ITEMID: 001-67346
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF HASAN İLHAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 8;Violation of P1-1;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;Not necessary to examine Art. 18;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Feyyaz Gölcüklü
TEXT: 8. The applicant, a Turkish citizen of Kurdish origin, was born in 1921. He and his family were living in Kaynak hamlet at the time of the events giving rise to the present application.
9. The facts of the case, particularly concerning events which took place on or about 21 April 1992 and on or about 30 June 1992, are disputed by the parties.
10. The facts as presented by the applicant are set out in Section B below (paragraphs 12-20). The Government's submissions concerning the facts are summarised in Section C below (paragraphs 21-23). Documentary evidence submitted by the applicant and the Government are summarised in Sections D and E respectively.
11. The Commission, in order to establish the facts disputed by the parties, conducted an investigation with the assistance of the parties, pursuant to former Article 28 § 1 (a) of the Convention. It appointed three delegates (Mr G. Jörundsson, Mrs J. Liddy and Mr G. Ress), who took evidence in Ankara from 17 April 1996 to 19 April 1996. They heard the applicant's son as well as the following 10 witnesses: Hikmet İlhan, Halit Çirik, Mehmet Göçmen, Akın Yılmaz, Duran Kuşçu, Levent Değirmenci, Halim Çalışkan, Celal Göl, Davut Başer and finally Cemil Dinler. A summary of the oral evidence given by these witnesses may be found in Section F below.
A further witness, Mr Kürşat Kayral, the chief public prosecutor in Mardin who had questioned the applicant, was also summoned but did not appear before the Commission's delegates. A letter written by Mr Kayral, explaining his failure to give evidence before the delegates, was read out during the fact-finding hearing. Mr Kayral stated that his involvement in the case was limited to his having taken a statement from the applicant and therefore he did not have any further information to offer.
12. Kaynak was a small hamlet where approximately 10 families lived. The village of Ahmetli, where 20-25 families lived, was about one kilometre away from the hamlet of Kaynak. As both places were very small they were joined so as to form one single village. Ahmetli was the centre and Kaynak the hamlet. It was built on a hillside and from there the nearby villages of Yardere and Aytepe, both of which were located at a lower altitude and within a one and a half kilometre radius, could be seen. To the west of the hamlet was the village of Konaklı where there was a gendarme station. It was one and a half kilometres away and located at a higher altitude than the hamlet. The villages of Oğuzköy, located six to seven kilometres to the south of the hamlet, and the village of Akıncılar, 17 kilometres away from the village of Konaklı, also had gendarme stations.
13. The applicant owned vineyards, almond, cherry, fig and oak trees which were located to the west of Kaynak hamlet. He also owned plum, peach and apricot trees which were located in the valley between his hamlet and the village of Yardere, located to the south-east of the hamlet. These trees were irrigated by a river which had its source in the village of Aytepe and flowed to Syria. The applicant owned land in the valley where he used to grow cotton and tobacco. He also kept sheep and goats.
14. On or about 21 April 1992 military units attached to the Gendarme Headquarters at Mardin searched the applicant's hamlet. No military operation was taking place in the area at the time. The soldiers rounded up the villagers, threatened them and told them that they would be killed if they did not leave the hamlet. The soldiers then burned and destroyed some of the houses and barns using hand grenades, inflammable material and pickaxes. They also killed a number of animals.
15. The villagers whose houses had been destroyed left the hamlet and went to the nearby village of Yardere to take shelter. On the way to Yardere an elderly woman and two-day old twin brothers lost their lives.
16. The soldiers returned a few days later, burned the remaining houses in the hamlet and forced the remaining villagers to leave.
17. Some time later, the villagers returned to their hamlet to tend their vineyards and orchards. They made tents in which to live and erected them in their vineyards and orchards.
18. On or about 30 June 1992 members of the security forces returned to the hamlet and destroyed what was left of the houses. When the soldiers saw that the villagers would not be separated from their village, the soldiers set fire to the earth in which the vineyards and orchards were planted. The ground, crops and trees were burned using petrol, paraffin and other similar inflammable material and sometimes a powder. In the vineyard and orchard owned by the applicant, 5,000 vines, 120 peach trees, 700 fig trees, 500 almond trees, 700 apricot trees, 460 prune trees and ten thousand oak trees were burned down. The applicant owned 10 hectares of land.
19. After having left his hamlet and taken shelter in an empty house in the village of Yardere, the applicant sent petitions to a number of authorities, including the office of the Prime Minister, the Ministry of the Interior and the Ministry of Defence and asked for his damages to be compensated. On 19 August 1992 he received a reply from the Prime Minister's office, stating that the application for compensation had been passed to the relevant authority and that he would be informed of the outcome by that authority in due course. No compensation was ever paid to the applicant or his family.
20. In the early weeks of March 1993 the applicant was on his way from Mardin to the hamlet. He was stopped and searched at Akıncılar Military Post. When the replies he had received from the Government and party leaders were found on him, the applicant was thrown into the station, beaten up and abused. The soldiers burned the documents.
21. On 21 April 1992 military units attached to the Mardin Gendarme Headquarters carried out an operation in the village of Ahmetli with the aim of taking precautionary measures to protect the lives and property of the inhabitants of the village from the PKK. The allegations made by the applicant concerning the destruction of his house, its contents and orchards and finally the allegation that the applicant had been ill-treated at Akıncılar gendarme station were completely baseless.
22. One member of the İlhan family living in Kaynak hamlet had a hideout in the village in which weapons were found. These weapons had been used in a number of killings. The discovery of the hideout revealed the cooperation between that family and the terrorist organisation. This revelation made it difficult for the family to stay in the hamlet, probably because of fear of reprisals from the PKK for having surrendered the weapons. It was much safer to live in a bigger village like Yardere.
23. According to the registry office responsible for the keeping of title deeds, the applicant owned a total of 7,932 square metres (sq. m) of land which, given its size, could not have accommodated the number of trees which he claimed had been burned down.
24. This petition is signed by the applicant and copies of it were submitted to various domestic authorities in order to claim compensation for his damage. A copy of this letter was also sent to the Diyarbakır branch of the Human Rights Association. This petition sets out the applicant's allegations summarised in Section B above.
25. In this letter Mr Mesut Yılmaz promised to pursue the matter.
26. In this letter the applicant was informed that a copy of his petition had been forwarded to the Ministry of the Interior, the body responsible for the actions of the gendarme forces.
27. This letter states that the petition submitted by the applicant had been passed to the relevant authority.
28. The applicant also submitted:
29. This is a one-page report drawn up by Halim Çalışkan, the commanding officer of the Konaklı gendarme station. It was also signed by gendarme NCOs Nejdet Kayan, Ahmet Kurt and Ferhat Koca. It states that the allegations submitted in a petition by the applicant to the regional governor were baseless. According to this report, commander Çalışkan had visited the Kaynak hamlet and saw that there was no damage to any of the houses and that the population had left the village of their own free will, possibly because of the pressure exerted on them by terrorists. Furthermore, there was no damage to any of the trees; and, contrary to what had been claimed by the applicant, the latter owned only very few trees and vines. Commander Çalışkan had been unable to question the applicant because he had run away from him. Commander Çalışkan concluded in his report that the allegations had been made to assist the illegal organisations in their spread of propaganda.
30. This statement was taken from Mr İlhan pursuant to a request made by the Ministry of Justice's International Law and Foreign Relations Directorate on 9 December 1993, following the communication of the application to the Government. In his statement to the prosecutor, Mr İlhan confirmed that he had submitted the petition of 7 July 1992 to a number of authorities in Turkey in order to obtain compensation for his damage, but he stated that he did not make an application to the European Commission of Human Rights. He also largely repeated his allegations as set out in his petition of 7 July 1992.
31. According to this decision the office of the Mardin prosecutor lacked jurisdiction to investigate the allegations made by the applicant as the alleged perpetrators of the incidents were members of the security forces. The file was sent to the Mardin Provincial Administrative Council for authorisation to investigate the allegations.
32. In this letter the chief public prosecutor informed the Directorate about the statement he had taken from the applicant on 24 December 1993. The prosecutor also wrote that an investigation which had been opened ex officio into the allegations was still continuing and that a decision of nonjurisdiction had been taken by his office.
33. This one-page report was drawn up by Celal Göl, a gendarme NCO working at the Mardin Provincial Gendarme Headquarters who had been requested to investigate the allegations made by the applicant. Mr Göl stated in his report that, according to the documents in his office, no such incidents had taken place in the applicant's hamlet and that no houses had been burned down.
34. The governor stated in his letter that no operation had been carried out in Yardere village on 21 April 1992 by soldiers from the Mardin gendarme headquarters and that the allegations made by the applicant had been fabricated by those who wanted to put Turkey in a difficult position before the European Commission of Human Rights.
35. These statements were taken by gendarme NCOs Şeref Çakmak and Celal Göl, from Cemil Dinler, the headman of Yardere village, and Abdülkadir Demir and Gazi Cıvak, who used to live in Yardere village at the time of the alleged events. According to these almost identical statements, the allegations of the applicant were untrue and, in their opinion, had been made in order to discredit the security forces. They further submitted that they had left Yardere village because of the actions of the PKK.
36. In their letter the Directorate informed the chief public prosecutor that during the fact-finding hearing conducted by the Commission in Ankara, a number of documents had been requested. The Directorate asked the chief public prosecutor to clarify whether there had been any applications to his office concerning the alleged destruction of the houses in Kaynak hamlet on 21 April 1992. The Directorate also asked what action had been taken in relation to five terrorists apprehended in Kaynak village on 21 April 1992.
37. The chief public prosecutor informed the Directorate about the decision of non-jurisdiction of 28 December 1993. The prosecutor also informed the Directorate that, according to the information he had obtained from the Mardin Provincial Gendarme Headquarters, there had been no incidents in Kaynak hamlet and therefore no terrorists had been apprehended.
38. This letter states that no information or documents existed concerning the operations that were conducted on or about 10 June 1992 in Kaynak hamlet. It further states that no operation took place on 21 April 1992 in Kaynak hamlet or in its vicinity.
39. The Government submitted copies of military reports showing that an armed attack was carried out on Konaklı gendarme station at 1 a.m. on 2 April 1992 by members of the PKK.
40. The Government also submitted copies of documents showing that an armed clash had taken place between gendarme soldiers, who had gone to Yardere village on 14 February 1992 to serve summonses on those young men who were due to be conscripted, and approximately 10-15 persons who had opened fire on the soldiers. According to these documents, six people were killed and five people injured.
41. Finally, the Government submitted a report setting out the names of villages burned down by members of the PKK between 16 June 1993 and 5 October 1994; documents showing the amounts of compensation paid between 1992 and 1993 to inhabitants of villages who had to flee due to the actions of the PKK; a report prepared by Ankara University in which it was calculated that the number of trees claimed by the applicant to have been burned down would have required a surface area of approximately 350 million sq. m; and a document drawn up by the registry office responsible for the keeping of title deeds showing that the applicant owned a house in Kaynak made of stone and built in a garden of 684 sq. m in addition to a total of 7,255 sq. m of land.
42. The evidence of the eleven witnesses heard by the Commission's delegates may be summarised as follows:
43. The applicant's son was living in Kaynak hamlet at the time of the alleged events. Following the events in Yardere village in February 1992 (see paragraph 40 above), soldiers used to come to his hamlet and ask the villagers either to become village guards or to leave the hamlet.
44. Prior to 21 April 1992 he heard that there had been an incident at Konaklı gendarme station.
45. On 21 April 1992, when the witness and other young men saw that soldiers were approaching the hamlet they left the village and hid in the hills on the other side of the hamlet. The reason for their running away from the hamlet was that in the past soldiers who had visited the hamlet had beaten up young men on a number of occasions.
46. From their hiding place he could see the hamlet and the soldiers. The soldiers told the villagers to gather outside the village and then started to search the houses. During the search the soldiers destroyed the contents of the houses such as refrigerators, cupboards and food supplies. The soldiers then burned and destroyed some parts of the houses using hand grenades, axes and shovels. The witness was later told that before leaving the village just before evening, the soldiers had warned the villagers that they had three days to evacuate the village.
47. On the fourth day following the soldiers' first visit, the witness again ran to a hiding place in the mountains when he saw soldiers approaching the village. The villagers were given an opportunity to grab whatever they could from their houses following which the houses were set on fire and many animals were killed by the soldiers. After the soldiers left, the villagers left the hamlet and went to the neighbouring villages. The witness and his family moved to a derelict house in Yardere village.
48. The soldiers returned to the hamlet many times, including once on 30 June 1992 when they set fire to the orchards, burned the remaining parts of the houses and, on their way to and from the hamlet, set fire to the dense oak forest.
49. The witness would like to return to his village if the State stopped putting pressure on them.
50. Mr İlhan – son-in-law and nephew of the applicant – was living in Kaynak hamlet at the time of the alleged events. Soldiers used to come to the hamlet in the past and on one of those occasions they had told the villagers that there had been an attack on the gendarme station and asked the villagers to leave the hamlet.
51. On 21 April 1992 soldiers came to the hamlet, gathered the villagers together and asked them why they had not yet left the hamlet. The soldiers then destroyed some parts of the houses in the hamlet, using hand grenades and pickaxes. Before leaving the hamlet, they told the villagers to leave within three days. On the third day the soldiers returned to the village and burned a few more houses, including the barn and the roof of the witness' own house.
52. The witness and his family left the hamlet and went to Yardere. His two-day old twin sons lost their lives on the way. A few days later, he returned to the hamlet to visit it and saw that the applicant's house had also been burned down. After these events soldiers continued to go to the hamlet and on each of their visits they burned the remaining parts of the houses. The witness heard that approximately one year after the events, the soldiers had burned down the orchards and other trees around the village.
53. Mr Çirik was living in Yardere village at the time of the alleged events. He heard the sound of gunshots and bombs coming from the direction of Kaynak hamlet. Four or five days later villagers from Kaynak hamlet came to Yardere and told them that they were being chased by the military. These villagers were then housed in Yardere village. At a later date, the orchards and other trees were set on fire.
54. Captain Göçmen was an army captain and commanding officer of the Mardin Provincial Gendarme Headquarters at the time of the alleged events. His headquarters had overall responsibility for a number of villages, including that of the applicant's hamlet, within the administrative jurisdiction of Mardin.
55. He never asked any villager to become a village guard.
56. One evening in April 1992, PKK members raided Konaklı gendarme station. The following day four or five terrorists were arrested. Two of them were from Kaynak hamlet and their surname was İlhan. These two persons stated that they had a hiding place in Kaynak hamlet which they showed to Captain Göçmen on or around 21 April 1992. A number of weapons were found in this hiding place and it was destroyed by the soldiers to prevent the terrorists from using it again in the future. No houses were burned down or demolished by the soldiers during this search. The reports and other documents pertaining to the arrests and the finding of the hiding place and weapons were prepared and submitted to the local public prosecutor.
57. He could not remember whether he had ever been questioned by the authorities in relation to the allegations made by the applicant. The reason for his inability to remember was that, in his opinion, these allegations were fabricated and therefore not serious, which was why he had not paid any attention to them.
58. The inhabitants of Kaynak hamlet were in the habit of leaving the hamlet every summer to go to Yardere village where there was more water for their animals. They would then return to the hamlet at the end of the summer. It was possible that the villagers had left the hamlet in the summer of 1992 following the discovery of the hiding place and the weapons, because they might have feared that the PKK would punish them.
59. Sergeant Yılmaz is a gendarme NCO and was commanding officer of Konaklı Gendarme Station at the time of the alleged events.
60. A terrorist with the surname İlhan, who had been apprehended previously, told them that there was a hiding place in Kaynak hamlet. The witness and a number of other gendarme officers and soldiers visited the hamlet together with the arrested person on or around 21 April 1992 and recovered a number of weapons from a hiding place. The hiding place was then destroyed by the soldiers. The soldiers did not burn or destroy any of the houses in the hamlet. A report was prepared detailing the events of the day and a sketch indicating the location of the hiding place was drawn up. These documents would have been sent to the local prosecutor in line with the applicable procedure.
61. The villagers must have left the hamlet in July or August 1992 because of their fear of the PKK and gone to live in villages where there were gendarme stations.
62. He could not remember whether he had ever been questioned by the authorities in relation to the allegations made by the applicant.
63. Sergeant Kuşçu is a gendarme NCO who was commanding officer of Akıncı Gendarme Station at the time of the alleged events. He had heard about the attack on the Konaklı gendarme station but did not remember any details of this attack. Similarly, he remembered having heard that an operation had been conducted following this attack but did not know any of the details. He had never been to Kaynak hamlet and had only seen it from afar. He never heard about the allegations concerning the alleged destruction of houses in Kaynak. The applicant had never been detained at his station.
64. Mr Değirmenci is a gendarme expert sergeant who worked at Konaklı Gendarme Station until the end of June 1992. His immediate superior was Akın Yılmaz. There had been an attack on Konaklı gendarme station on 2 April 1992 and a terrorist, who had been arrested three days after this incident, was detained at the Mardin Provincial Gendarme Headquarters. On 21 April 1992 an operation was carried out in Kaynak hamlet during which the arrested terrorist showed the soldiers a hiding place in which a number of weapons were found. The hiding place was subsequently destroyed by the soldiers using pickaxes. This operation was carried out with the participation of approximately 40 gendarme officers and soldiers from the gendarme headquarters in Mardin, and the Konaklı and Akıncılar stations. Sergeant Duran Kuşçu and Ahmet Kurt, a gendarme NCO, also took part in the operation. Overall command of the operation rested with Captain Mehmet Göçmen. A report was prepared on the spot and signed by the commanders involved in the operation. During this operation no houses were burned down.
65. The witness had never been questioned by the domestic authorities about the allegations made by the applicant.
66. Sergeant Çalışkan is a gendarme NCO who succeeded Akın Yılmaz as commanding officer of Konaklı Gendarme Station in July 1992. He was entrusted by the emergency governor with the duty to investigate the allegations made by the applicant. He visited Kaynak hamlet to question the applicant but there was no one living in the village. All the houses and vineyards were intact. During his time in office until 1995 no one lived in the hamlet. He questioned a number of villagers in Yardere about the allegations but did not remember their names. He also did not remember checking the official records at the station or questioning his predecessor to verify whether an operation had indeed been conducted in Kaynak on 21 April 1992 as alleged. Furthermore, he did not deem it necessary to append any such records to his report since he was of the view that the gendarme headquarters in Mardin would already have such reports in their files.
67. The witness heard from his colleagues and also from the villagers in Yardere that Kaynak hamlet had been visited by soldiers and a hiding place for terrorists had been found. He was not sure whether this was a relevant piece of information which he should have conveyed to the emergency governor in his investigation report.
68. Sergeant Göl is a gendarme NCO who prepared the report of 14 November 1994 (see paragraph 33 above) during his time at the Mardin Provincial Gendarme Headquarters. This report was prepared at the request of the emergency governor who had instructed him to investigate the allegations made by the applicant. In the course of his investigation he visited the hamlet, examined a number of documents and questioned several villagers. When he visited the village there were no signs of any burning or demolition of houses; the houses were still standing, but the roofs of some of the houses had been destroyed due to natural causes.
69. The witness stated that there were no reports at the gendarme headquarters in Mardin concerning the operation that had taken place on 21 April 1992; had such an operation taken place there would have been reports.
70. The witness was living in the village of Yardere at the time of the alleged events but did not hear the allegations about the destruction of the houses in Kaynak. He had not been to Kaynak since 1992. The applicant's family came to live in Yardere at some stage in 1992. The vineyards and trees owned by the applicant's family were still there and had not been burned. The witness and other villagers left their village in 1994 due to the intensity of the clashes between the PKK and Turkish armed forces, and went to Oğuzköy where there is a gendarme station. He should like to return to his village if the Government allowed him.
71. The witness was living in Yardere at the time of the alleged events. He subsequently became the headman of the village in 1994.
72. The applicant's family came to Yardere village at some stage in 1992. It was a lie that soldiers burned some of the houses. He visited Kaynak hamlet one day where he, “looked at the house. That house did not have an owner; it was not maintained. It was dilapidated”.
73. The witness and his family left Yardere in 1994 together with other villagers. He should like to return to his village but this required the permission of the authorities.
74. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003).
VIOLATED_ARTICLES: 13
3
8
NON_VIOLATED_ARTICLES: 14


ITEMID: 001-5717
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: KURAKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Baka
TEXT: The applicant is a Slovak national, born in 1951 and living in Hurbanovo. She is represented before the Court by Mrs A. Bödök, a lawyer practising in Komárno. The respondent Government are represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 December 1992 the applicant claimed before the Komárno Land Office (Pozemkový úrad), pursuant to the Land Ownership Act (see “Relevant domestic law” below), restitution of real property which had been confiscated from a person who had been in the applicant’s care. She submitted further information in support of her claim on 31 August and 13 November 1995.
On 18 January 1996 the applicant informed the Land Office that an agreement on the restitution of the property had not been reached. As a result, the Land Office was called upon to decide on the applicant’s claim in accordance with Sectin 9 (4) of the Land Ownership Act.
On 20 February 1996 the Komárno Land Office dismissed the claim on the ground that the applicant lacked standing to claim the restitution. The applicant sought a judicial review of this decision.
On 31 October 1996 the Bratislava Regional Court (Krajský súd) quashed the Land Office’s decision as being erroneous.
On 20 January 1997 the applicant requested the Komárno District Office (Okresný úrad), to which the case had fallen to be examined, to decide on her claim speedily.
On 28 January 1997 the Komárno District Office found, with reference to Section 11 (1) of the Land Ownership Act, that the land claimed by the applicant could not be restored as it had been transferred to other individuals. The decision further stated that on 1 October 1996 proceedings had started pursuant to the Plots Ownership Adjustment Act with a view to updating documentation relating to the plots in the area concerned. The District Office concluded that it would be able to decide which plots could be restored to the applicant and for which plots she could receive other property in compensation only after the relevant entries were updated and after the existing property rights in respect of the relevant plots were ascertained. It therefore stayed the proceedings concerning the applicant’s claim pursuant to Sections 29 (1) and 40 of the Administrative Proceedings Act pending the outcome of the administrative proceedings brought on 1 October 1996.
On 17 March 1997 the applicant lodged a constitutional complaint in which she challenged the District Office’s decision to stay the proceedings. She argued that there existed no relevant documents showing that the land in question was owned by individuals. The applicant complained that she was discriminated against as other persons’ restitution claims had been granted prior to the entry into force of the Plots Ownership Adjustment Act. She further complained that the persons using the land at issue were in a more favourable position as they could possibly become its owners by prescription pursuant to Section 11 (8) of the Plots Ownership Adjustment Act.
On 23 June 1997 the District Office informed the Constitutional Court (Ústavný súd) that in 1954 and in 1957 the land confiscated from the applicant’s relatives had been allocated to other persons. As there existed numerous lacunas in the relevant documents including the entries in the land registry, the District Office considered it appropriate to ascertain the existing rights in respect of the land in question prior to deciding on the applicant’s claim.
In her submissions to the Constitutional Court of 19 April 1998 the applicant argued, inter alia, that the decision to stay the proceedings was contrary to Section 11 (8) (b) of the Plots Ownership Adjustment Act.
On 24 April 1998 the Constitutional Court found that there had been no violation of the applicant’s constitutional rights. It noted that the decision to stay the proceedings was of a procedural nature and that it did not determine the applicant’s rights under the Land Ownership Act. The Constitutional Court referred to the documents submitted to it by the District Office and held it for established that the land in question had been allocated to other persons who had thereby become its owners. In the Constitutional Court’s view, the District Office’s decision to stay the proceedings brought by the applicant pending the determination of the existing titles in respect of the relevant property was therefore justified.
The Constitutional Court considered it irrelevant that in other cases the existing documentation permitted to decide on similar claims without the determination of any preliminary issues. Finally, the Constitutional Court found erroneous the applicant’s view that her claim should have been given priority by virtue of Section 11 (8) (b) of the Plots Ownership Adjustment Act.
The proceedings brought under the Plots Ownership Adjustment Act on 1 October 1996 appear to be still pending.
Administrative Proceedings Act of 1967
Section 29 (1) in conjunction with Section 40 of the Administrative Proceedings Act of 1967 (Zákon o správnom konaní) provides that an administrative authority shall stay proceedings before it when other proceedings concerning a preliminary issue are pending.
Land Ownership Act of 1991
Under Section 11 (1) (a) of the Land Ownership Act of 1991 (Zákon o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku), land owned or lawfully used by individuals cannot be restored.
Section 11 (2) provides that in such cases other land of comparable size and quality owned by the State is to be transferred to the persons entitled to restitution.
Plots Ownership Adjustment Act of 1995
The Plots Ownership Adjustment Act of 1995 (Zákon o niektorých opatreniach na usporiadanie vlastníctva k pozemkom) provides for certain measures aiming at, inter alia, updating documentation concerning the size of plots and the relevant legal titles where the data available is incomplete. For this purpose, the competent administrative authorities shall bring proceedings with a view to gathering the existing data and drawing up a new inventory of the plots. After its approval by a special commission such an inventory entitles the persons concerned to have their titles formally entered in the land registry.
Section 11 (1) of the Plots Ownership Adjustment Act provides that in the course of the proceedings an administrative authority may issue, at the proposal of a party, a decision confirming that the claimant acquired the ownership of a plot by prescription. Pursuant to paragraph 8 (b) of the same Section, such a claim cannot be granted when the ownership of the plot is claimed by another person in the same proceedings or when it is the subject-matter of different proceedings brought, for example, under the Land Ownership Act.
Complaints Act of 1998
The Complaints Act (Zákon o sťažnostiach) was enacted on 14 May 1998 and entered into force on 1 June 1998. It governs registration and examination of complaints lodged by individuals or legal persons alleging, inter alia, that their rights or legally protected interests were violated or jeopardised as a result of an action of a public authority or its failure to act. The explanatory report to the Complaints Act expressly states that its provisions extend to, inter alia, delays in proceedings before public authorities.
Pursuant to Section 4 (c), the Complaints Act does not relate to submissions the examination of which is governed by other laws, e.g. complaints about delays in judicial proceedings which fall to be examined pursuant to the State Administration of Justice Act of 1992.
Section 11 (1) of the Complaints Act provides, inter alia, that the head of the public authority concerned is responsible for examination of a complaint. When a complaint is directed against the head of a public authority, it falls to be examined by the hierarchically superior authority.
Section 13 provides that a complaint is to be examined within 30 days from the date of its receipt. When co-operation of other authorities or persons is required, a complaint should be examined within 60 days. In exceptional circumstances the time-limit for examination of a complaint may be extended by 30 days.
Under Section 18 (1) of the Complaints Act, a record has to be drawn of the examination of a complaint. The record shall contain, inter alia, a statement of the relevant facts and also indicate by whom, how and when any shortcomings found have to be remedied. The person concerned is obliged to submit a report on how the conclusions were complied with.
Section 19 (1) provides for informing the complainant about the outcome of the examination of his or her complaint. When a complaint was found to be justified, the complainant shall also be informed about any measures taken with a view to remedying the shortcomings found.


ITEMID: 001-122004
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: HABULINEC AND FILIPOVIĆ v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 1. The applicants, Mr Josip Habulinec and Ms Anita Filipović, are Croatian nationals who were born in 1968 and 1972 respectively and live in Krapinske Toplice. They were represented before the Court by Ms I. Bojić, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicants are cohabitees who have two children together, born in 2007 and 2008.
5. On 26 January 2010 the second applicant gave birth to A., who died a day later in Zabok General Hospital.
6. On 28 January 2010 the birth of A. was registered at the Zabok Register Office and the second applicant was registered as A.’s mother, while data about the child’s father were not registered.
7. In March 2010 the first applicant went to the Zabok Register Office asking to be registered as A.’s father, but was told that it was not possible to recognise paternity of a deceased child.
8. On 2 July 2010 the applicants contacted the Zabok Register Office through their representative, seeking registration of the first applicant’s paternity.
9. On 9 July 2010 the applicants’ counsel was informed by letter that registration of the first applicant’s paternity was not possible because the child was deceased.
10. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows:
“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.”
“Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.”
“International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence in terms of their legal effects over the [domestic] statutes. ...”
11. In its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of the Constitution.
12. Section 62(1) of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads:
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local or regional self-government, or a legal person with public authority, which has decided on his or her rights and obligations, or on a suspicion or accusation in respect of a criminal act, has violated his or her human rights or fundamental freedoms, ... guaranteed by the Constitution (hereinafter: ‘constitutional right’) ...”
13. The relevant part of the Courts Act (Zakon o sudovima, Official Gazette no. 3/1994, 100/96, 131/97, 129/2000, 17/2004, and 141/2004), as in force at the material time, provided as follows:
“1. The courts adjudicate cases on the basis of the Constitution and statutes.
2. The courts adjudicate cases also on the basis of the international agreements which are the part of the [internal] legal order of the Republic of Croatia ...”
14. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette no. 53/1991 of 8 October 1991) are as follows:
Section 218 (1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative authority shall give a decision and serve it on a party within one month following the submission of an application. In all other, more complex cases, the authority shall give a decision and serve it on a party within two months.
Section 218 (2) provides that a party whose application has not been decided and served within the time-limits set out in paragraph (1) may lodge an appeal (appeal for failure to respond, žalba zbog šutnje administracije) as if his or her application had been dismissed.
Section 247 (1) provides that a decision on an appeal shall be given and served on a party as soon as possible, but at the latest within two months following the submission of the appeal.
Section 246 (1) provides that the second-instance administrative authority deciding on an appeal for failure to respond shall request the firstinstance authority to give reasons for its omission. If it finds that the failure to respond was attributable to the party, or that the reasons for such an omission were otherwise justified, the second-instance authority shall order the first-instance authority to give a decision within one month. If it finds that the omission was not justified, it shall request the case file.
Section 246 (2) provides that if the case file contains sufficient information, the second-instance administrative authority shall decide the case. Otherwise, it shall first hear the case and take evidence, and then give a decision. Exceptionally, if it considers that such a procedure would save time and costs, it shall order the first-instance authority to hear the case and take evidence within a specified time-limit, whereupon it shall decide the case itself. That decision shall be final.
15. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) are as follows:
Section 26 (1) provides that if the appellate administrative authority fails to give a decision on a party’s appeal against a first-instance decision within sixty days, and fails to do so upon a repeated request within a further period of seven days, the party may bring an action in the Administrative Court (action for failure to respond, tužba zbog šutnje administracije), as if his or her appeal had been dismissed.
Section 26 (2) provides that when the first-instance administrative authority fails to give a decision against which no appeal lies, the party may directly bring an action in the Administrative Court.
Section 26 (3) provides that, in matters where the right of appeal exists, if a first-instance administrative authority fails to give a decision on a party’s application within sixty days, that party may submit his or her application to the appellate administrative authority. Against the latter authority’s decision the party may bring an action in the Administrative Court, and if the authority fails to give a decision the party may bring an administrative action under the conditions set out in paragraph 1.
Section 42 (5) provides that when the Administrative Court, following an action for failure to respond, finds for the plaintiff, it shall either instruct the respondent administrative authority as to how to decide the case on points of law, or shall itself rule on the application (acting as a court of full jurisdiction under paragraph 2 of section 64).
Section 64 (1) provides that, in execution of the judgment rendered under section 42 (5), the administrative authority shall issue its decision immediately, but at the latest within thirty days. Otherwise, a party may make a special submission requesting it to do so. If the authority does not issue a decision within seven days following such a submission, that party may apply to the Administrative Court.
Section 64 (2) provides that if such an application is made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately, but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision which will substitute the decision of the administrative authority.
16. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007), which entered into force on 22 July 2003, read as follows:
“Maternity and paternity cannot be recognised after a child’s death, save where a child has descendants.”
17. The relevant part of the Prevention of Discrimination Act (Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) reads as follows:
“(1) This Act ensures protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health condition, invalidity, genetic inheritance, gender identity, expression or sexual orientation.
(2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection 1 of this section, as well as his or her close relatives ...”
“This Act shall be applied in respect of all State bodies ... legal entities and natural persons ...”
“Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.”
“A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek:
1. a ruling that the defendant has violated the plaintiff’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff’s right to equal treatment (claim for an acknowledgment of discrimination);
2. a ban on (the defendant’s) taking actions which violate or may violate the plaintiff’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination);
3. compensation for pecuniary and non-pecuniary damage caused by violation of the rights protected by this Act (claim for damages);
4. an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant’s expense ...”


ITEMID: 001-115377
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MICHAUD v. FRANCE
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Helen Keller;Karel Jungwiert;Mark Villiger
TEXT: 8. The applicant was born in 1947 and lives in Paris. He is a member of the Paris Bar and the Bar Council.
9. He submitted that the European Union had adopted three Directives in succession aimed at preventing the use of the financial system for money-laundering. The first (91/308/EEC of 10 June 1991) targets credit and financial institutions. It was amended by a Directive of 4 December 2001 (2001/97/EC) which, among other things, widened its scope to include professions outside the financial sector, including members of the independent legal professions. The third Directive (2005/60/EC of 26 October 2005) repealed the Directive of 10 June 1991, as amended, and reproduced and added to its content. The laws transposing these Directives – Law no. 2004-130 of 11 February 2004 in the case of the Directive of 10 June 1991, as amended – and the regulations implementing that law – Decree no. 2006-736 of 26 June 2006 – have been incorporated into the Monetary and Financial Code (for more details see sections III and IV below on relevant European Union and domestic law).
10. These texts place lawyers under an “obligation to report suspicions” which the legal profession – who see it as a threat to professional privilege and the confidentiality of exchanges between lawyers and their clients – have constantly criticised, in particular through the National Bar Council.
11. However, on 12 July 2007 the National Bar Council took a “decision adopting regulations on internal procedures for implementing the obligation to combat money-laundering and terrorist financing, and an internal supervisory mechanism to guarantee compliance with those procedures” (published in the Official Gazette on 9 August 2007). In so doing it was effectively applying section 21-1 of the Law of 31 December 1971 reforming certain legal and judicial professions, which empowered it, with due respect for the laws and regulations in force, to take general measures to unify the rules and practices of the legal profession.
12. Article 1 of the above-mentioned decision states that “all lawyers who are members of a French Bar” are bound by these rules of their profession when, in the course of their business activity, they participate for and on behalf of their client in any financial or real-estate transaction or assist their client in the preparation or execution of transactions relating to: (1) the buying and selling of real estate or businesses; (2) the management of funds, securities or other assets belonging to the client; (3) the opening of current accounts, savings accounts or securities accounts; (4) the organisation of the contributions required to create companies; (5) the formation, administration or management of companies; and (6) the formation, administration or management of trusts governed by a foreign legal system, or of any other similar structure. They are not bound by these rules “when acting as legal counsel or in the context of judicial proceedings” in connection with one or other of the above activities (Article 2).
13. The regulations establish in particular that lawyers must always “show due diligence” in this context and “develop internal procedures” to ensure compliance with, inter alia, the laws and regulations governing the reporting of suspicions (Article 3), indicating in particular the procedure to be followed when an operation appears to warrant such reporting (Article 7). More specifically, they must adopt written rules describing the steps to be taken (Article 5). They must also ensure that the regulations are properly applied in their structure, and that lawyers and staff receive the necessary information and training, tailored to their particular activities (Article 9), and set up an in-house monitoring system (Article 10). At the same time, the regulations also specify that “lawyers must, in all circumstances, ensure that professional confidentiality is respected” (Article 4).
14. Failure to comply with these regulations can entail disciplinary sanctions and even being struck off (Articles 183 and 184 of Decree no. 911197 of 27 November 1991 organising the legal profession).
15. On 10 October 2007, considering that it undermined lawyers’ freedom to exercise their profession and the essential rules regulating that profession, the applicant appealed to the Conseil d’Etat to have the decision set aside. He submitted that there was no law or regulation giving the National Bar Council regulatory powers in such matters as money-laundering. Furthermore, pointing out that the decision concerned required lawyers to adopt in-house procedures to ensure compliance with the instructions on the reporting of suspicions, subject to disciplinary sanctions, and that the term “suspicions” was not defined, he complained that this was in breach of the requirement of legal certainty inherent in Article 7 of the Convention. In addition, referring to the André and Another v. France judgment (no. 18603/03, 24 July 2008), he contended that the regulations adopted by the National Bar Council were incompatible with Article 8 of the Convention, as the “obligation to report suspicions” jeopardised legal professional privilege and the confidentiality of exchanges between lawyer and client. Lastly, under Article 267 of the Treaty on European Union, he asked the Conseil d’Etat to refer the matter to the Court of Justice of the European Union for a preliminary ruling on the conformity of the “declaration of suspicion of criminal offence” with Article 6 of the Treaty on European Union and Article 8 of the Convention.
16. By a judgment of 23 July 2010, the Conseil d’Etat rejected the bulk of the submissions in the application.
17. Concerning the submission based on Article 7 of the Convention, the judgment found that the “reporting of suspicions” referred to in the disputed decision was not unclear in so far as it referred to the provisions of Article L. 562-2 of the Monetary and Financial Code (subsequently amended to become Article L. 561-15). As to the submission based on Article 8, the judgment rejected it on the following grounds:
“... if, according to the applicant, the provisions of [Directive 91/308/EEC, as amended] are incompatible with those of Article 8 of the Convention ... which protect the fundamental right to professional confidentiality, among other things, that Article also permits interference by the authorities with that right when necessary in the interests of public safety, for the prevention of disorder or crime ...; ... regard being had on the one hand to the general interest served by combating money-laundering and, on the other, to the safeguard provided by the exclusion from its scope of information received or obtained by lawyers in the course of activities connected with judicial proceedings, or in their capacity as legal counsel, save, in this latter case, where the lawyer is taking part in money-laundering activities, or the legal advice is provided for money-laundering purposes, or the lawyer knows that the client is seeking legal advice for money-laundering purposes, the obligation under the Directive concerned for lawyers to report their suspicions does not amount to excessive interference with professional confidentiality; ... accordingly there is no need to refer the matter to the Court of Justice of the European Union for a preliminary ruling and the submission concerning the breach of the Convention provision concerned must be rejected.”
18. The recommendations adopted by the FATF provide, inter alia, for a duty of diligence on the part of financial institutions and require them to report suspicious transactions.
Recommendation no. 12 proposed widening the scope of the professions concerned by the requirement of due diligence to include “lawyers, notaries, other independent legal professionals and accountants” when they prepare or carry out transactions for their clients concerning the following activities: buying and selling of real estate; managing of client money, securities or other assets; management of bank, savings or securities accounts; organisation of contributions for the creation, operation or management of companies; and creation, operation or management of legal persons or arrangements, and buying and selling of business entities. Recommendation no. 16 widened the scope of the obligation to report suspicious transactions to include the same professions when engaging in the above activities, but provided for an exception when the relevant information was obtained in circumstances where they were subject to professional secrecy or legal professional privilege.
19. The Council of Europe Convention of 16 May 2005 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (which came into force on 1 May 2008 but has not been ratified by France) contains the following provisions concerning the prevention of money-laundering (Article 13 §§ 1 and 2).
“1. Each Party shall adopt such legislative and other measures as may be necessary to institute a comprehensive domestic regulatory and supervisory or monitoring regime to prevent money-laundering and shall take due account of applicable international standards, including in particular the recommendations adopted by the Financial Action Task Force on Money Laundering (FATF).
2. In that respect, each Party shall adopt, in particular, such legislative and other measures as may be necessary to:
(a) require legal and natural persons which engage in activities which are particularly likely to be used for money-laundering purposes, and as far as these activities are concerned, to:
(i) identify and verify the identity of their customers and, where applicable, their ultimate beneficial owners, and to conduct ongoing due diligence on the business relationship, while taking into account a risk-based approach;
(ii) report suspicions on money-laundering subject to safeguards;
(iii) take supporting measures, such as record-keeping on customer identification and transactions, training of personnel and the establishment of internal policies and procedures, and if appropriate, adapted to their size and nature of business;
(b) prohibit, as appropriate, the persons referred to in sub-paragraph (a) from disclosing the fact that a suspicious transaction report or related information has been transmitted or that a money-laundering investigation is being or may be carried out;
(c) ensure that the persons referred to in sub-paragraph a are subject to effective systems for monitoring, and where applicable supervision, with a view to [ensuring] their compliance with the requirements to combat money-laundering, where appropriate on a risk-sensitive basis.”
According to the explanatory report, the intention of the drafters of this Convention was that it should also cover the “non-financial professions” referred to in FATF Recommendation no. 12. Moreover, the expression “subject to safeguards” in Article 13 § 2 (a) (ii) primarily means that it is in respect of the independent legal professions that the restriction “resulting from professional secrecy or legal professional privilege” contained in FATF Recommendation no. 16 (and its explanatory note) is relevant.
20. On 10 June 1991 the Council of the European Communities adopted Directive 91/308/EEC on the prevention of the use of the financial system for the purpose of money-laundering. The aim was to oblige credit and financial institutions to identify their customers and all transactions in excess of 15,000 euros (EUR), to “examine with special attention” any suspicious transaction they considered likely to be related to money-laundering, and to report any sign of money-laundering to the relevant authorities. It was amended by Directive 2001/97/EC of 4 December 2001, which broadened the definition of laundering and extended the obligation to identify clients and report suspicious transactions to a series of professionals outside the financial sector, and in particular to “independent legal professionals”.
21. Directive 91/308/EEC, as amended, was repealed by Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the purpose of money-laundering and terrorist financing, which reproduces and adds to the text of the earlier Directive. Recital 19 specifies that “independent legal professionals ... as defined by the member States ... are subject to the provisions of [the] Directive when participating in financial or corporate transactions, including providing tax advice, where there is the greatest risk of the services of those legal professionals being misused for the purpose of laundering the proceeds of criminal activity or for the purpose of terrorist financing”. Article 2 § 1 (3) (b) specifies that the Directive applies to them when, “acting in the exercise of their professional activities”, “they participate, whether by acting on behalf of and for their client in any financial or real-estate transaction, or by assisting in the planning or execution of transactions for their client concerning the: (i) buying and selling of real property or business entities; (ii) managing of client money, securities or other assets; (iii) opening or management of bank, savings or securities accounts; (iv) organisation of contributions necessary for the creation, operation or management of companies; (v) creation, operation or management of trusts, companies or similar structures”.
22. The Directive calls in certain cases for customer due diligence measures, including identifying and verifying the identity of the customer and the beneficial owner and obtaining information on the purpose and intended nature of the business relationship (Article 8 § 1 (a), (b) and (c)). Member States are in principle obliged to require that, where the institution or person concerned is unable to comply with its obligations, they “may not carry out a transaction through a bank account, establish a business relationship or carry out the transaction, or shall terminate the business relationship, and shall consider making a report to the financial intelligence unit (FIU) in accordance with Article 22”. This obligation does not apply, however, “in situations when ... independent legal professionals ... are in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings” (Article 9 § 5).
23. It also enshrines the obligation to report suspicions, specifying that “member States shall require the institutions and persons [concerned] ... to cooperate fully”, “by promptly informing the FIU, on their own initiative, where [they] know, suspect or have reasonable grounds to suspect that money-laundering or terrorist financing is being or has been committed or attempted” and “by promptly furnishing the FIU, at its request, with all necessary information, in accordance with the procedures established by the applicable legislation” (Article 22 § 1).
24. However, where “independent legal professionals” are concerned, “member States may ... designate an appropriate self-regulatory body of the profession concerned as the authority to be informed in the first instance in place of the FIU”, in which case the designated self-regulatory body must “forward the information to the FIU promptly and unfiltered” (Article 23 § 1).
25. And member States are not obliged to apply the obligations laid down in Article 22 to (inter alia) “independent legal professionals ... with regard to information they receive from or obtain on one of their clients, in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings, whether such information is received or obtained before, during or after such proceedings” (Article 23 § 2).
26. Lastly, according to recital 48, “[n]othing in this Directive should be interpreted or implemented in a manner that is inconsistent with the European Convention on Human Rights”.
27. In 2005, in connection with an application lodged by various Belgian Bar associations to have certain legal provisions transposing Directive 2001/97/EC annulled, the Belgian Constitutional Court referred the following question to the Court of Justice of the European Communities for a preliminary ruling:
“Does Article 1, [§ 2], of Directive 2001/97 ... breach the right to a fair trial guaranteed by Article 6 of the [Convention] ... in so far as the new Article 2 bis, [§ 5] which it adds to Directive 91/308/EEC imposes the inclusion of independent legal professionals – no exception being made for lawyers – in the scope of the said Directive, which, in substance, requires certain people and institutions to inform the authorities responsible for combating money-laundering of any sign that may be an indication of money-laundering (Article 6 of Directive 91/308/EEC, replaced by Article 1, [§ 5], of Directive 2001/97/EC)?”
The Bar associations submitted in particular that in extending to lawyers the obligation to inform the competent authorities of any transactions they knew or suspected were linked to money-laundering, the legislation concerned was in breach of the principles of professional confidentiality and the independence of the lawyer, which are essential aspects of the fundamental right to a fair trial and the rights of the defence.
28. In its judgment of 26 June 2007, the Court of Justice disagreed.
29. Firstly, it pointed out that fundamental rights formed an integral part of the general principles of law which it upheld, drawing on the constitutional traditions shared by the member States and the guidance given by the international human rights protection treaties to which the member States were party or with which they cooperated, among which the European Convention on Human Rights was “particularly significant”. It concluded that the right to a fair trial enshrined, inter alia, in Article 6 of the Convention was a fundamental right which the European Union respected as a general principle by virtue of Article 6 § 2 of the Treaty on European Union.
Next, it noted that under the Directive in question the obligations to report and cooperate applied to lawyers only when they were helping their clients to prepare or carry out certain types of transaction, mainly financial or real-estate operations, or when they were acting in the name and on behalf of their clients in such financial transactions or real-estate operations. It pointed out that as a general rule these activities, by their very nature, took place in contexts that were not related to any judicial proceedings and therefore did not concern the right to a fair trial.
The Court of Justice further noted that where a lawyer’s assistance with a transaction was requested in connection with the defence or representation of a client in judicial proceedings, or advice on instituting or avoiding proceedings, the Directive exempted the lawyer from these obligations. It considered that this exemption protected the client’s right to a fair trial. It also stated that the requirements relating to the right to a fair trial did not preclude the obligations of information and cooperation from being imposed on lawyers acting specifically in the situations listed in the preceding paragraph where those obligations were “justified by the need ... to combat money-laundering effectively, in view of its evident influence on the rise of organised crime, which itself [was] a particular threat to society in the member States”.
30. The above-mentioned Directives have been transposed into French law and included (and amended several times) in the Monetary and Financial Code.
31. The obligations of customer due diligence are codified in Articles L. 561-5 to L. 561-14-2, and those concerning reporting in Articles L. 561-15 to L. 561-22 (in the present version of the Code).
32. These provisions apply to various organisations and professionals listed in Article L. 561-2 of the Code, including lawyers in the Conseil d’Etat and the Court of Cassation, and lawyers and avoués in the courts of appeal when, “in the context of their business activity ... 1. They participate for and on behalf of their client in any financial or real-estate transaction or act as a trustee; 2. They assist their client in the preparation or execution of transactions relating to: (a) the buying and selling of real estate or businesses; (b) the management of funds, securities or other assets belonging to their client; (c) the opening of current accounts, savings accounts or securities accounts, or of insurance policies; (d) the organisation of the contributions required to create companies; (e) the formation, administration or management of companies; (f) the formation, administration or management of trusts governed by Articles 2011 to 2031 of the Civil Code or by a foreign legal system, or of any other similar structure; (g) the formation or administration of endowment funds (Article L. 561-3 I). They do not apply to them, however, when the activity relates to judicial proceedings, whether the information they have was received or obtained before, during or after said proceedings, including any advice given with regard to the manner of initiating or avoiding such proceedings, nor where they give legal advice, unless said information was provided for the purpose of money-laundering or terrorist financing or with the knowledge that the client requested it for the purpose of money-laundering or terrorist financing” (Article L. 561-3 II).
33. Article R. 563-3 provided for internal procedures for implementing the legal obligations to be set in place, as appropriate, by ministerial decree or through professional regulations approved by the Minister.
34. The obligation of due diligence means that before entering into a business relationship with their client the person or entity concerned must identify the client and, where applicable, the effective beneficiary of the business relationship, and verify proof of identity (Article L. 561-5 I). As an exception, where the risk of money-laundering or of terrorist financing appears to be low, the identity of the client and, where applicable, that of the effective beneficiary, may be verified when the business relationship is in the process of being established (Article L. 5615 II). Information relating to the object and nature of the business relationship and any other piece of relevant information concerning the client must also be gathered before the business is transacted. Throughout its duration the persons or entities concerned are required to apply “constant due diligence” to the business relationship, within the limits of their rights and obligations, and carry out a “thorough examination of the transactions executed, taking care to ensure that they are consistent with the latest information they have concerning their client” (Article L. 561-6).
35. Where a party is unable to identify its client or to obtain information on the object and nature of the business relationship, it must not execute any transaction, regardless of the particulars, or establish or pursue any business relationship. Where it has been unable to identify its client or to obtain information on the object and nature of the business relationship, and the relationship has nevertheless been established pursuant to Article L. 5615 II, it must terminate it (Article L. 561-8).
36. The persons or entities concerned must declare to their country’s financial intelligence unit (“the FIU”) the sums entered in their books or the transactions relating to sums which they know, suspect or have good reasons for suspecting are the proceeds of an offence punishable by a custodial sentence of more than one year or are destined for terrorist financing (Article L. 561-15 I).
They must also declare the sums or transactions which they know, suspect or have good reasons for suspecting are the proceeds of a tax fraud, where at least one of the following criteria defined by Article D. 561-32-1 II is present (Article L. 561-15 II):
“1. The use of a front company, whose activity is inconsistent with its stated object or which has its registered office in a State or territory which has not signed a tax agreement with France giving it access to bank information, as identified from a list published by the tax authorities, or at the private address of one of the beneficiaries of the suspicious operation, or in premises occupied by several businesses within the meaning of Article L. 123-11 of the Commercial Code;
2. Financial operations made by a company whose articles of association have undergone frequent changes not justified by the economic situation of the company concerned;
3. Recourse to middlemen acting in appearance only for the companies or individuals involved in financial operations;
4. Carrying out financial operations inconsistent with the usual activities of the company or suspicious operations in sectors sensitive to carousel-type VAT fraud, such as information technology, telephones, electronic goods, household appliances, hi-fi and video;
5. The sudden, unexplained sharp increase over a short period in the amounts credited to newly opened or hitherto inactive accounts, possibly linked to a sharp increase in the number and volume of transactions or the use of previously dormant or inactive companies whose articles of association have recently undergone changes;
6. The presence of anomalies in the invoices or order forms presented as justification for financial operations, such as a missing company registration or [French] SIREN or VAT number, invoice number, address or date;
7. The unexplained use of payable-through accounts which register large numbers of debit and credit operations while the balance remains close to zero;
8. The frequent withdrawal of cash from or deposit of cash in a business account which is not justified by the volume or nature of the economic activity;
9. Difficulty in identifying the end beneficiaries and the links between the origin and destination of funds because of the use of intermediate accounts or non-financial business accounts such as payable-through accounts, or the use of complex legal and financial business structures which tend to obscure management and administrative machineries;
10. International financial operations with no apparent legal or economic justification, often limited to the simple transit of funds from or to other countries, when the countries concerned are States or territories referred to in 1. above;
11. Refusal or inability of the client to supply proof of the origin of funds received or justification of payments made;
12. Transfer of funds to a foreign country, followed by repatriation thereof in the form of loans;
13. Organisation of insolvency by the rapid sale of assets to persons or legal entities or on terms that reflect a clear and unjustified imbalance in the selling price;
14. Regular use by individuals living and having an activity in France of accounts held by foreign companies;
15. The deposit by a private individual of funds unrelated to his known activity or assets;
16. The sale of real estate at a grossly undervalued price.”
They are also required to declare to the FIU any transaction in respect of which the identity of the principal or of the effective beneficiary or of the grantor of a fiduciary fund or of any other management instrument of a special-purpose trust remains dubious despite the steps taken pursuant to Article L. 5615 (Article L. 561-15 IV).
A decree of the Conseil d’Etat specifies the form this declaration must take.
37. The persons and entities concerned must refrain from executing any transaction which they suspect may be linked to money-laundering or to terrorist financing until such time as they have made the report referred to above (Article L. 561-16). Where a transaction which should have been the subject of the report referred to in Article L. 561-15 has already been executed on account of it being impossible to defer its execution, or because its deferral could have obstructed investigations relating to a suspected money-laundering or terrorist financing transaction, or because it did not appear to be subject to said report until after its execution, the person or entity must inform the FIU thereof without delay.
38. As an exception, advocates attached to the Conseil d’Etat and the Court of Cassation, and counsel before the court of appeal send their reports not to the FIU but, as applicable, to the President of the Bar Council of the Conseil d’Etat and of the Court of Cassation, to the Chairman of the Bar to which the advocate belongs or to the Chairman of the professional body of which the counsel is a member. As soon as the conditions set forth in Article L. 561-3 are met, the said authorities send the report to the FIU in conformity with the terms set forth in a decree of the Conseil d’Etat (Article L. 561-17).
39. The report concerned is confidential. It is prohibited to divulge its existence and content and to disclose information regarding its outcome. Disregarding the prohibition on disclosure is punishable by a fine of EUR 22,500 (Article L. 5741; inserted in the Monetary and Financial Code by Order no. 2009-104 of 30 January 2009); the fact of the advocates concerned endeavouring to dissuade their client from taking part in an illegal activity does not constitute prohibited disclosure (Article L. 561-19).
40. The FIU (known as “Tracfin” in France) is an administrative investigation department of the Ministry of Finance, composed of specially selected officials. Its main purpose is to collect, analyse, develop and make use of any information likely to establish the origin or the destination of the sums or the nature of the transactions that have been the subject of a report. Where its investigations reveal acts likely to relate to the laundering of the proceeds of an offence punishable by a custodial sentence in excess of one year or to terrorist financing, it refers the matter to the public prosecutor via a memorandum (Article L. 56123).
41. The FIU may directly ask the persons concerned to disclose documents kept in connection with the obligation of due diligence. As an exception to the above, requests for disclosure of documents made to advocates attached to the Conseil d’Etat and to the Court of Cassation and to advocates and counsel attached to the courts of appeal are submitted by the FIU, as applicable, to the President of the Bar Council of the Conseil d’Etat and of the Court of Cassation, or the Chairman of the Bar or the professional body to which the advocate or counsel belongs. Having ensured that the provisions of Article L. 561-3 have been complied with, these persons then forward the documents thus received to the FIU (Article L. 561-26).
42. The persons and entities concerned are required to put systems in place to assess and manage the risks of money-laundering and of terrorist financing, and to provide their staff with regular training and information to ensure compliance with the obligations of due diligence and reporting (Articles L. 561-32 and L. 561-33).
Article R. 563-3 (repealed by Decree no. 2009-1087 of 2 September 2009) provided for the internal procedures to be defined by order of the relevant ministry, by professional rules and regulations approved by the ministry concerned, or by the general regulations of the financial markets supervisory authorities.
43. Where, as a result of either a serious lack of due diligence or a failure in the organisation of its internal auditing procedures, an advocate attached to the Conseil d’Etat or the Court of Cassation or an advocate or counsel attached to the courts of appeal has failed to comply with these obligations, the competent supervisory authority will institute disciplinary proceedings founded on the professional or administrative rules and shall notify the public prosecutor attached to the Court of Cassation or the court of appeal thereof (Article L. 561-36 III).
44. In a judgment of 10 April 2008 (no. 296845), the Conseil d’Etat found Directive 2001/97/EC of 4 December 2001 and the Law of 11 February 2004 transposing it compatible with Articles 6 and 8 of the Convention.
45. Concerning the Directive, the Conseil d’Etat first pointed out that the judgment of the Court of Justice of the European Communities in the case of Ordre des barreaux francophones et germanophone and Others had found that it was not in breach of the requirements of the right to a fair trial guaranteed by Article 6 of the Convention in so far as the obligation to cooperate and report excluded information obtained by lawyers in the course of their activities linked to judicial proceedings. The same judgment showed that information obtained by a lawyer evaluating a client’s legal situation was also excluded from the scope of these obligations, the only exceptions being where the lawyer was taking part in money-laundering activities, or the legal advice was provided for money-laundering purposes, or the lawyer knew that the client was seeking legal advice for money- laundering purposes. That being so, and regard being had to the general interest served by combating money-laundering, the Directive “did not violate the fundamental right to professional confidentiality protected by Article 8 of the Convention ..., which permits interference by the authorities with the right to respect for private and family life when necessary in the interests of public safety, for the prevention of disorder or crime”.
46. As to the legislation, the Conseil d’Etat found that it was an accurate transposition of the Directive and that, as such, it was not incompatible with the fundamental rights guaranteed by Articles 6 and 8 of the Convention.
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1