ITEMID: 001-82319
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ONAY v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
TEXT: 4. The applicants, Sıddık Onay and Zinnet Onay, were born in 1985 and 1948 respectively and live in Diyarbakır. The second applicant is the mother of the former.
5. When the first applicant (“the applicant”) was 17 years old, on 25 May 2002 at about 2 p.m. he was arrested at his home by police officers from the Department of Peace and Order attached to the Diyarbakır Security Directorate, on suspicion of involvement in various incidents of bag snatching in Diyarbakır.
6. According to the report drafted by the police, the arrest took place on 26 May 2002 at 9.50 p.m. on the street outside his residence. The report stated that the police had acted upon the information of a certain M.D., a fellow detainee, who had cited the applicant's name during his interrogation in relation to the bag snatching in Diyarbakır. The report also stated that the applicant's mother had been informed of the arrest and detention.
7. On 26 May 2002 the applicant was given a medical examination at the Forensic Medicine Institute. A subsequent medical report revealed that there were some blade cuts on his left arm which were three or four days old but, apart from those injuries, no signs of possible ill-treatment were noted. The applicant was then taken into custody at the Peace and Order Department.
8. On 27 May 2002 at 3.30, 4.15, 4.45, 5.10, 5.35 and 6 p.m., the applicant and M.D. were taken to on-site inspections. A lawyer assigned by the Diyarbakır Bar Association was present during these inspections, when the applicant gave detailed statements as to how he and M.D. had planned and committed the offences.
9. Around 6.15 p.m. the same day, he was again given a medical examination. The medical report drafted on that occasion recorded no signs of beatings or the use of physical force on the applicant's body. The same day, at the request of the police, the public prosecutor, without seeing the applicant, extended his custody period by two more days under Article 128 § 2 of the former Code of Criminal Procedure. According to the report drafted by the police at 6.25 p.m. on that day, the applicant was handed over to the Juvenile Department of the Security Directorate.
10. On 28 May 2002 at 10.30 a.m., the applicant was brought for a further medical examination. The medical report prepared on that day noted two bruises of 10 x 2 cm on his right upper arm and a bruise of 5 x 1 cm on his left upper arm just below his shoulder, which were estimated to be two or three days old; some old cutting scars on his arms and chest were also noted. The applicant was given a second medical examination at 4.15 p.m. on the same day. The second medical report confirmed the findings of the first report. These reports both stated that the medical examinations had been performed upon the request of the Peace and Order Department.
11. On 29 May 2002 the Juvenile Police took the applicant for a medical examination. The forensic medical report prepared on that occasion recorded the old cutting scars on the applicant's body, but no signs of the use of recent physical force were noted.
12. On the same day the applicant was brought before the public prosecutor. In his statement to the public prosecutor, made in the presence of another duty lawyer, the applicant denied the charges against him. The lawyer claimed that the applicant had been ill-treated whilst in police custody and that he still bore the signs of that treatment. He requested that the applicant be referred to the forensic medicine institute for a complete medical report.
13. Later the same day, the applicant repeated his allegations of ill-treatment before the investigating judge. He alleged that, after the police officers had apprehended him, they blindfolded him; electric shocks were administered to his body; he was beaten with truncheons and forced to admit to the charges. He showed the marks on his body to the judge. The judge noted a bruise of 7 cm about the thickness of a little finger on the applicant's right upper arm, a bruise of 3 cm the thickness of a little finger just under his left shoulder, a scab-covered lesion under his left kneecap, a swelling on his left ankle and some old blade cuts. The applicant was then remanded in custody.
14. On 30 May 2002 the applicant's lawyer filed a complaint with the Diyarbakır Public Prosecutor's Office, requesting the public prosecutor to bring criminal proceedings against the police officers who had been on duty when the applicant was in their custody. He also repeated that the applicant should be referred for a full medical examination. Subsequently, the public prosecutor launched an investigation into the applicant's complaint of ill-treatment.
15. On the same day, the public prosecutor took a detailed statement from the applicant, in which he complained about the police officers and repeated almost the same submissions he had made to the investigating judge, adding that he had not been subjected to further ill-treatment after he had been handed over to the Juvenile Police. He also admitted that the scars on his upper and lower arms as well as his wrist were self-inflicted with metal wire, which he had torn off the cell window, as he could not bear the pain of ill-treatment. After taking the applicant's statement, the public prosecutor issued a letter to the Forensic Medicine Institute, asking for a detailed medical report on the applicant, including an explanation as to the nature and cause of his injuries.
16. A report submitted by the Forensic Medicine Institute on 30 May 2002 made reference to the previous medical reports dated 26, 27 and 28 May 2002, and drew its own conclusions after the applicant had been examined. It noted that the applicant had a bruise of 5 x 0.5 cm of which the outer line was a green-yellow colour and the centre was purple-dark blue, on the right upper arm, estimated to be three or four days old, and an old scar of 3 x 1 cm on his left kneecap. The bruising was deemed to have been caused by blunt force trauma. The applicant's injures were not regarded as life threatening but classified as sufficient to render him unfit for a day.
17. On 18 November 2004 the public prosecutor decided not to prosecute the police officers concerned. Referring to all the medical reports, this decision concluded briefly that the lesions had occurred prior to the applicant's arrest and that the scars on his body and arms had been self-inflicted, as he admitted in his statement of 30 May 2002. The applicant challenged this decision before the Siverek Assize Court.
18. On 19 January 2005 the Assize Court rejected the applicant's objection.
19. Section 18 (b) of the Regulations on Apprehension, Detention and Interrogation (1 October 1998, as amended on 13 August 1999) provides:
“Anyone who has reached the age of eleven, but is no more than eighteen, may be arrested. The parents and a lawyer shall be informed of the arrest and the minor shall be brought promptly before the public prosecutor. In these cases, the preliminary investigation shall be conducted personally by the Principal Public Prosecutor or by a public prosecutor to whom the former delegates that duty...”
VIOLATED_ARTICLES: 3


ITEMID: 001-103584
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: FIRST SOFIA COMMODITIES EOOD AND PARAGH v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: 1. The first applicant, First Sofia Commodities EOOD, is a singlemember limited liability company whose registered office is in Sofia, Bulgaria. The second applicant, Mr Karel Koes Hiranjgarbh Missier Paragh, is a Dutch national born in 1968, who is the applicant company’s sole member and manager. The applicants were represented before the Court by Ms S. Ganeva and Ms M. Kancheva, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Ms S. Atanasova and Ms M. Dimova, of the Ministry of Justice.
On 2 February 2009 the President of the Fifth Section decided that notice of some of the complaints raised by the applicant company should be given to the Government. The Government were not given notice of any complaints raised by the second applicant.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Mr Paragh set up the applicant company in late 2001 in Sofia, with the intention of providing brokerage services for futures at foreign commodity exchanges. In the first half of 2002 the company actively sought new clients and managed to open about fifty client accounts.
4. On 16 April 2002 the company’s lawyers wrote to the State Securities Commission (“the Commission”), enquiring whether the company’s activity was subject to regulation by it. On 11 May 2002 the Commission replied that the company’s activity fell outside its mandate, because commodity futures were not investment securities within the meaning of the applicable law. It referred the applicant company’s query to the State Commodity Exchanges and Markets Commission, which also informed the company that brokers at foreign commodity exchanges fell outside its purview.
5. On 25 June 2002 the chairman of the Commission ordered an inquiry into the applicant company’s activities.
6. While the inquiry was underway, several newspapers ran negative articles about the company.
7. On 7 August 2002 the inquiry concluded that the company was publicly offering investment securities without making full disclosure, drawing up a prospectus and submitting it for approval to the Commission, as required under the applicable law. The same day the Commission recommended that the company cease its activities.
8. However, as the company did not comply and continued contacting prospective clients, on 11 September 2002 the Commission opened a procedure for imposing restrictions on its activity. In the course of the proceedings the company filed an objection, saying that its activity was not subject to regulation by the Commission. In a decision of 2 October 2002 the Commission rejected the objection, reasoning that the contracts offered by the company were investment securities. It went on to say that those securities were being offered to the public in breach of the requirements of the law, and ordered the company to desist from making further offers immediately and to unwind its existing contracts within one month. The decision said that it was immediately enforceable and that any application for its judicial review would not have suspensive effect.
9. On 22 October 2002 the company sought judicial review of the decision. On 18 February 2003 (реш. № 1397 от 18 февруари 2003 г. по адм. д. № 9822/2002 г., ВАС, ІV о.) a threemember panel of the Supreme Administrative Court quashed it. The court found that the contracts between the company and its clients were not investment securities within the meaning of the applicable law. It had therefore not acted unlawfully by offering those contracts without the prospectus required for investment securities. Since it had not breached the law, there were no grounds to order it to cease its activity.
10. On an appeal by the Commission, in a final judgment of 4 July 2003 (реш. № 6878 от 4 юли 2003 г. по адм. д. № 3584/2003 г., ВАС, петчленен състав) a fivemember panel of the Supreme Administrative Court upheld that judgment, fully agreeing with its reasoning.
11. Following the successful outcome of the proceedings, the company wished to claim compensation for the damage sustained as a result of the provisional enforcement of the Commission’s decision. However, having received legal advice that such a claim would not stand any prospect of success, it decided not to bring one.
12. Article 7 of the 1991 Constitution provides that the State is liable for damage caused by the unlawful decisions or actions of its organs and servants. In a binding interpretative decision of 22 April 2005 (тълк. реш. № 3 от 22 април 2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС) the Supreme Court of Cassation, confirming the courts’ earlier caselaw, said that that Article did not provide a direct avenue of redress, but merely laid down a general principle whose implementation was to be effected through a statute. As no such statute had been enacted after the Constitution came into force in 1991, that function was being served by the State Responsibility for Damage Caused to Citizens Act (1988) (Закон за отговорността на държавата за вреди, причинени на граждани), in force since 1 January 1989. (On 12 July 2006 it was renamed the State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди) – “the 1988 Act”). The former Supreme Court and the Supreme Court of Cassation have held that the Act created a substantive right to claim damages, and has no retroactive effect (реш. № 1370 от 16 декември 1992 г. по гр. д. № 1181/92 г., ВС, IV г. о.; реш. № 63 от 21 февруари 1997 г. по гр. д. № 2180/1996 г., ВС; реш. № 529 от 17 юли 2001 г. по гр. д. № 24/2001 г., ВКС).
13. Section 1(1) of the Act, as originally enacted and in force until the end of 2005, provided that the State was liable for damage suffered by individuals (граждани) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. Section 1(2) provides that compensation for damage flowing from unlawful decisions may be claimed after those decisions have been quashed in prior proceedings. The Supreme Court of Cassation’s caselaw (реш. № 2139 от 12 декември 1997 г. по гр. д. № 1649/1996 г., ВКС; реш. № 1807 от 14 януари 2002 г. по гр. д. № 97/2001 г., ВКС; реш. № 1307 от 21 октомври 2003 г. по гр. д. № 2136/2002 г., ВКС, V г. о.), confirmed in point 1 of the interpretative decision mentioned in paragraph 12 above, was that solely individuals, not legal persons, could claim compensation under that provision. The interpretative decision explained that the wording of section 1(1) was a result of the fact that during the communist regime, when the Act had come into force, all legal persons had been outfits set up by the State. It had therefore been evident that only individuals would need to be compensated for unlawful administrative action.
14. Section 8(1) provides that those seeking redress for damage occasioned in circumstances falling within the scope of the Act have no claim under the general law of tort. The courts have said that the Act is a lex specialis and excludes the application of the general regime (реш. № 1370 от 16 декември 1992 г. по гр. д. № 1181/1992 г., ВС, ІV г.о.; реш. от 29 юли 2002 г. по гр. д. № 169/2002 г., СГС, ГК, ІVб отд.). The Supreme Court of Cassation has said that liability under section 1(1) of the Act is a special case of vicarious liability under section 49 of the 1951 Obligations and Contracts Act (see paragraph 17 below) (реш. № 738 от 21 ноември 2006 г. по т. д. № 348/06 г., ВКС, I т. о.).
15. On 18 November 2003 three members of parliament introduced a bill for the amendment of the Act, proposing to add legal persons to those entitled to claim damages under its section 1(1). In the explanatory note to the bill they said that the express wording of that provision deprived legal persons of the possibility of suing the State. They also pointed out that the courts’ caselaw was categorical on the point that legal persons who had suffered damage could sue the authorities only under section 45 et seq. of the 1951 Obligations and Contracts Act (see paragraph 17 below). However, a claim under those provisions would be difficult to prosecute in practice. The bill was not adopted. Another group of members of parliament introduced a similar bill in March 2005.
16. On 21 December 2005, when adopting the new Tax and Social Security Procedure Code (Данъчноосигурителен процесуален кодекс), parliament decided to amend section 1(1) of the 1988 Act by adding “legal persons” to the category of those entitled to bring a claim (paragraph 9 of the Code’s transitional and concluding provisions). The amendment was published in the State Gazette on 29 December 2005 and came into force on 1 January 2006. In their ensuing caselaw the Supreme Court of Cassation and the Supreme Administrative Court have held that it conferred on legal persons a substantive right to claim damages, and has no retroactive effect (опр. № 9134 от 3 октомври 2007 г. по адм. д. № 8175/2007 г., ВАС, ІІІ о.; опр. № 1046 от 6 август 2009 г. по гр. д. № 635/2009 г., ВКС, ІІІ г. о.; опр. № 1047 от 7 август 2009 г. по гр. д. № 738/2009 г., ВКС, III г. о.; реш. № 335 от 31 май 2010 г. по гр. д. № 840/2009 г., ВКС, III г. о.; реш. № 329 от 4 юни 2010 г. по гр. д. № 883/2009 г., ВКС, IV г. о.).
17. The general rules of the law of tort are set out in sections 45 to 54 of the 1951 Obligations and Contracts Act (Закон за задълженията и договорите). Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. Section 49 provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. Legal persons cannot incur liability under section 45(1), as they cannot act with mens rea. They may, however, be vicariously liable under section 49 for the tortuous conduct of individuals employed by them (пост. № 7 от 30 декември 1959 г., Пленум на ВС). In the interpretative decision mentioned in paragraphs 12 and 13 above, the Supreme Court of Cassation said that legal persons who had sustained damage from unlawful administrative action could vindicate their right to damages under those provisions. On 17 July 2006 the Sofia City Court allowed a claim under section 49 brought by a company against the Council of Ministers in relation to events which had taken place in December 1998. Its ruling was upheld by the Sofia Court of Appeal on 10 April 2008, and by the Supreme Court of Cassation on 12 February 2010 (реш. № 550 от 12 февруари 2010 г. по гр. д. № 3387/2008 г., ВКС, ІІ г. о.). In a judgment of 31 May 2010 (реш. № 335 от 31 май 2010 г. по гр. д. № 840/2009 г., ВКС, III г. о.) the Supreme Court of Cassation examined a claim which the lower courts had characterised under section 1(1) of the 1988 Act and rejected because it had been brought by a legal person and concerned events preceding the entry of the 2005 amendment into force. The court recharacterised the claim as one under section 49 of the 1951 Obligations and Contracts Act, and allowed it.
18. Section 110 of the 1951 Act , which is also applicable to proceedings under the 1988 Act (тълк. реш. № 3 от 22 април 2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС; реш. № 7768 от 10 юни 2010 г. по адм. д. № 14132/2009 г., ВАС, ІІІ о.), provides that the limitation period for all claims is five years. In the interpretative decision mentioned in paragraphs 12 and 13 above the Supreme Court of Cassation said that, in so far as voidable administrative decisions are concerned, time starts running when the judgments quashing them become final.


ITEMID: 001-57653
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF ISGRÒ v. ITALY
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (victim);No violation of Art. 6-1+6-3-d
JUDGES: C. Russo
TEXT: 8. Mr Salvatore Isgrò was born at Messina. When the Court last received information concerning his whereabouts, he was in detention at the prison of Porto Azzurro (Livorno).
9. On 11 November 1978 the Monza public prosecutor’s office ordered Mr Isgrò’s arrest together with that of a number of other persons. They were suspected of involvement in the kidnapping and death of a young man, G., who had been kidnapped on 9 November 1978 and who, on the following day, had been found dead from an overdose of chloroform. The public prosecutor’s decision was based on the statements of a certain Mr D., who had been asked by the organisers of the kidnapping to assist them by keeping watch over the victim, but had decided to co-operate with the carabinieri.
10. When interviewed by the carabinieri on 11, 13 and 16 November 1978 and by the public prosecutor on 14 November, Mr D. provided information on the preparation of the kidnapping and on the contacts which he claimed to have had at the time with Mr Isgrò and one Mr L. He also alleged that he had been threatened because he had not wanted to participate in the crime.
11. On 16 November 1978, in the course of an examination by the public prosecutor, the applicant admitted knowing Mr D., but denied having asked him to take part in the offence. He also rejected the suggestion that there was any enmity between them.
12. Before the investigating judge, who questioned him on 23 February 1979, he referred to disputes with Mr D.; he added that the latter had asked him to take part in a kidnapping, but that he had refused to do so.
On 10 April 1979 the same judge interviewed Mr D., who confirmed his earlier statements and gave various details concerning his conversations with Mr Isgrò and Mr L., including a meeting on 10 November 1978 with Mr Isgrò.
13. Again on 10 April 1979 the investigating judge confronted Mr D. with the applicant who, in accordance with the provisions in force at the time (see paragraph 23 below), was not assisted by his lawyer. Each of them repeated his own version of events. The record of the confrontation reads as follows (translation from the Italian):
"... D. to Isgrò ...: I confirm the statements made to the carabinieri and to the investigating judge. I confirm in particular that at the beginning of October you asked me to take part in a kidnapping. Before, a few months ago, you had talked generally about the possibility of earning a bit of money.
Isgrò ... to D.: You’re not telling the truth, it’s not true that I proposed to you to take part in a kidnapping. It was exactly the opposite which happened. You came to my place - I don’t remember exactly when - and you proposed that I guard a kidnap victim. I didn’t even want to listen to you and I threw you out.
D. to Isgrò ...: That’s all lies, what I said before is true.
Isgrò ... to D.: You’re saying what you’ve just said because you’ve been angry with me ever since, when your aunt M. asked me, I stopped a fight between you and a certain N.
D. to Isgrò ...: I also confirm that I met you, the day of the kidnapping, in the ... bar of Malnate. On that occasion you explained to me what I would have to do during the detention of the kidnap victim and in particular how I should get him to write the messages to his family. You also told me that I should be seen out and about as usual.
Isgrò ... to D.: In the days before my arrest, I did go once to the ... bar in Malnate with my family and an aunt whom I had taken to Switzerland for a trip. If I remember correctly it was in fact on 9 November, I don’t remember the time. I had accompanied my aunt who was to telephone to Sicily, but I don’t remember at all having seen you and even less having spoken to you.
D. to Isgrò ...: I repeat what I stated before, I saw you shortly before twelve o’clock.
Isgrò ... to D.: It’s not true, I was not in the bar at that time, I don’t remember exactly where I was, but I remember that I only went to the bar in the afternoon.
D. to Isgrò ...: I confirm that you know the L. brothers and in particular that I saw P. L. go to your house.
Isgrò ... to D.: It’s absolutely untrue that I knew the L. [brothers]. You’re lying.
D. to Isgrò ...: I repeat that you yourself told me that a few years ago you used to go to the Pizzeria ... in Malnate with the L. [brothers].
Isgrò ... to D.: That’s all lies. You want to destroy me because you’ve never forgiven me for not helping you in your crooked deals.
...
D. to Isgrò ...: I myself have seen you in the company of the L. [brothers] at the Pizzeria ... in Malnate.
...
Isgrò ... to D.: I repeat that that’s not true. I’ve never seen the L. [brothers].
..."
On the same day the investigating judge organised a confrontation between Mr D. and another accused, namely one of the L. brothers.
14. On 31 May 1979 the investigating judge questioned for one last time Mr D., who maintained his allegations.
15. On 9 January 1980 the judge committed Mr Isgrò and nine co-accused for trial in the Monza District Court.
16. At the public prosecutor’s request, the President of the District Court ordered Mr D. to be called as a witness at the hearing on 19 February 1980. On being informed, on 14 February, that it had been impossible to trace the person concerned for several months, he ordered that inquiries be made immediately. These inquiries were conducted in four separate places, but they were unsuccessful although Mr D. telephoned the carabinieri on 1 March and the investigating judge on 3 March.
17. The trial was spread over twelve hearings from 18 February to 4 March 1980. The court heard, among others, the applicant, his wife and a number of witnesses. However, it refused to call a person who had already been questioned by the investigating judge: counsel for Mr Isgrò sought to have this witness called in connection with evidence concerning Mr D.’s conduct on the day of the kidnapping, of which the person in question had informed Mrs Isgrò according to the latter’s statements before the court; but in the court’s view the evidence available to it deprived this testimony of any importance.
As Mr D. remained impossible to trace, the records of each of his interviews and of the confrontation of 10 April 1979 (see paragraph 13 above) were read out on 26 February. This had been ordered by the court in pursuance of Article 462, first paragraph, sub-paragraph 3, of the Code of Criminal Procedure (see paragraph 24 below), notwithstanding the objections of the lawyers of two of the applicant’s co-accused.
18. On 29 February and 3 March, the applicant’s lawyer indicated that his client’s wife had seen Mr D. in the street at Malnate, where he had been staying for several days at his mother’s house. The President of the District Court ordered that the police be informed of this immediately.
19. On 5 March 1980 the District Court sentenced Mr Isgrò to thirty years’ imprisonment. In the grounds of its judgment, it relied on Mr D.’s statements rather than the applicant’s denials.
20. The applicant appealed and sought to have Mr D. called as a witness. The Milan Court of Appeal directed that the latter appear on 25 November 1981 - two days after its first hearing -, but further searches effected in two places, one of which had been indicated, once again, by Mrs Isgrò, were to no avail.
21. On 1 December 1981 the court upheld the verdict of guilty but reduced the sentence to twenty years. It based its decision in particular on the earlier statements by Mr D. In its view, he was in hiding for fear of reprisals, a fear which it considered to be fully justified.
22. Mr Isgrò appealed on points of law. He complained that he had been convicted on the basis of testimony obtained during the investigation, without his lawyer having had the opportunity to examine the witness in question on his statements, and challenged the use of such evidence in the trial proceedings.
The Court of Cassation dismissed the appeal on 23 March 1984 on the ground that it was intended to contest the assessment of evidence made by the lower courts, which assessment was not open to appeal.
23. Article 304 bis of the Code of Criminal Procedure in force at the time enumerated the steps in the investigation at which an accused’s lawyer could be present; it did not mention confrontations between the accused and a witness.
24. Article 462 provided a list of the statements which the trial courts were authorised, subject to certain conditions, to have read out at the trial; they included statements obtained by an investigating judge during a confrontation between a witness and an accused.
Under sub-paragraph 3 of the first paragraph, such statements might be read out where, inter alia, a witness could no longer be traced.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-71331
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KELTAŞ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - partial award
TEXT: 4. The applicant was born in 1947 and lives in Mersin.
5. On 12 March 1996 the General Directorate of National Roads and Highways expropriated two plots of land belonging to the applicant in Mersin in order to build a motorway. A committee of experts assessed the value of the plots of land and the relevant amount was paid to the applicant when the expropriation took place.
6. Following the applicant’s request for increased compensation, on 30 December 1996 the Mersin Civil Court of First-instance awarded him additional compensation of 962,996,880 Turkish liras (TRL), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 12 March 1996, the date of the transfer of the title-deeds.
7. On 29 June 1998 the Court of Cassation upheld the judgment of the Mersin Civil Court of First-instance.
8. On 16 May 2000 the General Directorate of National Roads and Highways paid the applicant the amount of TRL 2,861,840,000, including interest.
9. The relevant domestic law and practice are set out in Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV).


ITEMID: 001-78813
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HASAN KAYA v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - award;Costs and Expenses award (Convention proceedings);Costs and Expenses award (domestic proceedings)
TEXT: 4. The applicant was born in 1961 and lives in Diyarbakır.
5. On 10 August 1999 the Diyarbakır Provincial Private Administration Office (Diyarbakır Il Özel Idare Müdürlüğü) expropriated the plots of land belonging to the applicant in Diyarbakır. A committee of experts assessed the value of these plots of land and this amount was paid to the applicant when the expropriation took place.
6. On 20 October 1999 the applicant brought an action before Diyarbakır Civil Court of First Instance, requesting increased compensation.
7. On 22 January 2002 the Diyarbakır Civil Court of First Instance awarded the applicant additional compensation of 118,212,590,355 Turkish liras (TRL) (approximately 97,861 euros (EUR)) plus interest at the statutory rate applicable at the date of the court's decision, running from 8 October 1999.
8. On 12 March 2002 the Court of Cassation upheld the judgment of the first-instance court.
9. On 15 March 2002 the administration paid the applicant a total sum of TRL 281,371,870,000 (approximately 237,519 euros (EUR)).
10. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-117894
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF X.Y. v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention;Release pending trial;Trial within a reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Pecuniary and non-pecuniary damage - award
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 5. The applicant was born in 1976 and lives in Budapest.
6. On 15 November 2007 the applicant was arrested on charges of a series of car thefts. In the prosecution’s ensuing motion to have him detained on remand, the dangers of absconding, collusion and repetition of crime were referred to.
7. The defence argued that there was no reasonable suspicion that the applicant had indeed committed an offence. Moreover, since he had a settled life in Hungary, the applicant – who was the father of a minor child and had regular income out of which he was supporting his parents and was paying a mortgage – was unlikely to abscond. In another criminal case conducted against him, he had attended all the hearings and had never attempted to frustrate the procedure. In the instant case, all evidence having already been seized, it was not plausible that he would interfere with the witnesses or repeat any crime. Against this background, his pre-trial detention was not justified and should be substituted, if necessary at all, by a less coercive measure.
8. On 17 November 2007 the Pest Central District Court ordered the applicant’s detention on remand, reiterating in essence the reasons in the prosecution’s motion.
9. On 29 November 2007 the Budapest Regional Court rejected the applicant’s appeal. This court was satisfied that there was reasonable suspicion against the applicant. It pointed out that no actual assessment of that evidence could be done in the remand proceedings because that would amount to usurping the powers of the trial court. The Regional Court moreover held that the fact that the applicant had made preparations to buy property abroad was sufficient to substantiate the danger of absconding. Moreover, since there was another prosecution under way, the court held that the applicant might have a criminal lifestyle, a predisposition to repetition of crime. The court went on to state that “in the present phase of the proceedings, the controversies referred to by the defence are not capable of fully eliminating the reasonable suspicion” of the applicant’s having committed a crime.
10. The applicant’s pre-trial detention was repeatedly prolonged at the statutory intervals. In these proceedings, the arguments of the defence remained largely the same, and so did the findings of the courts. The applicant’s requests for release, if necessary on bail, were to no avail.
On 18 December 2007, 8 and 28 February and 28 March 2008 the applicant complained to the authorities that he had not been granted access to the evidence underlying his detention. These complaints were all rejected, although the courts did not specify that such an access had actually been granted.
Meanwhile, on 8 February 2008 the applicant submitted to the authorities a psychiatric opinion, according to which he suffered from a personality disorder, including fear of crowds and of being locked up, which was susceptible to deterioration due to detention.
A further expert opinion issued on 16 March 2008 specified that the applicant had suffered a sexual assault from fellow inmates while in detention, which had aggravated his psychological imbalance.
11. Meanwhile, a further prolongation order, valid until 17 February 2008, was issued on 14 February 2008. However, the applicant was not released on 17 February 2008, because the holding facility had received a mistyped notification ordering his detention until 17 May – rather than 17 February – 2008. On 18 February 2008 the first-instance court corrected its order of 14 February. On appeal, on 11 March 2008 the Regional Court reversed the latter decision, holding that, although there had obviously been a typing mistake, the first-instance court could not correct the operative part of its order and that this matter was subject to a reversal within the jurisdiction of the Regional Court. It further reiterated the consideration that no assessment of the evidence giving rise to the reasonable suspicion against the applicant could be done in the remand proceedings.
On 3 April 2008 the applicant filed a request for release. This was rejected by the District Court. In his appeal, he stressed that his tolerance of detention had diminished on account of the psychological problems he had. On 14 May 2008 the Regional Court rejected the appeal, being satisfied that the applicant’s condition could be properly treated within the penitentiary health system. In his further complaints, the applicant’s lawyer emphasised that the applicant needed to be heavily medicated, because of which he could not be validly interrogated, and the resultant situation ran counter to both the applicant’s rights and the interests of the investigation.
12. The applicant’s pre-trial detention continued until 29 May 2008. The defence repeatedly made references to the absence of concrete elements underlying a reasonable suspicion against the applicant and to his personal circumstances not in the least warranting his continued detention. The applicant stated that the courts had rejected these arguments in rather stereotyped decisions.
13. On 29 May 2008 the Regional Court replaced the applicant’s detention with house arrest. It held that the danger of absconding had lessened to an extent that house arrest was then sufficient, especially in view of the indecent assault the applicant had suffered from fellow inmates. It also took into account the time that had elapsed, the applicant’s settled family and personal circumstances, and the fact that his health had seriously deteriorated.
14. On 26 June 2008 the applicant’s house arrest was lifted and replaced with a restriction on leaving Budapest (as of 21 January 2009, on leaving Pest County). On 15 November 2009 all restrictions on the applicant’s personal liberty were lifted.
15. The applicant submitted that an alleged accomplice, Mr Á., although he had previously absconded, had no legal income or employment and had no minor children, had been released on bail in October 2007 – in the applicant’s view simply due to the fact that, unlike him, Mr Á. had confessed to the crime with which he was charged.
16. A bill of indictment against the applicant and ten co-defendants was filed with the Buda Central District Court on 11 December 2009.
The trial of the case is pending.
17. Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows:
“(3) At the session the party [that is, the prosecution] having submitted the motion [on ordering or prolonging pre-trial detention] shall present the evidence substantiating the motion in writing or orally. Those present shall be granted the opportunity to examine – within the limits set forth in section 186 – the evidence of the party having submitted the motion. If the notified party does not attend the session but had submitted his observations in writing, this document shall be presented by the investigating judge.”
“(1) Any person having the right to be present at an investigatory action may forthwith inspect the minutes taken.
(2) The suspect, the counsel for the defence and the victim may inspect the expert opinion during the investigation as well, but they may only inspect other documents if this does not injure the interests of the investigation.
(3) The suspect and the counsel for the defence shall be entitled to receive a copy of the documents they may inspect.
(4) The copy of the documents produced, obtained, filed or attached in the course of the investigation and containing the testimony or personal data of the victim or the witness shall not indicate the personal data of either the victim or the witness. No copy may be issued of the draft decisions of the prosecutor or the investigating authority. No copy may be issued of the documents created in the course of communications between the prosecutor and the investigating authority pursuant to sections 165 and 165/A, except for the documents that contain the legal standpoint of the prosecutor and the investigating authority in relation to the case – including particularly the document containing the prosecutor’s instruction concerning the conduct of the investigation, provided that the specific investigation was conducted – provided that this does not interfere with the interests of the investigation.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4


ITEMID: 001-75688
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LUPSA v. ROMANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Violation of P7-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;John Hedigan;Lucius Caflisch
TEXT: 4. The applicant was born in Yugoslavia in 1965 and currently lives in Belgrade.
5. In 1989 the applicant, a Yugoslavian citizen, came to Romania and settled there. He lived in Romania for fourteen years and, in 1993, set up a Romanian commercial company whose main activity was roasting and marketing coffee. He also learnt Romanian and cohabited with a Romanian national from 1994.
6. On 2 October 2002 the applicant’s girlfriend, who was visiting him in Yugoslavia, gave birth to a child. A few days later the applicant, his girlfriend and the baby returned to Romania.
7. On 6 August 2003 the applicant, who had been abroad, came back to Romania unimpeded by the border police. The next day, however, border police officers came to his home and deported him.
8. On 12 August 2003 the applicant’s lawyer lodged an application with the Bucharest Court of Appeal against the Aliens Authority and the public prosecutor’s office at the Bucharest Court of Appeal for judicial review of the deportation order against the applicant.
9. She submitted that she had not been served with any document declaring the applicant’s presence in Romanian territory to be undesirable. She added that the applicant had been living in Romania since 1989, had been awarded a medal for his role in the anti-communist revolt of 1989, had set up a commercial company, was supporting his family and had not in any way been a danger to national security.
10. The only hearing before the Bucharest Court of Appeal was held on 18 August 2003. The representative of the Aliens Authority provided the applicant’s lawyer with a copy of an order of 28 May 2003 of the public prosecutor’s office at the Bucharest Court of Appeal in which, at the request of the Romanian Intelligence Service (Serviciul Român de Informaţii) and in accordance with Government Emergency Ordinance no. 194/2002 on the rules governing aliens in Romania, the applicant had been declared an “undesirable person” and banned from Romania for ten years on the ground that there was “sufficient and serious intelligence that he was engaged in activities capable of endangering national security”. The last paragraph of the order stated that it should be served on the applicant and enforced by the Aliens Authority in accordance with section 81 of Government Emergency Ordinance no. 194/2002.
11. According to the documents filed in the proceedings by the representative of the Aliens Authority, the Ministry of the Interior had informed the Romanian Intelligence Service, the Ministry of Foreign Affairs and the border police on 2 and 11 June 2003 that the applicant had been banned from entering the country.
12. The applicant’s lawyer requested an adjournment in order to send the applicant a copy of the order of the public prosecutor’s office and take his instructions.
13. Although the representative of the public prosecutor’s office supported that request on the ground that it had not been established that the obligation to serve the order on the applicant had been complied with, the Court of Appeal decided to go ahead with the examination of the case. Considering that the evidence already adduced was sufficient, it also dismissed a further request by the applicant’s lawyer for an adjournment in order to produce documents in support of her application.
14. Ruling on the merits, the Court of Appeal rejected the application as follows:
“After analysing the evidence in the case and the parties’ arguments, the Court rejects as ill-founded the application against the public prosecutor’s order ... and the deportation order, considering that, in accordance with sections 83 and 84(2) of Government Emergency Ordinance no. 194/2002, the measure ordered is justified and lawful ...
With regard to the reasoning of the impugned administrative order, [the Court] notes that it satisfies the substantive and formal conditions required by the special provisions, power to authorise residence on the State’s territory being exercised by the appropriate State authorities in compliance with the relevant provisions and with the principle of proportionality between the restriction of fundamental rights and the situation giving rise to that restriction. Accordingly, the deportation was lawfully ordered.
It is alleged that the measure taken pursuant to the public prosecutor’s order of 28 May 2003 was communicated to the border police, the Ministry of Foreign Affairs and the Romanian Intelligence Service on 2 and 11 June 2003, whereas in the operative part of the order it was stated that, pursuant to section 81 of Government Emergency Ordinance no. 194/2002, the Aliens Authority had to notify and enforce it; the details of the alien’s passport and residence being mentioned in the preamble to the order.
Accordingly, the Court rejects as ill-founded, on every ground, the application lodged against the order of the public prosecutor’s office at the Bucharest Court of Appeal.”
15. In accordance with section 85(1) of Government Emergency Ordinance no. 194/2002, that judgment was final.
16. Subsequently, in 2003 and 2004, the applicant’s girlfriend, who does not speak Serbian, and their son, who is a national of Romania and of Serbia and Montenegro, went to Serbia and Montenegro on a number of occasions, staying for periods ranging from a few days to several months.
“(1) The Aliens Authority, or its regional offices, shall inform the alien concerned that he must leave Romanian territory.
(2) The order to leave the territory shall be drawn up in two copies, one in Romanian and the other in an international language.
(3) If the alien is present on the territory, he shall be served with a copy which he shall sign...
(4) If the alien is absent, notification shall be:
(a) by mail, by way of letter sent to his address, if known, requiring acknowledgment of receipt; or
(b) displayed at the head office of the Aliens Authority if his address is unknown.”
“(1) A declaration that an alien is undesirable is an administrative measure taken against a person who has previously engaged, is currently engaged, or in respect of whom there is sufficient intelligence that he has the intention of engaging in activities capable of endangering national security or public order.
(2) On a proposal of the Aliens Authority or another institution having appropriate powers in the sphere of public order and national security and being in possession of sufficient intelligence of the kind referred to above, the measure envisaged in the preceding sub-section shall be taken by a prosecutor designated from among the members of the public prosecutor’s office at the Bucharest Court of Appeal.
(3) After receiving the proposal, the prosecutor shall give his reasoned decision within five days and, if he accepts the proposal, shall send the order declaring the alien undesirable to the Aliens Authority for enforcement. If the order is based on reasons of national security, those reasons shall not be mentioned in it.
(4) The alien’s right of residence shall cease automatically on the date of the order.
(5) The alien can be declared undesirable for a period of five to fifteen years ...
...”
“(1) The order declaring an alien undesirable shall be served on the person concerned by the Aliens Authority in accordance with the procedure provided for in section 81.
(2) Communication of the data and information justifying a declaration that an alien is undesirable for reasons related to national security shall be authorised only on the terms and to the persons expressly mentioned in the legislation on activities relating to national security and the protection of secret information. Such information cannot be communicated in any form, whether direct or indirect, to the alien who has been declared undesirable.”
“(1) An application for judicial review of an order declaring an alien’s presence undesirable may be lodged with the Bucharest Court of Appeal by the party concerned within five days of the date of service of the order. The court’s judgment shall be final.
(2) Such an application shall not stay enforcement of the order ...”
17. In a case similar to the applicant’s, the Constitutional Court ruled on the compatibility of section 84(2) of Government Emergency Ordinance no. 194/2002 with the constitutional principles of non-discrimination, the right of access to a tribunal and the right to a fair trial. An objection on grounds of unconstitutionality had been raised by an alien when seeking judicial review of an order by the public prosecutor’s office declaring him undesirable on the ground that “sufficient intelligence had been received that he had been engaged in activities capable of endangering national security”.
18. The Constitutional Court held that the above-mentioned section was in conformity with the Constitution and the Convention, for the following reasons:
“The situation of aliens who are declared undesirable in the interests of national security and the protection of secret information is different from that of other aliens, which allows the legislature to establish different rights for these two categories of alien without that difference infringing the principle of equality. The genuine difference arising from the two situations justifies the existence of different rules.
The Court also notes that the prohibition on communicating to undesirable aliens the data and information justifying that measure is in conformity with the provisions of Article 31 § 3 of the Constitution, which provides that ‘the right to information shall not undermine national security’.
Nor do the provisions of section 84(2) of the Government Emergency Ordinance infringe the principle of free access to the courts, as provided for in Article 21 of the Constitution. In accordance with section 85(1) [of the above-mentioned ordinance], the person concerned can apply for judicial review of the prosecutor’s order ...
Nor can the Court accept [the criticism] concerning the independence of the judges [of the Court of Appeal]; they must comply with the law giving priority to Romania’s national security interests. The Court of Appeal is required to rule on the application for judicial review of the order in accordance with the provisions of Emergency Ordinance no. 194/2002, reviewing, in the conditions and within the limits laid down by that ordinance, the lawfulness and merits of the order of the public prosecutor’s office.
With regard to the provisions of Article 6 § 1 of the Convention ..., the Court notes that the impugned provision does not prevent those concerned from applying to the courts to defend themselves and assert all the guarantees of a fair trial. Furthermore, the European Court of Human Rights held, in its judgment of 5 October 2000 in the case of Maaouia v. France [[GC], no. 39652/98, § 40, ECHR 2000-X], that decisions regarding the entry, stay and deportation of aliens did not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him within the meaning of Article 6 § 1 of the Convention.”
VIOLATED_ARTICLES: 8


ITEMID: 001-69701
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: STRAG DATATJANSTER AB v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Sträg Datatjänster AB, is a Swedish limited liability company, which was dissolved on 12 February 2002. It was represented before the Court by Mr J. Thörnhammar, a lawyer practising in Stockholm. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 December 1997 the shares of the applicant company, which was then called MS Integrated Methods AB, were sold by S.E., its executive director, to another person, S.S. The company changed its name in February 1998 and S.S. was registered as its director in the official company register in March 1998. The applicant company was therefore represented by S.S. during the main part of the domestic proceedings in the present case.
Following a tax audit of the applicant company, the Tax Authority (skattemyndigheten) of the County of Stockholm, by a decision of 18 December 1997, revised upwards its taxable income for the assessment year 1996 by 992,087 Swedish kronor (SEK) and ordered it to pay a tax surcharge (skattetillägg) amounting to 40% of the increased tax liability. By another decision of the same date the Tax Authority also revised upwards S.E.'s taxable income, and ordered him to pay a tax surcharge. The whole of the amounts were payable on 14 April 1998.
On 27 January 1998 both the applicant company and S.E. appealed against the Tax Authority's decisions. They also requested that the execution of the amounts assessed be stayed.
By decisions of 18 March and, upon reconsideration, 25 March 1998 the Tax Authority rejected the 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. The matter was then automatically referred to the County Administrative Court (länsrätten) of the County of Stockholm for determination.
On 24 March and 8 April 1998 the Tax Authority reconsidered its decisions on taxes and tax surcharges but decided not to change them. In the latter reconsideration decision, it was stated that the taxation matter was forwarded to the County Administrative Court, to which further submissions should be made.
In a letter of 31 March 1998 the applicant company and S.E. requested the County Administrative Court to decide before the taxes and surcharges became due on 14 April 1998 on an interim stay of execution until that issue had been finally examined or to grant a stay pending the final examination of the tax cases. They maintained, inter alia, that, under Article 6 of the Convention, they had a right to a court determination of their tax liability before the amounts assessed by the Tax Authority were enforced, especially since such enforcement could lead to their being declared bankrupt. They also asked the court to hold an oral hearing on the stay-of-execution issue.
By judgments of 21 April 1998 the County Administrative Court quashed the Tax Authority's decisions regarding the requested stay of execution and referred the cases back to the Authority. Having found that the formal prerequisites for granting a stay under section 49, subsections 1 (2) (in respect of S.E.) and 1 (3) (in respect of the applicant company) of the Tax Collection Act had been fulfilled, the court noted that the granting of a stay of execution under these provisions was conditional on security being provided if it could be assumed that the amounts for which a stay had been sought would not be duly paid. As the Tax Authority had not ruled on the question whether security was required, the cases had to be referred back for such an examination. The court further found that, in view of this outcome, an oral hearing was unnecessary.
On 30 April 1998 the Tax Authority granted S.E. a stay of execution pending the County Administrative Court's examination of the appeal against the decision of 18 December 1997 regarding his taxation. However, by a decision of 27 May 1998, the Tax Authority rejected the applicant company's corresponding request. It found that the company's ability to pay was open to doubt, that a stay of execution could not therefore be granted unless security was provided and that, although given the opportunity to do so, the company had failed to provide security.
In a letter of 29 May 1998 the applicant company asked that the stay-of-execuation issue be examined in its entirety. The Tax Authority interpreted this as a new request for a stay and rejected it on 17 June and, upon reconsideration, on 26 June 1998, as the company still had not provided security. Noting that the County Administrative Court, in its judgment of 21 April 1998, had determined that the formal prerequisites for granting a stay had been fulfilled, the Tax Authority found no reason to examine this question.
On 17 June 1998 the applicant company again appealed to the County Administrative Court. It reiterated its request for either an interim stay of execution or a final stay pending the outcome of the tax assessment proceedings. In pointing out the potential damage that could be caused to the company, it noted that nothing prevented the Enforcement Office (kronofogdemyndigheten) from filing a petition for the company's bankruptcy. Stating that it intended to request an oral hearing in the tax assessment proceedings at which it would invoke oral evidence, the company also repeated that it wished the court to hold a hearing on the stay-of-execution issue.
By a decision of 11 September 1998 the County Administrative Court rejected the request for an interim stay of execution, finding that it had no legal basis.
On 16 September 1998 the County Administrative Court quashed the Tax Authority's decision of 17 June 1998 and again referred the case back to the Authority. The court stated that the applicant company, in its new application for a stay of execution, had requested that the issue be examined in its entirety and noted that the Tax Authority had not made a new examination of whether any of the prerequisites for granting a stay were at hand. The Tax Authority should therefore rule on this question as well as on the question of security. In view of this outcome, the court did not find it necessary to hold an oral hearing.
By a decision of 6 October 1998 the Administrative Court of Appeal (kammarrätten) in Stockholm found no reason to examine the applicant company's appeal against the County Administrative Court's decision of 11 September 1998 as the latter court had later taken a final decision on the stay-of-execution issue. The appeal was thus dismissed. On 11 January 1999 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal against the appellate court's decision.
On 16 October 1998 the Enforcement Office of the County of Stockholm, representing the State, filed a petition with the District Court (tingsrätten) of Stockholm, requesting that the applicant company be declared bankrupt. According to a statement submitted by the Office, the company was registered as being in arrears with taxes and surcharges amounting to a total of SEK 478,576. The Office noted that an investigation had revealed that the value of the company's assets was insufficient to cover the debt. In fact, it had no known assets.
On 16 October 1998 the District Court attempted to serve the bankruptcy petition and a summons for a hearing on 26 November 1998 under the ordinary procedure for serving documents set out in section 9, subsection 1 of the Act on the Service of Documents (Delgivningslagen; 1970:428), by sending two letters, one to the applicant company's registered address and one to the registered address of S.S., its director. The letters contained a so-called “white card” to be signed and returned to the court within a specified time-limit. When that notice of delivery was not returned, the District Court proceeded to employ a special procedure for serving the documents (särskild delgivning med aktiebolag), set out in section 9, subsection 3 of the Act. Thus, on 26 October 1998 it sent the documents by mail to the applicant company's registered address and on the following day it sent a letter to the same address confirming the earlier dispatch.
The District Court held its hearing on 26 November 1998. No representative of the applicant company was present. Noting that the company had been notified of the Enforcement Office's bankruptcy petition and summoned to the hearing on 17 November – three weeks after the dispatch of the second letter sent in accordance with the special procedure –, the District Court proceeded with the hearing. On the merits, the District Court found that it had been shown that the State had a claim against the applicant company and that the company must be considered insolvent as it did not have sufficient assets to cover the full debt. Thus, the company was declared bankrupt.
By a judgment of 2 December 1998 the County Administrative Court, without having held an oral hearing, upheld the Tax Authority's reconsideration decision of 24 March 1998 concerning the underlying tax issues. It thus agreed with the Authority's assessments in regard to the applicant company's taxable income and the imposition of a tax surcharge. By another judgment of the same date the court also upheld the Tax Authority's decision on the taxation of S.E.
By a letter of 11 December 1998 the applicant company appealed against the District Court's bankruptcy decision to the Svea Court of Appeal (Svea hovrätt). It claimed, inter alia, that S.S., its present director, had been abroad for some time and had not been given an opportunity to reply to the bankruptcy petition. The District Court had therefore made a gross procedural error, for which reason the case should be referred back to that court.
On 28 December 1998 the Court of Appeal found that the applicant company had been notified of the bankruptcy petition and summoned to the District Court's hearing in due order and that there was thus no reason to refer the case back to the District Court. Further noting that the company had not shown that it was not insolvent, the appellate court upheld the declaration of bankruptcy. On 9 April 1999 the Supreme Court (Högsta domstolen) refused leave to appeal against the appellate court's decision. The bankruptcy proceedings were terminated on 12 February 2002 owing to a lack of assets.
On 1 February 1999 the applicant company and S.E. lodged appeals against the County Administrative Court's taxation judgments. They completed their appeals on 23 February 1999. They asked the Administrative Court of Appeal to stay the execution of the taxes and tax surcharges involved pending the final determination of the tax issues. In the first place, they requested that the judgments be quashed and the tax case be referred back to the County Administrative Court as that court had committed a grave procedural error by neither holding an oral hearing nor giving the company and S.E. the opportunity to make final submissions in the case. In the alternative, they asked the appellate court to give judgments in their favour.
On 29 March 1999 the Tax Authority, in the stay-of-execution case referred back to it by the County Administrative Court on 16 September 1998, informed the applicant company that it had found that the prerequisites for a stay were at hand but that, due to the company's economic situation as shown by the fact that it had been declared bankrupt, a stay required that security be provided. The company was therefore invited to provide security. The company having failed to do so, the Tax Authority, on 26 May 1999, refused to grant a stay. Already having been declared bankrupt, the company found that a stay of execution was no longer useful and thus did not appeal against the Tax Authority's decision.
By decisions of 11 June 1999 the Administrative Court of Appeal found, in response to the letter of 23 February 1999, that it could not rule on the question of a stay of execution as no decision on this matter had been brought before that court. It stated, however, that the matter was pending before the Tax Authority. On 22 September 1999 the Supreme Administrative Court refused leave to appeal against the appellate court's decisions.
By judgments of 28 May 2001 the Administrative Court of Appeal rejected the applicant company's and S.E.'s appeals against the County Administrative Court's taxation judgments. The appellate court found that their requests for an oral hearing at first instance had to be considered as having been made only in relation to the stay-of-execution issue. Consequently, neither the lack of an oral hearing on the tax issues nor any other part of the written procedure at first instance gave reason for the cases to be referred back. In regard to the substantive tax issues, the appellate court agreed with the assessments made by the County Administrative Court.
By letters of 29 August 2001 the applicant company and S.E. appealed against the appellate court's taxation judgments to the Supreme Administrative Court. While, on 9 March 2004, the court granted S.E. leave to appeal, it refused the applicant company leave to appeal by a decision of 19 March 2004.
The rules on taxes and tax surcharges relevant to the present case were primarily laid down in the Taxation Act (Taxeringslagen, 1990:324).
Income tax is 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.
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. In certain circumstances, the rate applied is 20%.
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).
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).
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). The tax authority's decision may also be appealed against to a county administrative court. As with requests for reconsideration, an appeal must normally be lodged before the end of the fifth year after the assessment year (chapter 6, sections 1 and 3). Following the appeal, the tax authority shall 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.
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 upon request in all cases except where there is reason to assume that no surcharge will be imposed (chapter 6, section 24). Normally, however, the proceedings before the administrative courts are in writing (section 9 of the Administrative Court Procedure Act (Förvaltnings-processlagen, 1971:291)).
At the material time, the collection of taxes and tax surcharges was regulated by the Tax Collection Act.
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).
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).
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).
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). Further appeals to an administrative court of appeal and the Supreme Administrative Court are subject to leave to appeal being granted (section 102).
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). If the debtor does not have enough distrainable property, the enforcement office may request a district court to declare the debtor 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 the 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).
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).
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)).
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. In this situation and also if the tax decision is amended to the taxpayer's advantage by a court judgment, 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 the taxpayer 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 (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 (Skadestånds-lagen, 1972:207)), on the ground that the authorities or the courts have acted wrongfully or negligently.
Service of a document on a legal person shall be effected by delivering the document to someone who has the comptence to represent the legal person (section 9, subsection 1 of the Act on the Service of Documents). In the event of a failure to serve a document on a limited liability company in the manner mentioned or when such service is deemed to have no prospect of success and provided it is not considered inappropriate in view of the circumstances of the case, so-called special service may be used (section 9, subsection 3 of the Act). This means that service is effected by sending the document by mail to the company followed by a letter at least a day later informing it that the document has been dispatched. Both the letter containing the document and the information letter shall be sent to the company's registered address, as found in the official company register. Service of the document is considered to have taken place three weeks after the dispatch of the information letter unless it appears unlikely that the document has arrived at the registered address (section 19 of the Act). A precondition for employing the special service is usually that at least one attempt has been made at serving the document in accordance with the ordinary procedure. This may be done by sending the document to the company by ordinary mail including a notice of delivery, which is to be signed by a competent representative and sent back to the authority (Government Bill 1996/97:132, p. 20 et seq.).