ITEMID: 001-78267
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DESCHOMETS v. FRANCE
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Claudine Deschomets, is a French national who was born in 1967 and lives in Saint-Agrève. She was represented before the Court by Ms C. Imbach, a lawyer practising in Strasbourg. The respondent Government were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant married V. on 23 April 1985. At the time they both belonged to the Brethren, a movement in which they had grown up and met each other. The couple had two sons: A., born on 12 December 1986, and J., born on 5 August 1989. In March 1991 V. left the movement completely, as he could no longer agree with the way of life imposed by the Brethren’s precepts.
The applicant brought separation proceedings on the grounds of repeated infidelity by V.
On 21 October 1991 a non-conciliation order was made by the Privas tribunal de grande instance, which, among other things, granted custody of the two children to their mother, with the agreement of their father. The father retained “the right to maintain a personal relationship with his children and to be involved in their upbringing, through unrestricted correspondence, visits or regular overnight stays”. Rights of visiting and staying contact were further granted to him under the following conditions:
(i) on the first and third Sunday of each month, from 10 a.m. to 6 p.m.;
(ii) on the first and third Saturday of each month, from 2 p.m. to 6 p.m.;
(iii) on the second and fourth Wednesday of each month, from 2 p.m. to 6 p.m.;
(iv) Christmas Eve from 10 a.m., Christmas Day, and Boxing Day until 6 p.m.
The applicant appealed against that decision, challenging the scheduling of visiting contact and staying contact on Sundays on the grounds that it was a day set aside for religious devotion and that it would be abnormal for the children to be deprived of their Sunday observances because of the change in the father’s beliefs. In a cross-appeal, V. sought an order granting him parental responsibility. In a judgment of 25 June 1992, the Nîmes Court of Appeal upheld all the provisions of the order under appeal. The court found in particular as follows:
“parental authority was granted to the mother by the court below in agreement with the father, who has not adduced any evidence to suggest that such decision should be reconsidered ...
The court need not order a welfare report, as the living conditions of each parent are not such as to justify the intervention of a welfare officer”.
In a judgment of 7 January 1993, the Privas tribunal de grande instance took note of V’s confession of reiterated adultery, declared the couple separated on the grounds of fault by the husband, granted parental responsibility for the minor children to the applicant and decided that they should principally reside with her, scheduled the father’s visiting and staying contact (first and third weekend of the month and half the school holidays) and ordered him to pay maintenance of 1,000 French francs (FRF) for each child.
The applicant appealed against that judgment, requesting that the father’s visiting contact should mainly be scheduled for Saturdays so that the children could continue their religious observances every Sunday. In a cross-appeal V. sought a decision granting joint parental responsibility for the children. In a judgment of 17 March 1994 the Nîmes Court of Appeal upheld all provisions of the decision under appeal. The court found in particular that “in view of the major conflict between the parents, it [was] not in the children’s interests to grant joint parental responsibility”.
In a judgment of 30 January 1997 the Privas tribunal de grande instance ruled on a divorce petition filed by the applicant and granted a divorce on grounds of fault by V. The court decided that the children should live with the applicant, who was granted parental responsibility. The father’s visiting and staying contact was fixed as follows:
(i) the first, third and fifth weekend of each month, from Saturday at 2 p.m. to Sunday at 7 p.m.;
(ii) one half of every school holiday.
On 20 June 1997 V. applied to the court for an order stipulating that the children should reside with him and providing for joint parental responsibility. He also applied for a welfare report. On 13 October 1997 the family-affairs judge of the Privas tribunal de grande instance ordered the report and deferred his decision on the remainder of the application. The findings in the welfare report, which was filed on 16 February 1998, were as follows:
“Both parents provide sound guarantees, whether material, emotional or moral. They offer their children very different lifestyles.
Mrs Deschomets’ educational qualities and her deep affection for her children are not called into question.
However, her way of life is not favourable to their opportunities for further education, to their integration into society in the broad sense or to their character development; the children live with a constant feeling of guilt whenever their aspirations diverge from her own.
It was very clear during the two interviews with the children that they both wanted to change their way of life. A. no longer wishes to attend Brethren meetings and is aware that his mother cannot change her lifestyle or religious practice. J. would like to have greater freedom; he does not want to leave his brother but remains very attached to his mother.
Consequently, a change of residence could be envisaged for the children, with the mother being granted a “classic” right of visiting and staying contact that could be extended in respect of J. at the child’s request. V. has undertaken to comply with the child’s requests”.
In an order of 20 April 1998 the family-affairs judge granted the parents joint parental responsibility and maintained the children’s residence with their mother. The father’s rights of visiting and staying contact were extended as follows:
(i) every Friday evening until the following Monday morning;
(ii) every Wednesday from 8.30 a.m. to 7.30 p.m.;
(iii) in the Christmas holidays, one week alternating from year to year;
(iv) the whole of the remainder of the school holidays.
The court fixed at FRF 1,500 per month, for both children, the maintenance to be paid by V. and found in particular as follows:
“V. ceased to adhere to the Brethren’s precepts and left the movement, leading to the breakdown of his marriage, after which he started a new relationship; [the applicant], who was happy in the Brethren movement, did not change her religious practice or way or life.
.... the children ... are currently torn between their father and mother, each of whom represents a different lifestyle; A and J do not adhere to [the applicant’s] way of life, as they suffer from various taboos when they are with her, although they remain very attached to her.
... V. and [the applicant] both display sound relational and moral qualities, and both appear concerned about their children’s happiness – that happiness being perceived by [the applicant] in the sense of spiritual fulfilment, which, to the extent that it is not accepted by the children, appears prohibitive and austere to them.
V. perceives that happiness in the sense of a social adaptation that is appealing to the children who, without simply taking the easy option, may be attracted to sports or school activities that are more open in their outlook.
... each parent offers the children very satisfactory physical living conditions and provides them with all the necessary care.
... these findings justify the granting of parental responsibility to both parents.
... the residence of the children should be fixed in the light of their own interests.
... the fact that [the applicant] adheres to a religious movement cannot in itself justify a change in the children’s residence, as she provides them with a high standard of care and education that have made them well-bred children with good school results, and as the continuation of the children’s schooling is not currently at issue.
However .... the findings set out in the welfare report cannot be ignored; it states that the children are very unhappy – and [the applicant] admits that the children have sometimes broken down in tears – , that they have unquestionably chosen their father’s lifestyle and that they are afraid of pressure from the movement.
.... in the light of these facts ... it is appropriate to extend V.’s right of visiting and staying contact as set out in the operative provisions, so that he will be able to offer his children the possibility they are seeking of expanding their horizons and of taking part in activities that V. encourages, without however depriving the minor children of the caring and warm-hearted presence of their mother. ...”
V. appealed against that order and requested the court to declare that the children should habitually reside with him. In his view, the decision of the court below was at odds with the findings of the welfare report. He observed that the religious obligations imposed on the children by the Brethren were contrary to the interests of the children, who were required to travel a certain distance to daily meetings in various places. V. also explained that the Brethren movement imposed on the children a lifestyle that was not conducive to their development, social integration or career preparation, as they could not follow classes on Saturdays, use computers, take part in school outings, watch television or do sport. The applicant lodged a cross-appeal and requested the court to grant her normal leisure time with the children at weekends, on Wednesdays and throughout the school holidays. She argued in particular that her religion, which she was free to choose, should not influence the decision concerning the children’s residence and that any change of residence should be decided only in accordance with their interests.
A hearing was held on 26 May 1999 in the Nîmes Court of Appeal, which reserved judgment in the case until 1 September 1999.
On 6 July 1999 the children’s lawyer (acting under Article 12 of the International Convention on the Rights of the Child and under Article 388-1 of the Civil Code) submitted to the Court of Appeal a document containing their views, which included the following passages:
“Lawyer: Which do you think provides the better arrangement of your daily life: your mum’s place or your dad’s place?
A: To live with my father and stay with my mother every second and fourth Wednesday, every first, third and fifth weekend in each month, and for half of the school holidays.
(14 June 1999)”
“Lawyer: How would you like your time to be divided between your mum’s place and your dad’s place?
J.: To live with my mum and visit my dad every Wednesday and for half of the school holidays.
(14 June 1999)”
On 24 June 1999 the children asked their lawyer to send a letter to their father with the following observations, among others:
“... the order of 20 April 1998 provides that the children should stay with you for the whole of their school holidays in the summer. However, A. and J. have asked me to confirm to you that they find it hard to understand this judicial requirement to be separated from their mother throughout the summer holidays. In my discussions with your children I have seen that the situation is not perceived in the same way by both children. ...
In an attempt to encourage the development of a situation where the children can make the most of their summer holidays, without any uneasiness or difficulty, and with the agreement of A. and J. as to this initiative (the sending of this letter) and to the general substance of this letter, I would ask you, at their request, kindly to agree to the following:
(1) that A. may spend part of the summer with his mother;
(2) that J. will not be obliged to spend his entire summer holidays with you;
(3) that with regard to J., however, arrangements will be made for him to stay with you for one week, in late July or early August, it being agreed that during the stay the boy will be protected from embarrassing questions or criticism [concerning in particular his life in the Brethren movement].”
The Nîmes Court of Appeal gave its ruling in a judgment of 1 September 1999. It set aside the above-mentioned decision and found in particular, with respect to the children’s residence, as follows:
“ ... the decision taken by the court below in the light of the welfare report does not appear satisfactory for the parents or for the children.
By granting the father a right of visiting and staying contact for three days and three nights a week, and for the whole of the school holidays except for one week at Christmas, the impugned decision obliges the children to travel a lot – a situation that is hardly conducive to their stability – and deprives them of contact with their mother during the school holidays, which is equally unsatisfactory in terms of their character development.
Moreover, the fact that [the applicant] adheres to the Brethren movement does not call into question her strong emotional relationship with her two children, and the court therefore does not intend to base its decision on a negation of the quality of that relationship.
Lastly, it is not for the court to decide whether or not the Brethren movement constitutes a sect, but simply to determine whether the constraints imposed on the children, because of the mother’s affiliation to the movement, do not run counter to their interests.
Contrary to what [the applicant] seems to believe, the moral values that have to be inculcated in children are not the prerogative of religions.
Above all, the acquisition of such values does not depend on stringent religious observances and the imposing of prohibitions on children which have the effect of setting them apart from their non-believing peers, who are regarded as sinners.
The welfare report, which on this matter has not been criticised in any way by the respondent, reveals the way of life imposed by the movement:
(i) daily religious observances, every weekday evening (from 6.30 p.m. to 10 p.m.) being devoted to services or meetings, with no activities on Saturdays, and Sundays from 6 a.m. being set aside for acts of religious devotion;
(ii) numerous prohibitions such as not being able to eat or drink with anyone who is not affiliated to the Brethren, to watch television, to listen to the radio or read a newspaper, use a computer or do sports.
The obligations and prohibitions thus imposed on the children, based on the idea that everything outside the movement is “evil”, is unquestionably harmful to the children’s development and social integration.
The welfare report further points out that the Brethren are obliged to follow school courses by correspondence rather than going to boarding school, and a very small minority manage to obtain the school leaving certificate, even though they are regarded as good pupils.
The children, who are described by the welfare officer as mature, have clearly expressed their rejection of their mother’s religious practice and way of life, displaying a distinct preference for their father’s lifestyle.
The two children broke down in tears during their meeting with the welfare officer, appearing very unhappy, but, in their mother’s presence, they confirmed their position.
In the light of the welfare report and the factors analysed above, the court considers that, contrary to the decision of the court below, it is in the immediate interest of the children to reside with their father. ...”
As regards the right of visiting and staying contact, the court noted as follows:
“Whilst the court below, maintaining the children’s residence with their mother, granted V. a right of visiting and staying contact .... with the intention of preventing the mother from imposing on the children the religious activities of the movement to which she belongs, that decision was far from satisfactory for the reasons already given above.
Since the [applicant’s] maternal qualities are not called into question – the two children are genuinely fond of their mother – the court considers that it is appropriate to trust the mother not to allow the Brethren to put pressure on the children to “make them change their minds”, as child A. has feared.
Should she fail to do so, it would be for V. to request the appropriate court to change the right of visiting and staying contact granted to the mother.”
The Court of Appeal decided that the children should habitually reside with their father and granted the mother a right of visiting and staying contact under the following conditions:
(i) outside the school holidays, on the first, third and fifth weekend of each month, from 2 p.m. on Saturday until 8 p.m. on Sunday; and
(ii) for one half of the school holidays.
The maintenance contribution to be paid by the mother in respect of each child was fixed at FRF 500 per month.
The applicant lodged an appeal on points of law. In support of her appeal she submitted a single ground divided into four limbs. In the first she alleged that the judgment of the Court of Appeal had lacked a legal basis, since it had failed to establish any new factor justifying a change of residence. In the last three limbs, relying on Articles 8 and 14 of the Convention, the applicant alleged that she had suffered discrimination on the ground of religion, as the court had based its decision solely on a negative assessment of her religious practice.
On 19 February 2002 the Court of Cassation dismissed the appeal for the following reasons:
“ ... as regards the first limb, the Court of Appeal based its decision on the results of a welfare report which had been drawn up prior to the decree of divorce, and which revealed the way of life imposed by the movement to which [the applicant] belongs.
As regards the last three limbs, the Court of Appeal, which did not have to give explanations as to undertakings not mentioned by [the applicant] in her grounds of appeal and which took into account the findings in the welfare report, together with the feelings expressed by the children, whose maturity was emphasised in that report, considered that the obligations and prohibitions imposed on them were harmful to their development and social integration.
It follows therefore that its decision cannot be called into question by the grounds of appeal. ...”
V. subsequently lodged an application with the Puy-en-Velay tribunal de grande instance seeking a restriction of the applicant’s right of visiting contact and the withdrawal of her right of staying contact. In accordance with an order of the family-affairs judge on 12 April 2002, a welfare report was filed. The proceedings are currently pending.
The Brethren, founded in the British Isles in the 1820s, is a Christian movement which dissented from the Established Church. In 1828 John Nelson Darby (1800-1882), an Anglican clergyman, denounced the involvement of his Church with the State and became an itinerant preacher among the “free assemblies” that spread across Europe and North America. To “abide in Christ”, he advocated the formation of assemblies without any formal organisation or hierarchy, after the model of the churches of the Apostles. Darby resigned from the Anglican church and settled in Plymouth. He brought together various small congregations of which the adherents were known as “Darbyites”. The movement mainly developed in English-speaking countries. It is estimated that there are about 1,000 adherents in France.
A central tenet of Brethren doctrine is their concern to adhere unconditionally to the Scriptures and to distance themselves from outside influences. This stems from the basic principle of Separation - the duty of a believer to separate himself from evil or from anything that may undermine purity, in all aspects of daily life. As regards their lifestyle, the following aspects, among others, should be mentioned: daily religious observances; no work on Saturdays for anyone, not even school children (with Sundays being entirely set aside for religious activities); emphasis on the importance of family life (parents are very attentive to their children, divorce is not accepted); no eating or drinking with anyone outside the Brethren, because every meal is a communion; no participation in associations; and the avoidance of any harmful influence (no television, radio or newspapers, no use of computers or the Internet). From the age of admission to a senior high school children often continue their education by correspondence.
The relevant Articles of the Civil Code, as in force at the material time, read as follows:
Article 371-2
“A child’s father and mother shall be responsible for protecting his or her safety, health and morals.
They shall have a right and a duty to look after, supervise and bring up their children.”
Article 372
“Parental responsibility shall be exercised by both parents jointly ... if the parents of an illegitimate child, who have legally recognised the child before he or she reaches the age of one, were living together at the time of the joint recognition or of the second recognition ...”
Article 372-1-1
“Should the father and mother fail to reach an agreement as to what is in the child’s interests, any practice that they may previously have followed on similar occasions shall serve as the rule.
Failing such previous practice, or in the event of dispute as to its existence or merit, either parent may take the initiative of submitting the matter to the family-affairs judge, who shall rule after attempting to reconcile the parties.”
Article 374
“In all cases the family-affairs judge may, at the request of the father or the mother or State Counsel, modify the arrangements for exercising parental responsibility with regard to an illegitimate child. He may decide that it will be exercised either by one of the parents, or by the father and mother jointly, in which case he shall designate the parent with whom the child shall habitually reside.
The family-affairs judge may grant a right of supervision to the parent who does not have parental responsibility. He may deny that parent a right of visiting and staying contact only for serious reasons ...”


ITEMID: 001-88930
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SALATKHANOVY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicants were born in 1951 and 1938 respectively and live in the village of Dyshne-Vedeno, the Chechen Republic.
7. The applicants are husband and wife. The first applicant is a housewife and the second applicant is retired. They have nine children. In April 2000 their son Ayub Salatkhanov, born in 1984, was a student of the 9th grade at school.
8. On 17 April 2000 at about 1 p.m. Ayub Salatkhanov, with three of his friends, were walking along Lenina Street towards the village market. At the same time a convoy of Russian military vehicles was going down the street. The convoy included armoured personnel carriers (APCs), with soldiers sitting on the hulls. One of the servicemen raised his automatic rifle, took aim and shot at the applicants’ son. According to the applicants, it must have been a rifle fitted with a silencer because the other three boys did not hear the shot and did not understand where it had been aimed, until Ayub Salatkhanov, who took several more steps, fell on the ground in front of a house at 153 Lenina Street, where the head of the village administration lived.
9. Ayub Salatkhanov was bleeding from the mouth and the chest area. He was immediately put into a car to be taken to the district hospital, but died in the car on the way. He had been wounded in the heart.
10. At the relevant time there were a lot of passers-by in the street, who called the local police, the military commander’s office and the prosecutors office. Together they forced the convoy to stop and to go to the military commander’s office. There the servicemen of the Dyshne-Vedeno temporary district police station (VOVD) identified a warrant officer, Ch., who had allegedly shot at the boy. In the meantime he had climbed from the APC into the hull of a ZIL-130 military truck. According to the applicants, the servicemen of the VOVD searched the truck, and in a box containing canned meat found an AK 7.62 automatic rifle, with an ammunition magazine and a silencer. The rifle belonged to warrant officer Ch.
11. On 17 April 2000 the Vedeno District Prosecutor’s Office opened criminal investigation no. 14/36006 under Article 105 paragraph 1 of the Criminal Code into the murder of Ayub Salatkhanov. The applicants were informed accordingly by a letter of 27 April 2000, which also stated that “the person who committed the crime has been identified and detained” and that the case file would be transferred for further investigation to the military prosecutor of military unit no. 20102 based in Khankala (the main Russian military base in Chechnya).
12. On the same date an inspection of the crime scene and of the military vehicles was carried out and E., an eye-witness, was questioned. E. submitted that on 17 April 2000 he, together with Ayub Salatkhanov, S., A., Kh. and B. had been walking down Lenina Street and that a military convoy had been moving towards them. He had seen a serviceman in an APC who lifted a weapon fitted with a silencer, aimed it at Ayub Salatkhanov from a distance of ten meters and took two or three shots with it.
13. On 19 April 2000 S. was questioned. He made a statement similar to that of E.
14. On 19 and 20 April 2000 serviceman S-v. was questioned. He submitted that a magazine case with 25 cartridges of 7.62 mm calibre and a silencer had been found in Ch.’s backpack.
15. On 20 April 2000 the second applicant was granted victim status in the criminal proceedings.
16. On the same date the automatic rifle was seized from Ch. It was inspected together with other pieces of evidence.
17. On 21 April 2000 Ch. reported to the Vedeno District Prosecutor’s Office and admitted his guilt. He was questioned as a suspect on the same date. He was placed under the supervision of the commander of military unit no. 75143 as a measure of restraint.
18. Later Ch. retracted the statement he had made on 21 April 2000 and apparently submitted that the bullets had ricocheted.
19. On 3 May 2000 a forensic expert examination of the cartridges was completed.
20. On 3 June 2000, due to the lack of evidence required to bring charges, the investigating authorities suspended the investigation and lifted the measure of restraint in respect of Ch.
21. On 16 June 2000 the Prosecutor’s Office of the Chechen Republic replied to the applicants’ request for information that the criminal investigation into their son’s murder had been transferred to the military prosecutor’s office, which was responsible for investigating crimes committed by servicemen. It was also stated that all further questions should be referred to the military prosecutor’s office in Khankala. On transfer, the case was given the number 34/33/0179-00.
22. On 20 June 2000, upon completion of his secondment in Chechnya, Ch. arrived in the town of Pechora in the Pskov region according to the order of the commander of military unit no. 75143.
23. On 28 June 2000 the applicants were informed by a letter from the military prosecutor of military unit no. 20102 that on 2 June 2000 the criminal investigation in respect of warrant officers Ch. and S-v. of military unit no. 75143 had been discontinued under Article 5 paragraph 2 of the Code of Criminal Procedure [absence of corpus delicti]. The case file was forwarded for further investigation to the Prosecutor’s Office of the Chechen Republic.
24. On 29 June 2000 the supervising military prosecutor quashed the decision to suspend the investigation.
25. On 3 July 2000 the Vedeno district civil registration office issued a death certificate for Ayub Salatkhanov, aged 16, who had died on 17 April 2000 from a gunshot wound to the heart.
26. On 21 July and 26 October 2000 serviceman G. was questioned. He submitted that upon his arrival at the crime scene his comrade had told him that he had seen a serviceman climbing from the APC to the ZIL truck in front of it. When G. had approached the truck, he had seen a serviceman hiding in the corner.
27. On 22 July 2000 the second applicant and A. were questioned. A. made a statement similar to that of E.
28. On 23 July 2000 another inspection of the crime scene was carried out and E. was again questioned. T. was questioned on the same date and submitted that a spent yellow cartridge case had been found at the crime scene. It had been handed over to police officers. On the same date an investigative experiment was conducted.
29. On 24 July 2000 Yu. was questioned. He submitted that after the convoy had stopped he had seen a serviceman hiding inside a car. The serviceman had a red face, blue eyes and was of medium height.
30. T-v., apparently of the Vedeno District military commander’s office, who was questioned on the same date, stated that on 17 April 2000 at around 2 p.m. a patrol had come running to headquarters and reported that a military convoy had been stopped in Lenina Street because a serviceman had shot a schoolboy. When T-v. arrived at the crime scene, he had been told that a serviceman had climbed from an APC to a ZIL vehicle where other servicemen had tried to hide him.
31. Serviceman I., questioned on the same date, submitted that on 17 April 2000 his fellow servicemen had told him that a serviceman from a convoy moving through Dyshne-Vedeno had killed a boy. When he had arrived at the crime scene, eye-witnesses indicated an APC from which, according to them, shots had been fired. A serviceman had been acting agitatedly around the APC. He had appeared to be nervous and had been holding an AKSM 7.62 automatic rifle with no silencer. He had then gone to sit in the ZIL-131 truck. In the course of the search of the ZIL truck officers of the Vedeno District military commander’s office had found a magazine of cartridges and a silencer.
32. Ts., questioned on 24 July and 26 October 2000, submitted that he had been present at the examination of Ayub Salatkhanov’s body and had seen bullet wounds. A spent 7.62 cartridge case had been found by T. and immediately handed over to the police officer who had conducted the inspection.
33. On 26 July 2000 an investigative experiment concerning the audibility of shots fired from an AKSM automatic rifle with a silencer was conducted.
34. On 31 July, 16 and 19 October 2000 expert Sh. was questioned.
35. On 3 August 2000 a forensic examination of Ayub Salatkhanov’s clothes was completed.
36. On 5 August 2000 servicemen P., K. and P-o were questioned. They submitted that after two AKSM automatic rifles with two PBS-1 silencers, including the one seized from Ch., had been returned to the military unit, they had been used according to their purpose. They had not been repaired and no parts of them had been replaced either.
37. On 8 August 2000 Sh-n, a serviceman that had formed a part of the military convoy, submitted that when the convoy had been moving he had seen a boy lying on the ground in the yard of a house. When the convoy had stopped, he had seen a serviceman sitting on the right side of the ZIL-131 truck removing a silencer from his automatic rifle. When the serviceman had left the car, there had been no silencer on his automatic rifle.
38. On 16 August 2000 a forensic expert examination was completed.
39. On 9 September 2000 a ballistic expert examination was completed.
40. On 27 September 2000 serviceman O. was questioned. He submitted that in the convoy it was only special forces servicemen who had had PBS-1 silencers.
41. On 11 October 2000 a forensic examination of Ayub Salatkhanov’s body was completed.
42. On 15 November 2000 Ch. was charged with the offence and a decision to place him in custody was taken. However, since he was no longer in the Chechen Republic, he was placed on the wanted list. The investigation was suspended on the same date on account of Ch.’s whereabouts being unknown.
43. On 25 November 2000 a forensic expert’s examination was completed.
44. On 11 March 2001 the military prosecutor of military unit no. 20102 informed the applicants that the investigation had identified the suspect – Ch., warrant officer of military unit no. 75143. However, the military unit had been relocated out of Chechnya without the military prosecutor’s knowledge. Warrant officer Ch. had absconded and on 15 November 2000 had been placed on the wanted list.
45. By a letter dated 27 July 2001 (received by the applicant in December 2001) the military prosecutor of military unit no. 20102 informed the applicants that the serviceman responsible for the murder of their son had been identified. He had been discharged from military service and had absconded. He had been searched for by the officers of the Ostrovskiy district police of the Pskov Region, where his residence was located. The letter further stated that on 15 November 2000 the investigation had been suspended during the search. On 25 July 2001 the investigation was resumed, and a request for a search to be carried out was forwarded to the authorities in Ukraine, where the suspect’s parents resided.
46. On 8 August 2001 the Chief Military Prosecutor’s Office informed the applicants that the investigation into their son’s murder had been reopened. The person suspected of the crime had absconded and had been placed on the federal wanted list.
47. On 8 October 2001 the Prosecutor’s Office of the North Caucasia Military Circuit informed the applicants that on 2 April 2001 the decision of 15 August 2000 to suspend the proceedings had been quashed and the case file had been forwarded for further investigation to the military prosecutor of military unit no. 20102. The investigation was pending, and the applicants would be informed of the results.
48. After a number of stops and starts, the investigation was again resumed on 17 January 2005. Ch.’s whereabouts were established and it was also found that he had changed his name to M. He was subsequently arrested, and on 18 April 2005 the case was committed for trial to the Grozny Garrison Military Court.
49. On 7 July 2006 the Grozny Garrison Military Court dismissed Ch.’s (M.’s) contradictory submissions that, firstly, it had not been him who had shot at Ayub Salatkhanov and, secondly, that he had accidentally pulled the trigger when the vehicle he had been in had gone over a bump in the road. The court found that Ch. (M.) had aimed at Ayub Salatkhanov’s chest, found him guilty of murder and sentenced him to ten years’ imprisonment. Ch. (M.) appealed.
50. On 23 November 2006 the North Caucasia District Military Court upheld the judgment on appeal.
51. In 2003 the second applicant brought a claim against the Ministry of Finance for compensation for non-pecuniary damage caused by the murder of his son by a serviceman.
52. On 22 July 2003 the Basmanniy District Court of Moscow dismissed the claim. The court held, in particular:
“As follows from the evidence in the case, the fact that [the applicant] was caused physical and moral suffering arose as a result of the fulfilment of duties by a serviceman of military unit no. 75143 [Ch.] ...
It is precisely [this military unit] which may be liable if [its serviceman] caused non-pecuniary damage when fulfilling [his] duties.”
53. On 12 February 2004 the Moscow City Court upheld the judgment on appeal.
54. Subsequently, within the framework of the criminal proceedings against Ch. (M.), the second applicant brought a civil claim for compensation for non-pecuniary damage in the amount of 10,100,000 Russian roubles (RUR) before the criminal case against Ch. was sent for trial.
55. In the hearing of 29 June 2006 counsel for the second applicant withdrew the civil claim. He explained that the second applicant intended to file a claim for damages against the military unit where Ch. (M.) had served within the framework of civil proceedings. The court accepted the withdrawal of the claim and specifically stated that it was open to the second applicant to file it within the framework of civil proceedings.
56. According to the Government, the second applicant did not file any civil claims before the Grozny Garrison Military Court.
57. Despite specific requests made by the Court on two occasions, the Government did not submit a copy of the entire investigation file concerning the murder of Ayub Salatkhanov. However, after the application had been declared admissible they submitted an update on the progress of the investigation, copies of judicial decisions and minutes of the hearings, which contained a detailed description of the investigative actions and witnesses’ statements. The Government stated that the documents submitted contained detailed information concerning the conduct of the investigation and the trial and, should the Court require any additional documents, it should specifically request them.
58. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).
59. Article 125 of the CCP provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions.
60. Article 161 of the CCP enshrines the rule that information from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation.
61. Article 151 of the Civil Code of the Russian Federation, Part II, in force since 1 March 1996, provides for a right to claim non-pecuniary damage. Article 1100 of the Civil Code provides grounds for compensation of non-pecuniary damage.
NON_VIOLATED_ARTICLES: 38


ITEMID: 001-84440
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ATANASOV AND OVCHAROV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13+6-1
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: 6. Mr Atanasov (“the first applicant”) was born in 1957 and lives in Pazardzhik. He is the son-in-law of Mr Ovcharov (“the second applicant”) who was born in 1936 and lives in Aleko Konstantinovo.
7. Between 1993 and 1994 the second applicant was the head of a farm cooperative.
8. On 12 August 1993 the farm cooperative, represented by the second applicant, acquired a tractor (“the first tractor”) at an auction organised by another cooperative.
9. On 31 August 1993 the first applicant acquired a similar, cheaper tractor (“the second tractor”) at a second auction organised by the same cooperative. Immediately after the auction the first applicant, assisted by the second applicant, took possession of a tractor. However, they apparently took the first tractor.
10. The farm cooperative took possession of the second tractor on 6 September 1993.
11. On 15 November 1993 an invoice was issued to the first applicant for the purchase of the second tractor. Subsequently, the first applicant requested the seller to reissue the sales invoice so that it indicated that he had in fact acquired the first tractor.
12. Sometime around 11 February 1994 the farm cooperative discovered that it had a different tractor from the one it had purchased. Soon thereafter it complained to the authorities of the alleged fraud perpetrated by the applicants.
13. On 16 May 1994 a preliminary investigation was opened against the applicants.
14. On 29 March 1996 the applicants were charged with fraud and malfeasance. The charges against the first applicant were amended on 28 February 1997 to include the offence of using a falsified document to obtain another's chattel with the aim of misappropriating it.
15. On 7 April 1997 the Pazardzhik district prosecutor's office entered an indictment against the applicants with the Pazardzhik District Court for malfeasance fraud and use of a falsified document.
16. Between 2 June 1997 and 18 February 2000 the District Court conducted ten hearings. During this period the judge in charge of the proceedings was changed on three occasions for undisclosed reasons. At the hearing on 18 February 2000 the District Court established that there had been procedural violations at the stage of the preliminary investigation, discontinued the proceedings and remitted the case to the investigation authorities.
17. The preliminary investigation against the applicants continued and there were no significant developments until 2004.
18. On 29 June and 20 July 2004 the applicants filed separate requests with the Pazardzhik Regional Court under the procedure envisaged in the new Article 239a of the Code of Criminal Procedure (see paragraph 34 below) and petitioned the court to order the termination of the preliminary investigation against them.
19. In decisions of 12 July and 22 July 2004 the Regional Court referred the case to the Pazardzhik regional prosecutor's office either to discontinue the preliminary investigation or to enter indictments against the applicants. In its decision of 12 July 2004 the court established that no investigative procedures whatsoever had been undertaken since 18 February 2000, when the District Court had remitted the case to the investigation authorities.
20. Following a delay by the prosecutor's office to rule on the matter, the applicants lodged their requests again on 19 October 2004.
21. In a decision of 28 October 2004 the regional prosecutor's office discontinued the preliminary investigation against the applicants because the time-limit for prosecution under the statute of limitations for the offences had expired.
22. On 10 November 2004 the applicants appealed against the decision of the prosecutor's office and claimed that the grounds for terminating the preliminary investigation should be the lack of evidence of an offence and not the expiry of the time-limit for prosecution under the statute of limitations.
23. In a decision of 22 November 2004 the District Court upheld the decision to discontinue the preliminary investigation against the applicants and found that they could not seek to amend the grounds for its termination. The court reasoned that if the applicants had wanted to have the criminal proceedings terminated because of the lack of evidence that they had perpetrated an offence then they should have requested that the proceedings continue in spite of the expiry of the time-limit under the statute of limitations, which they had not done.
24. On 25 January 1995 the police seized the first tractor from the first applicant and impounded it as physical evidence in the pending criminal proceedings.
25. The seizure and impounding of the first tractor was upheld on appeal by the district and regional prosecutor's offices and by the Chief Public Prosecutor on unspecified dates.
26. The first tractor was held in storage at a police compound until it was delivered to the farm cooperative on an unspecified date before 1 April 2002.
27. On 1 April 2002 the district prosecutor's office ordered the farm cooperative to deliver the second tractor to the second applicant, which it did not do.
28. The applicants asserted that in the course of the preliminary investigation against them the authorities also seized a hunting rifle from each of them and held them as physical evidence. However, it is unclear when and how these actions were undertaken.
29. In so far as can be ascertained from the documents presented, the second applicant voluntarily handed over a hunting rifle to the police on 4 October 2000, which was returned to him on 23 August 2001.
30. Paragraphs 1, 2 and 4 of Article 107 of the Code of Criminal Procedure (1974) provided as follows:
“(1) Physical evidence must be carefully examined, described in detail in the respective record, and photographed, if possible.
(2) Physical evidence shall be attached to the case file while at the same time measures shall be taken not to spoil or alter the evidence.
...
(4) Physical evidence which, because of its size or other reasons, cannot be attached to the case file, must be sealed, if possible, and deposited for safekeeping at the places indicated by the respective authority.”
31. Paragraphs 1 and 2 of Article 108 of the Code, as in force at the relevant time and until 1 January 2000, provided as follows:
“(1) Physical evidence shall be held until the termination of the criminal proceedings.
(2) Chattels which have been collected as physical evidence can be returned to their owners before the termination of criminal proceedings only as long as this will not hinder the establishment of the facts in the case.”
32. Article 108 paragraph 2 of the Code was amended on 1 January 2000 to clarify that it was within the powers of the prosecutor's office to rule on requests for the return of chattels held as physical evidence. In addition, a right of appeal to a court was introduced against refusals by the prosecutor's office to return such chattels (Article 108 paragraph 4 of the Code of Criminal Procedure as in force after 1 January 2000).
33. If a dispute over ownership requiring adjudication by the civil courts arose in respect of items held as physical evidence, the authorities were obliged to keep those items safe until the relevant judgment became final (Article 110).
34. By an amendment of June 2003 the new Article 239a introduced the possibility for an accused person to request to have his case examined by a court if the preliminary investigation had not been completed within the statutory time-limit (two years in investigations concerning serious crimes and one year in all other investigations). In such instances the courts would remit the case to the prosecutor's office with instructions to either enter an indictment against the accused within two months or discontinue the criminal proceedings. If the prosecutor's office failed to take action, the courts would then terminate the criminal proceedings themselves.
35. Section 1 (1) of the State and Municipalities' Responsibility for Damage Act of 1988 (the “SMRDA”: title changed in 2006), as in force at the relevant time, provided as follows:
“The State shall be liable for damage caused to [private persons] from unlawful acts, actions or inactions of its apparatus and officials [in the exercise] of administrative duties.”
36. Section 2 of the SMRDA provides as follows:
“The State shall be liable for damage caused to [private] persons by the [apparatus] of ... the investigation authorities, the prosecution authorities, the court ... for an unlawful:
1. detention ... ;
2. charge for an offence, if the person has been acquitted or the opened criminal proceedings have been terminated because the act was not perpetrated by the person [in question] or the act is not an offence ... ;
3. sentence ... ;
4. ... forced medical treatment ... ;
5. ... imposition of administrative sanctions ... ;
6. enforcement of an imposed sentence in excess of the determined period ... ”
37. Compensation awarded under the Act comprises all pecuniary and non-pecuniary damage which is the direct and proximate result of the illegal act of omission (section 4). The person aggrieved has to lodge an “action ... against the [entity] ... whose illegal orders, actions, or omissions have caused the alleged damage” (section 7). Compensation for damage arising from instances falling under section 1 and 2 of the Act can only be sought under the Act and not under the general rules of tort (section 8 § 1).
38. The practice of the Bulgarian courts in the application of the Act has been very restrictive.
39. In particular, the domestic courts have ruled that liability for damage stemming from instances within the scope of section 1 of the Act are to be examined only under the Act and not under the general rules of tort (решение № 55 от 14.III.1994 г. по гр.д. № 599/93 г., ВС, IV г.о.).
40. Similarly, liability of the investigation and prosecution authorities may arise only in respect of the exhaustively listed instances under section 2 (2) of the Act and not under the general rules of tort (решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). In particular, the investigation authorities and the prosecutor's office are not liable for their actions in instances, such as in the present case, where criminal proceedings have been discontinued because the time-limit for prosecution under the statute of limitations expired after the criminal proceedings had been opened (Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). No reported cases have been identified of successful claims for damage stemming from actions by the investigation or prosecution authorities which fall outside the list in section 2 of the Act.
41. Lastly, liability under section 2 of the Act may only arise for unlawful actions, but not for unlawful inactions by the investigation authorities, the prosecution authorities and the courts (решение № 183 от 05.IV.2001 г. по гр. д. № 1362/2000 г.).
42. The Obligations and Contracts Act provides in section 45 that a person who has suffered damage can seek redress by bringing a civil action against the person who has, through his fault, caused the damage. Under section 110 the claim for damage is extinguished on expiry of a five-year prescription period.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57877
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF DE MOOR v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. The applicant, a Belgian national born in 1930, pursued a career in the Belgian army. In 1981 he retired with the rank of capitaine-commandant. On 7 July 1983 he gained a law degree.
8. On 27 May 1983 Mr De Moor informed the Chairman of the Hasselt Bar Association that he intended to apply for enrolment on the list of pupil advocates. On 15 June he had an interview with the Chairman.
9. The Bar Council, when it learnt of the applicant’s intention at its session on 23 June 1983, reacted in a somewhat unfavourable manner, but took the view that it was unnecessary to give a decision as no formal application had been made.
10. On 27 June, in the course of a telephone conversation, the Chairman of the Bar Association allegedly told the applicant that the Bar Council had decided not to enrol him because he had completed one full career and the Hasselt Bar already had over two hundred members.
11. By a letter of 25 August 1983 Mr De Moor submitted an application in the prescribed form.
12. At a meeting on 8 September the Bar Council decided to consult the Chairman (doyen) of the National Bar Association.
On 6 October, after considering the latter’s opinion, according to which there were no grounds for refusing Mr De Moor’s application ("er geen argumenten zijn om de Heer De Moor te weigeren"), the Council appointed two rapporteurs from among its members.
13. On 17 November the Chairman read out the report of the first rapporteur, which was unfavourable, and the second submitted a comprehensive report on the matter. During the deliberations, it was pointed out that Mr De Moor had not taken the oath and had therefore not been entitled to seek enrolment. The same day the Council rejected the application.
14. The Chairman of the Bar Association informed Mr De Moor of this decision in a letter of 23 November 1983. He stated that it was consistent with the practice followed by Bar Councils according to which persons who had completed a full career outside the Bar were not admitted to the list of pupil advocates.
15. On 29 November 1983 Mr De Moor filed an application in the Conseil d’Etat to have the decision set aside on the ground that the Hasselt Bar Council did not constitute an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.
16. On 16 February 1984 the Bar Council produced its statement of defence. It argued that the Conseil d’Etat lacked jurisdiction and that Mr De Moor had no interest in the proceedings inasmuch as he had not taken the oath and could not therefore be enrolled on the list of pupil advocates. On the merits, it affirmed that a refusal to enrol could be based on reasons other than those justifying disciplinary measures. The fact that the applicant had already completed one full career justified the impugned decision, particularly because he had stated that, as his income was sufficient, he wished to engage in what he regarded as a stimulating occupation on a part-time basis.
17. Mr De Moor filed his reply on 24 April 1984. He maintained that the uncertainty concerning his admission to the Bar had made it impossible for him to find an advocate who was prepared to present him so that he could take the oath; this obstacle could be surmounted only by the designation of an ad hoc pupil master.
18. On 15 September, 24 October and 5 December 1986 the Legal Adviser (auditeur) responsible for preparing the case requested various documents from the Bar Council, which sent them to him on 11 December.
19. On 20 February 1987 the auditeur submitted his report, which was communicated to the applicant on 20 March. He expressed the view that the Conseil d’Etat had jurisdiction and that Mr De Moor had an interest in having the Bar Council’s decision quashed. There was no legal obligation for a law graduate to take the oath before seeking enrolment on the list of pupil advocates. The text of the decision refusing the applicant admission to that list had not cited as a reason the fact, mentioned orally on 27 June 1983 (see paragraph 10 above), that the Hasselt Bar already had a large number of lawyers. It had referred solely to the circumstance that the applicant had completed a full career outside the Bar. Yet, in the light of the judgment of the Court of Cassation of 13 May 1952 (see paragraph 36 below), a refusal to enrol of this nature should have been grounded either on the failure to comply with the conditions laid down in Article 428 of the Judicial Code or on the postulant’s unfitness or incompetence to practise as a lawyer. It followed that the reason given by the Hasselt Bar Council did not justify in law the decision of 17 November 1983, which should therefore be set aside.
20. On 13 May 1987 the Bar Council filed a final pleading, reiterating the same two objections to the admissibility of the application (see paragraph 16 above). It added that the reason given fell within the scope of the wide discretion that the Bar Council considered itself to enjoy in this area.
21. On 21 August 1987 the President of the Conseil d’Etat, Mr Vermeulen, transferred the case from the Chamber before which it was pending and directed that it should be heard by the General Assembly of the Administrative Division. On 14 September he postponed the public hearing until 12 October 1987 as some members of the Conseil d’Etat were unable to attend on 8 October, the date for which it had been initially set down.
22. On 16 September 1987 the National Bar Association sought leave to intervene in the proceedings. It considered Mr De Moor’s application inadmissible. As he had not taken the oath and did not therefore satisfy one of the statutory conditions for enrolment, the Bar Council could only have given an opinion, in respect of which an application for annulment could not lie. It argued in addition that the Conseil d’Etat lacked jurisdiction. In its view, the intention of the legislature had been that only the ordinary courts, and not the Conseil d’Etat, should have jurisdiction for disputes arising from the decisions of the Bar Councils.
23. On 12 October 1987 the General Assembly gave leave for this intervention and heard the parties, after which the President reserved the decision.
24. On 28 November 1988 the applicant complained to the President of the length of the proceedings. He allegedly received no reply.
25. On 28 November 1989 he laid a formal complaint with the Brussels Crown Counsel for a denial of justice. On 7 May 1990 he learned of the authorities’ decision not to proceed with his complaint.
26. In a judgment of 24 September 1991, the General Assembly, presided over by Mr Baeteman, President of the Conseil d’Etat, noted that the assembly which had heard the case up to that point had not concluded its deliberations and could no longer validly sit on account of the death of the judge-rapporteur, the appointment of one of the judges to another post and the retirement of Mr Vermeulen on 23 May 1991. It consequently decided to reopen the oral proceedings before the General Assembly composed differently, at a hearing to be held on 15 October 1991.
27. On 31 October 1991 that assembly, refusing to follow the opinion of the auditeur, Mr De Wolf, ruled that the objection based on the Conseil d’Etat’s lack of jurisdiction ratione materiae was well-founded. It took the view, inter alia:
"that having regard to the relations between the Bars and the judiciary and the concern to preserve advocates’ independence, the legislature’s intention [had been] that the decisions of the Bar Councils should fall outside the scope of review by the Conseil d’Etat. Accordingly, the decisions of the Bar Council [could not] be set aside by the Conseil d’Etat. The right to have his case heard by an independent and impartial national tribunal which the petitioner [inferred] from Article 6 para. 1 (art. 6-1) [of the European Convention on Human Rights] [did not] mean that the Conseil d’Etat [had] to rule on a matter which [fell] outside its jurisdiction;"
It therefore dismissed the application.
28. Each Bar has as the administrative organs for the profession of advocate the Bar Council (conseil de l’Ordre), the Chairman of the Bar Association (bâtonnier) and the General Assembly.
29. The Bar Council is composed of the Chairman of the Bar Association and two to sixteen other members, according to the number of advocates on the Bar roll and the list of the pupil advocates. The Hasselt Bar Council has fourteen members in addition to the Chairman.
The members are directly elected by the General Assembly of the Bar Association, to which all advocates on the roll are convened (Article 450 of the Judicial Code). The election is held before the end of each judicial year.
30. The Council exercises numerous functions of an administrative, regulatory, adjudicative, advisory and disciplinary nature. For the purposes of the present case it is sufficient to mention that it is responsible for drawing up the roll of advocates and the list of pupil advocates.
31. At the material time, Article 432 of the Judicial Code gave the Council unfettered discretion in this respect:
"Enrolment on the roll of advocates and on the list of pupil advocates shall be determined by the Bar Council. No appeal shall lie from its decision as it has absolute authority over the composition of the roll and the list of pupil advocates."
An Act of 19 November 1992 amended that provision by requiring that any rejection of an application for enrolment had to state reasons. In addition, under the new Article 469 bis, an appeal from such a decision lies to the Disciplinary Appeals Board, without prejudice to the right to file an appeal on points of law with the Court of Cassation at a later stage.
Another amendment concerned the public nature of the proceedings. Article 467, second paragraph, of the Judicial Code now provides: "The Bar Council, sitting in disciplinary proceedings or as in disciplinary proceedings, shall hear the case in public, unless the advocate against whom the proceedings have been brought or the person applying for enrolment or re-enrolment requests that the proceedings be private."
32. The enrolment of a lawyer on the list of pupil advocates or as a member of the Bar was and is governed by Article 428 of the Judicial Code:
"No one may bear the title of avocat or practise as an advocate unless he is a Belgian national or a national of a Member State of the European Economic Community and possesses the degree of Doctor of Laws; he must have taken the oath prescribed by law and be enrolled on the Bar roll or on the list of pupil advocates.
...
Save where the law provides otherwise, no further qualification may be added to the title avocat."
33. As regards the taking of the oath, which is a separate formality from admission to pupillage, Article 429 states as follows:
"The oath shall be taken at a public sitting of the Court of Appeal, candidates being presented by an advocate enrolled as a member of the Bar of the jurisdiction of that court for not less than ten years, in the presence of the Chairman of the Bar Association of the seat of the Court of Appeal and at the suit of Crown Counsel".
The candidate shall swear the following oath:
‘I hereby swear allegiance to the King, obedience to the Constitution and to the laws of the Belgian people, and not to deviate from the respect due to the courts and the public authorities, or to advise or defend any cause that I do not, to the best of my knowledge and belief, hold to be just.’
The registrar shall draw up a record of the whole proceedings and endorse each diploma to certify that the formalities have been completed."
34. To be enrolled on the list of pupil advocates a person holding a law degree, or Doctor of Laws, who has usually already taken the oath, lodges with the secretariat of the Bar Association an application for enrolment and his diploma bearing the endorsement certifying that he has taken the oath. In principle an application for admission as a pupil advocate contains the information on the basis of which the Bar Council can determine whether the candidate meets the required standards of integrity and decency.
35. The Bar Council considers whether the candidate satisfies all the requirements as to good character and thus whether he is a fit person to bear the title of avocat. It also verifies that he does not fall within any of the statutory categories of incapacity and incompatibility set out in Article 437 of the Judicial Code, which is worded as follows:
"The profession of advocate shall be incompatible with:
1o the posts of full-time member of the judiciary (magistrat effectif), registrar and civil servant;
2o the functions of notary (notaire) and bailiff (huissier de justice);
3o industrial or commercial activity;
4o remunerated employment and activity, whether in the public or private sector, unless it does not jeopardise the independence of the advocate or compromise the dignity of the Bar.
..."
36. The Bar Council has a very wide discretion in deciding whether to admit candidates to the Bar. That discretion must however be exercised within the limits laid down by the code.
Seeking to define those limits Mr Lemmens, the auditeur, in his report (see paragraph 19 above) took as authority a judgment of the Court of Cassation of 13 May 1952 concerning a decision taken by the Council of the Pharmacists’ Association. Under the Act of 19 May 1949 setting up the Pharmacists’ Association, that Council was vested with powers, as regards admission to the roll, similar to those of the Bar Council. The relevant ground of the judgment in question is worded as follows:
"... it may be inferred from paragraph 3 [of section 2 of the Act of 19 May 1949] laying down the procedure for appeals against decisions refusing applications for enrolment, in the light of the purpose of that text and its legislative history, that the Councils of the Association, responsible for drawing up the roll of the Association, can found their refusal of an application for enrolment only on a defect in the qualifications on which the application is based or on the current unfitness of the candidate or on his professional incompetence." (Pasicrisie, I, p. 578)
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61416
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF RISPOLI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1940 and lives in Salerno.
5. He is the owner of a flatt in Salerno, which he had let to R.C.
6. In a writ served on the tenant on 3 May 1990, the applicant informed the tenant of his intention to terminate the lease on expiry of the term on 30 November 1990 and summoned her to appear before the Salerno Magistrate.
7. By a decision of 15 May 1990, which was made enforceable on 1 June 1990, the Salerno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1991.
8. On 28 January 1992, the applicant served notice on the tenant requiring her to vacate the premises.
9. On 6 April 1992, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 21 April 1992.
10. On 21 April 1992 the bailiff made one attempt to recover possession that proved unsuccessful as, under the statutory provisions providing for the suspension, the applicant was not entitled to police assistance in enforcing the order for possession.
11. On 27 January 1997, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
12. Pursuant to article 6 of Law no. 431/98, the Salerno Magistrate suspended the eviction proceedings until 19 November 1999.
13. On 20 October 1999, he served a second notice on the tenant informing her that the order for possession would be enforced by a bailiff on 19 November 1999.
14. On 19 November 1999, the applicant recovered possession of the flat.
15. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
16. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
17. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
18. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
19. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
20. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”
21. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
22. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
23. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-119704
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF N.K.M. v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions);Pecuniary and non-pecuniary damage - award
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: 5. The applicant was born in 19... and lives in Budapest.
6. The applicant, civil servant for thirty years, had been in the service of a government ministry. On 27 May 2011 she was dismissed, with effect from 28 July 2011. Her dismissal was part of a wave of similar measures throughout the entire civil service.
7. On dismissal, the applicant was statutorily entitled to two months’ salary for June and July 2011 during which time she was exempted from working. In addition, she was to receive severance pay amounting to eight months’ salary in application of section 19(2) g) of Act no. XXIII of 1992 on the Status of Civil Servants, as well as to an unspecified sum corresponding to unused leave of absence.
These benefits – in so far as they did not represent compensation for unused 2011 leave of absence – were subsequently taxed at 98% in their part exceeding 3.5 million Hungarian forints (HUF). The exceeding part was HUF 2.4 million. This represented an overall tax burden of approximately 52% on the entirety of the severance, as opposed to the general personal income tax rate of 16% in the relevant period.
The tax amount in question was never disbursed to the applicant, but was withheld by the employer and directly transferred to the tax authority.
8. Section 19 of Act no. XXIII of 1992 on the Status of Civil Servants provides as follows:
“(1) A civil servant ... shall be entitled to severance if his service relationship is terminated by ordinary dismissal ... .
(2) The amount of severance shall be, if the civil servant’s service has been at least:
...
g) 20 years: eight months’ salary ...”
9. On 22 July 2010 Parliament adopted Act no. XC of 2010 on the Adoption and Modification of Certain Economic and Financial Laws (“the Act”). The Act, which was published in the Official Gazette on 13 August 2010, introduced inter alia a new tax on certain payments for employees of the public sector whose employment was terminated. Consequently, severance pay and other payments related to the termination of employment (such as compensation for unused leave of absence) exceeding HUF 2 million became subject to a 98% tax. However, income tax and social security contributions already paid could be deducted from the tax. Notwithstanding the limit of HUF 2 million, the statutory provisions on the sum of severance pay – in some cases amounting to twelve months’ remuneration – were not modified. The bill preceding the Act justified the tax with reference to public morals and the unfavourable budgetary situation of the country.
10. The Act entered into force on 1 October 2010; however, the tax was to be applied to the relevant revenues as from 1 January 2010. Simultaneously, the Constitution was also amended establishing retroactive tax liability in respect of the given tax year concerning “any remuneration against good morals” paid in the public sector.
11. The Act was challenged before the Constitutional Court within the framework of an abstract ex post facto control. This court found the relevant provisions unconstitutional in decision no. 184/2010. (X.28.) AB on 26 October 2010.
According to the Constitutional Court, revenues earned solely on the basis of relevant statutory provisions (that is, the overwhelming majority of the revenues concerned by the disputed legislation) could not be regarded as being against good morals, and therefore not even the constitutional amendment justified a retroactive 98% tax. The Constitutional Court pointed out that it reviewed the rate or amount of taxes only exceptionally; however, it held that a pecuniary burden was unconstitutional if it was of a confiscatory nature or its extent was clearly exaggerated, i.e. was disproportionate and unjustified. Considering also the “fifty per cent rule” (Halbteilungsgrundsatz) set out by the German Federal Constitutional Court – according to which the overall tax load on assets must be limited to 50-60% of the yield on those assets – the court found that the 98% tax was excessive and punitive, yet it equally applied to severance pay earned in a fully untainted manner. The tax was levied on or deducted from the revenues concerned even if their morally doubtful origin could not be established. The Constitutional Court annulled the relevant provisions retroactively, that is, from the day of the Act’s entry into force. It relied on the above arguments, rather than on considerations about the protection of property, to which its scrutiny did not extend in the case.
12. The Constitutional Court’s decision contained in particular the following considerations:
“5.2. ... [The Act] applies to ... payments originating in unconditional statutory entitlements and defined by objective criteria, that is, to those ... received from any source specified in the Act and exceeding the [relevant] amount .... The Act does not apply only to budgetary institutions but to other, State-owned employers as well. The use of private resources depends on the citizens’ relatively free choices and autonomous decisions. However, decisions concerning public funds are different. [The impugned legislation] relates to public funds, and determines – at least indirectly – the use of public resources.
5.3. ... Depending on the circumstances, [the] 98% tax may apply to payments which derive from the obligatory application of cogent legal provisions. ... In these cases, the special tax does not function as a regulatory instrument, given its inescapable factual basis. Nor does it aim to prevent abusive payments; its purpose is rather to levy almost the entire income [in question] for the central budget. ...
The volume of public duties is considered unconstitutional if they have a confiscatory nature or amount to an evidently excessive rate of the kind which can be regarded as disproportionate and unjustified. ...
The material case concerns a substantial punitive tax which also applies to payments which are received, by virtue of law and within the limits of the proper exercise of rights, upon the termination of employment in the public sector. The Act would be applied also in cases where no infringement of law can be established in connection with the payments concerning the termination of a legal relation. It would deprive the taxable persons of incomes originating in unconditional statutory entitlements. ...
To increase budgetary revenues and secure a general and proportionate distribution of public burden is only the secondary and eventual purpose of the legislator when introducing such a tax. The direct purpose of the legislator in this case is to set a certain barrier on incomes by using the means of tax law. However, imposing a tax or other similar duty is no constitutional means to achieve such purpose. Several constitutional instruments are at the disposal of the legislator to accomplish its objective. It may reduce or even abolish some State allowances falling under the scope of the Act for the future, or transform the allocation system so that in the future it should not be possible to acquire further entitlements to allowances above a certain limit. Nonetheless, the discretion of the legislator only prevails in the framework of international and European community law.”
13. Upon a new bill introduced on the same day as the date of the Constitutional Court’s decision, on 16 November 2010 Parliament re-enacted the 98 % tax with certain modifications, according to which this tax applied from 1 January 2005; however, for the majority of those affected (excluding some senior officials) it only applied to revenues above HUF 3.5 million. The new legislation was published in the Official Gazette of 16 November and entered into force on 30 December 2010.
14. At the same time, Parliament again amended the Constitution, allowing retroactive taxation going back five years. Furthermore, the Constitutional Court’s powers were limited: the amended articles of the Constitution contained a restriction on the Constitutional Court’s right to review legislation on budgetary and tax issues. This restriction – which has also been maintained in the new Basic Law in force from 1 January 2012 – allows for constitutional review only in respect of violations of the right to life and human dignity, the protection of personal data, freedom of thought, conscience and religion, and the rights related to Hungarian citizenship.
15. Upon a petition for an abstract ex post facto control, on 6 May 2011 the Constitutional Court annulled – notwithstanding its limited powers – the five-year retroactive application of the 98% tax in decision no. 37/2011 (V.10.) AB, relying on the right to human dignity. However, the reasoning of the decision underlined that only the taxation of revenues gathered before the 2010 tax year constituted a violation of the right to human dignity. The Constitutional Court did not find unconstitutional as such the Act’s presumption that the relevant revenues infringed good morals; however, it ruled that this presumption should be susceptible to a legal challenge. In view of its limited jurisdiction, it did not consider the substantive aspects of the tax.
16. The Constitutional Court’s decision contained in particular the following considerations:
“1. ... The Constitutional Court has held that the retroactive effect of the Act does not only apply to incomes earned contra bonos mores, but also to incomes originating in unconditional statutory entitlements. Payments of statutory amounts [which have not been abolished] cannot be regarded as being contra bonos mores.
As regards the prospective provisions of the Act, the Constitutional Court has pointed out that the tax in issue is also applicable to payments received legally and within the limits of proper exercise of rights upon termination of employment in the public sector, and that it deprives the persons concerned of incomes originating in unconditional statutory entitlements. However, in this case the legislator interpreted the “special rate” as an entire withdrawal of the income, by which it overstepped its constitutional mandate and breached the amended constitutional rule of distributing public burden.
2. In pursuit of decision [no. 184/2010 (X.28.) AB], Parliament amended the rules on the Constitutional Court’s competence as well as the provision of the Basic Law determining the distribution of public burden, and re-enacted the special tax. ...
2.2. ... [The new legislation] contains no reference to the notion “contra bonos mores”, and allows for retroactive law-making with regard to the fifth tax year in arrears as well as for [any] imposition falling short of [the total] deprivation of income. ...
4.1.1. ... The legal relations falling under the scope of the special tax are typically regulated by the so-called “legal status” Acts [i.e. the Acts concerning the legal status of civil servants]. [In this context, the] salary is specified by the so-called “pay scale”, which is independent from the parties and obligatory for them.
[Moreover,] the personal scope of the special tax also includes employers and employees, mainly those who belong under the Labour Code, who can significantly influence the amount of the allowance received upon the termination of employment. ...
In this respect, the special tax is a tax whose purpose is not to generate [State] revenue. It is, in this connection, a regulatory instrument. ... Certain taxes may serve not only the purpose of increasing State revenue, but also function as regulatory instruments. Secondarily, but not insignificantly, [this] taxation can be also seen as part of the State’s economic policy. In this regard the legislature is afforded an exceptionally broad constitutional margin of discretion. ...
4.1.4. ... The special tax is not a general income tax applicable to all types of income, but rather a particular tax levied on non-repetitive, non-regular payments which relate to certain factual circumstances (i.e. the termination of a legal relation) and which exceed a certain limit. ...
Such a tax with ex nunc effect cannot be considered to violate the right to protection of human dignity or to constitute an improper interference by the State with individual autonomy. Taking into account its base, the incomes not belonging in that base and their amounts, the special tax cannot be considered as completely dispossessing the tax subjects. ...
The individual’s acquisition of the income subject to the special tax is restricted by a public-law limitation originating in that tax ...
4.2.4. ... In case of misuse of public resources, the limitation on payments might even have retroactive effect, [under] section 70/I (2) of the Constitution. The Constitutional Court has already emphasised in its decision [no. 184/2010 (X.28.) AB] that a retroactive special tax may be imposed on unfairly high payments, on certain types of severance pay or on compensation for significant periods of unused vacation time accumulated over years; the Act aiming at preventing abuses and endorsing the society’s sense of justice is not unconstitutional in itself, but must remain within the framework of the amended Constitution.
4.2.5. However, to impose tax on incomes [lawfully] acquired during the tax year ... cannot be considered as the implementation of the new paragraph (2) of section 70/I of the Constitution, but rather interference by a public authority with individual autonomy going to such lengths that cannot have constitutional justification, and therefore violates the taxpayers’ human dignity. ...
The special tax does not provide for a fair and just assessment of individual circumstances; its retroactive rules apply to everyone [with two exceptions mentioned above] without differentiation. Nor does it take into account objective circumstances concerning a wide range of taxpayers, such as the economic crisis or emergency situations, which may disadvantageously influence the individuals’ circumstances. ...”
17. On 9 May 2011 Parliament again re-enacted the retroactive application of the 98% tax. The amendment to Act no. XC of 2010 was published in the Official Gazette on 13 May and entered into force on 14 May 2011. It provided that only relevant revenues earned after 1 January 2010 should be subject to the tax. The amended legislation did not contain any remedy available to those affected.
18. The Act, as in force as of 14 May 2011, provides (in sections 8-12/B) that the special tax rules are applicable to incomes received on 1 January 2010 or after. Incomes shall be subject to a 98% special tax where the private individual has worked at an economic operator or an organisation operating from public money, the payment is effected on account of the termination of the private individual’s work relationship, and the amount of the income exceeds HUF 3,5 million (in certain cases HUF 2 million). Incomes received between 1 January 2010 and 29 December 2010 were declared by private individuals by means of self-assessment, in tax returns submitted until 25 February or 10 May 2011 (depending on the taxpayer group). The tax was payable by the same dates.
19. Members of Parliament, vice mayors and Members of the European Parliament declared their income earned in 2010 and subject to the special tax in a different manner, in a separate tax return submitted until 31 July 2011. They paid the special tax until the same date. Persons subjected to the payment of special tax declared their taxable incomes earned between 1 January 2011 and 13 May 2011 by way of tax returns submitted until 25 February or 20 May 2012 (depending on the taxpayer group), and paid the tax by the same dates. In all other cases, the special tax is deducted by the payment issuer as withholding tax, and the deduction is indicated in the private individual’s tax return for the given revenue year.
Any charges paid by or deducted from the private individual including, in particular, personal income tax or individual contributions shall be regarded as tax advances paid on the special tax.
20. The Charter of Fundamental Rights of the European Union provides as follows:
“1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices.”
21. The European Court of Justice held in Case C-499/08 Andersen v. Region Syddanmark, [2010] ECR I-09343 as follows:
“29. The aim pursued by the severance allowance of protecting workers with many years of service in an undertaking and helping them to find new employment falls within the category of legitimate employment policy and labour market objectives provided for in Article 6(1) of Directive 2000/78.”
22. European Commission Recommendation of 30 April 2009 on remuneration policies in the financial services sector (2009/384/EC) provides as follows:
“1. Excessive risk-taking in the financial services industry and in particular in banks and investment firms has contributed to the failure of financial undertakings and to systemic problems in the Member States and globally....
5. Creating appropriate incentives within the remuneration system itself should reduce the burden on risk management and increase the likelihood that these systems become effective. Therefore, there is a need to establish principles on sound remuneration policies.”
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