern Europe in Sarajevo became operational. However, further actions remained to be taken towards promoting inclusion of people with mental health problems and their empowerment. Community-based mental health services of high quality that focused on recovery needed further support.


ITEMID: 001-78872
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF INTERSPLAV v. UKRAINE
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings
TEXT: 8. The applicant company, “Intersplav” (hereinafter “the applicant”), is a joint venture enterprise, based in the town of Sverdlovsk in the Lugansk Region, Ukraine.
9. The facts of the case, as submitted by the parties, may be summarised as follows.
10. The applicant manufactures goods using recycled scrap metal purchased in Ukraine, bearing a 20 % VAT rate. The major part of the applicant’s production is exported from Ukraine at a zero VAT rate. The applicant is thereby entitled to a refund of the VAT due on the price of the scrap metal. Under the Law on Value-Added Tax (see the Domestic Law part below) such a refund should be made within a one-month period following the applicant’s submission of the relevant calculations to the local tax administration. If the refund is delayed, compensation is payable. Both payments (the refund and compensation) are made by the State Treasury upon the submissions of the relevant tax authority.
11. Since April 1998, the VAT refund to the applicant has been systematically delayed due to the failure of the Sverdlovsk Town Tax Administration to confirm the amounts involved. For the same reason, the applicant could not receive compensation for the delayed VAT refund.
12. Since 1998, the applicant has complained to the Lugansk Regional Tax Administration and the State Tax Administration about the failure of the Sverdlovsk Town Tax Administration to issue certificates for the VAT refunds on time. However, these authorities found no illegalities in the actions of the Sverdlovsk Town Tax Administration, whilst recognising the existence of the State’s debts to the applicant.
13. The applicant also complained to the Sverdlovsk Prosecutor and the General Prosecutor’s Office, without any result.
14. In its letter of 22 October 2002, the applicant claimed that further obstacles had arisen in running its business, including new discriminatory legislation, transport controls by the police, and judicial proceedings against its employees for defamation instituted by the Tax Administration.
15. Since 1998, the applicant has instituted a number of proceedings, more than 140 so far, in the Lugansk Commercial Court against the Sverdlovsk Town Tax Administration and the State Treasury Department in order to receive compensation for the delayed refund of the VAT.
16. In the proceedings during 1999-2000, the applicant requested the court to oblige the Tax Administration to confirm the amounts of compensation due to the applicant. The court found for the applicant and ordered the tax administration to issue the requested confirmation for the amounts claimed.
17. In the proceedings during 2001-2003, the applicant changed the subject of its claim and requested the courts to award it the amounts of the VAT refund and compensation directly. The Tax Administration and Treasury both opposed the claims; the former on the basis of an alleged lack of competence in VAT refunding, the latter on the basis of the impossibility of refunding any VAT without prior confirmation of such an amount by the Tax Administration. The court found for the applicant and awarded the claimed amounts in its decisions between 2001 and 2004. It confirmed the applicant’s right to compensation for the various delayed VAT refunds.
18. The court decisions given between 1999 and 2002 were executed within periods ranging from four days to two years and eight months. The oldest decision that remained unenforced in February 2004, according to the applicant, was given on 18 March 2003.
19. In its further correspondence, the applicant maintained that the Tax Authorities claimed that the court decisions given in its favour should not be directly enforceable, but would require the prior confirmation of the awarded amounts by the Tax Administration.
20. On 17 March 2004 the applicant lodged a claim with the Lugansk Commercial Court against the Lugansk Regional Department of the State Treasury and the Sverdlovsk Town Tax Administration for their refusal to enforce the judgments rendered by the said court in the period between March 2003 and February 2004 (see the annex) and for a proposal to convert the amounts awarded by the above judgments into loan bonds with a five-year term.
21. On 24 May 2004 the court found for the applicant and ordered the defendants to enforce the impugned judgments.
22. The applicant maintained that, as of 18 June 2004, the amount of the State debt to the company confirmed by court decisions was UAH 26,363,200 (around EUR 4,119,250).
23. The collection and refunding of value-added tax (VAT) is regulated by the Law on Value-Added Tax. Article 3 of the law provides that both the sale of goods in Ukraine and the export of goods from Ukraine are subject to taxation. Under Article 6 of the law, the former is taxed at a 20 % rate, whereas the latter is taxed at 0 %.
24. The procedure to establish the amount of VAT due or to be refunded is regulated by Articles 7 and 8, which provide as relevant:
“7.7. The procedure to establish the amount of tax to be paid into the budget or to be used as compensation from the budget, and the terms of settlements within the budget
7.7.1. The amount of tax to be paid into the budget or refunded from the budget shall be determined as the difference between the total amount of tax obligations, which commence with any sale of goods (works, services) within the reporting period, and the amount of tax to be credited during the reporting period.
Payment of the tax shall be made not later than the twentieth day of the month that follows the reporting period.
7.7.2. The tax payer shall submit a tax declaration to the local body of State tax services ...
7.7.3. Where ... the amount determined by subparagraph 7.7.1 of this Article is negative, it shall be refunded to the tax payer from the State budget of Ukraine within a month following the reporting period. ...
Amounts that are not so refunded to the tax payer ... shall be considered a budget debt. Interest at 120 % of the basic rate of the National Bank of Ukraine shall be charged on that debt from the moment it arises and for the whole period of its validity, the repayment date inclusive. The tax payer is entitled at any moment after commencement of the budget debt to apply to a court with an action to collect the budget funds and establish the liability of the officials responsible for the untimely refund of overpaid taxes. ...
7.7.5. Amounts of value-added tax are included in the State budget and shall first be used for budget refunds of value-added tax according to this Law. ... Where the amount of budget receipts obtained from the payment of value-added tax ... does not cover the amount subject to refunding ..., funds from other [State budget] resources ... shall be used for such compensation. ...
8.1. A tax payer that performs export operations ... and files calculations for export compensation ... may receive such compensation within 30 calendar days from the date of submitting such calculations. ...
8.6. Export compensation shall be provided within 30 calendar days, following the day of the filing of export compensation calculations.
In case the tax payer fails to submit the calculation of export compensation within the established terms, export compensation shall not be provided and the amounts of such compensation shall be taken into account when calculating the tax payer’s future tax obligations ... Calculations of export budgetary compensation shall be submitted together with the declarations for the corresponding reporting period.”
25. According to the Procedure for the Refund of Value Added Tax, adopted by the joint decree of the State Tax Administration of Ukraine and the Main Department of the State Treasury of Ukraine No. 209/72 on 2 July 1997, the VAT refund is made by the State Treasury of Ukraine on the basis of a confirmation by the tax authorities or a court decision. The VAT refund shall be made within five days after the tax authority has submitted the confirmation of the amount claimed.


ITEMID: 001-76495
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MAMIC v. SLOVENIA (No. 2)
IMPORTANCE: 1
CONCLUSION: No Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1956 and lives in Ravne na Koroškem.
6. On 10 May 1995 the applicant was grievously injured in a car accident. She was unconscious for ten days and remained in hospital for two and a half months. Although she and her husband were separated at the time and were going through a divorce, he was also in the car and sustained some injuries.
13. Section 96 of the Criminal Procedure Act (Zakon o kazenskem postopku) read as follows:
“(1) If criminal proceedings are terminated or a judgment is rendered by which the applicant is acquitted or the bill of indictment dismissed, or if a decision is rendered by which the bill of indictment is rejected, the court shall decide in the judgment or decision that the costs and expenses of the criminal proceedings, from clause 1 to clause 5 of the second paragraph of section 92 of the present Act, as well as necessary expenses of the accused and necessary expenses and fees of defence counsel, shall be charged to the [State] budget...”
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58894
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF AMBRUOSI v. ITALY
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Non-pecuniary damage - finding of violation sufficient
JUDGES: Christos Rozakis;Vitaliano Esposito
TEXT: 7. By judgments nos. 495 of 31 December 1993 and 240 of 10 June 1994 the Constitutional Court ruled that the State should reimburse part of the taxes unduly paid by certain categories of pensioners on their old-age pensions.
8. The implementation of these judgments through legislative measures having not taken place immediately, a number of pensioners falling within these categories instituted proceedings against the State before the Italian Magistrate’s courts seeking the reimbursement in question. The applicant acted as counsel for fifty-three such pensioners. In certain cases, she requested a direct discharge of her fees, costs and expenses.
9. By judgments Nos. 3295 of 22 November 1995, 3491 of 4 December 1995, 3501 of 4 December 1995, 3504 of 4 December 1995, 3505 of 4 December 1995, 3506 of 4 December 1995, 3510 of 4 December 1995, 681 of 5 February 1996 and 1898 of 27 March 1996, the Trani Magistrate found in the plaintiffs’ favour and discharged the applicant’s fees, costs and expenses directly to her. The total amount of the discharged fees in relation to these judgments was 12,900,000 ITL.
10. On 28 March 1996 the President of the Republic passed Law Decree No. 166 aiming at the enforcement of the judgments of the Constitutional Court, whereby it was decided that the State would reimburse the due amounts by way of distribution of State bonds to the relevant pensioners over a period of six years.
11. Paragraph 3 of Section 1 of this Law Decree extinguished all pending proceedings concerning the reimbursement in question and provided that the legal costs would be considered as offset between the parties. It further provided that the judicial decisions which, on the day of entry into force of the decree, had not yet become final would produce no legal effects.
12. The judgments listed in paragraph 9 above, having not become final, were thus deprived of all legal effects. The other proceedings which were still pending were extinguished and the legal costs offset ex lege.
13. Under Section 91 of the code of civil procedure, the unsuccessful party in the proceedings bears all the legal costs, including the lawyer’s fees, costs and expenses incurred by the other party or parties.
14. Under Section 92, the judge can offset the legal costs between the parties when neither is entirely successful or when there are other equitable grounds therefor (“altri giusti motivi”).
15. Under Section 93 of the code of civil procedure, a lawyer whose client is of poor means can declare to have advanced the costs and expenses of the proceedings on behalf of his client and not to have been paid his fees (onorari), and can accordingly request that, if his client is successful and is thus entitled under Section 91 to be awarded legal costs, the court discharge the latter directly to the lawyer (distrazione delle spese) (see, for example, Cassazione Civile, judgment No. 670 of 30.03.62). Section 93 thus grants a special protection to the lawyer, who enters into a direct relationship with the opposite party and obtains an autonomous title. He can subsequently autonomously act against the losing party in order to recover his fees, costs and expenses. The lawyer’s right to claim his fees from his client, however, persists (see, for example, Cassazione Civile, judgments No. 5467 of 13.05.93 and No. 865 of 12.02.82).
16. Law Decree No. 166/1996 was never converted into a Law, but its effects were maintained by Section 1 § 6 of Law No. 608 of 20 November 1996.
17. The question of the compatibility of Paragraph 3 of Section 1 of Law Decree No. 166/1996 with Articles 1 § 1 (recognition of the importance of work), 4 and 35 (protection of the right to work), and 36 (right to payment for one’s work) of the Italian Constitution was raised before the Constitutional Court by the Brescia Magistrate on 1 April and 23 April 1996. By a decision (No. 165) of 29 April 1999, the Constitutional Court referred the matter back before the Brescia Magistrate, seeking that he examine it again in the light of the subsequent Law No. 448 of 23 December 1998 (which reiterated inter alia that the judicial decisions which, on the day of entry into force of the Law Decree, had not yet become final would produce no legal effects).


ITEMID: 001-105431
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SIMKO v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mr Pavel Šimko, is a Slovak national who was born in 1956 and lives in Poprad. He was represented before the Court by Mr A. Graban, a lawyer practising in Košice.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 1997 the applicant, who is a pharmacist, entered into a contract for the supply of drugs and medical equipment with a hospital, which at that time was owned by and responsible to the State. The contract was extended in 1998 and again in 2000 and remained in place until 31 May 2003.
4. In about mid-1998 the hospital ceased paying the applicant, with the consequence that the applicant became unable to pay his sub-contractors and thus incurred late-payment penalties, lost business and sustained damage to his goodwill. The applicant eventually became insolvent and went out of business.
5. Meanwhile the ownership and administration of the hospital had gone through a restructuring, in the course of which, on 1 January 2002, the hospital was transferred from the State’s administration to that of a municipality by the operation of Law no. 416/2001 Coll.
6. On 1 January 2004 the ownership of the assets of the hospital was transferred to the municipality by the operation of Law no. 522/2003 Coll. Due and unpaid debts and liabilities, however, remained with the hospital.
7. Later in 2004 the municipality established a non-profit organisation which took ownership of the hospital’s assets.
8. The applicant asserted his property claims originating in the contract mentioned above by means of civil actions against the hospital and the municipality. This gave rise to a number of civil proceedings, some twenty of which are still pending before the Kežmarok District Court (Okresný súd).
9. The applicant was successful in obtaining a number of judicial orders for payment in his favour, including a payment order (platobný rozkaz) issued by the District Court on 4 February 2002 against the hospital for the payment of the equivalent of some 25,000 euros (EUR).
10. On the basis of the judicial orders for payment in favour of the applicant, between 2003 and 2009 the applicant initiated fourteen sets of enforcement proceedings under the Executions Order of 1995 (Law no. 233/1995, as amended). Three of these enforcement actions were terminated upon the applicant’s request. Nine sets of proceedings resulted in a successful recovery of the adjudicated claims. One action is still pending because the underlying civil proceedings are still pending.
11. On 12 September 2007 the District Court declared the enforcement of the above-mentioned payment order of 4 February 2002 against the hospital improper (neprípustná) and terminated the proceedings. It observed that the applicant had petitioned for the enforcement on 6 March 2003, that pursuant to Law no. 416/2001 Coll. the hospital had been transferred from the State’s administration to that of a municipality, that by virtue of section 4a(2)(a) of the Municipal Property Act (Law no. 138/1991 Coll., as amended by Law no. 447/2001 Coll.) the hospital’s liabilities had not been transferred to the municipality and that, on 31 January 2005, the hospital had been wound up. In relation to the claim in question, the hospital had been wound up without a legal successor. No enforcement could accordingly have been directed against it.
12. The above decision could have been challenged by way of an appeal but no appeal was filed by the applicant. It thus became final and binding on 5 October 2007.
13. The applicant requested that the Prosecutor General challenge the legislation concerning the transfer to municipalities of assets without a corresponding transfer of liabilities in the Constitutional Court.
14. By letter of 14 December 2007 the Prosecutor General informed the applicant that liabilities which had not been transferred to the municipalities had not been left unassigned but, by operation of section 55d(6) of the Budgetary Rules Act (Law no. 303/1995 Coll., as amended), remained with the government department originally responsible for overseeing the now restructured entity. In the case of the applicant’s contractual partner, the hospital, such unsettled liabilities remained with the Ministry of Health (“the Ministry”).
15. Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) provides:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”
16. The statutory bar to the enforcement of financial claims against healthcare establishments was laid down in different pieces of legislation and its duration, always intended to be temporary, was extended several times. The precise scope of the bar has also varied over time.
17. The bar has its origin in Article 235 of the Enforcement Code of 1995 (Law no. 233/1995 Coll., as amended), such Article being incorporated into the code by Law no. 280/1999 Coll. The bar was, in this implementation, intended to last until 31 December 2001.
18. Article 235 of the amended Enforcement Code of 1995 was repealed by the Constitutional Court by virtue of its judgment of 15 November 2000 (published in the Collection of Laws under no. 415/2000) with effect from 6 December 2000. The Constitutional Court found the bar unconstitutional because it created an unjustified difference between the treatment of healthcare establishments and other debtors.
19. With effect from 1 January 2003, a new statutory bar to enforcement of financial claims against health-care establishments was introduced into the Health Insurance Code by the operation of Law no. 671/2002 Coll. In particular, enforcement was not permissible against the financial assets and income of health-care establishments in so far as such monies were allocated for providing and maintaining health care and related services, nor against assets belonging to health-care establishments which were purchased out of funds deriving from the insurance premiums paid by the establishment’s users and which were indispensable for the running and maintenance of the establishment.
20. On 15 June 2004 a new bar entered into force by virtue of an amendment (Law no. 345/2004 Coll.) to the Health Insurance Code. It introduced a new section 54a to the code, stated to apply until 31 December 2004. Under sub-section 2 (d) of that provision, enforcement could not be aimed at attaching the property of health-care establishments obtained via insurance premiums or property to be used for providing health care.
21. In 2006 a new constitutional challenge to the bar, as it then stood, was brought by a group of Members of Parliament. It was accepted by the Constitutional Court to the extent that, in its ruling of 6 December 2006 (published in the Collection of Laws under no. 18/2007), it suspended the legal effect of the bar. However, the Constitutional Court has never ruled on the merits of the bar, as it expired while the constitutional challenge was pending. In its decision of 30 April 2008 the Constitutional Court nevertheless made a formal note of its 2000 ruling, considering it a part of its case-law.
22. The bar was most recently extended until 31 December 2009 by the operation of Law no. 192/2009 Coll., which introduced a new section 102c § 2 to the Health Care Providers Act (Law no. 578/2004 Coll., as amended).
23. On 31 December 2009 the bar expired and has ceased to exist with effect from 1 January 2010 onwards.
24. The Municipal Property Act (Law no. 138/1991 Coll.) has been amended numerous times. Amending Law no. 447/2001 Coll. entered into force on 1 January 2002 and introduced new sections 4a(2)(a) and 4b(2)(a), pursuant to which a municipality does not take over liabilities for the supply of goods, works and other contractual performance which have been assumed by the administrator of State property in connection with different types of property transferred to the ownership of the municipality and which liabilities are due or were not settled on the day of the transfer of the property from the State to the municipality.
25. Under section 55d(6) of the Budgetary Rules Act (Law no. 303/1995 Coll., as in force since 1 January 2005), liabilities of the State which have not been transferred to a municipality or a self-governing region together with a transfer of functions of attributable to a government department and the right of ownership of related assets remain liabilities of the government department or the body that exercised the functions of the government department.
26. Section 55g(6) provides that liabilities of the State which are not transferred to a municipality or a self-governing region together with a transfer of functions attributable to a government department on 1 January 2004 remain liabilities of the central government body responsible for the area in which the functions are transferred to the municipality or the selfgoverning region.
27. Article 37 of the Enforcement Code provides for the possibility of carrying out enforcement proceedings against a different person than the debtor identified in the enforceable decision. Such enforcement is possible if it is established that the adjudicated liability has been transferred to such a different person. It is the responsibility of the parties to the enforcement proceedings to notify the enforcement officer of any such transfer.