ITEMID: 001-58178
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF A.P., M.P. AND T.P. v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-2;Not necessary to examine Art. 6-1;Not necessary to examine Art. 6-3;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. The applicants are all Swiss nationals who live in the Canton of Zurich. They are the widow and sons of the late Mr P., who died on 28 February 1984.
Mr P. had been the sole shareholder of a construction company, and the applicants were Mr P.’s only heirs. The company’s business was carried on by Mr P.’s sons.
8. An inventory of Mr P.’s estate was drawn up by the municipal authorities on 8 May 1984. A copy of that document in the Commission’s file is dated 17 May 1984.
9. The three-month period within which the applicants could have renounced the inheritance (Articles 566 § 1 and 567 § 1 of the Swiss Civil Code – see paragraph 24 below) apparently expired on 28 May 1984.
10. Between 1 and 3 October 1985 the tax authorities examined the books kept by the company. Their inspection showed that over a period of several years Mr P. had appropriated certain back payments due to the company and failed to declare them as income, thus evading both cantonal and federal taxes.
11. The cantonal and federal tax authorities each initiated proceedings against the applicants for recovery of the unpaid taxes and at the same time imposed fines for tax evasion.
12. It appears that the applicants cooperated with the tax authorities by providing them with the information needed to calculate the correct assessments. However, they resisted the imposition of the fines and appealed to the appropriate tribunals, maintaining that they were innocent of the tax offence committed by Mr P.
13. The cantonal proceedings ended on 2 November 1989 with a judgment of the Canton of Zurich Administrative Court. The Administrative Court considered that it was a principle of criminal law in a State based on the rule of law that the innocent should not be punished, and – departing from its earlier case-law – held that the imposition of fines on the heirs for tax evasion by the deceased was accordingly illegal.
14. On 16 January 1990 the Direct Federal Tax Department of the Zurich Cantonal Tax Office, deciding on an objection lodged by the applicants, issued an assessment of the direct federal tax unlawfully withheld by Mr P. over 1981/82 and 1983/84 and imposed fines on the applicants. The fines came to 3,875.85 Swiss francs (CHF) for 1981/82 and CHF 2,882.90 for 1983/84. Its reasoning included the following:
“By incorrectly declaring his income, the taxpayer withheld taxes from the State and thus became guilty of tax evasion. Pursuant to Articles 130 § 1 and 129 § 1, respectively, of the Ordinance on Direct Federal Tax his heirs must therefore pay a fine of up to four times the amount in addition to the tax withheld. For the tax period 1981/82, when more than 5/10 was evaded, the fine amounts to 1.5 times the amount, and for the tax period 1983/84, when more than 3/10 was evaded, it amounts to 1.3 times the amount of the taxes withheld. However, as it can be observed that the heirs have done everything possible to clarify the incorrect declaration of taxes, the fine is reduced to 1/4.”
The Cantonal Tax Office declined to follow the precedent set by the judgment of the Zurich Administrative Court on 2 November 1989 (see paragraph 13 above) on the ground that it could not deviate from clear provisions of federal law as long as the unconstitutional nature of those provisions had not been clearly established.
15. The applicants lodged an appeal against this decision with the Federal Tax Appeals Board of the Canton of Zurich, relying inter alia on Article 6 § 2 of the Convention.
16. The Federal Tax Appeals Board gave its decision on 19 September 1990.
The assessment for 1981–82 was quashed on the ground that it had not been lawfully communicated to the applicants within the five-year limitation period (Article 134 of the Ordinance on Direct Federal Tax).
The assessment for 1983–84 was upheld. In this context, the Federal Tax Appeals Board held that Article 6 § 2 could be relied on directly only in so far as it provided guarantees additional to those under the Federal Constitution – which it did not.
In an obiter dictum the Federal Tax Appeals Board made a distinction between the presumption of innocence and the principle that only the guilty should be punished. The heirs’ liability to pay fines incurred by the taxpayer, which did not offend against the latter principle — as construed in domestic law and applied to the deceased — did not necessarily offend against the former presumption either.
17. The applicants lodged an administrative-law appeal with the Federal Court on 21 December 1990.
In addition to reiterating their complaints concerning the fines, they argued that they were entitled, under Article 6 §§ 1 and 3 of the Convention, to a public hearing and to the rights of the defence.
18. The Zurich Federal Tax Appeals Board and the federal tax authorities, which had been invited to submit written comments pursuant to section 110 of the Federal Judicature Act (see paragraph 28 below), expressed the opinion that the appeal should be dismissed. The Direct Federal Tax Department of the Zurich Cantonal Tax Office, which had also been invited to submit comments, declined to do so.
19. The Federal Court dismissed the appeal without a hearing (section 109 of the Federal Judicature Act (see paragraph 29 below) in a judgment delivered on 5 July 1991 and served on the applicants on 16 October. Its reasoning included the following:
“Unlike back tax, the fine for tax evasion (save in so far as it may comprise interest intended to compensate for delay) pursuant to Article 129 of the Ordinance on Direct Federal Tax is penal in character ... Moreover, the definition of tax evasion requires that the taxpayer should be guilty, whether by commission or by omission, of a breach of duty resulting in his being underassessed for tax.
However, according to the principle that heirs inherit tax liabilities ... the latter are liable, under Article 130 § 1 of the Ordinance on Direct Federal Tax, up to the amount of their share in the estate, and irrespective of any personal guilt, for the deceased person’s evaded taxes and the fines. The provision in question of the Ordinance on Direct Federal Tax thus expressly contemplates that the heirs enter into the position of the deceased even in respect of the penal tax without being personally guilty. It follows that as regards the liability of heirs, the applicants cannot derive any argument from the presumption of innocence enshrined in Article 6 of the Convention, which only applies to persons charged with a criminal offence ... Nor can the general principles of the criminal law prayed in aid by the applicants avail them in the circumstances.”
The Federal Court did not rule on the applicants’ claims under Article 6 §§ 1 and 3.
20. At the relevant time, tax evasion was punishable by a fine of up to four times the amount evaded, the fine being payable in addition to the amount due (Article 129 § 1 of the Ordinance on Direct Federal Tax).
21. Article 130 § 1 provided, inter alia:
“If the evasion is discovered only after the death of the taxpayer, proceedings shall be brought against his heirs. Irrespective of personal guilt, the heirs shall be jointly liable for the deceased person’s evaded taxes and the fine incurred by him up to an amount not exceeding their share in the estate.”
22. According to Article 537 § 1 of the Swiss Civil Code, an inheritance passes upon the death of the deceased.
23. The relevant parts of Article 560 of the Swiss Civil Code provide:
“1. The heirs shall automatically acquire the entire estate as soon as it passes.
2. Subject to the statutory exceptions, all claims and actions, property rights and other rights in rem and possessions of the deceased shall automatically pass to them, and they shall become personally liable for the deceased’s debts.”
24. Under Article 566 § 1 of the Swiss Civil Code, the heirs have the right to renounce the inheritance which has devolved to them. The time-limit for so doing is three months (Article 567 § 1).
25. It was open to the taxpayer to lodge an objection against an assessment of direct federal tax to the authority which had made it (Article 105 of the Ordinance on Direct Federal Tax).
26. An appeal against the decision given in the objection proceedings lay to the Cantonal Tax Appeals Board (Article 106). The Direct Federal Tax Department of the canton and the federal tax authorities could also bring such an appeal (Article 107).
27. An administrative-law appeal lies to the Federal Court against the decision of the Federal Tax Appeals Board (section 98 (e) of the Federal Judicature Act). Such an appeal may be lodged by both the tax debtor and the federal tax authorities (Article 112 of the Ordinance on Direct Federal Tax).
28. If the Federal Court orders an exchange of written pleadings, it asks the authority which gave the decision to forward the case file (section 110 (2) of the Federal Judicature Act), at the same time inviting it to submit its comments in writing (section 110 (1)).
The cantonal authority which gave the last decision at cantonal level is also invited to comment (section 110 (3)), as is the federal authority which would itself have been entitled to lodge an appeal (section 110 (1)).
29. At the material time, section 109 (1) of the Federal Judicature Act made it possible for a three-judge Chamber of the Federal Court to dismiss an administrative-law appeal as manifestly ill-founded without a hearing, provided that its decision was unanimous.
30. Under Article 333 § 1 of the Swiss Criminal Code, the general provisions of the Code apply to offences created by other federal laws unless the latter provide otherwise.
31. Article 48 § 3 of the Criminal Code provides that a fine lapses if the convicted person dies.
However, pursuant to Article 333 § 1 of the Criminal Code, Article 130 § 1 of the Ordinance on Direct Federal Tax (see paragraph 21 above) derogates from this principle as a lex specialis.
32. Section 179 (1) of the Federal Direct Taxation Act of 14 December 1990, in force since 1 January 1995, provides for the liability of heirs, inter alia, for any fines determined with legal force. According to section 179 (2), the heirs shall not be so liable if the tax-evasion proceedings are concluded after the death of the taxpayer, provided that the heirs themselves are guiltless and do what they can to enable the tax authorities to make a correct assessment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-104735
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: DERGACOVS v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Andrejs Dergačovs, is a Latvian national who was born in 1975 and lives in Daugavpils. The respondent Government are represented by their Agent, Ms Inga Reine.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 23 November 2004 the State Police instituted criminal proceedings and on 29 November 2004 the applicant was detained on suspicion of having committed numerous thefts and burglaries.
4. On 2 December 2004 the Rēzekne Court (Rēzeknes tiesa) detained the applicant for a period of two months. The decision referred to five previous convictions of the applicant, the risk of his absconding, the fact that the applicant had been charged with committing a particularly serious offence and that he had been detained within a month of his release from earlier imprisonment. The decision was subject to an appeal to the Latgale Regional Court. The applicant did not appeal.
5. On 10 December 2004 the applicant was convicted of theft in other criminal proceedings. He was sentenced to eight months’ imprisonment.
6. On 28 January 2005 the Rēzekne Court, at the request of the prosecutor’s office, decided to extend the applicant’s detention until 31 March 2005. The court established that the circumstances referred to in the initial detention order had not changed and that, if released, the applicant would abscond from the court and the investigation. The complaint was subject to an appeal to the Latgale Regional Court. The applicant did not appeal.
7. Meanwhile, on 30 December 2004 three other sets of criminal proceedings involving charges brought against the applicant and six co-defendants were joined to the criminal proceedings initiated in November (see above, paragraph 3). On 25 February 2005 the criminal case was sent for trial to the Rēzekne Court, which, on the same day, decided to extend the applicant’s detention until judgment was delivered.
8. From 21 March 2005 to 28 August 2006 the trial was postponed at least seven times on the basis of various requests made by the defendants and their lawyers. On two occasions the trial was postponed owing to requests made by the applicant – on 23 January 2006 the applicant dismissed his lawyer owing to his alleged failure to conduct a proper defence, therefore the hearing was postponed until 2 March 2006. On 8 May 2006 the applicant was admitted to a prison hospital in order to be vaccinated and the hearing was postponed until 25 July 2006. Meanwhile, the applicant’s continued detention was examined on the following occasions.
9. On 19 October 2005 the Rēzekne Court, in the presence of the applicant and his lawyer, established that the circumstances justifying his initial detention had not changed.
10. It appears that after 10 October 2005 the applicant and two other co-defendants addressed thirty-six letters to the Rēzekne Court in which they expressed various requests.
11. On 2 January 2006 the Rēzekne Court responded to a number of the applicant’s aforementioned letters noting, inter alia, that neither the applicant nor his lawyer had submitted an appeal against the decision of 19 October 2005.
12. On 26 January 2006 the Rēzekne Court decided to examine the applicant’s request for the preventive measure to be changed after the examination of the criminal case on the merits or if the trial were postponed.
13. On 6 February 2006 the Rēzekne Court refused the applicant’s request to lift the detention order by arguing that circumstances had not changed since 2 December 2004. The decision was subject to review together with an appeal against a judgment in the criminal proceedings concerned.
14. On 11 August 2006 the Latgale Regional Court examined the Rēzekne Court’s request to extend the applicant’s detention until 25 November 2006. The court established that the co-defendants were coordinating their activities by hindering the trial with the aim of reaching the maximum statutory time-limit for pre-trial detention, after which they would have to be released. The decision was not subject to appeal.
15. On 28 August 2006, following the applicant’s request, the Rēzekne Court refused to lift the preventive measure by stating that circumstances had not changed since adoption of the last refusal, and that by submitting various requests the applicant was attempting to postpone the trial.
16. On 11 September 2006 the Rēzekne Court refused the applicant’s request to lift the preventive measure by stating that nothing had changed since adoption of the last refusal, and that the decision was subject to appeal together with an appeal against a judgment in the criminal proceedings concerned.
17. On 23 October 2006, at the applicant’s request, the judge withdrew from the case and another judge was appointed. Three of the defendants requested legal representation and the hearing was consequently postponed until 13 November 2006.
18. On 14 November 2006, at the request of a prosecutor, the criminal charges against the applicant were grouped in a separate criminal case, the proceedings of which were stayed because the applicant was in hospital.
19. On 24 November 2006 the Latgale Regional Court dismissed the request of the Rēzekne Court to extend the applicant’s detention. The decision stated that the request to extend detention did not contain any information concerning a risk that the applicant would abscond. It stated that the applicant’s continued detention would be contrary to the principles established by the Law of Criminal Procedure, in particular, proportionality and lawfulness. Accordingly, on 26 November 2006 the applicant was released.
20. From January to November 2007 the trial was postponed on various occasions owing to the applicant’s health. On 21 October 2007 the applicant was detained for committing another offence, the examination of which was joined to the initial criminal case. On 10 January 2008 the applicant was found guilty of various offences and the judgment became final on 15 July 2008.
21. According to the applicant, in 2006 he sought to institute civil proceedings before the Valmiera Court while being detained. It appears that the claim was dismissed and the applicant’s appeal to the appeal court was submitted out of time.
22. Article 5 of the Transitional Provisions of the Law of Criminal Procedure provides that time-limits for preventive measures applied prior to the coming into effect of this Law are to be governed by the provisions of the former Code of Criminal Procedure.
23. Section 277 of the Law of Criminal Procedure (in force since 1 October 2005) regulates the terms of detention. In particular:
(7) The term of detention of a person held on suspicion of, or accused of, committing an especially serious crime shall not exceed 24 months, during which time the person shall be held in detention pending pre-trial proceedings for no longer than 15 months. Both an investigating judge in pre-trial proceedings and a higher-level court judge during a trial may extend the term by three more months, if the person directing the proceedings has not allowed for unjustified delay, or if the person’s legal representative has intentionally delayed the progress of proceedings, or if the faster completion of the proceedings has not been possible owing to the particular complexity thereof. A higher-level court judge may extend this term by three more months, if the person directing the proceedings has not allowed for unjustified delay, and public safety may not be guaranteed with the application of another security measure.
(8) The issue regarding the extension of the term of detention shall be examined by a court judge in a closed court sitting, providing an opportunity for the person whose detention is being decided, his or her defence counsel and representative, and the public prosecutor to express their views. The decision cannot be appealed against.
24. Section 281 of the Law of Criminal Procedure (as in force at the material time) regulates the review of detention orders by providing that a detained person, and the representative or defence counsel thereof, may at any time submit a request to an investigating judge or court regarding an assessment of the necessity of continued detention, and that the decisions provided for in this section may be appealed against in accordance with the procedures specified in section 286 of this Law.
25. Section 286 provides, inter alia, that if a security measure related to deprivation of liberty is applied to a person after the criminal case had been sent to trial, and the next court session is not scheduled for within the next fourteen days, the persons concerned may submit a complaint within three working days to a court one level higher.


ITEMID: 001-5285
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: GEORGIOU v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant is a British national, born in Cyprus in 1953, and the second applicant is his wife. The applicants live in Leicester and are represented before the Court by Ms Nuala Mole, a lawyer practising in London.
In 1976 the applicants purchased a take-away food shop in Leicester and began trading as “Mario’s Chippery”. Most of their sales were of hot food, subject to value added tax (“VAT”) at the standard rate.
After a routine control visit in May 1989, Customs & Excise officers (“Customs officers”), who collect VAT on behalf of the Government, checked with several of the applicants’ suppliers and discovered that certain purchases had been understated. On five consecutive days from 9 October 1989, Customs officers secretly kept watch on the premises from a window on the upper floor of a property which was obliquely across the road from the premises and recorded details of customers entering and leaving and the number of “packets” or bags of food bought. They also observed and recorded all deliveries made.
On 18 January 1990 the applicants were interviewed by two Customs officers and a few days later their till readings were analysed. In mid August 1989 the shop had been refitted with a new electronic till. On demand the till could produce reports which summarised the transactions entered onto it. The relevant grand total reading for takings from 5 September 1989 to 26 January 1990 was £106,214.93. This was compared with declared takings of £49,000.
On 2 February 1990 the applicants admitted that they had been under-declaring takings and removing cash from the till since 1986. They also admitted to withholding purchase invoices from their accountants.
In May 1990 assessments were made by Customs Commissioners in respect of under-declared tax between January 1986 and October 1989. These were based on a weekly suppression rate derived from the till grand total for the period from September 1989 to January 1990. The grand till total was assumed to be tax exclusive and, with an adjustment for zero-rated sales, VAT at 15% was added. £15,000 was deducted to allow for keying errors and training and other non-transaction entries. The difference between the result and the declared takings for the same period was divided by the number of weeks for which the shop was open, to obtain the weekly suppression rate. This rate was then applied to earlier periods with periodic reductions to reflect assumed price increases. The assessment figure reached was £61,902. The tribunal later found that the observation figures were used as supporting evidence only.
On 15 June 1990 the applicants changed accountants and formally asked for the case to be reconsidered. The new accountants argued that the till memory was an unfair basis for assessing the tax as it included matters besides takings, and that it was impossible to ascertain the sums attributable to those matters. The figure put forward for tax due was £8,794.
The matter was reconsidered and Customs Commissioners issued amended assessments on 20 November 1990 for the sum of £56,444; this took the figure of £106,000 as inclusive of VAT and deducted £5,000 (as opposed to £15,000) for keying and training errors. On 13 December 1990 the applicants appealed against the reduced assessment of 20 November 1990 (the first appeal).
On 14 December 1990 Customs Commissioners formally issued the applicants with a notice of assessment of a penalty under section 13 of the Finance Act 1985 for dishonest evasion of VAT for sixteen accounting periods between 1 November 1986 and 31 October 1989. The tax evaded was stated to be £56,444 and the penalty was assessed at £53,631, 95% of the total, giving a reduction of 5% for co-operation under section 13(4) of the Act. The applicants appealed against this penalty on 26 July 1991 (the second appeal).
The VAT tribunal heard the consolidated appeals over 49 working days from March to July 1993. The applicants were represented by counsel with a specialised VAT practice, who had, according to their own case:
“an in depth familiarity with the theory of VAT law and extensive experience of taking VAT cases to both the tribunal and the High Court. She was at the time of the domestic proceedings the author of a leading practitioners’ work on the subject ‘The Encyclopaedia of VAT’”.
The applicants’ principal argument was that the review of the tax assessment in November 1990 ought to have been made according to the Commissioners’ best judgment (using the “best judgment” test which applied to the assessments themselves). They argued that the till readings were an unreliable indicator of the takings and should not have been used as the basis of the assessment. Accordingly, the Commissioners could not have used their best judgment in assessing the tax due and the assessments were void. They further submitted that the penalty reduction of 5% for co-operation was too low in the circumstances.
In its judgment of 28 April 1994, the VAT tribunal held that nothing in either the VAT Act 1983 or the Finance Act 1985 required a review of an assessment to be made according to “the best judgment” test. Nevertheless, it found that, in the circumstances, the review had indeed been made according to the Commissioners’ best judgment.
During the course of proceedings an issue had been raised by the applicants as to the Commissioners’ compliance with certain directions for discovery. The VAT tribunal commented:
“Although the discovery directions were not fully complied with, we are satisfied that eventually the [applicants] saw every existing document and were sufficiently informed of the contents of every other document which could possibly be considered as material to the applicants’ case and which was not privileged from production.
In our judgment the Commissioners’ failure to comply with the directions did not amount to wilful disobedience, and it was caused mainly by the Leicester office’s unfamiliarity with such directions and by the fact that the Commissioners took a relatively narrow view of the matters in issue in the case and of the documents which related to those matters, as opposed to the very wide view taken by the Appellants’ advisers.”
Although the applicants’ attack on the validity of the assessments failed as to quantum, the VAT tribunal held that £25,000 should be deducted as the proper figure for keying and typing errors (as opposed to £5,000), and it allowed an increase of 10% in takings for October 1989 following the shop’s refurbishment period. The tax due was reduced to £29,964.30, the penalty having been reassessed at 75%.
The applicants appealed to the High Court. In its judgment of 6 October 1995, the court held that there was no point of law upon which the High Court could intervene, since it was satisfied that the VAT tribunal had not misdirected itself in law in reaching the decision that the Customs Commissioners had exercised their best judgment in making the assessments.
The applicants further appealed to the Court of Appeal, challenging the tribunal’s decision that the Commissioners had exercised their best judgment. The Court of Appeal, following the case of Van Boeckel v Customs and Excise Comrs [1981] STC 290, reiterated that the VAT tribunal’s function is twofold: first to consider whether the commissioners have duly discharged their function and second to consider any further grounds put forward for reducing the assessment. Giving judgment on 25 February 1996, the Court of Appeal held that it was impossible to find fault with the figures reached by the tribunal. The Court of Appeal declined to decide the issue of whether the “best judgment” test applied to the review as well as the assessment, because it was not relevant to the case before it.
The Court of Appeal criticised the approach of the appeal petition, Lord Justice Evans noting at page 476 § j:
“What is not permitted, in my view, is a roving selection of evidence coupled with a general assertion that the tribunal’s conclusion was against the weight of evidence and was therefore wrong. A failure to appreciate what is the correct approach accounts for much of the time and expense that was occasioned by this appeal to the High Court.”
Lord Justice Evans commented again at page 477 § d,
“The notice of appeal to the High Court raised what were essentially factual issues stated as questions of law to the general effect that the tribunal had no right to make the findings which it did in the light of the evidence that it heard.”
Lord Justice Evans noted the failure to identify the issues in advance of, or even at the hearing, noting at page 469 § c:
“it must be said that there was a wholly indiscriminate and unnecessary attention to detail throughout.”
On the issue of the length of proceedings, Lord Justice Evans commented, at page 482 § b:
“I would say that the length of these proceedings was largely due to the failure to identify either at or before the beginning of the hearing, and to formulate, the issues that were raised. If this had been done the process of discovery would have been eased and the tribunal would have been better able to exercise control over the close examination of highly detailed evidence to which it was subjected.”
The appeal was dismissed and leave to appeal to the House of Lords was refused.
The applicants’ petition to the House of Lords was refused on 19 May 1997. Bankruptcy proceedings, commenced by the Customs Commissioners, have been adjourned pending consideration of the applicants’ case before the Court.
Relevant domestic law
The relevant part of paragraph 4 of Schedule 7 of the Value Added Tax Act 1983 (“the 1983 Act”), now Section 73(1) of the Value Added Tax Act 1994 (“the 1994 Act”), provides as follows:
“(1) Where a person has failed to make any returns under this Act or to keep any documents and afford the facilities necessary to verify such returns or where it appears to the Commissioners that such returns are incomplete or incorrect they may assess the amount of tax due from him to the best of their judgment and notify it to him.”
A provision for appeals is made in section 40(1) of the 1983 Act (sections 83-84 of the 1994 Act):
“40 (1). An appeal shall lie to a value added tax tribunal constituted in accordance with Schedule 8 to this Act against the decision of the Commissioners with respect to any of the following matters -
(m) an assessment –
(i) under sub-paragraph (1) or (2) of paragraph 4 of Schedule 7 to this Act in respect of a period for which the appellant has made a return under this Act; or
(ii) under sub-paragraph (6) of that paragraph,
or the amount of such assessment.”
Under sub-sections (3B) and (4) respectively there are powers for the tribunal to increase or reduce the amount of any such assessment.
Section 13 subsection (1) of the Finance Act 1985 provides that:
“In any case where -
(a) for the purpose of evading tax, a person does any act or omits to take any action, and
(b) his conduct involves dishonesty (whether or not it is such as to give rise to a criminal liability);
he shall be liable, subject to subsections (4) and (7) below, to a penalty equal to the amount of tax evaded or, as the case may be, sought to be evaded, by his conduct.”
Subsection (4) provides:
“If a person liable to a penalty under this section has co-operated with the Commissioner in the investigation of his true liability for tax…the Commissioner or, on appeal, a value added tax tribunal may reduce the penalty to an amount which is not less than half what it would have been apart from this subsection; and in determining the extent of any reduction under this subsection, the Commissioners or tribunal shall have regard to the extent of the co-operation which the person concerned has given to the Commissioners in their investigation.”
Section 21 subsection (1) of the Finance Act 1985 provides that:
“Where any person is liable -
(a) to a penalty under any of sections 13 or 17 above,
the Commissioners may … assess the amount due by way of penalty…and notify it to him accordingly; and the fact that any conduct giving rise to a penalty under any of sections 13 to 17 above may have ceased before an assessment is made under this section shall not affect the power of the commissioners to make such an assessment.”


ITEMID: 001-97879
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF CUDAK v. LITHUANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;András Sajó;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Jean-Paul Costa;John Hedigan;Josep Casadevall;Lucius Caflisch;Mark Villiger;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger;Vladimiro Zagrebelsky
TEXT: 9. The applicant was born in 1961 and lives in Vilnius.
10. On 1 November 1997 the applicant was recruited by the embassy of the Republic of Poland in Vilnius (“the embassy” or “the Polish embassy”), to the post of secretary and switchboard operator (korespondentė-telefonistė).
11. The contract of employment provided in Article 1 that the applicant’s responsibilities and tasks were limited by the scope of her (secretarial and switchboard-related) duties. If the applicant agreed, she could be assigned other tasks not covered by this agreement. In such circumstances, a new contract would have to be signed. According to Article 6 of the contract, the applicant had to comply with Lithuanian laws, was liable for any damage she might cause to her employer and could be subjected to disciplinary action for failing to fulfil her professional obligations or to observe safety regulations at work. In return for extra work, the applicant could receive remuneration, bonuses, discretionary benefits or compensatory leave. Article 8 provided that any disputes arising under the contract were to be settled in accordance with the laws of Lithuania: the Constitution, the Employment Contracts Act, the Labour Remuneration Act, the Leave Act and the Employees’ Social Security Act. Lastly, the contract could be terminated in accordance with sections 26, 27, 29 and 30 of the Employment Contracts Act (enacted on 28 November 1991 with a number of subsequent amendments).
12. The applicant’s duties – as set out in a schedule to her employment contract – included the following:
“1. Operating the switchboard of the embassy and Consulate-General and recording international telephone conversations.
2. Typing texts in Lithuanian and Polish.
3. Operating the fax machine.
4. Providing information in Polish, Lithuanian and Russian.
5. Helping to organise small receptions and cocktail parties.
6. Photocopying documents.
7. Performing other work at the request of the head of the mission.”
13. In 1999 the applicant lodged a complaint before the Equal Opportunities Ombudsman, alleging sexual harassment by one of her male colleagues, a member of the diplomatic staff of the embassy. Following an inquiry, the Ombudsman reported that the applicant was indeed a victim of sexual harassment. The applicant alleged that she had fallen ill because of the tension she was experiencing at work.
14. The applicant was on sick leave from 1 September to 29 October 1999. On 29 October 1999 she went to work but was not authorised to enter the embassy building. On 22 November 1999 the applicant was again refused entry when she arrived for work. The same thing occurred again on 23 November 1999.
15. On 26 November 1999 the applicant wrote a letter to the ambassador, informing her about the incidents. On 2 December 1999 the applicant was notified that she had been dismissed on the ground of her failure to come to work from 22 to 29 November 1999.
16. The applicant brought a civil claim, requesting compensation for unlawful dismissal. She did not claim reinstatement. The Polish Minister for Foreign Affairs issued a note verbale claiming immunity from the jurisdiction of the Lithuanian courts. On 2 August 2000 the Vilnius Regional Court discontinued the proceedings for lack of jurisdiction. On 14 September 2000 the Court of Appeal upheld the decision. The final decision was taken by the Supreme Court on 25 June 2001.
17. The Supreme Court established, inter alia, that the 1993 agreement on legal assistance between Lithuania and Poland had not resolved the question of State immunity, that Lithuania had no laws on the question, and that the domestic case-law in this area was only just being developed. The Supreme Court therefore considered it appropriate to decide the case in the light of the general principles of international law, in particular the 1972 European Convention on State Immunity.
18. The Supreme Court observed that Article 479 of the Lithuanian Code of Civil Procedure, as then in force, established the principle of absolute State immunity, but that that provision had become inapplicable in practice. It noted that the prevailing international practice was to adopt a restrictive interpretation of State immunity, granting such immunity only for acts of sovereign authority (acta jure imperii), as opposed to acts of a commercial or private-law nature (acta jure gestionis). The Supreme Court further held, in particular, as follows:
“... in the Supreme Court’s view, it is possible to apply the principle of restrictive immunity to the Republic of Poland. Having regard to the fact that Lithuania recognises that foreign nationals may bring actions in respect of private-law disputes, it must be accepted that, in order to defend their rights, individuals or entities from the Republic of Lithuania are entitled to take proceedings against foreign States.
It is thus necessary to establish in the present case whether the relationship between the claimant and the Republic of Poland was one of a public-law nature (acta jure imperii) or a private-law nature (acta jure gestionis). Besides that, other criteria are applicable and should allow [the court] to determine whether the State concerned enjoys immunity ... in employment disputes. These criteria include, in particular, the nature of the workplace, the status of the employee, the territorial connection between the country of employment and the country of the court, and the nature of the claim.
Regard being had to the plea of immunity by the Ministry of Foreign Affairs of the Republic of Poland ... it is possible to conclude that there was a public-service relationship governed by public law (acta jure imperii) between the claimant and the embassy of the Republic of Poland, and that the Republic of Poland may lay claim to immunity from the jurisdiction of foreign courts. This conclusion is supported by other criteria. With regard to the nature of the workplace, it should be noted that the main function of the embassy ... is directly related to the exercise of sovereignty of the Republic of Poland. With respect to the status of [the] employee ... while the parties had entered into a contract of employment, the very fact that the employee was a switchboard operator implies that the parties developed a relationship akin to that which characterises a public-service function ... The court was unable to obtain any information allowing it to establish the scope of the claimant’s actual duties. Thus, merely from the title of her position, it can be concluded that the duties entrusted to her facilitated, to a certain degree, the exercise by the Republic of Poland of its sovereign functions. ... It must also be established whether the country of employment is the country of the court, since a court in the country of employment is best placed to resolve a dispute that has arisen in that country. In this respect, it is to be recognised that the exercise of the sovereign powers of the forum State is severely restricted with regard to an embassy, even though it is not a foreign territory as such (section 11(2) of the Status of Diplomatic Missions of Foreign States Act). As to the nature of the claim ... it should be noted that a claim for recognition of unlawful dismissal and for compensation cannot be regarded as violating the sovereignty of [another] State, since such a claim pertains solely to the economic aspect of the impugned legal relationship[;] there is no claim for reinstatement ... However, by reason of this criterion alone, it cannot be unconditionally asserted that the Republic of Poland cannot invoke State immunity in this case. ... [The claimant] has submitted no [other] evidence to confirm the inability for the Republic of Poland to enjoy State immunity (Article 58 of the Code of Civil Procedure).
Against the background of the above criteria, [in view of] the aspiration of Lithuania and Poland to maintain good bilateral relations ... and respect the principle of sovereign equality between States ..., the chamber concludes that the courts [below] properly decided that they had no jurisdiction to entertain this case.
...
The Supreme Court notes that both the Regional Court of Vilnius and the Court of Appeal based the decision to apply jurisdictional immunity to the Republic of Poland merely on the fact that the latter had refused to appear in the proceedings. Those courts did not examine the question of the application of restrictive jurisdictional immunity in the light of the criteria developed by the Supreme Court. However, this breach of procedural rules does not constitute, in the Supreme Court’s view, a ground for quashing the decisions of the courts below. ...
The application of jurisdictional immunity by the courts of the Republic of Lithuania does not prevent the claimant from taking proceedings before the Polish courts.”
19. There is no special legislation governing the issue of State immunity in Lithuania. The question is usually resolved by the courts on a case-by-case basis, with reference to the provisions of various bilateral and multilateral treaties.
20. Article 479 § 1 of the 1964 Code of Civil Procedure (applicable at the material time and in force until 1 January 2003) established the rule of absolute State immunity:
“Adjudication of actions against foreign States, and adoption of measures of constraint and execution against the property of a foreign State, shall be allowed only with the consent of the competent institutions of the foreign State.”
21. On 5 January 1998 the Supreme Court gave a decision in the case of Stukonis v. United States embassy, regarding an action for unlawful dismissal against the United States embassy in Vilnius. Article 479 § 1 of the 1964 Code of Civil Procedure was considered by the court to be inappropriate in the light of the changing reality of international relations and public international law. The Supreme Court noted the trend in international legal opinion to restrict the categories of cases in which a foreign State could invoke immunity from the jurisdiction of forum courts. It held that Lithuanian legal practice should follow the doctrine of restrictive State immunity. It found, inter alia, as follows:
“State immunity does not mean immunity from institution of civil proceedings, but immunity from jurisdiction of courts. The Constitution establishes the right to apply to a court (Article 30) ... However, the ability of a court to defend the rights of a claimant, where the defendant is a foreign State, will depend on whether that foreign State requests the application of the State immunity doctrine ... In order to determine whether or not the dispute should give rise to immunity ... it is necessary to determine the nature of the legal relations between the parties ...”
22. On 21 December 2000 the plenary of the Supreme Court adopted a decision regarding “Judicial Practice in the Republic of Lithuania in Applying Rules of Private International Law” (Teismų Praktika 2001, no. 14). It stated that while Article 479 of the Code of Civil Procedure established a norm whereby “foreign States [and] diplomatic and consular representatives and diplomats of foreign States enjoy[ed] immunity from the jurisdiction of Lithuanian courts”, that rule guaranteed State immunity only for “legal relations governed by public law”. The Supreme Court pointed out that when deciding whether or not a case containing an international element fell within the jurisdiction of Lithuanian courts, the court in question had to consider whether its judgment would be recognised and enforced in the foreign State concerned or whether it would refuse to do so. If the case also fell within the jurisdiction of a foreign court, the forum court would be entitled to relinquish jurisdiction and instruct the claimant to take proceedings in the court of the foreign State where the judgment should be enforced.
This interpretation by the Supreme Court had to be followed by the lower courts.
23. On 6 April 2007 the Supreme Court delivered a judgment in a case that was very similar to that of the applicant, namely S.N. v. the embassy of the Kingdom of Sweden. It found that “despite the fact that the Kingdom of Sweden had not enacted any legislation on State immunity, it could nevertheless be seen from the case-law of the domestic courts that Sweden recognised the doctrine of restrictive State immunity”. In that case it was considered that the provisions of the United Nations Convention on Jurisdictional Immunities of States and their Property, adopted on 2 December 2004, could be taken into account, even though they were not binding, since they reflected a certain trend in international law in matters of State immunity. The Supreme Court further observed that the case-law of the courts of both States – Lithuania and Sweden – being based on common practice in international relations, confirmed that they had been adhering to a restrictive approach to State immunity, whereby a State could not claim immunity from jurisdiction if the dispute was of a private-law nature. In such cases Sweden could not therefore object to the case being heard by the Lithuanian courts. However, the Supreme Court held that the dispute between the parties had arisen from a public-law relationship and was not an employment relationship under private law.
24. The Supreme Court further observed that there was no uniform international practice of States whereby the members of staff of foreign States’ diplomatic missions who participated in the exercise of the public authority of the States they represented could be distinguished from other members of staff. As there were no legally binding international rules, it was for each State to take its own decisions in such matters.
25. The relevant provisions of the 1972 European Convention on State Immunity (“the Basle Convention”) read as follows:
“1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum.
2. Paragraph 1 shall not apply where:
(a) the individual is a national of the employing State at the time when the proceedings are brought;
(b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or
(c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject matter. ... ”
26. The Convention’s Explanatory Report indicates that “[a]s regards contracts of employment with diplomatic missions or consular posts, Article 32 shall also be taken into account”. That Article provides as follows:
“Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.”
27. Neither Lithuania nor Poland are parties to the Basle Convention.
28. In 1979 the United Nations International Law Commission (ILC) was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. Lithuania never made any negative observation on those drafts. The Draft Articles that were used as the basis for the text adopted in 2004 dated back to 1991. The relevant part of the text then read as follows:
“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform functions closely related to the exercise of governmental authority;
(b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
(c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded;
(d) the employee is a national of the employer State at the time when the proceeding is instituted; or
(e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding.”
29. In the commentary on the ILC’s Draft Articles of 1991, it was stated that the rules formulated in Article 11 appeared to be consistent with the trend in the legislative and treaty practice of a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, paragraph 14).
30. In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property. It was opened for signature on 17 January 2005. One of the major issues that had arisen during the codification work by the ILC related to the exception from State immunity in so far as it related to employment contracts. The final version of Article 11, as set out in the Convention, reads as follows:
“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform particular functions in the exercise of governmental authority;
(b) the employee is:
(i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;
(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;
(iii) a member of the diplomatic staff of a permanent mission to an international organisation or of a special mission, or is recruited to represent a State at an international conference; or
(iv) any other person enjoying diplomatic immunity;
(c) the subject matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
(d) the subject matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;
(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or
(f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding.”
31. Lithuania did not vote against the adoption of this text but has not ratified it either.
32. The understandings with respect to Article 11 in the Annex to the United Nations Convention explain that the reference to the “security interests” of the employer State, in paragraph 2 (d), “is intended primarily to address matters of national security and the security of diplomatic missions and consular posts”.
33. Article 1 of the 1961 Vienna Convention on Diplomatic Relations, which is appended to the Lithuanian Diplomatic Privileges Act 1964, provides the following definitions:
Article 1
“...
(a) the ‘head of the mission’ is the person charged by the sending State with the duty of acting in that capacity;
(b) the ‘members of the mission’ are the head of the mission and the members of the staff of the mission;
(c) the ‘members of the staff of the mission’ are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;
(d) the ‘members of the diplomatic staff’ are the members of the staff of the mission having diplomatic rank;
(e) a ‘diplomatic agent’ is the head of the mission or a member of the diplomatic staff of the mission;
(f) the ‘members of the administrative and technical staff’ are the members of the staff of the mission employed in the administrative and technical service of the mission;
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88775
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF EVA MOLNÁR v. HUNGARY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 11
JUDGES: András Sajó;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1954 and lives in Engelskirchen, Germany.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 7 (first round) and 21 (second round) April 2002 legislative elections took place in Hungary. The coalition which had governed the country from 1998 and, therefore, had been in charge of organising the elections, lost their majority.
8. The official results of the elections were established by the local and regional electoral commissions following the second round. After the courts had ruled on certain complaints concerning the legality and outcome of the voting procedure, on 4 May 2002 the National Election Committee made a public statement in the Official Gazette, according to which the result had become final. As in previous Hungarian elections, they were virtually identical to the results of the exit poll carried out on the day of the second round and to the preliminary results announced by the Committee on the evening of 21 April 2002. Nevertheless, views were subsequently voiced in certain sections of the media that the elections had been “rigged”.
9. International observers, in particular the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE), found that the parliamentary elections had been conducted in a manner consistent with international standards and that the Hungarian election system had provided the basis for a generally transparent, accountable, free, fair and equal process.
10. A period of two months elapsed during which a new government, in a coalition of the ex-opposition parties, was formed which took up its functions on 27 May 2002. On the morning of Thursday, 4 July 2002 several hundred demonstrators started to protest against the statutory destruction of the ballots, scheduled for 20 to 22 July. They blocked the centrally located Erzsébet Bridge in Budapest with their cars. Their objective was to force a recount of the election votes. Since they brought the traffic to a complete standstill and had not given prior notice of their gathering to the police, as required by Act no. 3 of 1989 on Freedom of Assembly (“the Assembly Act”), the demonstration was dispersed after several hours.
11. Shortly afterwards, at around 1 p.m., more demonstrators, again without any prior notification, assembled at Kossuth Square in front of the Parliament building demanding a recount of the votes and expressing their support for the participants in the morning’s events at the Erzsébet Bridge.
12. According to the applicant’s submissions of 14 February 2005 and the Government’s observations, these demonstrators had been at the Erzsébet Bridge and then relocated to Kossuth Square. However, in her submissions of 23 December 2007, the applicant stated that they had merely been supporters of those who had blocked the Erzsébet Bridge.
13. Having learnt of these events from the news, the applicant joined the demonstration at around 7 p.m. By that time, traffic and public transport – including the circulation of trams and trolley-buses – had become seriously disrupted in the area of Kossuth Square. The estimated number of demonstrators ranged from several hundred to two or three thousand. The police initially attempted to allow the circulation of traffic to continue but eventually had to close some streets nearby. Finally, faced with an unmanageable situation, they broke up the demonstration at about 9 p.m. without using any force. The applicant participated in the demonstration until it was dispersed.
14. The Hungarian media reported in detail on the events, and the affair was the leading news in the country. In an official communiqué, the President of the Republic condemned the events of 4 July 2002, declaring them illegal. He underlined that Hungary was a stable parliamentary democracy where human rights were observed and where even critical views should be voiced in a lawful manner.
15. The applicant sought judicial review of the actions of the police before the Budapest Central District Court. She asserted that the dispersal of the demonstration had been unlawful.
16. On 1 October 2003 the District Court dismissed the applicant’s claim. It established that the duty to inform the police about planned assemblies was applicable to every type of demonstration, including spontaneous ones. Since the applicant did not deny that the demonstration in question had not been notified to the police, as required by section 14 of the Assembly Act, the latter had not had any other choice but to break it up.
17. Moreover, the court found that the duty to inform the police in advance about assemblies held in public served the protection of the public interest and the rights of others, namely the prevention of disorder and the undisturbed circulation of traffic. Therefore, it concluded that the measures taken by the police had been in compliance with the law.
18. The applicant appealed. On 13 July 2004 the Budapest Regional Court upheld the first-instance decision. Its judgment was served on the applicant’s lawyer on 31 August 2004.
19. The Constitution of the Republic of Hungary (Act no. 20 of 1949 as amended) provides, in so far as relevant, as follows:
“The Republic of Hungary acknowledges the right to peaceful assembly and secures its free exercise.”
20. The relevant provisions of Act no. 3 of 1989 on Freedom of Assembly (“the Assembly Act”) read as follows:
“(3) The exercise of freedom of assembly shall not constitute a crime or an incitement to crime; moreover, it should not result in the infringement of the rights and freedoms of others.”
“The organisation of an event held in the public domain shall be notified to the competent police headquarters according to the place of the event, and in Budapest to the Budapest Police Headquarters, three days prior to the planned date of the event. The obligation to notify the police lies with the organiser of the event.”
“(1) If the holding of an event subject to prior notification seriously endangers the proper functioning of the representative bodies or courts, or results in a disproportionate hindrance of the circulation of traffic, the police may ban the holding of the event at the place or time indicated in the notification, within 48 hours from the receipt of the notification by the authority.”
“(1) No appeal shall lie against the decision of the police, but the organiser may seek judicial review of the administrative decision within three days of its notification.”
“(1) The police shall disperse the event if the exercise of the right to freedom of assembly contravenes subparagraph 3 of section 2 or if the participants appear at the event ... in possession of arms, or if an event subject to prior notification is held without notification, ... or despite a decision banning the event. ...
(3) If an event is dispersed, the participants may seek judicial review within fifteen days with a view to the establishment of the illegality of the dispersal.”
NON_VIOLATED_ARTICLES: 11


ITEMID: 001-58197
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1998
DOCNAME: CASE OF INCAL v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Violation of Art. 6-1 (independent and impartial tribunal);Not necessary to examine other complaint under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;N. Valticos
TEXT: 9. Mr İbrahim Incal, a Turkish national born in 1953, lives in İzmir. A lawyer by profession, he was at the material time a member of the executive committee of the İzmir section of the People’s Labour Party (“the HEP”). That party, which was represented in the National Assembly, was dissolved by the Constitutional Court on 14 July 1993.
10. On 1 July 1992 the executive committee decided to distribute in the İzmir constituency a leaflet criticising the measures taken by the local authorities, in particular against small-scale illegal trading and the sprawl of squatters’ camps around the city.
The title of the leaflet, of which ten thousand copies were printed, was “To all democratic patriots!”, and the text read as follows:
“In the last few days a campaign aimed at ‘DRIVING THE KURDS OUT OF THE CITIES’ has been launched in İzmir against the Kurdish population by a combination of prefecture, security police and town hall. In this campaign İzmir has been designated a pilot-city. The first stage was the operation [against] street traders, stallkeepers and mussel sellers, whom they tried to hide away on the ground that it was necessary to smarten up the city and ease traffic congestion. The purpose of this operation was to impose an ‘economic blockade’ on our, mainly Kurdish, fellow citizens who make their living through these activities, condemning them to destitution and starvation. In this way the masses were to be frightened, oppressed and compelled to return to their province of origin.
Before the ‘DRIVING THE KURDS OUT’ campaign began the organisational and psychological ground had already been prepared by leaflets signed by ‘Patriotic inhabitants of İzmir’ and handed out in large numbers for weeks by ‘obscure forces’. These leaflets incited hostility against the Kurdish population in particular and stirred up anti-Kurdish feelings. This led to racist and chauvinistic anti-Kurdish attitudes through propaganda saying: ‘Don’t give employment or housing to the Kurds. Don’t speak to them, don’t let your daughters marry them and don’t marry one yourself. Smash the Kurds.’ That is how the psychological foundations were laid down, the preparations for the future offensives. Although these leaflets were handed out in broad daylight, those responsible – and nobody knows why – were never arrested.
But the campaign was by no means limited to the operation against street traders, stallkeepers and mussel sellers. The second prong was ‘Operation shantytown’. The same combination of prefecture, security police and town hall launched the demolition of the squatters’ camps. It began in Yamanlar and Şemikler and continued in Gaziemir, [all] shantytown districts inhabited mainly by Kurds, who, before the elections, were regarded by the parties in favour of the status quo as a source of votes. Those who had encouraged the mushrooming of the shantytowns by dishonestly promising freedom to build in exchange for votes and those who, with the local mafia, had appropriated public land this time set about the ferocious destruction of these huts to oppress and intimidate the Kurds and force them to go back home.
The Kurdish and Turkish proletarian people suddenly and without any warning saw the huts they had run into debt to build, with so many sacrifices made by cutting down on their children’s food, collapsing about their ears. That is how they are trying to oppress the Kurdish and Turkish people and drive them into distress and despair.
IT’S STATE TERROR AGAINST TURKISH AND KURDISH PROLETARIANS!
It is certain that these demolitions, which began in Yamanlar and are still continuing in Gaziemir, will soon spread to İzmir’s other shantytowns. The State is testing the people’s reactions and will to resist by causing various kinds of destruction. Passivity as a form of defence against this devastation has encouraged the State to commit further kinds of destruction.
In conclusion: The ‘Driving-the-Kurds-Out policy’ forms part of the SPECIAL WAR being conducted in the country at present against the Kurdish people. It is one of the mechanisms of that war, the way it impinges on the cities. Because the methods used are the same, namely enslavement, violence, terror and oppression through compulsion. It is a psychological war.
While, in the country, they are trying to oppress and silence the people through counter-insurgency tactics, special patrols, village guards, the SS decree and every [other] form of State terror, in İzmir they want to achieve the same aim by depriving our fellow citizens of their means of subsistence and in the end by knocking their houses down about their ears. The methods used, although different in form, are in the final analysis mechanisms serving the purposes of the special war. It is the urban form of the special war.
TO ALL DEMOCRATIC PATRIOTS!
The way to nullify these insults to the cities is to set up NEIGHBOURHOOD COMMITTEES BASED ON THE PEOPLE’S OWN STRENGTH.
We call on all Kurdish and Turkish democratic patriots to assume their responsibilities and oppose this special war being waged against the proletarian people.
LONG LIVE THE BROTHERHOOD OF NATIONS!
STOP THE SPECIAL WAR BEING SPREAD INTO THE CITIES!”
11. By a letter of 2 July 1992, accompanied by a copy of the leaflet in question, the president of the HEP informed the İzmir prefecture of the executive committee’s decision (see paragraph 10 above) and asked for permission to implement it.
12. The İzmir security police, to whom this request had been referred, considered that the leaflet contained separatist propaganda capable of inciting the people to resist the government and commit criminal offences.
On 3 July 1992 they asked the Principal Public Prosecutor attached to the İzmir National Security Court (“the public prosecutor”, “the National Security Court”) to state his opinion as to whether the contents of the leaflet contravened the law.
13. On the same day, at the request of the public prosecutor’s office, a substitute judge of the National Security Court issued an injunction ordering the seizure of the leaflets and prohibiting their distribution.
The police searched the HEP’s premises in İzmir, first at the headquarters, where the party leaders handed over, without demur, nine thousand copies of the leaflet which were still parcelled up, and then at the Buca district office, where the thousand remaining copies were seized.
14. Still on 3 July 1992 the public prosecutor’s office opened a criminal investigation against the HEP’s local leaders and the members of its executive committee, including the applicant.
15. On 27 July 1992 the public prosecutor instituted criminal proceedings in the National Security Court against the applicant and the other eight members of the HEP committee who had taken part in the decision of 1 July 1992 (see paragraph 10 above). Citing the text of the leaflet, he accused them of attempting to incite hatred and hostility through racist words and asked the court to apply Articles 312 §§ 2 and 3 of the Criminal Code, section 5 of the Prevention of Terrorism Act (Law no. 3713) and additional section 4 of the Press Act (Law no. 5680) (see paragraphs 21, 23 and 24 below). He also asked the court to order confiscation of the leaflets.
16. On 9 February 1993 the National Security Court, composed of three judges, one of whom was a member of the Military Legal Service, found the applicant guilty of the offences charged and sentenced him to six months and twenty days’ imprisonment and a fine of 55,555 Turkish liras. It also ordered the confiscation of the leaflets and disqualified him from driving for fifteen days.
In its interpretation of the wording of the leaflet, the National Security Court accepted the public prosecutor’s oral submissions entirely, except for that part which related to the applicability of the Prevention of Terrorism Act (Law no. 3713). It noted in particular that the leaflet suggested recourse to resistance against the police and the establishment of “neighbourhood committees”, which it held to be illegal forms of protest. It further held that the offence had been intentionally committed, since the accused had not contested either the existence or wording of the text on which the charge was based.
With regard to the severity of the sentence, it observed that although commission of the offence through the medium of print was an aggravating circumstance, it was necessary to take into account the accused’s good faith and the fact that the authorities had been able to lay hands on the leaflets before they had been distributed.
17. On 9 March 1993 the applicant and the other convicted persons appealed to the Court of Cassation. In their notice of appeal they asked for a public hearing to be held and challenged the National Security Court’s interpretation of the leaflet and its refusal to commute the prison sentence to a fine.
18. On 20 May the Principal Public Prosecutor attached to the Court of Cassation forwarded the case file together with an opinion couched in a standard form of words – which was not communicated to Mr Incal – asking the court to uphold the judgment.
19. In a judgment of 6 July 1993 the Court of Cassation upheld all the operative provisions of the impugned judgment, after observing that, regard being had to the nature and length of the sentence imposed at first instance, it was not necessary to hold a hearing.
20. On 23 August 1993 the prosecuting authorities decided, at the applicant’s request, to stay execution of the prison sentence for four months.
21. The relevant provisions of the Criminal Code read as follows:
“Public incitement to commit an offence
Where the incitement [to commit an offence] is done by means of mass communication, of whatever type, by tape recordings, gramophone records, newspapers, press publications or other published material, by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled…”
“Non-public incitement to commit an offence
Whosoever expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall be sentenced to between six months’ and two years’ imprisonment and a … fine of between six thousand and thirty thousand liras.
Whosoever expressly arouses hatred and hostility in society on the basis of a distinction between social classes, races or religions, or one based on allegiance to a particular denomination or region, shall be sentenced to between one and three years’ imprisonment and a fine of between nine thousand and thirty-six thousand liras. If this incitement is done in a manner likely to endanger public safety, the sentence shall be increased [by one third to one half].
The penalties to be imposed on those who have committed the above-mentioned offences by the means listed in Article 311 § 2 shall be doubled.”
22. A conviction under Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that section may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to Parliament (Law no. 2839, section 11(f3)). In addition, if the sentence imposed exceeds six months’ imprisonment, the convicted person is debarred from entering the civil service, provided that the offence has been committed intentionally (Law no. 657, section 48(5)).
23. Additional section 4(1) of the Press Act (Law no. 5680) provides:
“Where distribution [of the printed matter whose distribution constitutes the offence] is prevented … by a court injunction or, in an emergency, by order of the Principal Public Prosecutor, to be confirmed by a court, … the penalty imposed shall be one-third of that laid down by law for the offence concerned.”
24. Law no. 3713 of 12 April 1991, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as “acts of terrorism” or “acts perpetrated for the purposes of terrorism” (sections 3 and 4) and to which it applies. However, the act punishable pursuant to Article 312 of the Criminal Code (see paragraph 21 above) is not among them.
25. Article 318 of the Code of Criminal Procedure provides for the holding of a public hearing in proceedings before the Court of Cassation only where the impugned judgment concerns offences classified as “serious”, such as those punishable by the death penalty or a term of imprisonment of more than ten years. The Court of Cassation’s jurisdiction, according to Article 307 of the Code, is limited to questions concerning the lawfulness and procedural regularity of the first-instance judgment.
26. The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That Law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage:
“There may be acts affecting the existence and stability of a State such that when they are committed special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to [give judgment on] a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have [thus] been enacted in advance and that the courts have been created before the commission of any offence …, they may not be described as courts set up to deal with this or that offence after the commission of such an offence.”
The composition and functioning of the National Security Courts are subject to the following rules.
27. The constitutional provisions governing judicial organisation are worded as follows:
“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.
No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”
“Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution…”
“Presidents, regular members and substitute judges of the National Security Courts shall be appointed for a renewable period of four years.”
“The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law...”
28. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows:
“In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic – whose constituent qualities are enunciated in the Constitution – against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.”
“The National Security Courts shall be composed of a president and two other regular members. In addition, there shall sit at each National Security Court two substitute members.”
“The president of a National Security Court, one of the other regular members and one of the substitutes shall be civilian … judges, the other members, whether full or substitute, military judges of the first rank…”
“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the special legislation [concerning those posts].
Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years…
…
If, after an investigation concerning the presidents and regular or substitute members of the National Security Courts conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of a military judge, the duty station of that judge or his duties [themselves] … may be changed in accordance with the procedure laid down in that legislation.”
“The National Security Courts shall try persons accused of the offences defined in
(a) [Article] 312 § 2 … of the Turkish Criminal Code…”
“The Court of Cassation shall hear appeals from the judgments of the National Security Courts.”
“The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences … they may commit in the performance of their duties shall be as laid down in the relevant provisions of the laws governing their professions…
The observations of the Court of Cassation and the assessment reports drawn up by Ministry of Justice assessors on judges of the Military Legal Service … and the files on any investigations conducted against them … shall be transmitted to the Ministry of Justice.”
“A National Security Court may be transformed into a Martial-Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…”
29. The relevant provisions of the Military Legal Service Act are worded as follows:
“The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Act and the Turkish Armed Forces Personnel Act (Law no. 926).
(a) The immediate superior competent to carry out assessment and draw up assessment reports for military judges, whether full or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.
…”
“Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and legal advisor of the General Staff, the personnel director and legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…”
“Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces…
…
The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the immediate superiors…”
“The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.”
“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:
A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.
…
B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.
…
The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…”
“When military judges … sit in court they shall wear the special dress of their civilian counterparts…”
30. Article 112 of the Military Criminal Code of 22 May 1930 provides:
“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a [public] official in order to influence the military courts.”
31. Under section 22 of Law no. 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their promotion and professional advancement.
32. The Government produced several judgments of the First Division of the Supreme Military Administrative Court setting aside decisions concerning the appointment and promotion of military judges or disciplinary sanctions applied to them. These were the judgments of 31 May 1988 (no. 1988/185), 14 December 1993 (no. 1993/1116), 22 December 1993 (no. 1993/1119), 19 November 1996 (no. 1996/950), 1 April 1997 (no. 1997/262), 27 May 1997 (no. 1997/405) and 3 July 1997 (no. 1997/62).
It appears from these judgments that in setting aside the transfer decisions concerned, the First Division gave as its grounds either lack of consent on the part of the person concerned or abuse of the military authorities’ discretionary power. In connection with assessment reports, failure to state reasons or a lack of objectivity on the part of the immediate superior was taken into account. Lastly, in connection with a disciplinary sanction, against which in principle no appeal lies, the First Division held that the acts of which the person concerned stood accused had been incorrectly established and that the sanction was accordingly null and void.
33. The Government also submitted a number of judgments rendered by National Security Courts relevant to the impartiality of military judges sitting as members of such courts. These were the judgments of 12 September 1995 (no. 1995/171), 27 February 1996 (no. 1996/38), 7 March 1996 (no. 1996/55), 21 March 1996 (no. 1996/70), 2 April 1996 (no. 1996/102), 9 April 1996 (no. 1996/112), 2 May 1996 (no. 1996/141), 9 May 1996 (no. 1996/150), 19 August 1996 (no. 1996/250), 12 September 1996 (no. 1996/258), 19 September 1996 (no. 1996/263), 1 October 1996 (no. 1996/270), 3 October 1996 (no. 1996/273), 8 October 1996 (no. 1996/278), 12 June 1997 (no. 1997/128) and 15 July 1997 (no. 1997/393).
Most of these decisions declared the accused guilty but also contained separate opinions by military judges adopting a dissenting opinion with regard to the establishment and classification of the facts, the way sentence was determined or the finding of guilt itself.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1