ITEMID: 001-115307
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DVALISHVILI v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicant was born in 1984 and lives in the village of Gvishtibi, Georgia. On 27 December 2005, at around 9.50 p.m., the applicant was arrested by three police officers on suspicion of breaching public order in the city of Tskaltubo and physically assaulting a taxi driver. He was taken to the Tskaltubo police department, where, with the status of a suspect, he protested his innocence and invoked his right to remain silent. An identification procedure which took place immediately afterwards resulted in the taxi driver identifying the applicant as one of the assaulters. According to the applicant, he was then severely beaten by three police officers identified as B.Gh., M.K. and M.M., who demanded that he confess to verbally and physically assaulting the taxi driver.
6. On the following day the applicant was charged with an aggravated breach of public order, an offence under Article 239 § 2 (a) of the Criminal Code of Georgia. He was questioned as an accused in the absence of a lawyer and confessed to the offence. Later, an ambulance was called for the applicant. An emergency doctor and a nurse, who visually examined him in the presence of a prosecutor, drew up a report noting that the applicant had a bruise on his right eye and a scratch on his nose. When asked about the source of the injuries, the applicant stated that he had fallen to the ground when running away from the police officers during the arrest.
7. On 29 December 2005 the Tskaltubo District Court ordered the applicant’s release on bail. According to the applicant, at the hearing he repeated his confession, since it was on that condition that the police officers had promised to release him.
8. On 30 December 2005 the applicant, who by that time had developed a severe headache, general weakness and nausea, was taken to Kutaisi hospital. On admission to the hospital he alleged that he had been beaten by police officers. After the required medical examination, the applicant was diagnosed with an internal head injury, concussion and chronic gastroduodenitis. A haematoma measuring 2 cm by 2.5 cm was observed on his right eye; also, minor excoriations were found on his right thigh, left shoulder and right hand, and minor swelling in the right temple area and jaw. He was treated at the hospital until 6 January 2006.
9. On 7 January 2006 the applicant was again hospitalised with recurring headaches and dizziness. He was treated for two weeks and discharged from the hospital on 20 January 2006.
10. According to the case file, in February 2006 the applicant additionally consulted a doctor on a number of occasions following complaints of severe headaches and pain in the abdominal area.
11. On 21 March 2006 the investigator in charge of the applicant’s criminal case ordered a forensic examination in order to establish the gravity and potential cause of the applicant’s injuries. On the same day the Imereti regional office of the National Forensic Bureau issued a conclusion on the basis of an analysis of the applicant’s medical records. Confirming the applicant’s diagnosis, the expert established that the injuries had been caused by a hard blunt object and belonged to the category of bodily injuries of minor severity causing long-lasting damage to the applicant’s health.
12. On 12 October 2006 the applicant’s lawyer arranged for an alternative, independent examination of the applicant’s medical records, inquiring in particular as to whether the injuries sustained by the applicant could have been the result of a single fall to the ground, as claimed by the applicant in his pre-trial confession and by the police officers in their testimony (see paragraph 13 below). In the report of 25 October 2006, the experts from the National Forensic Bureau concluded the following:
“According to the medical documentation submitted with respect to the injuries sustained by Revaz Dvalishvili on 27 December 2005 [he had] hematomas on the right thigh and in the area of the right eye, and bruises on the right thigh and between the fourth and fifth fingers of the right hand. The injuries have been caused by a hard blunt object. Having regard to the location of the injuries, they could not have been caused by a single fall from the own height over a hard blunt object.”
13. On 28 December 2006 the Tskaltubo District Court convicted the applicant of an aggravated breach of public order and sentenced him to one year in prison and a fine. It was established that the applicant, along with two acquaintances, had hired a taxi on the evening of 27 December 2005 to travel from the city of Kutaisi to Tskaltubo. One of his acquaintances had been dropped off on the way to Tskaltubo. Upon arrival at the place of destination, the applicant, who was heavily drunk, had refused to pay the taxi fare and had physically and verbally assaulted the taxi driver. Soon afterwards, police officers had arrived. The applicant and his acquaintance had tried to run away. The applicant, however, had fallen down on some concrete slabs and had eventually been arrested, while his acquaintance had managed to escape.
14. The conviction was based, inter alia, on the statement of the victim, who identified the applicant as his assaulter, the statements of the three police officers who had arrested him and the results of various forensic examinations. The conviction did not take into account the applicant’s pretrial confession. According to the record of the hearing, the defence lawyer had requested the Tskaltubo District Court to declare the applicant’s pre-trial testimony inadmissible, arguing that his confession had been extracted by ill-treatment; however, the request was dismissed. The court concluded that there was no evidence to substantiate the applicant’s allegations of ill-treatment.
15. On 9 July 2007 the Kutaisi Court of Appeal, modifying the classification of the offence to a simple breach of public order, upheld the applicant’s conviction and replaced his prison sentence with a fine. The appellate court similarly rejected the applicant’s allegation of illtreatment as unsubstantiated.
16. By a decision of 1 April 2008 the Supreme Court of Georgia dismissed the applicant’s appeal on points of law.
17. On 10 February 2006 the applicant lodged a criminal complaint against the police officers, alleging ill-treatment. The complaint was addressed to the Public Prosecutor of Western Georgia. On the same day a criminal investigation was initiated into the alleged ill-treatment of the applicant under Article 144(1) of the Criminal Code of Georgia.
18. The prosecutor questioned seven police officers, including those who had arrested the applicant and two of those whom he had implicated as having been involved in his alleged ill-treatment. They all denied beating the applicant. They maintained that the latter had sustained minor scratches on his nose and both hands when he had fallen on concrete slabs whilst fleeing the crime scene. The two police officers who had chased the applicant added in their statements that in the dark they had failed to notice the applicant immediately and had fallen over him.
19. The prosecutor also questioned the taxi driver who had identified the applicant as his assaulter and the five witnesses who had participated in the identity parade. They all confirmed that throughout their interaction with the applicant on 27 December 2005 he had not voiced any grievances against the police. Furthermore, they could not recall any obvious signs of physical injuries on the applicant. The taxi driver also confirmed that he had seen the applicant falling down and the police officers falling over him.
20. The emergency doctor and the nurse who had visually examined the applicant on 28 December 2005 were also questioned in the course of the investigation. They confirmed the accuracy of their findings concerning the injuries they had observed on the applicant the day after his arrest (see paragraph 6 above). They further reiterated that the applicant had not complained about the actions of the police officers and had maintained that the injuries were the result of his accidental fall while attempting to escape from the police. No other investigative measures were taken.
21. On 24 May 2006 the prosecutor decided to discontinue the proceedings for lack of evidence of a crime. The prosecutor based his findings on, amongst others, the results of the criminal proceedings conducted against the applicant, which at that time were at the stage of the pre-trial investigation. Referring to the evidence collected in the course of the above-mentioned criminal investigation, the prosecutor concluded that it had conclusively proved the applicant’s guilt.
22. As regards the applicant’s injuries, the prosecutor fully accepted the version of events put forward by the police officers concerning the applicant’s fall. The decision referred primarily to the testimony by the police officers, who maintained that the applicant could have been injured when he had fallen on concrete slabs whilst fleeing the crime scene, or when they had restrained him. In support of his position, the prosecutor further relied on the confession of the applicant, which, according to the prosecutor, had been maintained at the hearing of 29 December 2005. The fact that the applicant had not indicated the police officers as having caused his injuries when he was medically examined on 28 December 2005 or at the hearing of 29 December 2005 was accorded particular weight by the prosecutor.
23. Finally, having regard to the medical report of 21 March 2006 (see paragraph 11 above), the prosecutor concluded that he was unable to establish any ill-treatment on the part of the police officers and noted that the injuries sustained by the applicant could have occurred as a result of his accidental fall or “as a result of justified use of force by police officers for the purpose of his arrest”.
24. The applicant’s lawyer appealed to the Tskaltubo District Court against the prosecutor’s decision of 24 May 2006. In the appeal the lawyer contended that rather than examining the applicant’s allegations of illtreatment, the prosecutor had merely reiterated the findings of the preliminary investigation conducted in the course of the proceedings against the applicant. The lawyer objected in particular to the prosecutor having relied on the applicant’s confession, instead of examining whether the confession had been extracted by ill-treatment. He further highlighted the prosecution authorities’ failure to organise a comprehensive forensic examination capable of establishing the cause of the applicant’s injuries and their failure to visit and inspect the scene of the incident.
25. According to the record of the oral hearing of 1 August 2006, the applicant’s lawyer, noting that the designated trial judge of the Tskaltubo District Court had also dealt with the bail proceedings in the criminal case against the applicant, requested her removal. The judge in question, however, dismissed the request as unsubstantiated. She concluded that during the bail proceedings the applicant had not raised any allegations of ill-treatment against the police officers and thus there was no reason to doubt her objectivity and impartiality.
26. By a decision of 1 August 2006 the Tskaltubo District Court dismissed the applicant’s appeal as unsubstantiated. Relying on the applicant’s pre-trial confession, the statements of the police officers and the medical documents of 28 December 2005 and 21 March 2006, the court confirmed the account of events presented by the police officers. In particular, the court held:
“In view of the above it is established that Revaz Dvalishvili confessed to committing the offence, he did not raise any allegations against the police officers, particularly concerning the beating, either upon his arrest, or at the meeting with the prosecutor or in the court when remanded in custody. ...
There is no evidence in the case file to suggest that the police officers have committed an act defined as a criminal offence, and thus the complaint is not supported either by the real circumstances pertaining to the case or by the legislation and should be rejected.”
27. On 11 October 2006 the Kutaisi Court of Appeal upheld the decision of 1 August 2006, endorsing the reasons given by the first-instance court.
28. Article 28 § 1 (a) of the CCP states that the preliminary investigation is to be discontinued if the act or omission concerned is not an offence under the Criminal Code.
29. The relevant part of the report reads as follows:
“C. Subjects of concern and recommendations
9. The Committee remains concerned that despite extensive legislative reforms, impunity and intimidation still persist in the State party, in particular in relation to the use of excessive force, including torture and other forms of illtreatment by lawenforcement officials, especially prior to and during arrest...
12. The Committee is also concerned about the relatively low number of convictions and disciplinary measures imposed on law-enforcement officials in the light of numerous allegations of torture and other acts of cruel and inhuman or degrading treatment...”
30. The relevant parts of the Amnesty International report read as follows:
“Introduction
...Amnesty International has continued to receive reports about torture and ill-treatment in Georgia. Many cases still do not come to light because police cover up for their crimes and detainees are often afraid to complain or identify the perpetrators for fear of repercussions. Impunity for torture is still a big problem. Amnesty International was concerned that procurators did not open investigations into all potential torture and ill-treatment cases in a systematic manner. In dozens of cases where the procuracy has opened investigations the perpetrators have not been brought to justice. Case examples featured in the report demonstrate that investigations into allegations of torture or ill-treatment have often not been conducted in a prompt, impartial and independent manner.
More needs to be done to eradicate torture and ill-treatment
In 2005 the large majority of injuries alleged to have been sustained through police ill-treatment were reportedly inflicted during the arrest. In the same period Amnesty International continued to receive some cases where detainees were reportedly tortured or ill-treated in cars while being taken to a place of detention, in police stations, and in the Ministry of Internal Affairs. One detainee alleged that he was illtreated during the remand hearing. There were also allegations that several people were attacked on the street by security service agents in plainclothes or taken to unpopulated places such as cemeteries or forests and ill-treated.
The methods used to torture or ill-treat detainees, as indicated in the reports Amnesty International has received since the ‘Rose Revolution’, include electric shocks; putting plastic bags over the head of a detainee; suspending a detainee from a pole between two tables; cigarette and candle burns; placing the barrel of a gun in a detainee’s mouth threatening to shoot; blindfolding with adhesive tape; hitting a detainee’s ear with open palms; threats to beat the detainee’s family; gagging the detainee with a piece of cloth so they cannot shout; beatings, including with truncheons and butts of guns, and kicking.”
VIOLATED_ARTICLES: 3


ITEMID: 001-60627
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF VASTBERGA TAXI AKTIEBOLAG AND VULIC v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1 in respect of access to court;Violation of Art. 6-1 in respect of length of proceedings;No violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: 8. The first applicant, Västberga Taxi Aktiebolag, a taxi company, was dissolved due to a lack of assets on 2 December 1997. The second applicant, Nino Vulic, was the director of the first applicant. At the time when the tax liability in dispute in the present case arose, he owned 50% of its shares. Later, he acquired all the shares of the company.
9. In the autumn of 1994, as part of a large-scale investigation into taxicab operators, the Tax Authority (skattemyndigheten) of the County of Stockholm carried out a tax audit concerning the first applicant's taxi business. Having previously submitted its tax returns for the assessment year 1994, the first applicant was asked to submit supplementary information on several occasions, starting on 29 November 1994. Having discovered in the course of the audit certain irregularities in the tax returns, the Tax Authority informed the first applicant on 20 February 1995 that it intended to revise upwards the figure given in the tax returns for the turnover of the taxi business and impose additional taxes and tax surcharges on the company. The first applicant was invited to submit further comments, which it did.
10. Having regard to the findings of the audit and the first applicant's observations, the Tax Authority – by a decision of 10 August 1995 – revised upwards the turnover of the company's business by more than 400,000 Swedish kronor (SEK). After deductions for undeclared salary and petrol costs, the Tax Authority's assessments resulted in an increase in the deficit of the first applicant's business. However, by decisions of 11 and 15 August 1995, the taxation bases for calculating value-added tax (mervärdesskatt) and employer's contributions (arbetsgivaravgifter) were raised upwards in correspondence with the turnover and, as a consequence, the first applicant's liability to value-added tax and employer's contributions were increased by SEK 47,956 and 125,650, respectively. Moreover, as the information supplied by the first applicant in its tax returns was found to be incorrect and its liability to value-added tax and employer's contributions had been increased under a discretionary assessment procedure, the Tax Authority ordered it to pay tax surcharges (skattetillägg, avgiftstillägg) amounting to 20% of the increased tax liability. The additional taxes levied on the first applicant, including interest and surcharges, totalled SEK 232,069, of which SEK 34,710 were surcharges. It appears that the whole of the amount was payable in October 1995.
11. On 11 August 1995 the Tax Authority presented a report, according to which it intended to raise upwards the second applicant's taxable income and impose a tax surcharge, as a consequence of the assessments concerning the first applicant. The second applicant was invited to submit comments, which he did.
12. By a decision of 6 October 1995 the Tax Authority increased the second applicant's liability to income tax by SEK 146,602. Like the first applicant, and for the same reasons, he was ordered to pay tax surcharges. The additional tax levied on the second applicant, including interest and surcharges, totalled SEK 226,776, of which SEK 57,757 were surcharges. The whole of the amount was payable on 12 February 1996.
13. Claiming that the information relied upon by the Tax Authority to calculate the turnover of the first applicant's business was inaccurate, both applicants challenged the Tax Authority's decisions, the first applicant on 4 September 1995 in a request for the Authority's reconsideration and the second applicant on 18 December 1995 in an appeal against the relevant decision. The applicants also requested that the execution of the amounts assessed be stayed. The requests were prompted by the fact that neither an appeal to a court nor a request for reconsideration by the Tax Authority had in itself any suspensive effect on the obligation to pay the taxes and surcharges due as a result of the impugned decisions.
14. By decisions of 8 September 1995 and 17 February 1996 the Tax Authority rejected the applicants' requests for stays of execution, stating that the prerequisites laid down in section 49 of the Tax Collection Act (Uppbördslagen, 1953:272) had not been fulfilled.
15. By judgments of 22 February and 8 March 1996, following appeals by the applicants, the County Administrative Court (länsrätten) of the County of Stockholm quashed the Tax Authority's decisions and referred the cases back to the Authority. Having found that the formal prerequisites for granting stays of execution under section 49, subsection 1 (3) of the Tax Collection Act had been fulfilled, the court went on to state:
“However, the granting of a stay of execution under this particular provision is conditional on security being provided, if, for some reason, it can be assumed that the amount in respect of which a stay of execution has been sought will not be duly paid. As the Tax Authority did not rule on the compliance with that condition, the County Administrative Court finds that the decision[s] should be quashed and the case[s] referred back to the Tax Authority, which must examine the question whether security is required.”
16. On 7 and 30 May 1996, respectively, the Tax Authority again rejected the applicants' requests for stays of execution. The Tax Authority found that the applicants' ability to pay was open to doubt, that stays of execution could not therefore be granted unless security was provided and that, although given the opportunity to do so, the applicants had failed to provide security. Accordingly, their requests could not be granted.
17. The applicants appealed against those decisions to the County Administrative Court, claiming that they should be exempted from the obligation to provide security and granted stays of execution. Both claims rested on the contention that it would be unreasonable and amount to a violation of Article 6 of the Convention for enforcement proceedings to be instituted against the applicants without their cases having first been determined "in due course".
18. By judgments of 12 September 1996, subscribing to the reasons given by the Tax Authority, the County Administrative Court upheld the impugned decisions.
19. The applicants, who did not furnish security, lodged a notice of appeal. On 30 October 1996 the Administrative Court of Appeal (kammarrätten) in Stockholm refused them leave to appeal against the County Administrative Court's judgments. They did not appeal to the Supreme Administrative Court (Regeringsrätten).
20. Meanwhile, each of the debts being outstanding and no stays of execution having been granted, the applicants were registered as being in arrears with the taxes and tax surcharges imposed as a result of the Tax Authority's decisions. Enforcement proceedings were therefore instituted against both applicants.
21. On 20 December 1996 the Enforcement Office (kronofogde-myndigheten) of the County of Stockholm, representing the State, filed a petition with the District Court (tingsrätten) of Stockholm, requesting that the first applicant be declared bankrupt. According to a statement submitted by the Office, as of 16 December 1996 the first applicant's tax liability relating to the assessment year 1994 amounted to SEK 271,733, including penalties for late payment (dröjsmålsavgifter) that had accrued since the final date on which payment could have been made. That amount included SEK 33,041, plus 6% in penalties for late payment, in tax surcharges. The first applicant also had a smaller tax liability relating to the assessment year 1996. The Office noted that an investigation had revealed that the first applicant owned no property that could be seized in order to cover the debts in question.
22. The District Court held a hearing in the case on 3 February 1997. Although duly summoned, however, no representative of the first applicant appeared before the court. Instead, written observations previously submitted on its behalf were read out. According to the minutes of the hearing, the first applicant alleged in those observations that Article 6 of the Convention had been breached in that it had been denied a fair hearing.
23. By a decision of 10 February 1997 the District Court declared the first applicant bankrupt. In so doing it noted that the alleged breach of Article 6 of the Convention did not affect the State's standing to petition for bankruptcy, that the first applicant was under an obligation to pay the debts and that it had to be considered insolvent as it had been found to have no distrainable assets.
24. The first applicant appealed to the Svea Court of Appeal (Svea hovrätt), claiming, inter alia, that the District Court's decision amounted to a violation of Article 6 of the Convention in that the enforcement proceedings had been allowed to continue irrespective of the fact that the Tax Authority's decisions regarding its liability to taxes and tax surcharges had not yet been reviewed by a court.
25. The first applicant's appeal was dismissed by the Court of Appeal on 21 February 1997. Leave to appeal against the appellate court's decision was refused by the Supreme Court (Högsta domstolen) on 6 May 1997.
26. On 2 December 1997 the bankruptcy proceedings were terminated owing to a lack of assets.
27. On 23 and 25 April 1996 the Enforcement Office seized the second applicant's savings in two banks, amounting to a total of SEK 18,132, in partial defrayment of his tax liability.
28. The second applicant appealed to the District Court, requesting that the seizure be quashed. The appeal was dismissed by the court on 28 June 1996. He made no further appeals, considering that they would have no prospects of success.
29. Following the Enforcement Office's decision of 22 November 1996 to seize part of the second applicant's monthly income, some minor amounts were recovered. By a decision of 5 December 1997 this seizure was discontinued. As of 21 August 2001 the second applicant's tax liability relating to the assessment year 1994 amounted to SEK 346,161, including penalties for late payment. Of the original debt of SEK 226,776, SEK 201,910 remained unpaid. In accordance with section 3 of the Statute of Limitations for Tax Claims (Lagen om preskription av skattefordringar m.m., 1982:188), the whole debt became statute-barred on 31 December 2001, at the end of the fifth year following the day it became due.
30. On 30 August 1995 the Tax Authority reported the second applicant to the Public Prosecution Office (åklagarmyndigheten) in Stockholm for suspected tax crimes based on the information obtained during the tax audit and the statements made in the applicants' tax returns. On 23 May 1997 the second applicant was indicted for a bookkeeping offence. A hearing was held by the District Court on 22 January 2001. During the course of the hearing, the public prosecutor withdrew the charges and the District Court consequently struck the case out of its list.
31. As mentioned above, on 4 September 1995, the first applicant requested the Tax Authority to reconsider its decisions on taxes and tax surcharges. On 9 October 1995 the Authority decided not to change its decision of 10 August 1995 concerning the assessment of the turnover of the company's business. Subsequently, the first applicant sent comments and questions to the Tax Authority, which replied to the questions on 17 February 1996. On 22 February 1996 the first applicant lodged formal notices of appeal against the Tax Authority's decisions. It also submitted comments and questions to the Tax Authority, which, by a letter of 19 August 1996, stated that it stood by its decisions. The first applicant presented further observations on 5 September 1996. By decisions of 11 and 12 June 1997 the Tax Authority refused to change the impugned decisions. Consequently, the matters were automatically referred to the County Administrative Court for determination.
32. By a decision of 17 July 2000 the County Administrative Court dismissed the first applicant's appeals. The Court considered that, as it had been dissolved on 2 December 1997, the company lacked legal capacity (rättskapacitet) to act as a party. Accordingly, the appeals could not be examined.
33. On 9 October 2001 the Administrative Court of Appeal upheld the County Administrative Court's decision. On 12 November 2001 the first applicant appealed to the Supreme Administrative Court. By a decision of 23 April 2002 the latter court granted leave to appeal. Thus, the matter is presently pending before the Supreme Administrative Court.
34. At the same time as his appeal of 18 December 1995, the second applicant submitted comments and questions to the Tax Authority, which replied on 17 February 1996. A few days later he sent a letter to the Authority. By a letter of 19 August 1996 the Authority stated that it stood by its previous decision. The second applicant presented further comments on 5 September 1996. On 12 June 1997 the Tax Authority refused to change the impugned decision. Consequently, the matter was automatically referred to the County Administrative Court for determination.
35. By a judgment of 29 March 2000 the County Administrative Court upheld the Tax Authority's decision of 6 October 1995. It considered that the information on which the impugned decisions were based was reliable and showed that the applicant's income and the tax in question could not be assessed in accordance with the statements made in his tax returns. Thus, the Tax Authority had had good reason to make discretionary tax assessments based on the information obtained during the audit. Furthermore, the amount levied on the applicant could not be considered too high. The County Administrative Court also considered that there had been sufficient reasons to impose the tax surcharge in question and that no legal basis for remitting it had been shown.
36. On 15 December 2000 the Administrative Court of Appeal upheld the County Administrative Court's judgment. During the course of the proceedings before the appellate court the second applicant was on one occasion granted a four-week extension of a time-limit for the submission of observations. On 12 January 2001 he appealed to the Supreme Administrative Court. Following another extension of a similar time-limit, he completed his appeal on 20 April 2001. By a decision of 3 May 2002 the Supreme Administrative Court refused him leave to appeal.
37. The rules on taxes and tax surcharges relevant to the present case were primarily laid down in the Taxation Act (Taxeringslagen, 1990:324), the two Value-Added Tax Acts (Lagen om mervärdeskatt, 1968:430, replaced by Mervärdesskattelagen, 1994:200) and the Collection of Social Security Charges from Employers Act (Lagen om uppbörd av socialavgifter från arbetsgivare, 1984:688). Issues concerning taxation and the imposition of tax surcharges were regulated in a very similar manner in the various acts. In the following section, therefore, reference is made only to the provisions of the Taxation Act. The Collection of Social Security Charges from Employers Act and parts of the Value-Added Tax Act 1994 were replaced by the Tax Payment Act (Skattebetalningslagen, 1997:483) as from 1 November 1997. As no essential changes have been made by either the enactment of the Tax Payment Act or amendments to the Taxation Act, the following account describes both the present system and the one applicable at the material time.
38. Income tax, value-added tax and employer's contributions are all determined by county tax authorities, to which taxpayers are obliged to submit information relevant to the assessment of taxes. For the purpose of securing timely, sufficient and correct information, there are provisions stipulating that, under certain circumstances, the tax authorities may impose penalties on the taxpayer in the form of tax surcharges.
39. These surcharges were introduced into Swedish legislation in 1971. The new provisions entered into force on 1 January 1972 at the same time as a new act on tax offences. According to the preparatory documents (Government Bill 1971:10), the main purpose of the reform was to create a more effective and fairer system of penalties than the old one, which was based entirely on criminal penalties determined by the ordinary courts following police investigation and prosecution. Unlike penalties for tax offences, the new surcharges were to be determined solely on objective grounds, and, accordingly, without regard to any form of criminal intent or negligence on the part of the taxpayer. It was thought that the old system did not function satisfactorily, since a large number of tax returns contained incorrect information whereas relatively few people were charged with tax offences. Now that the new system has been introduced only serious tax offences are prosecuted.
40. A tax surcharge is imposed on a taxpayer in two situations: if he or she, in a tax return or in any other written statement, has submitted information of relevance to the tax assessment which is found to be incorrect (chapter 5, section 1 of the Taxation Act) or if, following a discretionary assessment, the tax authority decides not to rely on the tax return (chapter 5, section 2). It is not only express statements that may lead to the imposition of a surcharge; concealment, in whole or in part, of relevant facts may also be regarded as incorrect information. However, incorrect claims are not penalised; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof, no surcharge is imposed. The burden of proving that the information is incorrect lies with the tax authority. A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the tax authority cannot base its tax assessment on it or if he or she has not filed a tax return despite having been reminded of the obligation to do so (chapter 4, section 3). In the latter case the decision to impose a tax surcharge will be revoked if the taxpayer files a tax return within a certain time-limit. The surcharge amounts to 40% of either the income tax which the Tax Authority would have failed to levy if it had accepted the incorrect information or the income tax levied under the discretionary assessment. The corresponding provisions on value-added tax and employer's contributions stipulate that the surcharge comes to 20% of the supplementary tax levied on the taxpayer. In certain circumstances, the rates applied are 20% or 10%, respectively, for the various types of tax.
41. Notwithstanding the fact that the taxpayer has furnished incorrect information, no tax surcharge will be imposed in certain situations, for example when the tax authority has corrected obvious miscalculations or written errors by the taxpayer, when the information has been corrected or could have been corrected with the aid of certain documents that should have been available to the tax authorities, such as a certificate of income from the employer, or when the taxpayer has corrected the information voluntarily (chapter 5, section 4).
42. Moreover, in certain circumstances, a tax surcharge will be remitted. Thus, taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age, illness, lack of experience or comparable circumstances. The surcharge should also be remitted when the failure appears excusable by reason of the nature of the information in question or other special circumstances, or when it would be manifestly unreasonable to impose a surcharge (chapter 5, section 6). The phrase “the nature of the information” primarily covers situations where a taxpayer has had to assess an objectively complicated tax question. According to the preparatory documents (Government Bill 1991/92:43, p. 88), the expression “manifestly unreasonable” refers to situations in which the imposition of a tax surcharge would be disproportionate to the fault attributable to the taxpayer or would be unacceptable for other reasons. If the facts of the case so require, the tax authorities must have regard to the provisions on remission, even in the absence of a specific claim to that effect by the taxpayer (chapter 5, section 7). In principle, however, it is up to the taxpayer to show due cause for the remission of a surcharge.
43. If dissatisfied with a decision concerning taxes and tax surcharges, the taxpayer may, before the end of the fifth year after the assessment year, request the tax authority to reconsider its decision (chapter 4, sections 7 and 9). A decision concerning surcharges may also be reviewed at the taxpayer's request after the expiry of this time-limit, if the decision on the underlying tax issue has not yet become final (chapter 4, section 11). The tax authority may also, on its own motion, decide to review its own earlier decision. A review to the taxpayer's disadvantage must be made before the end of the year following the assessment year unless the taxpayer, inter alia, has submitted incorrect information during the course of the tax proceedings or has failed to file a tax return or to furnish required information, in which case the time-limit normally expires at the end of the fifth year after the assessment year (chapter 4, sections 7 and 14-19).
44. The tax authority's decision may also be appealed against to a county administrative court. As with requests for reconsideration, an appeal has to be lodged before the end of the fifth year after the assessment year (chapter 6, sections 1 and 3), unless it concerns a tax surcharge based on a tax decision that has not yet become final (chapter 6, section 4). Following the appeal, the tax authority must reconsider its decision as soon as possible and, if it decides to vary the decision in accordance with the taxpayer's request, the appeal will become void (chapter 6, section 6). If the decision is not thus amended, the appeal is referred to the county administrative court. If special reasons exist, an appeal may be forwarded by the tax authority to the county administrative court without reconsidering the assessment (chapter 6, section 7). Further appeals lie to an administrative court of appeal and, subject to compliance with the conditions for obtaining leave to appeal, the Supreme Administrative Court.
45. A tax surcharge is connected to the tax in respect of which it has been imposed in that a successful objection to the underlying tax has an automatic effect on the tax surcharge, which is reduced correspondingly (chapter 5, section 11). The tax surcharge may, however, be challenged separately, if grounds for reduction or remission exist (see above).
46. If the proceedings before a county administrative court or an administrative court of appeal concern a tax surcharge, the appellant has the right to an oral hearing (chapter 6, section 24).
47. At the material time, the collection of taxes and tax surcharges was regulated by the Tax Collection Act, the Value-Added Tax Act 1994 and the Collection of Social Security Charges from Employers Act. The provisions of these Acts relevant to the present case were very similar and, for this reason, only the provisions of the Tax Collection Act are set out below. Since 1 November 1997 tax collection has been regulated by the Tax Payment Act which contains essentially the same rules as the Tax Collection Act.
48. A request for reconsideration or an appeal against a decision concerning taxes and tax surcharges has no suspensive effect on the taxpayer's obligation to pay the amounts in question (section 103 of the Tax Collection Act and chapter 5, section 13 of the Taxation Act).
49. However, the tax authority may grant a stay of execution in respect of taxes and surcharges provided that one of the following three conditions is met: (1) if it may be assumed that the amount imposed on the taxpayer will be reduced or remitted, (2) if the outcome of the case is uncertain, or (3) if payment of the amount in question would result in considerable damage for the taxpayer or would otherwise appear unjust (section 49, subsection 1 of the Tax Collection Act). According to the preparatory documents, the second condition will be satisfied not only when an outcome favourable to the taxpayer is just as likely as an unfavourable one, but also in cases when it is more probable than not that the proceedings will result in the taxpayer's claims being rejected. However, a stay will not to be granted if the request for reconsideration or the appeal has little prospect of success (Government Bill 1989/90:74, p. 340). An example of a situation where “considerable damage” might result is the forced sale of the taxpayer's real estate or business or other property of great importance to his financial situation and livelihood (ibid., pp. 342-43).
50. If, in cases where the second or third condition just referred to is applicable, it may be assumed – due to the taxpayer's situation or other circumstances – that the amount for which a stay of execution is requested will not be duly paid, the request cannot be granted unless the taxpayer provides a bank guarantee or other security for the amount due. Even in these cases, however, a stay may be granted without security if the relevant amount is relatively insignificant or if there are other special reasons (section 49, subsection 2).
51. The application of section 49 of the Tax Collection Act was examined by the Supreme Administrative Court in a judgment of 17 November 1993 (case no. 2309-1993, published in Regeringsrättens Årsbok (RÅ) 1993 ref. 89). In that case, the National Tax Board (Riksskatteverket) and the Administrative Court of Appeal had found that the applicant company – which had appealed against the National Tax Board's decision to impose on it certain energy taxes and interest in the total amount of approximately SEK 6,400,000 – could not be granted a stay of execution. The Supreme Administrative Court noted, however, that there was some uncertainty as regards the main issue in the case – whether the income in question was at all taxable – and that the tax levied constituted a considerable sum. For these reasons, it found that it would be unreasonable to demand payment of the amount before a court had determined the applicant company's tax liability. Noting that security in principle had to be provided by the company, the Supreme Administrative Court nevertheless took account of the fact that the Administrative Court of Appeal was expected to determine the tax-liability issue within a short time and that special reasons therefore existed for not requiring security. Accordingly, the applicant company was granted a stay of execution without security until one month after the Administrative Court of Appeal's judgment.
52. A taxpayer may request the tax authority to reconsider its decision concerning the stay-of-execution issue and may appeal against its decision to a county administrative court. The procedure is essentially identical to that followed in regard to requests for reconsideration and appeals concerning the main tax issues (sections 84, 96 and 99 of the Tax Collection Act; see paragraphs 43-44 above). Further appeals to an administrative court of appeal and the Supreme Administrative Court are subject to leave to appeal being granted (section 102).
53. The enforcement offices are under an obligation to levy execution on a debtor upon request, even if the tax authority's decision concerning tax and tax surcharges is not final (chapter 3, section 1 and chapter 4, section 1 of the Enforcement Code (Utsökningsbalken) in conjunction with sections 59 and 103 of the Tax Collection Act; the latter provisions have been replaced by similar provisions in the Tax Payment Act). If the debtor does not have enough distrainable property, the enforcement office may request a district court to declare him or her bankrupt. The debtor will normally be considered insolvent if it is discovered during attempts to levy distress in the six months preceding the presentation of the bankruptcy petition that his or her assets are insufficient to pay the debt in full (chapter 2, section 8 of the Bankruptcy Act (Konkurslagen, 1987:672)). If the bankrupt's estate is not sufficient to defray all the existing and expected bankruptcy expenses and other liabilities that the bankrupt has incurred, the bankruptcy proceedings will be terminated (chapter 10, section 1 of the Bankruptcy Act).
54. If a bankruptcy petition is based on a tax debt determined by a decision that is not yet final, the court examining the petition is required to make an independent assessment of the alleged debt, having regard to the evidence adduced in the bankruptcy proceedings. The court accordingly has to make a prediction about the outcome of the pending tax assessment proceedings (judgment of the Supreme Court of 9 June 1981, case no. Ö 734/80).
55. If a limited liability company has been declared bankrupt and the bankruptcy proceedings are terminated without any remaining assets, the company is dissolved (chapter 13, section 19 of the Limited Liability Companies Act (Aktiebolagslagen, 1975:1385)). Under established Swedish case-law, the general rule is that a company thus dissolved has no legal capacity and may not therefore act as a party to legal proceedings. Some exceptions to the rule have been made. As stated by the Supreme Administrative Court in a judgment of 16 June 2000 (case no. 7017-1997, RÅ 2000 ref. 41), exceptions have been allowed in cases where it has been considered that special reasons relating to the interests of the company or the opposite party called for a dispute to be examined by a court after the dissolution of the company. As an example of such special reasons, the court mentioned the possibility that a company's claims in tax proceedings would be accepted and lead to repayment of taxes and, as a consequence, a further distribution to the bankruptcy creditors. In the case before the court, the company in question was found to have no justified interest of its own in the continuation of the relevant tax proceedings as the successful outcome of those proceedings would not lead to any assets being returned to the company or the bankruptcy estate. However, the State had sued the former company directors in civil proceedings, claiming that they were jointly responsible for the tax debt in dispute in the company's case. Finding that it was uncertain whether the directors could have the underlying tax issue examined in the civil proceedings, the court considered that they had a justified interest in having the tax issue determined in the tax proceedings. As a consequence, the dissolved company was given the right to act as a party to those proceedings.
56. As taxes and tax surcharges are payable even if the tax authority's decision is not final, the decision may be varied or quashed after the relevant amounts have been paid. If so, the amount overpaid is refunded with interest (chapter 18, section 2 and chapter 19, sections 1 and 12 of the Tax Payment Act). If distress has been levied on the taxpayer's property or he or she has been declared bankrupt on account of the tax debt, the distress warrant or bankruptcy decision will be set aside on appeal. Should the warrant or decision have become final, the taxpayer may, upon request, have the case reopened and the warrant or decision quashed (chapter 58 of the Code of Judicial Procedure (Rättegångsbalken)). Any property that has been distrained upon will, if possible, then be restored to the taxpayer (chapter 3, section 22 of the Enforcement Code). The same applies to property forming part of a bankrupt's estate to the extent that it is not required for the payment of the bankruptcy expenses and other liabilities (chapter 2, section 25 of the Bankruptcy Act). If the taxpayer's property has been sold and the amount obtained from the sale has been used to pay off the alleged tax debt, the taxpayer will receive financial compensation. In addition, it is open to the taxpayer to bring an action for damages against the State for the financial loss caused by the distress or the bankruptcy (chapter 3, section 2 of the Tort Liability Act (Skadeståndslagen, 1972:207)), on the ground that the authorities or the courts have acted wrongfully or negligently.
57. Criminal proceedings may be brought against a taxpayer who has furnished incorrect information to a tax authority or who, with the object of evading tax, has failed to file a tax return or similar document. If the taxpayer has acted with intent and his actions have resulted in his being charged too little tax, he will be convicted of tax fraud. The possible sentence ranges from a fine for petty offences to imprisonment for a maximum of six years for cases of aggravated tax fraud (sections 2 to 4 of the Tax Offences Act (Skattebrottslagen, 1971:69)). If the taxpayer is considered to have been grossly negligent in submitting incorrect information, he may be convicted of making a negligent misrepresentation to the tax authorities (vårdslös skatteuppgift) (section 5). A criminal charge under the Tax Offences Act is brought in accordance with the rules governing criminal proceedings in general which means, inter alia, that there can only be a criminal conviction on prosecution and trial by the courts of general jurisdiction.
58. Under Swedish law, the fact that a tax surcharge has already been imposed on the same grounds as those forming the basis of the criminal charge is no bar to criminal proceedings. Moreover, a decision to impose a surcharge has no binding force or any other effect that might prejudice the determination of the criminal charge. However, it was the intention of the legislature that the trial court would be aware when considering the criminal charge that a surcharge had been imposed (Government Bill 1971:10, pp. 351 and 364).
59. In a judgment delivered on 29 November 2000 the Supreme Court considered whether a person could be convicted for a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings (case no. B 868-99, published in Nytt juridiskt arkiv (NJA) 2000, p. 622). Having noted that, under Swedish law, a surcharge is not considered a criminal penalty and thus does not prevent trial and conviction for a tax offence relating to the same act, the Supreme Court went on to examine the matter under the Convention. It first considered, in the light of the European Court's case-law, that there were weighty arguments for regarding Article 6 as being applicable under its criminal head to proceedings involving a tax surcharge. Even assuming this to be the case, it held, however, that the principle of ne bis in idem, as set forth in Article 4 of Protocol No. 7 to the Convention, did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied.
60. On 15 December 2000 the Supreme Administrative Court delivered two judgments in which it examined the applicability of Article 6 of the Convention to the tax surcharges imposed under the Swedish tax system. In one of the judgments (case no. 1990-1998, RÅ 2000 ref. 66), noting the criteria established by the European Court for determining whether an offence qualified as “criminal”, the Supreme Administrative Court gave an extensive opinion on the application of these criteria to the surcharges in question. It stated, inter alia, the following:
“The Swedish legislature has described the tax surcharge as an administrative sanction akin to a penalty... . The rules on oral hearings in chapter 6, section 24 of the Taxation Act should be seen as a manifestation of the desire to bring taxation procedure into line with the legal safeguards laid down in Article 6 of the Convention. Also, according to case-law (RÅ 1987 ref. 42), the rules on voting in chapter 29 of the Code of Judicial Procedure [in the criminal-procedure part of the Code] are applicable in cases concerning surcharges under the former Taxation Act (1956:623). The tax surcharge appears to have been considered a predominantly criminal sanction in other contexts as well. For example, it was stated in the preparatory documents to the legislation establishing the rule prohibiting ex post facto laws in chapter 2, section 10, subsection 1 of the Instrument of Government [Regeringsformen] – which covers penalties, other criminal sanctions and other special legal effects of a criminal offence – that the proposed rule also applied to administrative sanctions akin to penalties such as tax surcharges, charges for the late payment of taxes and late-payment fees under various tax laws. ... However, under Swedish law, there is no requirement of intent or negligence on the part of the taxpayer for the imposition of a tax surcharge. Also, the surcharge, to a certain extent, has the character of a conditional fine [vitesfunktion] and can be remitted on purely objective grounds. Moreover, it cannot be converted into a prison sentence. Therefore, it has been considered that the surcharge is not to be classified as a penalty under the Swedish legal system but rather as an administrative tax sanction. Accordingly, its classification as such under the Swedish legal system does not constitute sufficient reason for regarding it as a criminal sanction within the meaning of the Convention.
With respect to the other two criteria applied by the European Court in this connection – that is, the nature of the offence and the nature and degree of severity of the sanction – the following should be taken into account. The Swedish rules on tax surcharges are general and concern all taxpayers. The purpose of the system of administrative sanctions is to exert pressure on taxpayers, by means of a considerable financial sanction, to observe the obligations prescribed by the laws on taxes and charges. It should also be noted that the Swedish tax surcharge, in its present form, replaced earlier procedures of a purely criminal nature. As regards the characteristics that have been established by the European Court as referring to the nature and degree of severity of the sanction, it should be borne in mind that a surcharge is levied in proportion to the tax avoided by the provision of incorrect information. This means that surcharges may in principle come to very large amounts without any upper limit.
In the Supreme Administrative Court's opinion, the last-mentioned aspect strongly indicates that Article 6 is to be regarded as applicable to the Swedish tax surcharge. In a recently delivered judgment, the Supreme Court also stated, in the light of the European Court's case-law, that “there are weighty arguments for regarding Article 6 as being applicable also to Swedish proceedings concerning tax surcharges” [the Supreme Court's judgment of 29 November 2000, see paragraph 59 above]. One consideration that might still cause some doubt is that the Swedish surcharge differs from the French one with regard to one of the four factors to which the European Court attached importance in its final assessment in the Bendenoun case [Bendenoun v. France judgment of 24 February 1994, Series A no. 284]: it cannot be converted into a prison sentence. Furthermore, contrary to the French rules, the Swedish rules on surcharges lack a subjective element in the real sense ... .
However, the fact that the Swedish tax surcharge cannot be converted into a prison sentence is not, in the Supreme Administrative Court's opinion, a strong argument against finding Article 6 to be applicable. There is no doubt that a fine imposed under criminal law falls under Article 6, irrespective of whether or not it can be converted into a prison sentence. Moreover, the judgment in the Bendenoun case must be taken to indicate that financial sanctions other than a fine may also fall under Article 6, at least if they are of some significance. Furthermore, following the European Court's judgments in the cases of Lauko ... and Kadubec [Lauko and Kadubec v. Slovakia judgments of 2 September 1998, Reports of Judgments and Decisions 1998-VI, pp. 2492 and 2518, respectively], both of which concerned fines imposed in respect of minor offences, it must now be regarded as established that the imposition of a prison sentence is not a prerequisite for an act to be viewed as a criminal offence within the meaning of the Convention. Nor, in the circumstances, can an independent or even significant meaning be attached to the lack of subjective elements (instead, there is reason to make a separate assessment as to the compatibility of strict liability with the presumption of innocence ...).
In view of the foregoing the Supreme Administrative Court finds, having regard to all the circumstances, that the Swedish tax surcharge is to be regarded as falling under Article 6 of the Convention. ...”
61. The Supreme Administrative Court went on to examine the compatibility of the tax surcharges with the presumption of innocence under Article 6 § 2 of the Convention. It gave the following opinion:
“It is probable that, in determining whether strict criminal liability is compatible with the Convention, the European Court will apply essentially the same test as it did in the Salabiaku case [Salabiaku v. France judgment of 7 October 1988, Series A no. 141] with respect to liability established on the basis of presumptions. This means that liability must not arise entirely automatically on proof of the objective elements. Instead, in order for there to be no conflict with the presumption of innocence, the individual must have the possibility of some form of defence based on subjective circumstances.
As has been mentioned above, a tax surcharge is imposed by means of an administrative procedure without any requirement of intent or negligence. An appeal against a decision concerning a surcharge lies to an administrative court. If intent or gross negligence is established, liability under criminal law may be imputed following trial and conviction by a court of general jurisdiction.
Taxation in Sweden is largely based on information given by the individual and certification by him or her of information received from other sources. The purpose of the tax surcharge is to emphasise, inter alia, that the individual is required to be meticulous in fulfilling the duty of filing a tax return and the related obligation to submit information. In principle, carelessness is not acceptable. Furthermore, the taxpayer must normally have an understanding of what information is of relevance to the examination of a claim in order to avoid the risk of incorrect information being considered to have been given and a surcharge imposed. In other words, the taxpayer is required to have a certain knowledge of the tax rules.
Inaccuracies and failures of the kind that may cause the imposition of a tax surcharge occur in a very large number of cases. The requirements of foreseeability and uniformity in the imposition of surcharges have therefore been regarded as calling for surcharges to be levied in accordance with relatively simple and standardised rules. However, the rules and regulations must also meet demands for a reasonably nuanced assessment ... and provide guarantees of legal certainty. Therefore, a surcharge is not imposed automatically when incorrect information is submitted. Firstly, certain types of inaccuracies are excluded and, secondly, authorities and courts must consider whether there are grounds for remitting the surcharge, even if no specific claim to that effect has been made.
The following may be stated with particular reference to the grounds for remitting surcharges. The requirements of understanding and meticulousness must be proportionate to the taxpayer's ability and capacity to comprehend the tax rules and apply them to the existing situation. The rules on remission are aimed at preventing the imposition of a tax surcharge as a result of, for example, excusable ignorance or a misunderstanding as to the content of a tax rule. They are also supposed to prevent a surcharge from being imposed when other excusable mistakes are made in discharging the duty to file a tax return. The rules on remission are, moreover, drafted in such a way as to allow the authorities and courts a certain latitude in assessing questions of remission, having regard to the subjective position of the taxpayer. Indeed, the grounds for remission – in conjunction with the rules providing, on objective grounds, for surcharges not to be imposed or to be set aside in particular circumstances – may in certain cases allow of considerations that lead to greater exemption from surcharges than would be the case if the imposition of surcharges were conditional on the taxpayer having acted intentionally or negligently. Although the grounds for remission are not entirely comparable to the conditions for accountability which the subjective elements represent in criminal law, they must, when taken together with the cases in which surcharges are excluded on purely objective grounds, be considered as affording the taxpayer, where appropriate, sufficient scope for avoiding the imposition of surcharges to prevent a conflict with the presumption of innocence as set out in Article 6 of the Convention arising. In general, however, this requires that the courts, in applying the rules on surcharges, should indeed make a nuanced and not too restrictive assessment in each individual case as to whether there are grounds for setting aside or remitting the tax surcharge.”
62. The Supreme Administrative Court also considered that the Swedish tax surcharge complied with the general requirement under the Convention for measures to be proportionate. It held that a system of sanctions against breaches of the obligation to submit tax returns and information to the tax authorities served an important public interest. Moreover, it noted, inter alia, that the requirement of proportionality was reflected in the rules on surcharges as, under chapter 5, section 6 of the Taxation Act, surcharges were to be remitted in cases where they would be “manifestly unreasonable” (see paragraph 42 above).
63. In the other judgment delivered on 15 December 2000 (case no. 2922-1999) the Supreme Administrative Court was called upon to examine whether the enforcement of a tax surcharge prior to a court examination of a taxpayer's liability to pay the surcharge in question conflicted with the presumption of innocence under Article 6 § 2 of the Convention. It made the following assessment:
“The Article stipulates that the presumption of innocence shall be observed until guilt has been proved according to law. It does not follow from the wording of the Article that a criminal sanction that has been imposed cannot be enforced before the decision has become final. There are, furthermore, examples both in Sweden and in other European countries of regular criminal sanctions being enforceable notwithstanding the fact that the decision has not become final ... .
Moreover, there is nothing in the case-law of the European Court to support the view that Article 6 § 2 prevents the enforcement of decisions concerning criminal sanctions that have not become final. In this connection, it should be pointed out that the European Commission of Human Rights expressly accepted the immediate enforcement of tax surcharges in the case of Källander v. Sweden [application no. 12693/87, decision of 6 March 1989, unpublished].
The conclusion of the Supreme Administrative Court is that Article 6 § 2 does not prevent enforcement on the ground that a decision concerning tax surcharges has not become final.
It remains to be determined whether the enforcement of an administrative authority's decision on surcharges requires the matter to have been examined by a court.
It follows from Article 6 § 1 that everyone charged with a criminal offence has a right to have his or her case determined by a court. However, the rules in Article 6 are not considered to preclude the examination by an administrative authority of issues falling under the Article, provided that the individual may subsequently bring the matter before a court that fully affords the legal safeguards laid down in the Article ... .
In the Supreme Administrative Court's opinion, it is unclear to what extent the presumption of innocence should be taken to require that a decision by an administrative authority concerning a criminal sanction against which an appeal has been made should not be enforced before a court has examined the appeal. It appears that the question has not been determined by the European Court. However, it seems reasonable to assume that enforcement may not take place if it would make it impossible for the original legal position to be restored in the event that the subsequent judicial examination resulted in the authority's decision being varied.
As far as tax surcharges are concerned, a taxpayer may appeal to a court against an administrative authority's decision to impose such a surcharge. If the taxpayer's appeal is successful, any amount that has been paid will be refunded with interest. It is also possible for the taxpayer to request a stay of execution in connection with the appeal. It is unlikely that any enforcement measures will be taken pending the court's examination of the application for a stay (cf. Government Bill 1996/97:100, p. 352). Under the rules applicable in the instant case, a stay may be granted if it can be assumed that the amount imposed on the taxpayer will be reduced or that he will be relieved of the obligation to pay the amount, if the outcome of the case is uncertain or if payment of the amount imposed would result in considerable damage for the taxpayer or otherwise appears unjust. In certain cases, a stay can be granted only on condition that security is provided (section 49, subsections 1 and 2 of the Tax Collection Act; there are now largely corresponding rules in ... the Tax Payment Act).
The rules on stays of execution provide the taxpayer with the opportunity to have a preliminary examination by a court of the final outcome of the case concerning tax surcharges. If the taxpayer refrains from using this option or if the court, following an examination, finds that it cannot be assumed that the taxpayer's appeal on the merits will be successful, or even that the outcome is uncertain and that, moreover, there is no reason to expect considerable damage to result from payment of the surcharge, it cannot, in the view of the Supreme Administrative Court, be contradictory to Article 6 § 2 to require immediate enforcement.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-61935
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ZHBANOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1950 and lives in Kiev, Ukraine.
10. On 16 February 1994 the applicant, who was then residing in Bulgaria, was questioned as a suspect in the embezzlement of 20,000 Bulgarian levs (BGL) from a cooperative farm in liquidation whose legal counsel he had been.
11. On 30 March 1994 criminal proceedings were opened against the applicant.
12. On 27 July 1994 he was questioned.
13. On 29 July 1994 a graphological expert report was drawn up.
14. On 12 December 1994 the applicant was charged with embezzlement, falsification of official documents and false accusation of another. He was ordered to post bail in the amount of BGL 2,000. Under the then applicable provisions of the Code of Criminal Procedure (“the CCP”), an accused on bail could leave the country only with the prosecutor’s or the court’s permission.
15. On 23 February 1995 the applicant’s apartment was attached by order of the investigator in charge of the case, apparently as a security for an impending civil claim by the victim of the offences alleged against the applicant. On the same date the applicant was allowed to consult the case file and was questioned.
16. On 15 March 1995 the applicant was detained. He was released on 21 March 1995.
17. On 15 March 1995 a technical expert report was drawn up.
18. On 27 March 1995 the applicant was questioned.
19. On 30 March 1995 another expert report was drawn up.
20. On 4 April 1995 the applicant was questioned.
21. On 5 April 1995 the investigator completed his work on the case and recommended that the applicant be indicted.
22. On 4 May 1995 the applicant was questioned.
23. On 2 June 1995 a prosecutor of the Popovo District Prosecutor’s Office presented the applicant with amended charges and questioned him.
24. By a decree of 28 March 1996 the Popovo District Prosecutor’s Office, finding that the applicant had not obstructed the criminal proceedings and that there was no danger of him absconding, allowed him to leave Bulgaria for one and a half months to visit his parents in Kiev, Ukraine.
25. The prohibition against the applicant leaving the country without prior permission by the prosecutor or the court was in force at least until 1 January 2000, when the CCP was amended.
26. On 12 September 2001 a prosecutor of the Popovo District Prosecutor’s Office presented all materials in the case file to the applicant.
27. On 14 September 2001 the Popovo District Prosecutor’s Office, noting that the relevant limitation period had expired, decided to drop the charges of falsification of official documents. On the same date it indicted the applicant for having embezzled BGL 20,000 and having falsely accused another of a serious offence.
28. On 15 December 2001 the applicant left Bulgaria and went to Ukraine, where he has resided ever since.
29. The first hearing in the applicant’s case, listed by the Popovo District Court for 17 December 2001, was adjourned because the applicant and several witnesses, despite being duly summoned, were absent.
30. A hearing fixed for 8 April 2002 was also adjourned because the applicant was not present.
31. A hearing listed for 3 June 2002 was likewise adjourned because of the applicant’s absence.
32. At the time of the latest relevant information from the parties (June 2002) the proceedings were still pending before the Popovo District Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57554
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF PAKELLI v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-3-c;Not necessary to examine Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings
TEXT: 7. Mr. Pakelli, a Turkish national born in 1937, is currently living in Turkey; he was resident in the Federal Republic of Germany from 1964 to 1976.
8. The applicant arrived in the Federal Republic in February 1964 and was engaged by the firm of Audi-NSU at Neckarsulm. He stayed there for two and a half years. Subsequently, he had a succession of different occupations: mechanic in another firm at Neckarsulm, manager of a restaurant, independent insurance and building-loans broker. The last-mentioned activity, which consisted of negotiating and concluding, for example, life-insurance and savings contracts with Turkish workers, provided him, as he himself stated, with a very good monthly income.
9. On 31 May 1972, the Heilbronn District Court (Amtsgericht) imposed on him a suspended sentence of ten months’ imprisonment for an offence against the Narcotics Act (Betaeubungsmittelgesetz). The Heilbronn Regional Court (Landgericht) dismissed the applicant’s appeal on 12 March 1973.
These proceedings are not here in issue.
10. The criminal proceedings to which the present case relates began in 1974.
Mr. Pakelli was arrested on 7 May on suspicion of having committed a further offence against the Narcotics Act; on 4 September, he was granted the assistance of an officially appointed lawyer, namely Mr. Wingerter, of Heilbronn.
11. The trial opened before the Heilbronn Regional Court on 7 April 1976 and continued on 8, 14, 23 and 3O April. The applicant was defended by Mr. Wingerter and, at certain moments, by Mr. Rauschenbusch, a member of the same firm.
On 3O April, the court sentenced Mr. Pakelli to two years’ and three months’ imprisonment for an offence against the Narcotics Act and for tax evasion (Steuerhinterziehung): it was found to be proved that in the spring of 1972 the accused had illegally imported into Germany sixteen kilograms of cannabis resin of Turkish origin, hidden in his car.
12. On 3 May 1976, Mr. Wingerter filed an appeal on points of law (Revision). In his memorial of 5 August, setting out the grounds of appeal, he relied, inter alia, on Article 146 of the Code of Criminal Procedure, which provides that several accused persons may not be defended by one and the same lawyer (see paragraph 26 below). Mr. Wingerter explained that he had previously represented another person who on the occasion in question had, according to the Regional Court’s findings, been Mr. Pakelli’s accomplice.
Mr. Pakelli was released on 10 August 1976 and returned to Turkey.
On 22 October, the Federal public prosecutor (Generalbundesanwalt) moved that the appeal be held inadmissible on the ground that it had been filed by a defence counsel who, on his own admission, was not entitled to represent the applicant.
On 19 November, Mr. Rauschenbusch applied for leave to proceed out of time (Wiedereinsetzung in den vorigen Stand) in order to lodge a fresh appeal, which appeal he in fact filed at the same moment. On 21 December 1976, the Federal Court (Bundesgerichtshof) allowed the application; it had first sought the opinion of the public prosecutor who, without giving reasons, had indicated that he was in favour of such a course.
On 13 January 1977, the Regional Court granted Mr. Rauschenbusch’s request of 19 November 1976 to be appointed official defence counsel to file the memorial setting out the grounds of appeal; two weeks later it relieved Mr. Wingerter of his duties.
13. In his memorial of 26 January 1977, which was thirty-four pages in length, Mr. Rauschenbusch complained solely of procedural errors (Verfahrensrugen). He listed nineteen, most of which concerned decisions of the Heilbronn Regional Court refusing to appoint an expert or to summon, question or have questions put to witnesses. The last of the alleged errors related to Article 146 of the Code of Criminal Procedure: recalling that Mr. Wingerter had previously defended another person whom the Regional Court had convicted, on 21 June 1974, as an accomplice of Mr. Pakelli, Mr. Rauschenbusch maintained that this recourse to a common defence counsel had been contrary to the interests of both accused (see paragraph 26 below).
14. In its observations in reply (Gegenerklärung) of 14 March 1977, the public prosecutor’s office attached to the Regional Court submitted that the appeal was inadmissible. It considered that Article 146 prevented Mr. Rauschenbusch, just as it did Mr. Wingerter, from acting in the case as officially appointed lawyer. Mr. Rauschenbusch replied on 23 March. He pointed out, amongst other things, that since he had never defended Mr. Pakelli’s accomplice, Article 146 did not apply to him.
On 20 April, the Federal public prosecutor invited the above-mentioned office to comment on the complaints that had been made; in his view, it was at least doubtful whether the appeal was inadmissible de plano.
On 12 August, the Heilbronn public prosecutor’s office filed its supplementary observations (weitere Gegenerklaerung), dated 1 August; it sent a copy to Mr. Rauschenbusch. In accordance with the practice in such matters (Instruction no. 162 of the Instructions on Criminal Procedure and Administrative Fines Procedure - Richtlinien für das Strafverfahren und das Bussgeldverfahren), the observations reproduced for each complaint the relevant documents in the case-file, in particular the requests made by the applicant’s lawyer during the trial and the decisions taken by the Regional Court thereon. As regards Article 146 of the Code of Criminal Procedure, the public prosecutor’s office referred to its earlier observations, including those of 14 March.
15. On application by the Federal public prosecutor’s office, the Federal Court decided on 13 October 1977 to hold a hearing (Hauptverhandlung) on 29 November. Mr. Rauschenbusch and his client, who had returned to Turkey, were notified of this on 17 October.
16. On 24 October, Mr. Rauschenbusch applied to be officially appointed as the applicant’s lawyer for the hearing of 29 November.
The President of the 1st Criminal Chamber (Strafsenat) of the Federal Court refused the application on the following day. In his view, an accused (Angeklagter) who was at liberty was not entitled to such an appointment for hearings in an appeal on a point of law; there was no legal requirement at that stage for him either to appear in person or to be represented by a lawyer (Article 350 paras. 2 and 3 of the Code of Criminal Procedure; see paragraph 22 below). As regards compliance with procedural rules (verfahrensrechtlich), an appeal court (Revisionsgericht) would examine the impugned decision on the basis of the written grounds of appeal; as regards any substantive complaints (bei sachlichrechtlicher Beanstandung), it would affect of its own motion a review that was not subject to any limitations. Furthermore, on this occasion neither the facts of the case nor the legal issues it raised justified the appointment requested.
In the objections (Gegenvorstellungen) he raised on 7 November 1977, Mr. Rauschenbusch cited a judgment of 19 October 1977 of the Federal Constitutional Court (see paragraph 22 below), holding that, in addition to the cases provided for by law, legal aid had to be granted for hearings in appeals on a point of law in "serious" ("schwerwiegend") cases if the person concerned was unable to pay a lawyer of his own choosing. And, he submitted, Mr. Pakelli was in such a situation, for a final conviction would lead to his expulsion. Mr. Rauschenbusch asked the Federal Court to indicate whether he should supply particulars of the applicant’s assets in order to substantiate (glaubhaft machen) the latter’s lack of means. According to Mr. Rauschenbusch, Mr. Pakelli was obviously (offensichtlich) not in a position to pay a lawyer. He had come to the Federal Republic as a migrant worker and had returned to Turkey after spending a long (laengeren) period in Heilbronn prison. It was evident that he had no savings.
Mr. Rauschenbusch requested that, if need be, the matter be referred to the Chamber for decision.
On 10 November, the President of the 1st Criminal Chamber of the Federal Court confirmed his decision of 25 October refusing the application; he took the view that the above-mentioned judgment of 19 October 1977 did not concern a case that was comparable to the applicant’s.
17. The hearing was held on 29 November 1977, in the absence of the applicant and of Mr. Rauschenbusch. According to the minutes, the Federal Court heard the judge acting as rapporteur and then the submissions (Ausfuhrungen) of an official of the Federal public prosecutor’s office (Bundesanwaltschaft) in favour of rejecting the appeal. After deliberating in private, the court gave on the same day judgment dismissing the appeal.
The judgment held firstly that the appeal was admissible: Article 146 of the Code of Criminal Procedure did not prevent Mr. Rauschenbusch from representing Mr. Pakelli before the Federal Court. On the other hand, that Article had not been complied with at first instance since Mr. Wingerter had previously defended the applicant’s accomplice. However, the Federal Court, referring to a judgment of its 3rd Criminal Chamber (see paragraph 26 below), added that an appeal on a point of law based on that Article could succeed only if the representation of several accused by one and the same lawyer proved to be really defence. And on this occasion it had not been established that there was any conflict of interests.
The Federal Court then rejected the remainder of the complaints: some were examined in detail and held to be without foundation and the others were considered more briefly and held to be manifestly ill-founded.
The judgment, which was ten pages in length, was served on Mr. Rauschenbusch on 21 December 1977.
18. In January 1978, Mr. Wingerter lodged an appeal with the Federal Constitutional Court. Alleging a violation of Articles 1, 2, 3, 6, 20 and 103 para. 1 of the Basic Law, he repeated the submissions made by his colleague Mr. Rauschenbusch before the Federal Court on 7 November 1977 (see paragraph 16 above). He argued that it was only through a defence counsel that Mr. Pakelli could have availed himself of his right to be heard: he lived in Turkey, lacked financial resources and had an insufficient command of German. In addition, the legal issues involved were particularly complex, as was shown by the length of the memorial setting out the grounds of appeal (see paragraph 13 above) and the Federal Court’s decision to hold a hearing. Mr. Pakelli should therefore have been given the opportunity of stating his views on the submissions of the Federal public prosecutor’s office. Again, the consequences of an unfavourable judgment would have been such as to make the official appointment of a lawyer essential: for the applicant, dismissal of the appeal meant his undoing in Germany and the breakdown of his marriage and family life.
Mr. Wingerter, who requested that legal aid be granted to the applicant, asked the Constitutional Court to indicate whether he should supply particulars of his client’s assets in order to substantiate (glaubhaft machen) the latter’s lack of means.
In a ruling given on 10 May 1978 by a panel of three judges, the Constitutional Court decided not to hear the appeal on the ground that it did not offer sufficient prospects of success. The Constitutional Court found nothing arbitrary in the decision of the President of the 1st Criminal Chamber of the Federal Court. Moreover, the case was not "serious", within the meaning of the above-mentioned judgment of 19 October 1977 (see paragraphs 16 above and 22 below). Finally, Mr. Pakelli could have remained in the Federal Republic of Germany and attended the hearing before the Federal Court, if need be with the assistance of an interpreter.
19. After his arrest on 7 May 1974, Mr. Pakelli had remained in custody until 10 August 1976, partly in detention on remand and partly to serve sentences that had been imposed on him.
20. If the accused has not chosen a defence counsel, the trial court will appoint one in the following cases (listed in Article 140 para. 1 of the Code of Criminal Procedure):
- the trial at first instance is before the Court of Appeal (Oberlandesgericht) or the Regional Court;
- the accused is charged with an indictable offence (Verbrechen);
- the proceedings may result in the accused’s being prohibited from exercising a profession;
- the accused is deaf or dumb;
- the accused has been interned for at least three months by order or with the approval of a court and has not been released at least two weeks before the opening of the trial;
- the question arises whether the accused should be detained for mental examination;
- the case concerns preventive detention proceedings (Sicherungsverfahren);
- a decision has been taken prohibiting the previous defence counsel from taking part in the proceedings.
An appointment will also be made in other cases, either by the court of its own motion or at the accused’s request, if such a step appears necessary on account of the seriousness of the act in question, the factual or legal complexity of the case, or if it is obvious that the accused cannot conduct his own defence (Article 140 para. 2).
21. The official appointment of a lawyer by the trial court covers not only the proceedings before that court but also the written stage of any appeal on a point of law. If necessary, the trial court will make a special appointment for the latter stage.
22. An accused (Angeklagter) who is in custody does not have an enforceable right to attend hearings in an appeal on a point of law - whether before the appeal court or the Federal Court (Articles 121 and 135 of the Judicial Code - Gerichtsverfassungsgesetz) -, but he may be represented thereat by a lawyer (Article 350 para. 2). If he has not chosen a lawyer and is not brought to the hearing, the President of the court having jurisdiction will appoint one for him if he so requests (Article 350 para. 3).
An accused who is at liberty may appear in person or be represented by a lawyer at the appeal hearing (Article 350 para. 2). According to the case-law of the Federal Court, defence counsel can be assigned to him only under Article 140 para. 2 (see paragraph 20 above), since Article 140 para. 1 does not apply to hearings in an appeal on a point of law (Entscheidungen des Bundesgerichtshofes in Strafsachen, vol. 19, pp. 258-263).
Furthermore, the Federal Constitutional Court has held that defence counsel is to be appointed by the court of its own motion and at the expense of the State in serious cases (schwerwiegende Fälle) if the accused cannot pay for a lawyer of his own choosing (Entscheidungen des Bundesverfassungsgerichts, vol. 46, pp. 202-213).
23. The court concerned may dispose of an appeal on a point of law without hearings in the following cases only:
- where it finds the appeal inadmissible (Article 349 para. 1 of the Code of Criminal Procedure);
- where, on a reasoned application by the public prosecutor’s office, the court considers unanimously that the appeal is manifestly ill-founded (Article 349 para. 2); and
- where the court finds unanimously that an appeal filed in the interests of the accused is well-founded (Article 349 para. 4).
In all other cases the court has to hold a hearing before taking its decision (Article 349 para. 5); before the Federal Court, there are hearings in only ten per cent of the appeals on points of law lodged in criminal cases.
When the public prosecutor’s office applies for an appeal to be rejected as manifestly ill-founded, it has to communicate its submissions and the reasons to the appellant; the latter may file a reply within two weeks (Article 349 para. 3).
24. Article 350 para. 1 requires that the accused and his lawyer be informed of the date and place of the hearing; if it is not possible to contact the former, notification to the latter is sufficient.
25. Appeal hearings open with the rapporteur’s address; this is followed by the statements and submissions of the public prosecutor’s office, the accused and his defence counsel. The appellant is heard first and the last address to the court is always made by the accused (Article 351).
26. According to the former version of Article 146 of the Code of Criminal Procedure, which was in force until 31 December 1974, several accused could be represented by a single counsel if this was not contrary to the interests of the defence. As it was often difficult for courts to detect or establish such conflicts of interests, Article 146 was modified in 1974: the new text, which has been applicable since 1 January 1975, does not allow several accused to be defended by a common defence counsel.
However, the Federal Court (3rd Criminal Chamber) held on 27 February and 13 October 1976 that an appeal on a point of law based on a violation of Article 146 could succeed only if recourse to a common defence counsel was in fact contrary to the interests of the defence (Entscheidungen des Bundesgerichtshofes in Strafsachen, vol. 26, pp. 291-298; vol. 27, pp. 22-24). The 1st Criminal Chamber followed these precedents in its judgment of 29 November 1977 in the present case (see paragraph 17 above). The Government stated that this interpretation has since been accepted by all the Criminal Chambers of the Federal Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-90023
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FRIJNS v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: The applicants, Mr Petrus Josephus Christiaan Maria Frijns and Mr Chretien Henri Joseph Maria Frijns are brothers and live in Bemelen. They are Dutch nationals, retired farmers and were born in 1940 and 1942 respectively. They were represented before the Court by Mr S.A.R. Lely, a lawyer practising in Maastricht.
Since 1875 the applicants’ family has owned a farmhouse with pertaining agricultural land, including a plot of 1.33 hectares situated along the Sint Antoniusbank road (hereinafter “the plot”) and used as a meadow for dairy cattle. After the death of their father in 1983, the applicants inherited and continued jointly to exploit the farm. For reasons of health and age, the applicants ceased their farming activities on 1 April 2000.
Under the 1952 Outline Extension Plan (Uitbreidingsplan aanwijzende de bestemming in hoofdzaken) of the then Cadier and Keer municipality (subsequently incorporated into the Margraten municipality), the plot was designated for the construction of hotels and country houses.
Each year from 1973 until 1993 the municipal council (gemeenteraad) adopted a preliminary planning decision in preparation for a (new) zoning plan (voorbereidingsbesluit bestemmingsplan) for an area comprising the plot. In accordance with section 22 of the Town and Country Planning Act (Wet op de Ruimtelijke Ordening), these preliminary planning decisions were laid open for public inspection, notice being given through the Netherlands Government Gazette (Staatscourant) and the local press. Each of these preliminary planning decisions prohibited any construction activities without a prior permit issued by the municipal executive (burgemeester en wethouders) and adjourned the issuance of a building permit by the municipal executive pending the validity of the preliminary planning decision.
In the meantime, on 20 January 1977, the Limburg Provincial Executive (gedeputeerde staten) had adopted a local area development plan (streekplan) for the area of south Limburg. The area in which the plot is situated was classified as a “rural area with a highly valued landscape and/or cultural historical background”. In a subsequent local area development plan, adopted by the Limburg Provincial Executive on 19 February 1987, the plot was classified as a “rural area with the interwoven categories agriculture 1, nature 2, landscape 1, and recreation and tourism 2”. Both plans were duly laid open for public inspection.
On 29 March 1994, the Margraten municipal council adopted the new zoning plan “Witte Vlekken”, which was preservation-oriented. The plot was designated for “residential purposes to be further defined in accordance with section 11 of the Town and Country Planning Act”. By decision of 25 October 1994 the Limburg Provincial Executive withheld their approval of this part of the zoning plan, finding that new residential buildings on the plot would affect the landscape in an irreparable manner. The municipal authorities as well as other appellants, including the applicants, unsuccessfully challenged this decision in administrative appeal proceedings in which the final decision was handed down by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State on 21 July 1997.
On 25 November 1997 the Margraten municipal council adopted a revised version of the “Witte Vlekken” zoning plan in which the plot was designated as an “agricultural area with natural and landscape values”. On 23 June 1998 the Limburg Provincial Executive approved the revised zoning plan. The applicants’ appeal against this approval was dismissed by the Administrative Jurisdiction Division on 7 July 2000. No further appeal lay against this decision.
On 27 October 2000 the applicants filed a claim under section 49 of the Town and Country Planning Act with the Margraten municipal authorities for compensation for damage in consequence of the revised zoning plan, affecting land owned by them, the burden of which they could not reasonably be expected to bear alone. The applicants estimated this damage at 3,097,000 Netherlands guilders.
This claim and the applicants’ subsequent objection were rejected by the Margraten municipal council on 25 February 2003 and 4 November 2003 respectively. The applicants’ appeal against this last decision was dismissed by the Maastricht Regional Court (rechtbank) on 19 October 2004.
A further appeal lodged by the applicants was rejected on 28 September 2005 by the Administrative Jurisdiction Division, which found it established that the applicants had not availed themselves of the possibility to build on the plot as rendered feasible under the 1952 zoning plan. It accepted that the applicants had incurred damage as a consequence of the new zoning plan, but it had to be determined whether this damage was to be borne, either partly or in full, by the applicants, by determining whether they could be regarded as having accepted the risk that the possibility to build on the plot would disappear. It accordingly had to be examined whether there had been any indication of such a disadvantageous change in the plot’s designation and whether – considered from the position of a rationally thinking and acting owner – the applicants should have given serious consideration to that prospect. After having noted the developments since 1973 as regards the classification and destination of the plot, the Division agreed with the municipal authorities and the Regional Court that the applicants, or their legal predecessors, should be regarded as having accepted the risk that the possibility to build on the plot would disappear and, consequently, that the damage did not justify compensation under section 49 of the Town and Country Planning Act.
In so far as the applicants relied on Article 1 of Protocol No. 1, the Division held:
“... the new zoning regulation does not deprive the appellants of their property; they retain the right to dispose of it freely albeit within the defined planning framework. In so far as the limitations contained in the zoning plan as to the use of the plot are to be seen as an interference with the right to undisturbed enjoyment of property, Article 1 of Protocol No. 1 leaves unimpeded the application of laws that can be regarded as necessary to control the use of property in accordance with the general interest. ... the zoning plan in force in the area concerned constitutes such a control. It further does not follow from Article 1 of Protocol No. 1 that the control of the use of property as a result of limitations laid down in the zoning plan should be compensated for if Article 49 of the Town and Country Planning Act offers no basis for this. In the instant case there has therefore been no violation of Article 1 of Protocol No.1.”
No further appeal lay against this decision.