ITEMID: 001-88993
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KYRIAKIDES v. CYPRUS
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;Effie Papadopoulou;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1938 in Paphos and lives in Limassol, Cyprus.
7. The applicant was, at the material time, a senior officer in the Cypriot Police Force in which he served until retirement, with an interruption of one year and nine months under the conditions set out below.
8. On an unspecified date in 1992, criminal proceedings were initiated against two of his subordinate police officers in relation to the alleged ill-treatment and torture of suspects. The prosecuting authorities failed to prove a prima facie case against them, and the officers were accordingly acquitted on 23 July 1993. The court considered that the testimony of the principal prosecution witnesses - the victim and one of his relatives who had been arrested with him- “had been so obviously unreliable that no reasonable court could rely on it and convict the accused”. It also considered that the prosecution had committed a series of improprieties which had tainted the evidence to such an extent that the case against the accused should be discontinued in the interests of the proper administration of justice.
9. Subsequently, on 3 September 1993, the Ministerial Council appointed an Independent Investigating Commission (IIC) to examine this matter further. The Commission’s findings were delivered on 3 November 1995. It found that certain police officers, including the afore-mentioned, had engaged in torture practices against certain suspects in order to obtain confessions. On the basis of the Commission’s findings, on 7 March 1996, the Ministerial Council terminated the employment of the two police officers as well as that of the applicant for the protection of public interest. The applicant was dismissed for the negligent exercise of his duties, since it was found that certain police officers under his control had engaged in such practices. Five other junior officers who were also found to have been involved in acts of torture and ill-treatment of prisoners were not dismissed. The applicant’s dismissal was widely reported in the national press.
10. The applicant challenged the legality of the said decision before the Supreme Court exercising its administrative judicial review jurisdiction.
11. The Supreme Court delivered its judgment in a plenary session on 26 November 1997. It unanimously annulled the decision of the Ministerial Council which was found to have violated the applicant’s constitutional right to be presumed innocent. It further found that he had effectively been dismissed without trial or disciplinary proceedings and, as such, he was deprived of any opportunity to defend himself. Moreover, the decision of the Ministerial Council was found to be ultra vires.
12. On 28 November 1997, the applicant requested the reinstatement to his former post. On 5 December 1997 he returned to duty.
13. Subsequently, the applicant brought an action under Article 146.6 of the Constitution before the District Court of Nicosia requesting fair and equitable compensation.
14. Judgment was delivered on 30 April 2000 by the District Court which refused the applicant’s request for exemplary damages. Concerning his request for payment of the difference in his monthly salary, corresponding to the period in which his service had been interrupted, the court observed that he had received a higher amount upon his dismissal than the requested difference in salaries. This amount had been held by him throughout the period following his return to duty and until his retirement. Then this amount had been deducted from the amount to which he was entitled to by virtue of his retirement and the difference was paid to him. The request was accordingly refused.
15. However, 5, 000 Cypriot pounds (CYP), plus 8 per cent interest as from the date that the action was lodged, was awarded in compensation for moral damage. The court pointed out that, as observed by the Supreme Court in the case of Frangoulides v. The Republic (1982) 1 C.L.R. 462, an award for damages under Article 146.6 of the Constitution was not subject to the common-law rule for quantifying damages aiming at restitutio in integrum, but was governed by the principles of equity. It considered that the applicant had suffered injury to his psychological and moral integrity which was directly caused by the annulled decision. In particular, the following was noted:
“Within this framework of criteria (established in the domestic case-law), I do not see any good reason why the court in a case similar to the present one, where, by the exclusive behaviour of the administration (Ministerial Council) the plaintiffs who, had been expelled from their positions with characterisations that had definitely affected them psychologically as they themselves had maintained, should not be entitled to certain compensation for that injury to their psychological integrity. I consider such injury as damage emanating directly from the annulled administrative decision”.
16. Moreover, it was acknowledged that the decision had serious defamatory effects for him. As such, the relevant award was seen as required by equity to provide redress the unlawful act of the administration.
17. The applicant lodged an appeal with the Supreme Court and contended that the damages award was manifestly insufficient. The Attorney-General filed a cross-appeal by which the annulment of the first-instance district court judgment was requested.
“Such moral damage did not constitute a direct consequence of the annulled administrative act and that, therefore, such an award was not covered by the provisions of Article 146 (6) of the Constitution”.
19. Article 146 of the Constitution of the Republic of Cyprus provides as follows:
“1. The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.
2. Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission.
3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse.
4. Upon such a recourse the Court may, by its decision-
(a) confirm, either in whole or in part, such decision or act or omission; or
(b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever, or
(c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed.
5. Any decision given under paragraph 4 of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned.
6. Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared there under that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant.”
20. In Frangoulides v. The Republic (1982) 1 C.L.R. 462 at p. 470, Mr Justice Pikis, as he then was, observed the following:
“The cause of action conferred by Article 146.6 of the Constitution, is a cause sui generis, in the sense that it bears no relationship to a common law action for damages, or, in fact, to any other cause of action known to the law (Costas Tsakkistos v. The Attorney-General (1969) 1 C.L.R. 355). It is a right to be evaluated in the context of Article 146 and the system of review of administrative action created thereby. It is ancillary to judicial review, as a measure necessary for its effectiveness. Primarily it entitles the injured party to recover damage not remediable by proper administrative action. If the proper administrative action is not taken, the remedy is to go to the administrative court again. If notwithstanding this step the injured party is left to shoulder damages, then he has a right to recover them from the Republic. The right to damages under Article 146 is distinctly independent from any other cause of action, as the Supreme Court held in Attorney-General v. Andreas Marcoulides and another (1966) 1 C.L.R. 242. Not only its juridical basis but also the manner of quantifying damages is different from a common law action. The Supreme Court emphasised the equitable character of the relief as well as the damages recoverable, stressing that they are not strictly compensatory. Consequently, it is legitimate for the Court to have regard, not only to the extent of the material damage suffered, but also to the conduct of the parties and the degree to which the successful party contributed to the production of the wrongful administrative act. In the case of Marcoulides, supra, the Supreme Court derived guidance, inter alia, from French case law, establishing that the conduct of the parties and their blameworthiness, if any, is of crucial importance to the determination of the quantum of the damages.”
VIOLATED_ARTICLES: 8


ITEMID: 001-5999
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: LUNDBERG v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicant is a Swedish national, born in 1949 and living in Vällingby. The respondent Government are represented by Ms E. Jagander, Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, who is not a member of the Lutheran Church of Sweden, requested in his tax returns for the income years 1992-94 to be exempted from church tax. He claimed that the levying of church tax on a nonmember of the Church of Sweden contravened, inter alia, the Swedish Constitution and Article 9 of the Convention. He also stated that the municipality of Stockholm and not the relevant parish of the Church, Brännkyrka, was financing the construction and maintenance of burialgrounds and the maintenance of churchyards in the area where he lived.
The tax authorities rejected the applicant’s request and decided to charge him approximately 425, 362 and 385 Swedish kronor (SEK) respectively for the three years in church tax, totalling SEK 1,172. This corresponded to 0.156 per cent of his taxable income for 1992 and 0.13 per cent for 1993 and 1994. The decision was taken in accordance with section 1 of the Act on Reduction of Tax Liability of Persons Not Members of the Church of Sweden (Lag om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan, 1951:691; hereinafter “the Dissenter Tax Act”) which provided that, of the ordinary church tax, a non-member of the Church of Sweden should pay 30 per cent for 1992 and 25 per cent for 1993 and 1994.
The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm but did not request an oral hearing. On 30 December 1994 the Court rejected his appeal as far as it concerned 1993 and, on 11 September 1996, it rejected his appeal with regard to 1992 and 1994.
The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm. Again, he did not request an oral hearing. On 14 February 1997 his appeals were rejected.
On 23 April 1997 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal. In his appeal to that court he had requested an oral hearing.
According to the Burial Act (Begravningslagen, 1990:1144), the parishes within the Church of Sweden are obliged to construct and maintain public burial-grounds, unless the Government decide in the case of a specific municipality that this task shall be performed by the municipality itself (chapter 2, section 1). The right to be buried in a public burial-ground is not dependent on the deceased being a member of a particular religious community (chapter 2, section 4). However, the responsible organ, whether it be the local parish or the municipality, is obliged to provide for separate burial-grounds for those who are not members of any Christian community. The construction and maintenance of such burial-grounds are done in consultation with the religious communities concerned (chapter 2, section 2). Decisions taken under the Act by the parish or the municipality may be appealed against to the County Administrative Board (länsstyrelsen) (previously regulated in chapter 9 of the Act, now in chapter 11). In the municipality where the applicant was liable to pay tax the burial administration was – and still is – the responsibility of the municipality.
When the responsibility for the keeping of population records was transferred from the Church of Sweden to the local tax authorities in July 1991 (see further below), it was decided that the parishes should take care of population records made before that date until these old records have been transferred to the State archives (section 10 of the Act on Promulgation of the Population Registration Act; Lagen om införande av folkbokförings-lagen, 1991:481). It was estimated that it would take up to twenty years before all old records had been so transferred.
The Church Act (Kyrkolagen, 1992:300) also specifically stipulated that a parish may, inter alia, use its financial means to acquire and maintain church buildings and other ecclesiastical property.
At the material time, a church tax was collected together with the ordinary municipal tax. Chapter 21, section 1 of the Church Act referred in this respect to the provisions of the Municipal Tax Act (Kommunalskatte-lagen, 1928:370). The rate was determined by the local parish council which, under the transitional provisions of the 1974 Constitution (Regeringsformen), had a status similar to that of the municipalities, including the right of taxation. This system had a long tradition, based on the fact that the Lutheran Church of Sweden is the established church. In 1990 the rates applied by the parishes varied between 0.56 and 2.64 per cent of the taxpayer’s taxable income. The lowest rates were applied by the parishes of Stockholm where it is the municipality – and not the parishes – that has the responsibility for the burial administration (cf. Svenska kyrkans ekonomi, Statskontoret 1991:12, p. 9, a report on the economy of the Church of Sweden made by the National Agency for Administrative Development). In 1992-94, the relevant years in the present case, the rate applied in the parish of Brännkyrka, where the applicant lived, was 0.52 per cent.
The Dissenter Tax Act stipulated that a person who was not a member of the Church of Sweden should pay a reduced church tax, the so-called dissenter tax. The reduction was motivated by the fact that non-members, referred to as dissenters, should pay the share of the tax that corresponded to the costs relating to the civil, i.e. non-religious, activities of the parish. The dissenter tax, like the church tax, was collected by the local tax authority and forwarded to the relevant parish.
Originally, the dissenter tax amounted to 60 per cent of the ordinary church tax. In 1974 it was reduced to 30 per cent of what the members of the Church of Sweden had to pay. The rationale behind this change was that the share of the costs for the civil tasks performed by the Church – the keeping of population records and the maintenance of churchyards and public burial-grounds – amounted on average to approximately 30 per cent of the Church’s total costs (cf. Government Bill 1973:184, pp. 3-5).
On 1 July 1991 the responsibility for the keeping of population records was transferred to the local tax authorities. With effect as from 1993, the dissenter tax was consequently further decreased, this time to 25 per cent of the amount paid by the members of the Church of Sweden. It was considered that this percentage corresponded to the average costs of the parishes for the burial of the deceased (cf. Government Bill 1991/92:100, appendix 8, p. 141). Reference was made to the above-mentioned report on the economy of the Church of Sweden, according to which 1.25 billion SEK, or about 24 per cent of the Church’s total costs, related to the burial of the deceased.
Under Chapter 42 of the Church Act the tax revenue of the different parishes was to a certain extent equalised through payments to and subsidies from the so-called Church Fund. Poor parishes received a general equalisation subsidy which was not ear-marked for any particular purpose. They could also be granted extra subsidies for specific purposes.
On 1 January 2000 the relations between the Swedish State and the Church of Sweden were changed, involving in practice a separation between the State and the Church. The Church Act and the Dissenter Tax Act were abolished.
The parishes’ right of taxation, previously regulated in the Church Act and the Municipal Tax Act, was replaced with an obligation, laid down in section 7 of the new Act on the Swedish Church (Lagen om svenska kyrkan, 1998:1591), on persons belonging to the Church to pay a church fee.
According to the new chapter 9 of the Burial Act, every person who is registered as resident in Sweden has to pay a burial fee to defray the costs of the burial of the deceased (section 1). The fee is based on the taxpayer’s taxable income (section 3) and is paid to the organ – parish or municipality – responsible for burials at the place where the individual is registered (section 2 § 1). In the municipalities where the local parishes are responsible for burials, the fee of the members of the Church of Sweden is to be included in the church fee (section 2 § 2). According to the Burial Fee Ordinance (Förordningen om begravningsavgift, 1999:729), the burial fee of non-members is fixed by the National Judicial Board for Public Lands and Funds (Kammarkollegiet) following a proposal by the Church of Sweden. The Church of Sweden and the municipalities responsible for burials are obliged to provide the tax authorities and – in the case of the Church – the National Judicial Board with the information needed to calculate and collect the fees. Under the new chapter 10 of the Burial Act, the relevant County Administrative Board supervises the parishes’ burial administration in respect of persons who are not members of the Church of Sweden.
As the parishes continue to be responsible for the care and maintenance of church buildings and other ecclesiastical property of historic value, the Church of Sweden is to receive certain financial compensation from the State for the performance of this task.


ITEMID: 001-84119
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF PAYKAR YEV HAGHTANAK LTD v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant is a private small-scale trading company which has its registered office in Yerevan.
5. On 29 January 2001 the Tax Inspectorate conducted an inspection of the applicant company's accounts. As a result of this inspection, on 2 April 2001 the Ministry of State Revenue (ՀՀ պետական եկամուտների նախարարություն) made an assessment, according to which the applicant company's tax arrears amounted to 3,797,281 Armenian drams (AMD) (approx. 5,400 euros (EUR)), including surcharges and fines prescribed by the relevant tax laws.
6. On an unspecified date, the Yerevan City Prosecutor's Office (Երևան քաղաքի դատախազություն) and the Tax Inspectorate of the Myasnikyan District of Yerevan (Երևանի Մյասնիկյանի տարածքային հարկային տեսչություն) instituted proceedings against the applicant company, claiming that it had failed to meet its tax obligations in an appropriate and timely manner and seeking to recover the above tax arrears.
7. On 13 July 2001 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) decided against the applicant company.
8. On an unspecified date, the applicant company lodged an appeal with the then Commercial Court of Appeal (ՀՀ տնտեսական գործերով վերաքննիչ դատարան). The applicant company also requested that payment of the court fee (known as State fee) be deferred. In his request, the manager of the applicant company submitted, inter alia, that the company was experiencing financial problems and that he was the company's sole employee.
9. On 31 August 2001 the Commercial Court of Appeal granted the applicant company's request for deferral and admitted the appeal.
10. Following the reform of the court system introduced in Armenia on 11 September 2001 which brought about the establishment of the Commercial Court (ՀՀ տնտեսական դատարան), the applicant company's case was transferred to be examined by that court.
11. On 5 November 2001 the Commercial Court decided to leave the authorities' claim unexamined on the ground that the plaintiffs had failed to appear. In its decision, the Commercial Court levied a court fee on the Tax Inspectorate in the amount of AMD 189,864.05 (approx. EUR 370).
12. It appears that the proceedings were resumed on an unspecified date.
13. On 24 December 2001 the Commercial Court decided, at the prosecutor's request, to take measures aimed at securing the claim, freezing the applicant company's property and monetary assets in the amount of AMD 3,797,281.
14. On an unspecified date, the applicant company lodged a counterclaim with the Commercial Court, seeking to have the 2 April 2001 assessment ruled unlawful. The applicant company requested that the payment of the court fee be deferred on the same grounds as before.
15. On 18 January 2002 the Commercial Court granted the applicant company's request for deferral of payment of the court fee and allowed the applicant company's counterclaim, referring to Articles 21 (d) and 31 (c) of the Law on State Fees («Պետական տուրքի մասին» ՀՀ օրենք).
16. On 3 December 2002 the Commercial Court decided to join both claims and to examine them together.
17. On 20 January 2003 the Commercial Court granted the authorities' claim and dismissed that of the applicant company. The court decided to levy on the applicant company a total of AMD 3,797,281 of tax arrears, including profit tax arrears of AMD 193,400 plus a surcharge of AMD 11,352.9 (approx. EUR 310 and EUR 18 respectively), Value Added Tax (VAT) arrears of AMD 132,610 plus a surcharge of AMD 57,839.44 and a fine of AMD 73,080 (approx. EUR 213, EUR 93 and EUR 117 respectively), and simplified tax arrears of AMD 1,919,820 plus a surcharge of AMD 304,428.66 and a fine of AMD 1,104,750 (approx. EUR 3,096, EUR 491 and EUR 1,781 respectively). In imposing the surcharges and fines, the Commercial Court referred to Article 43 of the Law on Value Added Tax («Ավելացված արժեքի հարկի մասին» ՀՀ օրենք), Articles 25 and 28 of the Law on Taxes («Հարկերի մասին» ՀՀ օրենք) and the provisions relating to the delayed payment of taxes. The amount of the unpaid court fee to be paid by the applicant company was calculated at AMD 79,946 (approx. EUR 129).
18. On 3 February 2003 the applicant company lodged a cassation appeal. Together with the appeal, the applicant company submitted a request for deferral of payment of the court fee, claiming that the company was experiencing financial problems: the company had only AMD 770 (approx. EUR 1.2) on its books and in its bank account, both of which had been frozen.
19. By a letter of 14 February 2003 the Court of Cassation informed the applicant company that its cassation appeal would be examined on 28 February 2003. The letter also stated that the appeal would be returned unexamined should the applicant fail to pay the court fee by 24 February 2003.
20. By a letter of 27 February 2003 the Court of Cassation (ՀՀ վճռաբեկ դատարան) returned the applicant company's cassation appeal on the ground that it had not paid the required court fee. The judgment of the Commercial Court came into force.
21. On 28 February 2003 the applicant company applied to the Chairman of the Court of Cassation (ՀՀ վճռաբեկ դատարանի նախագահ), requesting that its appeal be examined out of time and claiming that it was incapable of paying the court fee since the company had almost no assets and the existing ones were frozen.
22. By a letter of 13 March 2003 the Senior Advisor to the Civil and Commercial Chamber of the Court of Cassation (ՀՀ վճռաբեկ դատարանի քաղաքացիական և տնտեսական գործերի պալատի ավագ խորհրդատու) informed the applicant company that its cassation appeal had been returned since “according to Article 70 of the Code of Civil Procedure [(CCP) (ՀՀ քաղաքացիական դատավարության օրենսգիրք)] commercial entities could not be exempted from payment of the State fee”.
23. On 25 March 2003 enforcement proceedings were instituted and an injunction was placed on the applicant company's assets in the amount equal to the judgment debt.
24. On 22 April 2004 the Commercial Court instituted bankruptcy proceedings in respect of the applicant company on the basis of an application lodged by the Tax Inspectorate.
25. On 20 May 2004 the Commercial Court decided to stay those proceedings until a decision had been taken on the applicant company's application lodged with the European Court. It appears that the bankruptcy proceedings are currently still stayed.
26. The relevant provisions of the CCP read as follows:
“1. A State fee shall be paid for: (1) lodging a claim; ... (7) lodging appeals and cassation appeals against court judgments and decisions...
3. The determination of the amount of a State fee, the exemption from its payment, the deferral or postponement of payment of a State fee, and the reduction of its amount are regulated by the “Law on State Fees” of Armenia.
Private businessmen and commercial entities cannot be exempted from payment of a State fee.”
“1. The court, upon the request of a party or of its own motion, shall take measures to secure a claim, if the failure to take such measures may make impossible or hinder the enforcement of a judicial act or lead to the deterioration of the disputed property's condition. It is allowed to secure a claim at any stage of the proceedings.”
“1. Measures securing a claim are: (1) placing an injunction on [(freezing)] the defendant's property or monetary assets in the amount of the claim value...”
“1. An appeal shall be returned if: ... (5) documents substantiating the payment of a State fee according to an established procedure and in a prescribed amount are not attached to the appeal, and, in cases where a deferral or postponement of payment of a State fee or a reduction of its amount are possible under the law, no relevant request has been made or such request has been refused.”
“A cassation appeal can be lodged on: (1) points of law or a procedural violation of the parties' rights; [and] (2) the ground of newly discovered circumstances.
“3. A document substantiating the payment of a State fee shall be attached to the [cassation] appeal.”
“1. Judgments and decisions can be reviewed on the basis of new circumstances [if] ... a violation of a right (rights) guaranteed by an international convention to which Armenia is a party has been found by a final judgment or decision of an international court...”
27. The relevant provisions of the Law on State Fees read as follows:
“Rates of State fees shall be established in respect of the value of the property subject to assessment or the base fee established by this law. The amount of the base fee shall be AMD 1,000.”
“9. for cassation appeals lodged against court judgments and decisions: (a) if a pecuniary claim – at the rate of three per cent of the claim value, but not less than ten times and not more than one thousand times the base fee; (b) if a non-pecuniary claim – twenty times the base fee...”
“The following concessions can be fixed in respect of State fees: (a) exemption from payment of a State fee; (b) reduction of the amount of a State fee: (c) reduction of the rate of a State fee; (d) deferral of payment of a State fee; and (e) exemption, reduction or deferral of payment of a surcharge imposed for the failure to pay a State fee to the budget in due time.”
“...Private businessmen and commercial entities cannot be exempted from payment of State fees prescribed by Article 9 of this law...”
“Concessions in respect of payment of a State fee by specific payers or groups of payers can be set by: ... (c) the courts or judges in specific cases referred to in Article 9 of this law taking into account the financial situation of the parties...”
28. The relevant provisions of the Law on Taxes read as follows:
“Tax liability shall include payment of taxes (including taxes for a concealed or understated taxable object), and surcharges and fines prescribed by the tax legislation for violation of the tax legislation and other legal acts regulating tax relations in Armenia.”
“Taxpayers (enterprises, institutions and organisations) and their officials as determined by the legislation of Armenia shall be responsible for accurate calculation and timely payment of taxes, and for compliance with other requirements of the tax legislation...”
“In case of delayed payment of tax, taxpayers ... shall pay a surcharge equal to 0.15 per cent of the overdue amount for each day of delay.”
“In case of failure to keep accounts (and also other calculations and (or) records envisaged by the tax legislation and the decrees of the Government of Armenia) or in case of keeping accounts in violation of the established procedure or inaccurately preparing accounting reports, calculations, tax returns and other documents and information required under the tax legislation, a fine shall be levied on the taxpayer equal to ten per cent of the amount of the tax not paid or paid incompletely to the budget as a result of these violations.”
“In case of non-registration of objects of business activity, such as supplied, furnished, transported or sold goods and products, and non-registration of work carried out and services rendered in conformity with the procedure prescribed by the Government of Armenia, a fine shall be levied on the taxpayer equal to 25 per cent of the overall value expressed in (calculated at) the sales prices of the unregistered objects of business activity, including the sold (realised) ones...
If repeated non-registration of objects of business activity is recorded within one year of the date when the violation was recorded by the tax inspectorate, a fine shall be imposed equal to 50 per cent of the overall value expressed in (calculated at) the sales prices of the unregistered objects of business activity, including the sold (realised) ones.”
29. The relevant provisions of the Law on Value Added Tax read as follows:
“The amount of the concealed or understated VAT and a fine equal to 50 per cent of that amount shall be levied from taxpayers who conceal or understate the turnover subject to VAT and who conceal or understate the amount of VAT payable to the budget by understating ... the amount of VAT paid for goods and services in violation of the procedure prescribed by this law.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4721
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KAINZ v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1934 and living in Hard.
He is represented before the Court by Ms Berchtold-Ostermann, a lawyer practising in Vienna.
A. PARTICULAR CIRCUMSTANCES OF THE CASE
In 1979 the applicant concluded with M. a contract for the purchase of a plot of land situated in the Vorarlberg region.
On 16 December 1993 the applicant, represented by counsel, filed a request with the Vorarlberg Real Property Transaction Commission (Grundverkehrs-Landeskommission) to approve the acquisition of the plot of land by the above sales contract.
On 8 March 1994 the Real Property Transaction Commission, referring in particular to sections 5(1) and 6(a) of the 1977 Vorarlberg Real Property Transactions Act (Grundverkehrsgesetz), as amended in 1987, refused the approval. It found in particular that the plot of land formed part of the “Maisäss” (an alpine pasture at middle elevation up to about 1200 m) Zafern no. 29. The cottage on this plot, which the applicant had meanwhile renovated and transformed into a secondary residence, formed an important part of this pasture, even if it was not used for agricultural purposes. It was not in the interests of efficient peasantry and sound agricultural estates to split up this farming entity.
On 31 May 1994 the Real Property Transaction Senate (Grundverkehrssenat), following an oral hearing on 27 May 1994 in the presence of the applicant’s counsel, dismissed the applicant’s appeal. In its decision the Senate noted his appeal submissions, in particular his assertion that he had not known about the necessity of approval under the Real Property Transaction Act. The Senate considered that it was not credible that the vendor of the plot of land, then mayor of Fontanella, had ignored the legal situation when drawing up the written contract in 1979. It rather appeared that the contract had been concluded in 1979 in order to circumvent the Real Property Transaction Act, and that the reconstruction work had been carried out by the applicant in order to obtain approval, the cottage having been changed so as to remove any sign of its previous agricultural use. These measures contravened the general interest in maintaining an efficient peasantry and an economically sound structure for small and middle size farming entities.
On 28 July 1994 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained about a violation of his right to be heard by a legally competent court (gesetzlicher Richter), claiming that the real transaction authorities lacked competence as the Real Property Transaction Act did not apply to the plot of land in question. He further complained that the decision of the Real Property Transaction Senate was arbitrary in presuming an intention to circumvent the provisions of the Real Property Transaction Act.
On 4 October 1995 the Constitutional Court dismissed the applicant's complaint. The Constitutional Court observed at the outset that in accordance with the transitional provisions of the 1993 Real Property Transactions Act, which had entered into force in January 1994, the 1977 Act continued to apply to pending proceedings. As regards the competence of the real estate transactions authorities, the Constitutional Court noted that when the applicant had acquired the plot of land in 1979, it had been an agricultural estate as there had been a “Maisäss” cottage on it. Such cottages served farmers inter alia in spring and autumn for feeding purposes before and after the periods spent on the high alpine pastures. The Real Property Transaction Senate had convincingly reasoned that the reconstruction of the cottage as a secondary residence had changed the initial purpose of the plot of land, and that such action served to circumvent the legal rules. In this context, the question of intent was irrelevant, it was sufficient that, objectively seen, there was such a circumvention. On the whole, there was no appearance of arbitrariness.
The decision was served on 16 November 1995.


ITEMID: 001-91032
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MILJENKO KOVAČ v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Miljenko Kovač, is a Croatian national who was born in 1938 and lives in Bjelovar. He was represented before the Court by Mr H. Kovač, an advocate practising in Bjelovar. 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.
The applicant was a shareholder of the Croatia banka d.d., a joint-stock company incorporated under Croatian law with its registered office in Zagreb (“the bank”). The bank was entirely owned by private individuals and companies.
On 23 February 1999 the Croatian National Bank (Hrvatska narodna banka – “the CNB”) adopted a decision appointing a temporary administrator to the bank. Under section 84(2) of the Banks Act, from the date of service of such decision, all powers of the management board, the supervisory board and the shareholders’ general meeting were transferred to the temporary administrator. Subsequently, on 23 August 1999 the CNB extended the temporary administrator’s term of office for a further two months.
Meanwhile, on 18 June 1999 the CNB had proposed to the Government that the process of recovery and restructuring of the bank be commenced, as provided for by the domestic legislation.
In accordance with that proposal, on 23 September 1999 the Government adopted the Decision on Recovery and Restructuring of the Croatia banka d.d. (“the Decision”). From that date, all shares held by the bank’s shareholders were revoked and cancelled. Following the process of recovery, the bank was to issue new shares, all in the name of the State Agency for Securing Savings Deposits and Recovery of Banks (Državna agencija za osiguranja štednih uloga i sanaciju banaka).
In 1999 and 2000 five shareholders of the bank, but not the applicant, filed four separate petitions for review of the constitutionality and legality (prijedlog za ocjenu ustavnosti i zakonitosti) of the Government’s Decision of 23 September 1999. They complained that the Decision violated their constitutional rights as shareholders of the bank. They also claimed that the bank had been in good standing and that the Decision had therefore been unnecessary.
On 30 January 2003 the Constitutional Court (Ustavni sud Republike Hrvatske) discontinued the proceedings because the statute on which the Decision was based had in the meantime been repealed.
On 20 November 2001 the applicant brought a civil action for unjust enrichment (or enrichment without cause) in the Bjelovar Municipal Court (Općinski sud u Bjelovaru) against the bank, seeking repayment of 37,200 Croatian kunas (HRK). He relied on section 210(3) of the Civil Obligations Act. The applicant explained that on 28 November 1997 he had bought 186 of the bank’s ordinary shares for the above amount. However, on the basis of the Government’s Decision of 23 September 1999 he had been deprived of those shares. He argued that the Decision had actually annulled the contract under which the bank had sold him its shares. That contract, being the cause on the basis of which he had paid HRK 37,200 to the bank, had thus ceased to exist. It followed that the bank had enriched itself without cause, or more precisely, on the basis of a cause which had subsequently ceased to exist, and had therefore been bound to return to him the sum in question.
On 12 February 2002 the Municipal Court dismissed his action. It rejected the applicant’s argument that the Government’s Decision of 23 September 1999 had annulled the contract under which he had acquired the bank’s shares. Consequently, the court found that the cause on the basis of which he had paid HRK 37,200 to the bank had not ceased to exist and that the bank had not been bound to return the sum demanded.
Following an appeal by the applicant, on 27 May 2002 the Bjelovar County Court (Županijski sud u Bjelovaru) quashed the first-instance judgment on account of incomplete facts and remitted the case. It also instructed the lower court to verify whether the contract under which the applicant had bought the shares could be rescinded under section 133 of the Civil Obligations Act on account of the fundamental change in circumstances, having regard to the Government’s Decision of 23 September 1999.
In the resumed proceedings, on 19 November 2002 the Bjelovar Municipal Court ruled for the applicant, finding that the bank had indeed enriched itself without cause. The court again did not accept the applicant’s argument that the contract of sale on the basis of which he had bought the bank’s shares had been annulled by the Government’s Decision of 23 September 1999. It however held that, because of that Decision, the contract had lost one of the essential elements for the validity of every contract, namely its consideration, defined as the economic purpose of a transaction. Relying on section 52 of the Civil Obligations Act, the court further found that, owing to the absence of consideration, the contract was null and void. Accordingly, the nullity of the contract had resulted in the disappearance of the cause on the basis of which the applicant had paid the bank the sum sought and the bank had been obliged to return that sum to him.
Following an appeal by the respondent, on 27 February 2003 the Bjelovar County Court reversed the first-instance judgment and dismissed the applicant’s action. It found that the Government’s Decision of 23 September 1999 had not annulled the applicant’s contract with the bank relating to the purchase of the shares. Moreover, the Decision could not in any other way have affected the validity of that contract because the parties had performed, and thereby extinguished, their contractual obligations before the Decision had been adopted (the applicant by paying HRK 37,200 to the bank, and the bank by transferring 186 of its shares to him). It followed that at the relevant time (during its existence) the applicant’s contractual obligation had been performed for consideration which could not subsequently have been removed by an event that took place after that obligation had already been extinguished. The contract in question had thus been valid. As that contract had been the cause on the basis of which the applicant had paid HRK 37,200 to the bank, and had been valid, it could not be argued that this cause had ceased to exist and that the bank had been bound to repay him the amount sought. The conditions for rescission of the contract on the basis of a fundamental change in circumstances had not been met either, because under section 133(3) of the Civil Obligations Act such rescission could not have been sought by a party who had already performed his or her contractual obligations.
On 30 October 2003 the applicant lodged a constitutional complaint against the second-instance judgment, alleging breaches of Articles 48 (1), 49 and 50 of the Constitution.
On 16 March 2006 the Constitutional Court dismissed his constitutional complaint.
The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/90, 135/97, 8/98 (consolidated text), 113/00, 124/00 (consolidated text), 28/01 and 41/01 (consolidated text), 55/01 (corrigendum)) provide as follows:
“The right to property is guaranteed.”
“The rights acquired through the investment of capital shall not be diminished by law, or by any other legal act.”
“1. Property [rights] may be restricted or taken in accordance with the law and in the interest of the Republic of Croatia upon payment of compensation equal to its market value.
2. The exercise...of property rights may exceptionally be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or health.”
The relevant provisions of the Banks Act (Zakon o bankama, Official Gazette no. 161/98) read as follows:
“When the Croatian National Bank establishes that the potential losses of a bank ... are higher than that bank’s share capital and in cases where a bank is insolvent, it shall appoint a temporary administrator to that bank, or shall file a petition with the competent court with a view to opening bankruptcy proceedings against that bank.”
“From the date of service of the decision on the appointment of a temporary administrator, all powers of the management board, supervisory board and shareholders’ general meeting shall cease and shall at the same time be transferred to the temporary administrator.”
“On the proposal of the Croatian National Bank, the Government of the Republic of Croatia may decide to commence the process of recovery of a bank if it establishes that this is in the State’s special interest and if it finds that the other possibilities of preventing disturbance in the stability of the overall financial system of the State have been exhausted.”
The relevant provisions of the Act on Recovery and Restructuring of Banks (Zakon o sanaciji i restrukturiranju banaka, Official Gazette no. 44/94 – “the Recovery and Restructuring Act”) read as follows:
“The procedure of recovery and restructuring of a bank shall be initiated when a bank shows potential losses ... of more than 50% of the amount of its share capital, if the Croatian National Bank deems such procedure feasible and economically justifiable.”
“The decision on recovery and restructuring of a bank shall be given by the Government of the Republic of Croatia on the proposal of the Croatian National Bank.”
The Recovery and Restructuring Act was repealed on 23 May 2000 by the entry into force of the Act Repealing the Act on Recovery and Restructuring of Banks (Zakon o prestanku važenja zakona o sanaciji i restrukturiranju banaka, Official Gazette no. 52/2000 of 23 May 2000).
The Decision on Recovery and Restructuring of the Croatia banka d.d. (Odluka o sanaciji i restrukturiranju Croatia banke d.d., Zagreb, Official Gazette nos. 98/1999 and 53/2000 – “the Decision”), in its relevant part, read as follows:
“It is established that on 31 May 1999 the bank has:
(a) risky investments and potential liabilities in the amount of 1,809 million kunas, including potential losses of 517 million kunas;
(b) suspected and disputed claims ... in the amount of 446 million kunas;
(c) business losses incurred in 1998 and between 1 January and 31 May 1999 in the amount of 622.2 million kunas.”
“On the day of the publication of this Decision all existing shares of the Bank shall be revoked and cancelled. The Bank shall issue new shares in the amount of 217 million kunas, which shall be entirely owned by the Agency.”
The relevant part of the Courts Act (Zakon o sudovima, Official Gazette nos. 3/94, 100/96, 131/97 and 129/00), as in force at the material time, read as follows:
Commercial courts... shall adjudicate:
1. ...
2. Disputes concerning the establishment, operation and dissolution of commercial companies as well as disputes concerning disposition of membership and membership rights in such companies ...”
The relevant part of the Civil Obligations Act (Zakon obveznim odnosima, Official Gazette nos. 53/91, 73/91, 111/93, 3/94, 7/96, 91/96, 112/99 and 88/01), read as follows:
“(1) Every contractual obligation shall have permissible consideration.
(2) Consideration shall be impermissible if it is contrary to the Constitution, peremptory rules or public morals.
(3) It shall be assumed that an obligation has consideration even if it is not expressly stated.”
“If consideration is inexistent or impermissible, the contract shall be null and void.”
“(1) If, after a contract has been entered into, circumstances occur which make the performance of the obligations of one party more difficult, or if, owing to such circumstances the purpose of the contract cannot be attained, and in both cases to the extent that the contract obviously no longer corresponds to the expectations of the contracting parties and that, according to general opinion, it would be unfair to maintain the contract as it is, the party for which performance has been rendered more difficult or the party which, owing to the [fundamentally] changed circumstances, cannot attain the purpose of the contract, may request that the contract be rescinded.
(2) ...
(3) The party requesting the rescission of the contract cannot rely on [fundamentally] changed circumstances which have occurred after the expiry of the time-limit set forth for the performance of his or her obligation.
(4) ...
ENRICHMENT WITHOUT CAUSE
“(1) When a part of the property of one person passes, by any means, into the property of another person, and that transfer has no basis in a legal transaction or a statute [i.e. it is without cause], the beneficiary shall be bound to return that property. If restitution is not possible, he or she shall be bound to provide compensation for the value of the benefit received.
(2) ...
(3) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not come into existence or which subsequently ceased to exist.”
On 21 December 2004 the High Commercial Court (Visoki trgovački sud Republike Hrvatske) delivered judgment no. Pž-6234/04-2 in a case where the plaintiff, a shareholder of the Croatia banka d.d., had sued the bank and the State Agency for Securing Savings Deposits and Recovery of Banks before the competent commercial court claiming that she had been deprived of her shares and the rights derived from them without any compensation. She sought a declaratory judgment that she was still a shareholder of the bank and asked the court to order the respondents to transfer her back 1,517 of her shares. In ruling for the plaintiff the High Commercial Court directly applied Articles 48 (1) and 49 (4) of the Constitution. It expressly stated that the Government’s Decision of 23 September 1999 was contrary to the latter Article and reasoned as follows:
“In particular, any restriction or deprivation of the rights deriving from shares would be contrary to that provision of the Constitution, as it would constitute diminution or deprivation of membership rights acquired through the investment of capital in a joint-stock company.”


ITEMID: 001-60477
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF W.F. v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of P7-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Georg Ress
TEXT: 9. On 21 May 1995 the applicant was involved in a road traffic accident and, on 19 October 1995, he was found by the Braunau District Administrative Authority (Bezirkshauptmannschaft) to have been driving under the influence of alcohol, contrary to sections 5 § 1 and 99 § 1 (a) of the Road Traffic Act 1960 (Straßenverkehrsordnung). He was sentenced to pay a fine of ATS 14,000.00. It does not appear that the applicant appealed against this decision.
10. On 1 August 1996 the Mattighofen District Court convicted him under Article 88 §§ 1 and 3 of the Penal Code of negligently causing bodily harm in particularly dangerous conditions (fahrlässige Körperverletzung unter besonders gefährlichen Verhältnissen), and sentenced him to a fine of ATS 8,000.00.
11. On 2 June 1997 the Ried Regional Court dismissed the applicant’s appeal. The Regional Court distinguished the present case from the Gradinger case of the European Court of Human Rights (Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C) on the ground that in the Gradinger case the administrative proceedings were after the criminal proceedings, whereas in the present case the order of the criminal and administrative criminal proceedings was reversed.
12. Section 5 of the Road Traffic Act 1960 provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively.
13. Section 99 of the 1960 Act provides, so far as relevant, that:
“(1) It shall be an administrative offence (Verwaltungsűbertretung), punishable with a fine of not less than ATS 8,000 and not more than ATS 50,000 or, in default of payment, with one to six weeks’ imprisonment, for any person:
(a) to drive a vehicle when under the influence of drink ...”
14. Section 99 § 6 of the Road Traffic Act regulates the relation between the offences under section 99 §§ 1-5 of that Act and offences of ordinary criminal law coming within the jurisdiction of the ordinary courts. While in respect of some offences under the Road Traffic Act Section 99 of that Act stipulates a relation of subsidiarity – if the same set of facts might constitute an offence of ordinary criminal law and the Roads Traffic Act only an offence falling within the jurisdiction of the ordinary courts is committed – this is not the case with the offence under the Road Traffic Act of driving a vehicle under the influence of drink.
15. In its judgment of 5 December 1996 the Constitutional Court had to examine the constitutionality of Section 99 subsection (6)(c) of the Road Traffic Act, by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts.
The Constitutional Court noted that that it was not contrary to Article 4 of Protocol No. 7 if a single act constituted more than one offence. This was a feature common to the criminal law of many European countries. However, it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute more than one offence, whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment. Thus, Article 4 of Protocol No. 7 prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other. Where, as in the present case, the law explicitly provided that one offence was not subsidiary to another, it had to be guided by Article 4 of Protocol No. 7. The Court’s Gradinger judgment of 23 October 1995 had shown that there was a breach of this Article if an essential aspect of an offence, which had already been tried by the courts, was tried again by the administrative authorities.
Section 99 subsections (1)(a) and (6)(c) of the Road Traffic Act, taken together, meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent. According to the criminal courts’ constant case-law under Article 81 § 2 of the Criminal Code (cited below), drunken driving was also an essential aspect of certain offences tried by these courts. In so far as section 99 (6)(c) of the Road Traffic Act limited the subsidiarity of administrative offences to those enumerated in subsections (2) to (4) of Section 99, thus excluding subsidiarity for the offence of drunken driving contained in section 99 (1)(a), it violated Article 4 of Protocol No. 7.

16. Under Article 88 § 1 of the Criminal Code, it is an offence, punishable by up to three months’ imprisonment or a fine, to cause physical injury by negligence.
17. Section 88 § 3 increases the sentence in respect of causing injury by up to six months’ imprisonment , if the special circumstances of Section 81 § 2 apply. Section 88 § 4 increases the sentence in respect of causing injury by up to two years’ imprisonment, if the special circumstances of Section 81 § 2 apply and the injury is particularly serious.
18. Section 81 § 2 applies where a person commits the offence
“after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, ...”.
19. Under an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be “intoxicated” for the purposes of section 81 § 2.


ITEMID: 001-80623
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ZELILOF v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (ill-treatment suffered at the hands of the police and failure to conduct an effective investigation);Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Loukis Loucaides
TEXT: 5. The applicant is a Greek citizen of Russian-Pontic origin who was born in 1978 and lives in Salonika.
6. On 23 December 2001, at approximately 10.15 p.m., the applicant was walking towards a cafeteria in Ano Toumba, a district of Salonika, when he saw a police patrol carrying out an identity check on the passengers of a car. The applicant, who knew the passengers, proceeded to ask one of them, Mr Giorgos Kalaitsidis, what was going on.
7. The applicant submitted that a police officer, who was subsequently identified as Police Sergeant Apostolos Apostolidis, flashed his torch on him and asked him to identify himself. The applicant replied that he wanted to know whether his friend had a problem. The applicant was then asked by another police officer, later identified as Police Constable Zaharias Tsiorakis, to produce his identity card. The applicant replied that he did not have his identity card with him and suggested that they all go to the nearby police station for an identity check, as his identity card had been issued there. Then, allegedly, one of the police officers asked him whether he was “being the tough guy”. The applicant submitted that, seconds later, Tsiorakis wrapped his handcuffs around his fist and then punched him in the mouth. The applicant alleged that this made him feel dizzy and that, as he was falling down, Tsiorakis kicked him twice in the chest and abdomen.
8. The applicant asserted that he managed to leave the scene when another acquaintance of his, Dimitrios Kalaitsidis, headed towards the police officers, asking them to stop beating the applicant on the head as the latter was suffering from a head problem. The applicant contended that by that time he had heard three to four gunshots being fired. According to the testimony of Police Officer Apostolidis, the latter fired three warning shots in the air “in a safe way” with the intention of intimidating the applicant as he was escaping from the scene. The applicant then proceeded to the nearby police station, located at a distance of approximately forty metres from where the incident had taken place. On his arrival there, he complained to two policemen about his ill-treatment. The two police officers seized him and dragged him inside the police station. They then handcuffed him and started beating and kicking him in various parts of his body. The applicant asserted that the police officers who had carried out the initial road check were among those ill-treating him. According to the applicant, this went on for approximately thirty minutes, until the officers realised that a high-ranking officer was coming. Upon hearing this, a police officer grabbed a dirty mop and wiped the blood off the floor and the applicant's face, repeatedly uttering the word “drop dead” (ψόφος).
9. The applicant passed out and was transferred by ambulance to Aghios Dimitrios Hospital in Salonika, where he remained until 28 December 2001.
10. Four other individuals of Kazakh origin, acquaintances of Mr Zelilof, who were also involved in the event, were arrested that night and taken to the police station where the applicant was detained. Among them, Dimitrios and Charalambos Kalaitsidis were charged with assaulting police officers. In their defence pleadings, dated 23 January and 2 April 2002, they stated that they had been the victims of a discriminatory attitude due to their ethnic origin. In particular, Dimitrios Kalatsidis stated that while being transferred and once inside the police station the police officers had repeatedly shouted at him “F... Russia, you are mafia, you come over here and you think you are tough, you bastards, if you don't leave town or if we see you again in the cafeteria, we will f... you, f... your Christ and Virgin Mary”. Charalambos Kalaitsidis stated that police officers had shouted at him while he had been inside Toumba police station: “You dirty Russians, you will never work again in your lives, you fuckers, you bastards. I f... your mothers”.
11. The Government maintained that the identity check on the passengers of the car had been almost complete when the applicant, who was passing by, headed towards the police officers. The police officers initially warned him not to come close to the car so as to be able to complete the check unobstructed and not expose the passengers to public view.
12. Despite their initial warning the three police officers were ignored by the applicant, who approached the car and started talking to the passengers. Police Officer Apostolidis asked the applicant to identify himself. The latter refused to obey and shoved the police officer abruptly with his arm. Apostolidis fell to the ground after being hit in the face by the applicant. Officers Hamopoulos and Tsiorakis ran to their colleague's assistance and tried to handcuff the applicant. The latter resisted strongly by punching and kicking the above-mentioned officers.
13. In the meantime Dimitrios and Lazaros Kalaitsidis had appeared from a nearby café and got involved in the argument between the applicant and the three police officers. While the police officers were trying to handcuff the applicant and arrest him, Dimitrios and Lazaros Kalaitsidis violently shoved the police officers with their arms and struck them with their arms and legs. By doing so, they managed to prevent them arresting the applicant, who fled from the scene. Apostolidis fired a shot in the air in order to scare his assailants away.
14. Due to the fact that the incident had been taking place close to Toumba police station, as soon as Officer Apostolidis had fired the shot, another group of police officers ran to their assistance. A number of persons who had either actively participated in or just observed the incident ran away into the café. Charalambos and Dimitrios Kalaitsidis and Panagiotis Galotskin were arrested and driven to Toumba police station. The applicant was arrested later the same day. He was also taken to Toumba police station, where he was charged with resisting lawful authority, releasing a prisoner and causing unprovoked bodily injury. He was kept at the police station just the time strictly necessary for the preparation of the case file and then taken to hospital. Neither he nor his acquaintances were ever abused by police officers while at the police station.
15. According to the hospitalisation information note issued by the hospital on 2 January 2002, the applicant bore contusions on his thorax and breast bone and a contusion on his left cheek bone, and had an infraorbital haematoma in both eyes. The applicant also had wounds on his head and back that required stitching. He was diagnosed as suffering from “head and thorax injury, and slight brain concussion”. The note also stated that the applicant was admitted to the hospital on 24 December 2002 and discharged on 28 December 2002.
16. On 29 January 2002 the applicant was summoned by the prosecutor's office to undergo a medical examination by a forensic doctor. According to the prosecutor's order, the Forensic Department was asked to send the forensic report to the prosecutor's office at the earliest opportunity.
17. According to the forensic expert's medical examination, dated 29 January 2002, the applicant bore a contusion in the chest area, a wound on the part of the head covered with hair, an intumescence and an ecchymosis on his left cheek bone. He also had an infraorbital haematoma in both eyes. The dental examination revealed that the applicant's crown on his lower left canine tooth was fractured and that part of his jaw was dislocated. The forensic expert found that “... Zelilof suffer[ed] from a medium-intensity bodily injury, caused by blunt instruments, and – barring any unforeseen complication – [would] probably recover within 18-21 [days].”
18. According to the hospitalisation information note issued by the hospital on 24 December 2001, Hamopoulos was diagnosed with “a bruise on his left tibia”; Apostolidis bore “heavy bruises on the outer part of both his hands; and Tsiorakis bore “heavy bruises on the fingers of his right hand and his right wrist”. The hospitalisation note stated that the police officers were admitted to the hospital on 23 December 2002 and discharged on 24 December 2002.
19. Police Officers Hamopoulos, Apostolidis and Tsiorakis were not subjected to a medical examination by a forensic doctor.
20. On 8 January 2002 Salonika police headquarters ordered an administrative investigation in order to ascertain the exact circumstances in which the three police officers had been injured and whether they were liable for any disciplinary offence. The administrative investigation was assigned to an officer serving at the police's sub-directorate of administrative investigations. As part of the investigation the investigating police officer summoned as witnesses the three police officers who had been involved in the incident. The various witness statements available were studied but no further inquiry was conducted regarding the gunshots fired or the general legitimacy of the initial identity check. It was observed in the report of the administrative investigation issued on 9 August 2002 that “persons involved in the incident refused to comply with the police officers' orders and, furthermore, one of them [Zelilof] had intended to “control” the police officers who were performing the identity check, considering arbitrarily and cheekily that he had an inexistent right .... Taking into account also the unprovoked, violent and disproportionate assault by other individuals on the police officers, it is concluded that the police officers properly assessed the relevant circumstances and acted correctly. The brawl between the police officers and the individuals in question was inevitable. The police officers used necessary physical force against the civilians, mainly in order to defend their physical integrity that was under imminent threat. There was a clear danger that the police officers' firearms would be snatched by the individuals concerned in the context of a disproportionate assault by ten to fifteen of them on the police officers. Thus, apart from the injuries inflicted on the police officers, which could easily have been more serious, there was an imminent danger that firearms would be used by civilians in an extreme way (fatal shooting of the police officers, etc.)”.
21. As regards the alleged ill-treatment on the premises of the police station, the report observed, among other things, that “the violent behaviour of the police officers transpired from the testimonies of the persons who had provoked the illegal acts. Even if these testimonies could not be rejected as such, their accuracy and objectivity could not be taken for granted. Testimonies such as those made by Kalaitsidis and Kampanakis – cousin and friend respectively of the accused – undoubtedly concern personal opinions and assessments that will be of assistance to the accused during the trial. ... Not all the testimonies have been proven; on the contrary, the police officers (involved in the events) have denied them. The latter insisted in their testimonies that there was no violence in the police station and that all the injuries sustained by the civilians were provoked before their transfer to the police station”. It continued as follows: “At this point reference should be made to the allegations of individuals concerning unprovoked ill-treatment inflicted by 'mean' police officers against those who just 'happened' to be there or were unrelated to the incident. These [testimonies] could not be taken seriously, nor could they be considered objective. On the contrary, they had to be considered as defence tactics by their friends/acquaintances, who faced serious criminal charges and whose depositions aim to cast the police officers in a bad light”.
22. Finally, the report noted that both the applicant and the police officers had failed to submit to an examination by the forensic doctor. It stated that “As they failed to undergo the forensic exam (not one of the victims went to the forensic doctor to be examined), the seriousness of the injuries inflicted on the individuals cannot be accurately assessed. This fact shows an intention to prevent the disclosure of new evidence that would have facilitated the investigation of the case. ... The same considerations could be applied to the police officers. According to the investigating police officer, this omission was due to negligence on the part of the police officers. ... The disciplinary liability that derived from that omission was obvious in the present case, but was of minor importance in the context of the case as a whole. Thus, no such intention could be attributed to the police officers”.
23. The report did not make any reference to the applicant's forensic medical examination of 29 January 2002.
24. On 24 December 2001 charges were brought against the applicant for resisting arrest, assaulting a police officer and causing grievous bodily harm. On 13 January 2004 the applicant appeared before the investigating judge in order to testify with regard to the charges against him. The applicant contended that Police Officer Apostolidis had submitted his criminal record to the investigating judge in order to establish his “criminal and socially deviant character”. Apostolidis contended that the files relating to the applicant's criminal record had been compiled by the police department in which he served. The applicant contended that the information about his criminal record as submitted by Apostolidis was inaccurate and not up to date.
25. On 14 January 2004 the investigating judge granted the applicant bail for 587 euros.
26. On 14 January 2005 the Salonika Court of First Instance sentenced the applicant to fourteen months' imprisonment under Article 167 § 1 of the Greek Criminal Code for resisting lawful authority. The first-instance court established that Police Officer Apostolidis had asked the applicant to identify himself and that the latter had refused to obey and had shoved him violently with his arm and then violently pushed Officers Hamopoulos and Tsiorakis with his arms and feet. It further considered that Police Officers Apostolidis, Hamopoulos and Tsiorakis had been assaulted by Dimitrios and Lazaros Kalaitsidis, who had appeared from a nearby café in the meantime and tried to help the applicant escape. The court accepted that the three police officers had feared for their physical integrity as a group of almost fifteen persons had hindered them, either physically or verbally, in their task of carrying out a normal police control. Finally, the court did not accept that the aggravating circumstances described in Article 167 § 2 of the Greek Criminal Code could be applied in the applicant's case (judgment no. 683/2005).
27. The case is currently pending before the domestic courts.
28. On 14 January 2002 the applicant lodged a criminal complaint with the Salonika Public Prosecutor's Office. The complaint was lodged against the police officers who had been involved in the incident described above and concerned the alleged ill-treatment both during the course of his arrest and during his detention on 23 December 2001. The applicant further complained that he had not been given time to apply to Salonika General Police Directorate for a copy of the police officers' criminal and disciplinary records, whereas Police Officer Apostolidis had been able to submit the applicant's criminal record to the investigating judge in order to establish his “criminal and socially deviant character”.
29. On 2 July 2002 the Prosecutor at the Salonika Court of First Instance dismissed the applicant's criminal complaint as “factually unfounded”. The prosecutor endorsed the conclusions reached in the administrative investigation on the basis of the depositions of the police officers. No witnesses were questioned personally by the prosecutor. Furthermore, the prosecutor contended that Police Officer Apostolidis had not acted improperly in submitting the applicant's criminal record to the investigating judge. He concluded that the investigating judge had legitimately taken those documents into account (decision no. 30/2002).
30. On 16 October 2002 the applicant lodged an appeal with the Prosecutor at the Salonika Court of Appeal. On 16 November 2002 his appeal was declared inadmissible (decision no. 240/2002).
31. On 22 November 2002 the applicant lodged a fresh appeal with the Prosecutor at the Salonika Court of Appeal. On 29 November 2002 his appeal was dismissed as “factually unfounded” again. In particular, the prosecutor confirmed the conclusions of decision no 30/2002 without personally questioning the witnesses. The applicant's allegations of ill-treatment were considered to be false and the prosecutor concluded that there was no need to launch an in-depth judicial investigation into the incident. Lastly, the prosecutor confirmed the conclusions of the Prosecutor at the Court of First Instance as to the admissibility of the files which had been compiled by Police Officer Apostolidis from the applicant's criminal record and submitted to the investigating judge (decision no. 246/2002).
32. Article 167 of the Greek Criminal Code provides in so far as relevant:
“Resistance
1. Anyone who uses or threatens to use force for the purpose of obliging an authority or a civil servant to carry out an act within their competence or to refrain from carrying out a legal act, and anyone who uses physical force against a civil servant ... shall be punished by a term of imprisonment of at least three months.
2. Where the punishable acts cited above occur as a result of using a weapon or an object that may provoke bodily injury ... or the person who is the subject of the attack is seriously endangered, the perpetrator shall be punished by a term of imprisonment of at least two years ....”
33. The Greek Ombudsman issued a report on 12 October 2004 entitled “Disciplinary-administrative investigations into allegations against police officers”. It stated in relation to the use of medical certificates by the police:
“This is a major issue mainly in cases that are routine and do not contain any reference to the effect that the existing medical certificates were taken into consideration when deciding on the issue of disciplinary punishment and do not provide an adequate explanation for the conclusions of the administrative investigation, especially in cases where, for example, the nature of the bodily injuries attested to by the medical certificates, would clearly warrant a more careful examination. For instance, reference is made to [a case where] the Ombudsman's Office noted that the extent of bodily injuries, as borne out by the medical certificates assessed by the police in a routine manner, indicated that either the police officers involved had exceeded the limits of self-defence or that [the police officers] had breached Article 137A of the Greek Criminal Code [Torture]. As a consequence, the Greek Police should have assessed the evidence before it in a more careful and substantiated way. Due to the merely routine assessment of evidence, the validity of any ensuing judgment of police disciplinary bodies is justifiably rendered vulnerable and susceptible to all kinds of criticism.
In cases like the one mentioned above, suspicions naturally arise as to the perfunctory assessment of the available evidence. Because of the routine assessment of evidence, the validity of every decision of the police disciplinary bodies becomes somewhat vulnerable and susceptible to all kinds of criticism if [the decision] disregards the precepts of legal science and all the methods it employs in establishing the actual facts of a case”.
VIOLATED_ARTICLES: 3


ITEMID: 001-23916
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ECCLESTON v. the UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Stephen Eccleston, is a United Kingdom national, who was born in 1965 and lives in Liverpool. He was represented before the Court by E. Rex Makin & Co., solicitors practising in Liverpool.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was placed in care with Liverpool City Council (“the Council”) from the age of two as his mother could not cope. From 1967 until 1979 he remained under the Council's care, with occasional periods with his mother. He was placed in various homes operated by the Council for the purposes of accommodating children in their care.
From 22 June 1970 until 27 November 1970, the applicant was placed at 31 Ternhall Road, Children's Home, Liverpool which was run by a Mrs Beesley with the assistance of her husband. During his residence there he was subjected to acts of cruelty which damaged his mental and physical health. Amongst other incidents, Mr and Mrs Beesely tied the applicant to chairs outside the premises at night, restrained the applicant by tying him down with a sheet so that on occasion he could not avoid urinating, subjected him to racial abuse, denied him proper quantities of food such that he became malnourished, neglected his physical condition such that he developed gangrene of the toes, allowed their own children to assault the applicant and subjected him to psychological and sexual abuse.
On 27 November 1970, the applicant was admitted to hospital where he was observed to be malnourished, dirty and with gangrene of the toes and to exhibit disturbed behaviour.
Since then the applicant continues to suffer from personality disorders, post traumatic stress disorder, panic attacks and depression and permanent physical injury to his foot.
In 1988, the applicant requested the Council to provide him with his social records as the only coherent record of his childhood and early development. His request was refused. In 1991, the applicant sought access to his records through his then solicitors. After a meeting with a social worker very limited information was provided and no copies provided.
On 14 November 1995, the applicant's present solicitors applied to the Council for the applicant's social services' records.
Following further approaches, the Council responded to a letter of 15 March 1996 by refusing the request.
On 17 July 1996, the applicant's solicitors issued an application for pre-action discovery to compel the Council to release the records. The application was opposed by the Council and adjourned pending the judgment of this Court in Stubbings and others v. the United Kingdom (judgment of 22 October 1996, Reports of Judgments and Decisions 1996-IV).
On 20 August 1996, the Council provided brief details from the applicant's file, setting out the periods and locations where he was in their care. Following the judgment in Stubbings (cited above), the Council maintained their opposition to discovery.
Between June 1997 and November 1998 the applicant's solicitors repeatedly sought disclosure of his records. In 1999 they sought an appointment with the Council's legal advisor which was refused.
On 15 December 1998, in correspondence with the applicant's solicitor, the Department of Health highlighted the Data Protection Act 1998 under which the applicant would have a right of access to his social service records.
On 22 April 1999 the Council stated that they were prepared to allow the applicant's solicitors access to the applicant's social services records. In May 1999 the Council commenced the procedure of disclosure which took some time to complete.
On 31 May 2000, the applicant issued proceedings in the High Court seeking damages from the Council for the psychological and physical injuries which he suffered at Ternhall Road Children's Home. During the course of these proceedings, further documentation relevant to the applicant's childhood and early development was disclosed.
On 12 November 2001, the applicant's personal property contained in his social service records was released to him, namely, two photographs, correspondence between him and his siblings and three swimming certificates.
On 31 May 2002, the High Court found that the applicant had suffered prolonged cruelty and neglect and acts of physical and sexual abuse from Mr and Mrs Beesely and that the Council had been in breach of its duty to protect his well-being. The judge awarded GBP 27,500 covering the applicant's psychological injuries and the injury to his toes and GBP 4,000 to cover need for private treatment and taking into account a discount to reflect the factors which were not attributable to the Council.
The Court of Appeal in Gaskin v. Liverpool Corporation (1980 1 WLR 1459) held that the High Court, in refusing access to the social services records, had correctly balanced the public interest in maintaining an efficient child-care system with the individual's interest in obtaining access to records, and that it was not necessary for the court to review the records in question in order to so decide.
In 1983 a binding circular, LAC(83)14, was issued setting out the principles to be applied by local authorities in permitting access to their care records. Access to records was, in principle, to be permitted subject to necessary exceptions (such as the preservation of third party confidences and the protection of sources).
The Access to Personal Files Act 1987 and the Access to Personal Files (Social Services) Regulations 1989 both entered into force on 1 April 1989. The Act and the Regulations gave subjects the statutory right to know what was recorded about them in manually maintained records held by the local authority for the performance of social service functions. A number of exceptions were retained for the preservation of third party confidences and the protection of sources, but there was a right of review (and, subsequently, of judicial review) of a refusal of access. The Act and Regulations did not, however, apply to records created before 1 April 1989.
Circular LAC(89)2 was issued to provide guidance to the local authorities on the implementation of the 1987 Act and the 1989 Regulations. The previous circular (LAC(83)14) was cancelled and Paragraph 7 of Appendix 1 to the new circular pointed out that, while there was no obligation to furnish pre-April 1989 information, “there is likely to be significant advantage in authorities making available as much information as possible. This could lead to greater clarity and understanding of an individual's background.”
On 1 March 2000 the Data Protection Act 1998 (“the 1998 Act”) came into force and repealed the 1987 Act, the 1989 Regulations and circular LAC(89)2. It provided a statutory right of access for a “data subject” to information held about him in care records and other personal files (both manual and electronic) regardless of the date when the information was recorded, together with a right of appeal to the domestic courts or to the Data Protection Commissioner if access were refused, or where a contributor or a relevant third party had not consented.