ITEMID: 001-58525
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF BARANOWSKI v. POLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 7. On 1 June 1993 the applicant was arrested by the police. On the next day the Łódź Regional Prosecutor (Prokurator Wojewódzki) charged him with fraud and detained him on remand on the grounds specified in Article 217 § 1 (2) and (4) of the Code of Criminal Procedure of 1969. On 25 June 1993 the Łódź Regional Court (Sąd Wojewódzki), ruling on the applicant's appeal, upheld the detention order.
8. On 10 August 1993 the Łódź Regional Court, at the prosecutor's request, prolonged the applicant's detention until 31 December 1993. The court based its ruling on the grounds originally given for his detention and the fact that the investigation had not been completed since further evidence needed to be obtained.
9. On 30 December 1993 the Łódź Regional Court, on a further request by the Łódź Regional Prosecutor, prolonged the applicant's detention on remand until 31 January 1994. The court relied on the same grounds as those mentioned in its decision of 10 August 1993. On 7 January 1994 the applicant lodged an appeal against the decision prolonging his detention.
10. Shortly afterwards, on an unspecified date, the investigation was completed. Subsequently, on 11 January 1994, the Łódź Regional Prosecutor lodged a bill of indictment with the Łódź Regional Court.
11. On 21 January 1994 the Łódź Regional Court referred the applicant's appeal of 7 January 1994 to the Łódź Court of Appeal (Sąd Apelacyjny). On 1 February 1994 the Court of Appeal held that it “was purposeless” to examine this appeal and decided that it should be deemed to be an application for release. The court observed that a decision on the prolongation of detention on remand was necessary only at the investigation stage. Therefore, after the investigation was completed and the bill of indictment was lodged, the applicant could simply file an application for release at any time with the court competent to deal with his case, pursuant to Article 214 of the Code of Criminal Procedure. As a consequence of that decision, the appeal was referred back to the Łódź Regional Court. The applicant was informed thereof on 18 February 1994. However, in the subsequent proceedings, the Łódź Regional Court did not examine the appeal in question either as an application for release under Article 214 of the Code of Criminal Procedure or under any other head.
12. Meanwhile, on 1 February 1994, the applicant had filed a formal petition with the Łódź District Prosecutor (Prokurator Rejonowy). He informed the prosecutor that the order for his detention had expired on 31 January 1994, so that his continued detention had become unlawful and unfounded.
13. Later, on 7 February 1994, the applicant lodged an application for release with the Łódź Regional Court, arguing, in particular, that he should be released in view of the bad state of his health. On 8 February 1994 the court, sitting in camera, ordered that the authorities of the prison hospital at the Łódź Remand Centre submit a medical report on the applicant's current state of health. It adjourned the examination of the application without fixing a date for a further session.
14. It appears that the applicant repeatedly complained to the authorities that his detention under the bill of indictment had become unlawful since, on 16 February 1994, in reply to those complaints, J.L., the President of the Criminal Division of the Łódź Regional Court, sent a letter to the applicant, the relevant part of which read as follows:
“The Łódź Regional Court hereby informs the accused that, since the bill of indictment was submitted to the Łódź Regional Court, the Łódź Regional Prosecutor placed the detainee at the disposal of that court. ... From then on, the accused has been at the Łódź Regional Court's disposal [and will be] until the detention order is quashed (at the [applicant's] or his lawyer's request, or [at the request of] the Łódź Remand Centre's administration – for instance on the ground of his bad state of health).
In case an application for release is not allowed, detention may continue until the first-instance judgment is delivered.
In such cases, after the delivery of the judgment, the court makes a decision on whether detention shall continue further. Therefore, the accused's assertion that his detention [order] has expired is unjustified ...”
15. On 18 February 1994 doctors from the prison hospital submitted the report requested by the trial court. They stated that the applicant could undergo medical treatment in that hospital. They suggested, however, that he be examined by a cardiologist, a psychiatrist and a neurologist.
16. On 25 February 1994 the court again adjourned the examination of the application for release, finding that reports from the said medical experts had to be obtained to establish whether the applicant should be released on health grounds.
17. On 28 March 1994 the applicant filed another application for release with the Łódź Regional Court.
18. On 29 March 1994 an expert cardiologist submitted a report to the court. On 1 April 1994 the court found it necessary to place the applicant in the prison hospital but adjourned its decision on his applications for release until the expert psychiatrist and neurologist had submitted their joint report. The report was ready on 28 April 1994; however, on 6 May 1994, the court, at the request of the Łódź Regional Prosecutor, again adjourned the examination of the applications and ordered that certain – unspecified – evidence concerning the state of the applicant's health be obtained.
19. On 24 May 1994 the court ruled on the applications for release dated 7 February and 28 March 1994 respectively. It held that no circumstances justified altering the preventive measure in issue. The decision was based on Articles 209 and 217 § 1 (2) and (4) of the Code of Criminal Procedure. On 5 July 1994 the Łódź Court of Appeal, ruling on the applicant's appeal, upheld that decision.
20. In the meantime, since 16 February 1994, the applicant had been requesting the Łódź Regional Court to give an interpretation of the detention order of 30 December 1993, in particular as to whether or not that order had remained enforceable after its expiry. He lodged these requests under Article 14 of the Code of Execution of Criminal Sentences on the following dates: 16 and 25 February, 4 March, 8 and 18 April, 20 and 30 May, and 25 October 1994. The applicant argued that the fact that the indictment had been lodged with the court did not mean that his detention automatically continued after 31 January 1994. He further submitted that no provision of the Code of Criminal Procedure provided that detention was prolonged as a result of the transfer of the case to the court. He asserted that the order of 30 December 1993 was not enforceable as he had lodged an appeal against it. The applicant concluded that he should have been released immediately after 31 January 1994 because his detention as from that date lacked any legal basis.
21. On 21 December 1994 the Łódź Regional Court sitting with a single judge rendered a decision on all the above requests. The court held that the decision of 30 December 1993 to prolong the applicant's detention until 31 January 1994 was enforceable, despite the fact that the applicant had lodged an appeal against it. The judge further reiterated the arguments set out in the letter to the applicant of 16 February 1994.
22. On 29 December 1994 the applicant appealed. He submitted that the court should have been composed of three judges in accordance with the relevant provisions of the Code of Criminal Procedure. He again argued that there was no legal basis for keeping him in detention after 31 January 1994. On 3 January 1995 a panel of three judges of the Łódź Regional Court quashed the contested decision. The court found that the firstinstance court should have been composed of three judges, as submitted by the applicant. However, it also held that Article 14 of the Code of Execution of Criminal Sentences was not applicable in the applicant's case since that provision applied only to cases involving doubts concerning the execution of the sentence or the calculation of the penalty imposed and not to the execution of detention orders.
23. On 10 January 1995 the applicant appealed. On 16 January 1995 the President of the Criminal Division of the Łódź Regional Court issued an order refusing to allow the applicant's appeal on the basis that it was inadmissible in law. The applicant filed a further appeal against that decision. On 17 February 1995 the Łódź Regional Court upheld the decision of 16 January 1995, considering that it had been open to the applicant to file an appeal against the decision of 21 December 1994, but that any further appeal was inadmissible in law since Article 14 of the Code of Execution of Criminal Sentences did not apply to a detainee.
24. On 22 October 1996 the Łódź Regional Court quashed the detention order and released the applicant under police supervision. The criminal proceedings against the applicant are still pending in the court of first instance.
25. At the material time the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997 (currently referred to as the “New Code of Criminal Procedure”).
26. The Code of Criminal Procedure of 1969 listed detention among the so-called “preventive measures” (those measures including, inter alia, detention on remand, bail and police supervision). Until 4 August 1996 (that is, the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes came into force) a prosecutor was empowered to order all preventive measures as long as the investigation lasted. Also, at the time the national law did not set out any statutory timelimits concerning the length of detention on remand in court proceedings; however, under Article 210 § 1 of the Code of Criminal Procedure a prosecutor was obliged to determine in his decision the period for which detention was ordered.
That Article stated (in the version applicable at the material time):
“Preventive measures shall be ordered by the court; before a bill of indictment has been lodged with the competent court, those measures shall be ordered by the prosecutor.”
The relevant part of Article 222 of the Code of Criminal Procedure (in the version applicable at the material time) stated:
“1. The prosecutor may order detention on remand for a period not exceeding three months.
(1) the court competent to deal with the case, at the prosecutor's request, for a period not exceeding one year;
(2) the Supreme Court, at the request of the Prosecutor General, for such further fixed term as is required to terminate the investigation.”
27. The courts, when ruling on a prosecutor's request under Article 222 § 2 of the Code, were obliged to determine the precise period for which detention should be prolonged. If they refused to prolong detention or if the prosecutor failed to submit a request for a further prolongation before or on the expiry of the last detention order (regardless of whether it had been made by him or by a court), the detainee had to be released immediately.
28. Article 213 § 1 of the Code of Criminal Procedure provided:
“A preventive measure (including detention on remand) shall be immediately quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one.”
29. Article 217 § 1 (2) and (4) (in the version applicable at the material time) provided:
“1. Detention on remand may be imposed if:
...
(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means;
...
(4) an accused has been charged with an offence which creates a serious danger to society.”
30. At the relevant time there was no specific provision governing detention on remand after the bill of indictment had been lodged with the competent court. Since 4 August 1996, the date of entry into force of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes and under the present criminal legislation, the courts have been and are bound by the maximum statutory time-limits for which detention on remand can be imposed during the entire course of the proceedings. In particular, at the material time, there was no provision stating that the lodging of a bill of indictment automatically prolonged or replaced a previous detention order, or that this event itself resulted in detention which had originally been prolonged by a court for a fixed period at the investigation stage being continued either for an unlimited period or until a judgment at first instance was given. Nor was there any case-law to that effect. Nevertheless, according to domestic practice, once a bill of indictment had been lodged with the court competent to deal with the case, detention was assumed to be prolonged pending trial without any further judicial decision being given.
31. It was as late as 6 February 1997 that the Supreme Court, referring to the historical background to the amended criminal legislation, mentioned the practice of keeping an accused in detention under the bill of indictment. It did so in a ruling on the interpretation of the Code of Criminal Procedure. That ruling did not, however, concern criminal legislation as it stood at the material time but related to the Code as amended with effect from 4 August 1996, when Article 222 (as amended) set out maximum time-limits for detention on remand not only at the investigation stage but at the whole pre-trial stage. In its resolution (no. I KZP 35/96) the Supreme Court replied – in the affirmative – to the question whether, after the lodging of a bill of indictment with the court competent to deal with the case, that court was obliged to give a decision prolonging detention on remand which had meanwhile exceeded the period fixed (or further prolonged) at the investigation stage. The relevant parts of the resolution read as follows:
“Under the provisions of the Code of Criminal Procedure which applied before [4 August 1996, when] the amendment of 29 June 1995 took effect, an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in Article 211 § 2. However, it did not emerge explicitly from Article 222 §§ 1 and 2 (1) of the Code that, at the investigation stage, a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last. It was deemed to be obvious that, when prolonging detention at the investigation stage, both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision. It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings.
Comparing the old legislation with the present one leads [this Court] to the conclusion that the legislator, when amending the Code in June 1995, simply extended [the scope of] the rules applicable to continuing and prolonging detention on remand – which had previously applied only at the investigation stage – to the phase of court proceedings.
Before the amendment, the legislation was based on the precept that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court. Now, the starting-point is that a suspect (and an accused) should not be detained indefinitely as long as a first-instance judgment is not rendered.
Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time-limit [on this measure]. For this reason, the court concerned had no interest in [knowing] until when detention had been prolonged under the last decision[;] detention could continue because 'detention of limited duration' had become 'detention of unlimited duration'. There was therefore only a need to ascertain whether there were grounds for continuing detention under Article 213 of the Code.”
32. In its further resolution (no. I KZP 23/97) of 2 September 1997, the Supreme Court confirmed that:
“If the case, in which detention on remand had been ordered, has been referred to a court with a bill of indictment and the period of detention which had previously been fixed expires, the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter.”
Referring to the resolution of 6 February 1997, it also stressed that:
“ ... the ratio legis of the amendments to criminal legislation is based on the precept that a suspect (accused) should in no case be detained indefinitely until the first-instance judgment is rendered in his case ...
It should be noted that, from the point of view of procedural safeguards for an accused, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (Article 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings ...”
33. Articles 295 and 296 of the Code of Criminal Procedure of 1969, referring to the formal requirements for a bill of indictment, stipulated that it should contain the first name and surname of the accused and information as to whether a preventive measure had been imposed on him, a statement of the offence with which he had been charged, a detailed description of the facts of the case along with a statement of reasons for the charges, an indication of the court competent to deal with the case and evidence on which the charges were based.
34. Once the bill of indictment had been lodged with the court, the president of the court carried out preparations for the main trial.
Article 299 § 1 (6) of the Code of Criminal Procedure provided:
“1. The president of the court, ex officio or at the request of a party, shall refer the case to a court session if he finds that its resolution lies beyond his own competence, in particular:
...
(6) when there is a need to issue an order on a preventive measure.”
35. However, at the material time, according to the relevant domestic practice in respect of detention continuing after the last detention order had expired and after a bill of indictment had been lodged with a court, the courts did not make use of the procedure prescribed by the above-mentioned provision as it was presumed that the detention continued solely due to the fact that a bill of indictment had been lodged and, therefore, there was no need to issue a separate decision prolonging the detention.
36. Also, at the time, the Code set out three different legal avenues whereby a detainee could challenge the lawfulness of his detention: an appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined requests for prolongation of detention submitted by a prosecutor; and proceedings relating to a detainee's application for release.
37. As regards the last of these, Article 214 of the Code of Criminal Procedure (in the version applicable at the material time) stated:
“An accused may at any time apply to have a preventive measure quashed or altered.
Such an application shall be decided by the prosecutor or, after the bill of indictment has been lodged, by the court competent to deal with the case, within a period not exceeding three days.”
No provision of the Code stipulated that exceeding the time-limit laid down in that Article would have any legal consequence.
38. The interpretation of enforceable decisions in criminal proceedings was at the relevant time governed by the provisions of the Code of Execution of Criminal Sentences of 1969.
39. Article 14 of that Code provided:
“1. The authority executing a decision, as well as everyone whom such a decision concerns, may request the court which has dealt with the case to rule on any doubts concerning the execution of that decision or the calculation of the penalty imposed.
2. Everyone whom the decision on interpretation referred to in paragraph 1 concerns may appeal against such a decision.”
40. According to Article 205 of the Code of Execution of Criminal Sentences, provisions of the Code referring to a “convicted person” applied by analogy to a “detainee”. However, in the light of domestic practice and legal theory, it was considered doubtful whether Article 14 of the Code applied to cases in which a person detained on remand challenged the lawfulness of his detention since such a challenge was normally examined in the proceedings prescribed by the Code of Criminal Procedure (see paragraphs 36-37 above).
41. Proceedings relating to a request under Article 14 of the Code of Execution of Criminal Sentences were designed to obtain an interpretation of an enforceable decision which had not been formulated with adequate precision. The court which was called upon to interpret the decision in question was not competent to amend or supplement its operative part (see the decision of the Supreme Court (no. VI KRN 14/76) of 2 March 1976, OSNPG 1976/6/59). That being so, the person concerned could not obtain his release by lodging a request under Article 14 of the Code.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-5637
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PONSETTI and CHESNEL v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: Mr [Frédéric] Ponsetti, who was born in 1949, lives at Pierrelatte and practises as a bailiff. Mr [Christian] Chesnel was born in 1936 and lives in Paris. He is a practising notary. Both are French nationals. They were represented before the Court by Mr P.F. Ryziger, a member of the Conseil d’État and Court of Cassation Bar.
The facts, as submitted by the parties, may be summarised as follows.
The applicant failed to file income tax returns for the years 1988, 1989 and 1990 despite receiving demands to do so from the tax authorities. In April 1991 the tax authorities conducted an audit of his accounts and assessed him to 95,823 French francs (FRF) in unpaid income tax for the first of those three years, FRF 206,388 for the second and FRF 286,957 for the third. They sought recovery of those amounts, to which on 20 December 1991, pursuant to Article 1728 of the General Tax Code, they added default interest and surcharges at the rate of 80% of the sum due for 1988 (namely FRF 76,658) and of 40% for the other two years (amounting to FRF 104,352 and FRF 155,395).
At the same time the tax authorities lodged a criminal complaint against Mr Ponsetti alleging tax evasion and sought to be joined as a civil party to the proceedings.
The applicant was charged with “having at Montélimar, during the years 1988 to 1990, fraudulently evaded assessment of his income tax liability and evaded partial payment of such tax by wilfully omitting to file his return within the prescribed time, by concealing parts of his income liable to tax, by arranging his insolvency or obstructing the collection of the tax by other subterfuges, or by acting in any other fraudulent manner, in the instant case by omitting to file income tax returns for the years 1988 to 1990, thus evading payment of FRF 589,168 in income tax, being FRF 95,823 for 1988, FRF 206,388 for 1989 and FRF 286,957 for 1990”, an offence under Article 1741 of the General Tax Code.
On 21 July 1993, Valence Criminal Court convicted the applicant and imposed a three months’ suspended prison sentence and fine of FRF 10,000 on him. In reaching its verdict it stated: “... by failing to file income tax returns for the years 1988 to 1990, Mr Ponsetti committed the offence of which he stands accused of tax evasion, contrary to Article 1741 of the General Tax Code ...”.
The applicant and the prosecution appealed to Grenoble Court of Appeal. On 17 November 1994 the Court of Appeal upheld the applicant’s conviction and increased the sentence to a suspended term of six months’ imprisonment and a fine of FRF 200,000. It reached its decision on the following ground:
“... the intentional element of the offence of tax evasion is sufficiently made out by the fact that the accused failed to make the tax returns necessary for assessing his liability to tax when:
– he was perfectly aware of that requirement, if only as a result of the 1986 audit;
– he had been given due notice before the audit to make the returns for each of the three years concerned;
– whatever the truth of his computing problems, the relevant information was available to him, as he had duly filed the monthly turnover figures for the calculation of VAT on time and therefore had only to deduct his professional liabilities in order to determine and declare his income;
– it is plain that he has used the pretext of computing difficulties to draw out matters as long as possible in order to plead the statute of limitations from which he has already partially benefited in 1986.
The tax authorities’ decision regarding at what level on the scale of surcharges for unpaid tax to impose the – purely fiscal – penalty on Frédéric Ponsetti as a result of his conduct is, in law, a separate issue from the decision of the criminal court on whether the intentional element of the offence of tax evasion has been made out ...”
The applicant appealed to the Court of Cassation on the ground that there had been a violation of Article 6 of the Convention and of Article 4 of Protocol No. 7 to the Convention in so far as it guarantees the non bis in idem principle. On 20 June 1996 the Criminal Division of the Court of Cassation dismissed the appeal in a judgment which read as follows:
“... Frédéric Ponsetti argued in his defence that as he had already been subjected to tax penalties for the same matters, no further penalties could be imposed on him.
In rejecting the accused’s submissions and sentencing him to a term of imprisonment and a fine under Article 1741 of the General Tax Code, the Court of Appeal stated that the nature and purpose of prosecution for tax evasion, which is aimed at curbing the unlawful avoidance of tax, are different from those pursued by the tax authorities when conducting a tax audit with a view to collecting unpaid tax.
Having regard to that reasoning, this Court is satisfied that the Court of Appeal gave a valid basis for its decision.
In accordance with the reservations made by France regarding Protocol No. 7, the non bis in idem rule enshrined in Article 4 of Protocol No. 7 to the European Convention on Human Rights and Fundamental Freedoms is applicable only to offences which under French law fall within the jurisdiction of the criminal courts and does not prevent tax penalties being imposed concurrently with penalties by the criminal courts.
It follows that the ground of appeal must be rejected ...”
The applicant has since 1979 been in practice as a notary in Bezons. From October 1990 onwards, he failed to make his monthly value-added tax (VAT) returns with the result that his activity was included on the audit programme of the Val d’Oise département tax office by the administrative department. The audit, which concerned VAT, covered 1989, 1990, 1991 and January to April 1992.
A notice advising that the accounts would be inspected was sent to the applicant on 12 June 1992 and the audit took place at his office between 25 June and 25 October 1992. The arrears to be paid by the applicant were assessed on the basis of VAT shown to be due by returns lodged during the audit. They came to a total of FRF 1,212,599. A demand for that amount was sent to the applicant on 27 November 1992. In addition to the VAT, the applicant was required to pay the surcharges laid down by Article 1728 of the General Tax Code for failure to file returns. They amounted to FRF 812,035 and FRF 209,859 (namely 90,95 % of the total).
On 19 November 1993 the tax office of the Val d’Oise département lodged a complaint with Pontoise Criminal Court with the approval of the Tax Offences Board dated 8 November 1993. The tax authorities, represented by the Director of Taxes of the Val d’Oise département, lodged a request to be joined as a civil party to the proceedings.
The applicant was charged with “having at Bezons, between 1 October 1990 and 30 April 1992, fraudulently evaded assessment of his liability to tax, namely value-added tax, and evaded its payment in whole or in part, by wilfully concealing part of the sums, namely FRF 9,073,333, liable to such tax, on which was due FRF 1,212,596 in unpaid VAT ...”
Before the Criminal Court the applicant pleaded the non bis in idem rule, arguing that, since tax penalties had already been imposed on him he could not be prosecuted in the criminal courts for matters arising out of the same facts.
On 8 November 1995 the Criminal Court dismissed that procedural objection in a judgment which read as follows:
“It is common ground that an estoppel per rem judicatam constitutes an obstacle to a further prosecution if there is identity of legal basis, subject-matter and parties with a previous prosecution that has ended with an unappealable decision.
In the instant case, even supposing that the tax proceedings resulted in a decision that could be described as criminal in character, the administrative proceedings involve different parties, a different subject-matter and a different legal basis.
Firstly, there is no identity of parties between tax proceedings and criminal proceedings as the public prosecutor, who plays no role in the administrative proceedings, acts as the prosecuting party in the court proceedings.
In the administrative proceedings, however, it is the tax authorities who instigate matters.
In addition, the subject-matter and legal basis in tax proceedings and in criminal proceedings are different.
Whereas the purpose of administrative proceedings is to obtain compensation only for the loss sustained by the tax authorities through the non-payment of taxes, the function of criminal proceedings is to remedy the harm caused to society by the actions of the perpetrator of the fraud.
There is a radical difference in the nature of tax penalties and criminal penalties, as the former may be imposed following a mere unintentional mistake by the taxpayer, without there being any additional harm to society.
The offence of tax evasion, however, causes additional harm which affects the whole fabric of society. Reparation for that harm is sought by the public prosecutor on behalf of society; thus, criminal proceedings and tax proceedings have a different purpose.
That difference in character is likewise demonstrated by the different statutory bases for tax penalties and criminal prosecutions ...”
As regards the merits, the Criminal Court stated “... in any event, the fact that notices were served on the accused from March 1991 onwards enables the arguments relating to the absence of intent or to improbable implied agreements with the tax authorities to be discounted ...”.
The Criminal Court found the applicant guilty of the offences of which he was accused and sentenced him to, inter alia, twelve months’ suspended imprisonment and a fine of FRF 100,000.
The applicant, the public prosecutor and the tax authorities appealed against that judgment. Referring to the European Convention on Human Rights, the applicant repeated his arguments based on the non bis in idem rule. On 24 October 1996 the Court of Appeal rejected that argument in a judgment in which it stated:
“... the case-law of the European Court ... does not require the court concerned to treat fiscal administrative penalties as criminal penalties but to examine whether under domestic law any of the aims of the penalty for the violation of a general rule concerning all citizens – irrespective of how such penalty is classified under domestic law – is at once preventive or deterrent and punitive rather than the reparation of damage for the purposes of Article 6 § 1 of the [Convention]. That Article provides: ‘In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal.’
In practice, [the applicant] could have raised the ‘criminal’ character of the penalties imposed for tax evasion by seeking a review (which he did not do in the instant case) before a court, namely the administrative court, which would try the issue of the penalties fairly. As matters stand, the case-law of the European Court regarding the interpretation of Article 6 of the [Convention] requires no more than that.
Secondly, [as regards Article 4 of Protocol No. 7] ... France has made the following reservation regarding the application [of Article 4 of Additional Protocol No. 7]: ‘... only those offences which under French law fall within the jurisdiction of the French criminal courts may be regarded as offences within the meaning of Articles 2 to 4 of this Protocol’.
Fiscal penalties and criminal penalties are different in nature, even though fiscal penalties, which are exclusively monetary, have a penal character for the purposes of the application of Article 6 § 1 of the [Convention]. Fiscal penalties are imposed by the authorities subject to review by the administrative courts whereas criminal penalties are imposed by the ordinary courts and may be other than financial, with sentences ranging from alternatives to prison to imprisonment itself and the imposition of additional penalties, none of which are available to the tax authorities.
Proceedings for the collection of tax and penalties or, as in the instant case, for challenging interest or tax penalties are not criminal proceedings; there is no determination of ‘a criminal charge’ for the purposes of either domestic law or of the international convention ratified, with a reservation, by France.
A criminal prosecution for tax evasion and administrative proceedings for the assessment of the base for tax, interest and penalties (whatever the stage, including the contentious stage, reached in the contemplated proceedings) are, both as regards their nature and subject-matter, different from each other and mutually independent.
Thus, for the purposes of Article 4 of Protocol [No. 7], in the instant case neither the administrative proceedings (which cannot be classified as criminal) nor the nature of the administrative financial penalty (whose preventive and repressive character is relevant only as regards the requirement that the fundamental guarantees provided by Article 6 of the [Convention] should be applied), allow Mr Chesnel to affirm that he has previously been prosecuted in criminal proceedings solely on the ground that penalties were imposed on him in connection with unpaid VAT pursuant to Article 1728 of the General Tax Code. That is because the statutory basis is different from the one used in criminal proceedings, namely Articles 1741 and 1750 of the General Tax Code.
The non bis in idem rule cannot be applied in the present case. Consequently, Mr Chesnel cannot assert that he has been prosecuted twice on the same basis. The Court of Appeal upholds the decision of the court below to reject that argument, but does so on different grounds ...”
On the merits, the Court of Appeal upheld the impugned judgment finding that the applicant was guilty of the offence of tax evasion, and confirmed each of the penalties imposed by the Criminal Court.
The applicant appealed to the Court of Cassation. His sole ground of appeal was that there had been a violation of Article 4 of Protocol No. 7. In a judgment of 11 December 1997, the Court of Cassation dismissed the appeal on the following ground:
“... The Court of Appeal rejected the submissions [of the applicant] that, as a fiscal penalty had already been imposed on him, he could not be prosecuted for the same offence, and sentenced him to a term of imprisonment and fine pursuant to Article 1741 of the General Tax Code. In so doing, it stated that a criminal prosecution for tax evasion, which concerns criminal conduct, and administrative proceedings for the determination of the base of the tax, plus interest and penalties, are different in nature and purpose and independent of each other.
Having regard to that reasoning, this Court is satisfied that the Court of Appeal gave a valid basis for its decision.
The prohibition on two convictions for the same offence contained in Article 4 of Protocol No. 7 ..., is, according to the reservations made by France on signing the Protocol, applicable only to offences which under French law are within the jurisdiction of the criminal courts and does not preclude fiscal penalties being imposed concurrently with the penalties imposed by the criminal courts ...”
The relevant provisions of the General Tax Code are as follows:
“1. Where a natural or juristic person or an association under an obligation to make a return or to lodge a document supplying information needed for the calculation of the base of any of the taxes, duties, charges, dues or other sums assessed or collected by the Department of Revenue or their payment fails to make such return or lodge such document within the time-limit, interest for late payment calculated in accordance with Article 1727 and a 10% surcharge shall be added to the tax liability imposed on the person concerned or assessed on the basis of the return or document lodged out of time.
...
3. The surcharge shall be increased to:
– 40% if the document is not lodged within thirty days after receipt of notice sent by registered post to produce the document within that time-limit;
– 80% if the document is not lodged within thirty days after receipt of a second notice sent in the same manner as the first.”
“Without prejudice to any special provisions ... anyone who fraudulently evades assessment or payment in whole or in part of the taxes with which this Code is concerned, or attempts to do so, whether by wilfully omitting to make his return within the prescribed time, or by wilfully concealing part of the sums liable to tax, or by arranging his insolvency or obstructing the collection of tax by other subterfuges, or by acting in any other fraudulent manner, shall be liable, independently of the applicable tax penalties, to a fine of FRF 250,000 and to imprisonment for a term of five years ...”
Under the case-law of the Criminal Division of the Court of Cassation the offence of fraudulent evasion or attempted fraudulent evasion of the assessment or payment of tax is characterised by the accused’s wilful omission to make his returns within the prescribed time, there being no requirement that fraudulent means should have been used (see judgments of 4 October 1974, Gazette du palais 1975.1 Somm. p. 150; 2 March 1976, Reports Dalloz Sirey, 1976, 25e cahier; and 2 July 1998, Reports no. 213). A finding that there has been wilful concealment of sums attracting tax suffices to characterise the tax offence “in all its constitutive elements”, it being unnecessary to establish the use of fraudulent means (see judgment of 2 July 1998 cited above).


ITEMID: 001-105129
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF OSMAN v. DENMARK
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 6. The applicant was born in Somalia on 1 November 1987 as the youngest of five siblings. Currently she lives in Esbjerg.
7. From 1991 to 1995 the applicant lived with her family in Kenya.
8. In April 1994 the applicant’s father and a sister were granted asylum in Denmark.
9. Having been granted a residence permit in November 1994, on 11 February 1995 the applicant, who at the relevant time was seven years old, her mother and three siblings joined them. A few years later, the applicant’s parents divorced. The parents maintained joint custody of the applicant, who lived with her mother. From 1995 until August 2002, the applicant attended various schools, some of which expelled her due to disciplinary problems.
10. The applicant also had difficulties with her parents, who disapproved of certain aspects of her behaviour. Consequently, in May 2003, when the applicant was fifteen years old, her father decided to take her to Kenya to take care of her paternal grandmother, who was living at the Hagadera refugee camp in northeastern Kenya. It appears that the applicant’s mother did not want her to go but reluctantly agreed on the understanding that it would be a short trip. It also appears that the applicant believed that she was going on a short trip to visit her grandmother.
11. When the applicant’s father returned to Denmark, he was summoned for an interview with the Immigration Service on 10 November 2003 because the latter had been informed that he, who had been recognised as a refugee, had visited his country of origin. On 17 December 2003 the Immigration Service (Udlændingeservice) took the stand that the applicant’s father’s residence permit had not lapsed. In that connection, the applicant’s father was advised on the regulation regarding lapse of residence permits.
12. On 9 August 2005, three months before the applicant turned eighteen years old, she contacted the Danish Embassy in Nairobi with a view to returning to live with her mother and siblings in Denmark. Her father had joined her in Nairobi to help her submit the application for family reunification. He also remarried in Nairobi at the relevant time. An interview was conducted with the help of an English/Somali interpreter although it was stated that the applicant spoke Danish. The applicant explained that she had taken care of her grandmother, who had fallen seriously ill, until some of the grandmother’s children had arrived from Somalia to take over the care of their mother.
13. In a letter of 24 November 2005 to the Immigration Service the applicant’s mother stated, inter alia, that at the relevant time it had been decided temporarily to send the applicant to Kenya where the family had a network so that she could attend school and that the applicant had been living with her father’s friends.
14. On 21 December 2006 the Immigration Service found that the applicant’s residence permit had lapsed pursuant to section 17 of the Aliens Act because she had been absent from Denmark for more than twelve consecutive months; because she had not contacted the Immigration Service until August 2005; and because there was no information indicating that she could not have contacted the authorities in due time. They also considered that the applicant was not entitled to a new residence permit under section 9, subsection 1 (ii), of the Aliens Act, in force at the relevant time, since the applicant was 17 years old and the said provision only extended a right to family reunification to children below the age of 15. Finally, it found that no special circumstances existed to grant her a residence permit under section 9 c, subsection 1, of the Aliens Act. It noted in that connection that the applicant had not seen her mother for four years; that it had been the latter’s voluntary decision to send the applicant to Kenya; that she could still enjoy family life with her mother to the same extent as before; that she had stayed with the grandmother; and that except for the grandmother’s age, there was no information that the applicant could not continue to live with her or the grandmother’s children.
15. On 11 April 2007 the applicant appealed against the decision and maintained that it had not been her decision to leave the country; that from the refugee camp where she lived with her grandmother she was not able herself to go to Nairobi; and that during her stay outside Denmark she had not stayed in her country of origin.
16. According to the applicant, in June 2007 she re-entered Denmark clandestinely to live with her mother. It is disputed whether the Danish authorities were aware of this.
17. On 13 July 2007 the Immigration Service received a questionnaire from the applicant dated 12 July 2007 used for requests for exemption from the authorities revoking a residence permit despite a stay outside Denmark for a certain period. It was partly filled out and stated, inter alia, that it had been the applicant’s parents’ decision that she should leave Denmark at the relevant time; that the applicant spoke Danish, but could not read or write the language; that she spoke the language of the country in which she was currently residing, but that she could not read or write that language either; and that she was very afraid and could not reside in her country of origin as there was unrest. The applicant did not specify that she had actually returned to Denmark, but her signature was dated as set out above in Esbjerg, Denmark. It was also stated that her sister had assisted her in answering the questionnaire.
18. On 1 October 2007 the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for flygtninge, indvandrere og integration) upheld the decision by the Migration Service of 21 December 2006. It stated among other things:
“... The Ministry emphasises that there is no information available of any circumstances that would lead to [the applicant’s] residence permit being deemed not to have lapsed ... [the applicant’s] parents did not apply for retention of [her] residence permit before she left, and neither she nor her parents contacted the immigration authorities during her stay abroad, and it has not been substantiated that illness or other unforeseen events prevented such contact. Thus, the Ministry finds that the illness of [the applicant’s] grandmother did not prevent [the applicant] or her parents from contacting the immigration authorities.
Although the distance from Hagadera to Nairobi is significant [485 km] and it can be assumed that [the applicant] did not have the means to travel to Nairobi, the Ministry finds that these circumstances did not prevent [the applicant’s] parents from contacting the immigration authorities before [the applicant’s] departure, which was planned.
The fact that [the applicant] stayed in Kenya and not in Somalia does not change the fact that [she] has resided abroad for more than twelve consecutive months.
It is stated for the record that it was not [the applicant’s] decision to leave Denmark and stay away so long. The ministry finds that this will not lead to a different outcome of the case as [the applicant’s] parents had custody over her at the time of her departure ... they could thus lawfully make decisions about [her] personal circumstances...”
19. Upon request from the applicant, who was represented by counsel, on 11 December 2007 the Immigration Service brought the case concerning section 17 and section 9, subsection 1 (ii), of the Aliens Act before the City Court of Copenhagen (Københavns Byret), before which the case was decided on the documents submitted, without any parties being summoned. On 25 April 2008 it found against the applicant. It added that section 9, subsection 1 (ii), of the Aliens Act had been amended, limiting the right to family re-unification to children under 15 years instead of under 18 years in order to discourage the practice of some parents of sending their children on “re-upbringing trips” for extended periods of time to be “re-educated” in a manner their parents consider more consistent with their ethnic origins. It was preferable in the legislator’s view for foreign minors living in Denmark to arrive as early as possible and spend as many of their formative years as possible in Denmark. It found that such decision did not contravene Article 8 of the Convention as invoked by the applicant.
20. The decision was appealed against to the High Court of Eastern Denmark (Østre Landsret), henceforth the High Court, before which the applicant’s representative in his written submissions stated that the applicant remained in Kenya. On 30 October 2008 the High Court upheld the City Court’s decision. By way of introduction, it stated that according to section 52 of the Aliens Act, it could not review a final administrative decision of refusal of a residence permit under section 9c, subsection 1, of the Aliens Act. As to section 9, subsection 1 (ii) it confirmed that the applicant failed to fulfil the conditions. It took into account that the applicant’s parents had sent her voluntarily to Kenya to live with family for an indefinite period; that the applicant was seventeen years and nine months old, when in August 2005 she applied to re-enter Denmark; that her father visited her during her stay in Kenya; and that her mother would also be able to visit the applicant in Kenya to enjoy family life there.
21. Leave to appeal to the Supreme Court (Højesteret) was refused on 19 January 2008.
22. By letter of 27 January 2010 the Ministry of Refugee, Immigration and Integration Affairs advised the applicant of her duty to leave Denmark pursuant to section 30 of the Alien’s Act and the possibility of submitting an application for asylum under section 7 of the Aliens Act. The applicant was also advised that an application should be submitted in person to the Immigration Service or the police.
23. So far the applicant has not applied for asylum.
24. Article 63 of the Constitution read as follows:
The courts have authority to adjudge on any matter concerning the limits to the competence of a public authority. However, anyone wishing to raise such matters cannot avoid temporarily complying with orders issued by the public authorities by bringing them before the courts.
25. Applications for asylum are determined in the first instance by the Immigration Service and in the second instance by the Refugee Appeals Board under the Aliens Act (Udlændingeloven), the relevant provisions of which at the relevant time read as follows
1. Upon application, a residence permit will be issued to an alien if the alien falls within the provisions of the Convention relating to the Status of Refugees (28 July 1951).
2. Upon application, a residence permit will be issued to an alien if the alien risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin. An application as referred to in the first sentence hereof is also considered an application for a residence permit under subsection 1.
3. A residence permit under subsections 1 and 2 can be refused if the alien has already obtained protection in another country, or if the alien has close ties with another country where the alien must be deemed to be able to obtain protection.
1. Upon application, a residence permit will be issued to an alien who arrives in Denmark under an agreement made with the United Nations High Commissioner for Refugees or similar international agreement, and who falls within the provisions of the Convention relating to the Status of Refugees (28 July 1951), see section 7(1).
2. In addition to the cases mentioned in subsection 1, a residence permit will be issued, upon application, to an alien who arrives in Denmark under an agreement as mentioned in subsection 1, and who risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin, see section 7 subsection 2.
3. In addition to the cases mentioned in subsections 1 and 2, a residence permit will be issued, upon application, to an alien who arrives in Denmark under an agreement as mentioned in subsection 1, and who would presumably have satisfied the fundamental conditions for obtaining a residence permit under one of the provisions of the Aliens Act if he had entered Denmark as an asylum-seeker.
4. In the selection of aliens issued with a residence permit under subsections 1 to 3, the aliens’ possibilities of establishing roots in Denmark and benefiting from the residence permit, including their language qualifications, education and training, work experience, family situation, network, age and motivation, must be emphasised unless particular reasons make it inappropriate.
5. Unless particular reasons make it inappropriate, it must be made a condition for a residence permit under subsections 1 to 3 that the alien assists in a special health examination and consents to the health information being transmitted to the Danish Immigration Service and the local council of the municipality to which the alien is allocated, and signs a declaration concerning the conditions for resettlement in Denmark.
6. The Minister of Refugee, Immigration and Integration Affairs decides the overall distribution of the aliens to be issued with a residence permit under subsections 1 to 3.
26. Before 1 July 2004 section 9, subsection 1 (ii) had the following wording:
1. Upon application, a residence permit may be issued to: -
(i) ....
(ii) an unmarried child of a person permanently resident in Denmark or of that person’s spouse, provided that the child lives with the person having custody of him or her and has not started his or her own family through regular cohabitation, and provided that the person is permanently resident in Denmark;
27. As from 1 July 2004 section 9 had the following wording:
1. Upon application, a residence permit may be issued to: -
(i) ....
(ii) an unmarried child under the age of 15 of a person permanently resident in Denmark or of that person’s spouse, provided that the child lives with the person having custody of him or her and has not started his or her own family through regular cohabitation, and provided that the person is permanently resident in Denmark:
a. is a Danish national;
b. is a national of one of the other Nordic countries;
c. is issued with a residence permit under section 7 or 8; or
d. is issued with a permanent residence permit or a residence permit with a possibility of permanent residence.
(iii) ...
28. The age limit referred to in section 9, subsection (ii) was reduced from 18 to 15 years old by Act no. 427 of 9 June 2004. The amendment entered into force on 1 July 2004. The following appears from the explanatory notes:
“It has turned out that some parents living in Denmark send their children back to the parents’ country of origin or a neighbouring country on so-called “re-education journeys” to allow them to be brought up there and be influenced by the values and norms of that county. This particularly occurs in situations where the child has social problems in Denmark. Moreover, there are examples of parents who consciously choose to let a child remain in his or her country of origin, either together with one of the parents or with other family members, until the child is nearly grown up, although the child could have had a residence permit in Denmark earlier. The result of this is that the child grows up in accordance with the culture and customs of its country of origin and is not influenced by Danish norms and values during its childhood. In the Government’s view, under-age aliens who will live in Denmark should come to Denmark as early as possible and spend the longest period of their childhood in Denmark in consideration of the child and for integration reasons. Similarly, children and young aliens who already live in Denmark should grow up here, to the extent possible, and not in their parents’ country of origin. Against that background, the Government finds that the age limit for under-age children’s entitlement to family reunification should be reduced from 18 to 15 years. The purpose of such reduction of the age limit for family reunification of children is to counteract both re-education journeys and the cases in which the parents consciously choose to let a child remain in its country of origin until the child is nearly grown up.
However, a residence permit will still have to be issued to children over 15 years of age based on an application for family reunification if a refusal would be contrary to article 8 of the Convention... In cases where refusal of family reunification will be contrary to Denmark’s treaty obligations, and where section 9, subsection 1 (ii), of the Aliens Act does not allow for family reunification, a residence permit will thus have to be issued under section 9c, subsection 1, of the Aliens Act...
In cases where the child has spent by far the largest part of his or her childhood in Denmark, and where the ties with the parents’ country of origin are very poor, including where the child has attended school in Denmark only, or where the child speaks Danish, but not the language spoken in the parents’ country of origin, regard for the best interest of the child might also imply, in these circumstances, that family reunification in Denmark must be granted. Circumstances may also exist in other situations which make it cogently appropriate to grant a residence permit in consideration of the best interest of the child even though the child is 15 years old or more at the time of the application.
29. Furthermore, the Aliens Act set out:
1. Upon application, a residence permit may be issued to an alien if exceptional reasons make it appropriate, including regard for family unity...
1. A residence permit lapses when the alien gives up his residence in Denmark. The permit also lapses when the alien has stayed outside Denmark for more than 6 consecutive months. Where the alien has been issued with a residence permit with a possibility of permanent residence and has lived lawfully for more than 2 years in Denmark, the residence permit lapses only when the alien has stayed outside Denmark for more than 12 consecutive months. The periods here referred to do not include absence owing to compulsory military service or any service substituted for that.
2. Upon application, it may be decided that a residence permit must be deemed not to have lapsed for the reasons given in subsection 1.
3. ...
1. An alien who is not, under the rules of Parts I and III to Va, entitled to stay in Denmark, must leave Denmark.
2. If the alien does not leave Denmark voluntarily, the police must make arrangements for his departure. The Minister of Refugee, Immigration and Integration Affairs lays down more detailed rules in this respect.
3. ...
1. An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country.
2. An alien falling within section 7(1) may not be returned to a country where he will risk persecution on the grounds set out in Article 1 A of the Convention relating to the Status of Refugees (28 July 1951), or where the alien will not be protected against being sent on to such country. This does not apply if the alien must reasonably be deemed a danger to national security or if, after final judgment in respect of a particularly dangerous crime, the alien must be deemed a danger to society, but see subsection 1.
1. Decisions pursuant to this Act are made by the Immigration Service, except as provided by sections 9(19) and (20), 46a to 49, 50, 50a, 51(2), second sentence, 56a, (1) to (4), 58i and 58j, but see section 58d, second sentence.
2. Apart from the decisions mentioned in sections 9g(1), 11d, 32a, 33, 34a, 42a(7), first sentence, 42a (8), first sentence, 42b(1), (3) and (7) to (9), 42d(2), 46e, 53a and 53b, the decisions of the Immigration Service can be appealed to the Minister of Refugee, Immigration and Integration Affairs ...
1. An alien who has been notified of a final administrative decision made under section 46 may request, within 14 days after the decision has been notified to the alien, that the decision is submitted for review by the competent court of the judicial district in which the alien is resident or, if the alien is not resident anywhere in the Kingdom of Denmark, by the Copenhagen City Court, provided that the subject matter of the decision is:
(i) refusal of an application for a residence permit with a possibility of permanent residence under section 9, subsection 1 (ii);
(ii) lapse, revocation, or refusal of renewal of such permit;
...
2. The case must be brought before the court by the Danish Immigration Service, which shall transmit the case to the court, stating the decision appealed against and briefly the circumstances relied on, and the exhibits of the case.
3. The court shall see that all facts of the case are brought out and shall itself decide on examination of the alien and witnesses; procuring of other evidence; and whether proceedings are to be heard orally. If the alien fails without due cause to appear in court, the court shall decide whether the administrative decision appealed against is to be reviewed without the alien being present or the matter is to be dismissed or proceedings stayed.
4. If found necessary by the court, and provided that the alien satisfies the financial conditions under section 325 of the Administration of Justice Act, counsel must be assigned to the alien, except where he himself has retained counsel.
...
VIOLATED_ARTICLES: 8


ITEMID: 001-109809
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KAUTZOR v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life;Article 8-2 - Necessary in a democratic society;Protection of the rights and freedoms of others)
JUDGES: André Potocki;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger
TEXT: 5. The applicant was born in 1971 and lives in Willich.
6. On 19 December 2003 the applicant married Ms D. The couple separated in June 2004. In July 2004 Ms D. informed the applicant that she was pregnant. The couple divorced on 12 November 2004.
7. On 5 March 2005 Ms D. gave birth to a daughter, M.
8. On 5 May 2006 the applicant wrote a letter to Ms D., indicating that he wished to have access to the child and to acknowledge paternity.
9. On 16 May 2006 Mr E., with the consent of Ms D., acknowledged paternity of the child before the Youth Office. On 20 June 2006 the applicant declared in a document certified by a notary that he acknowledged paternity of the child.
10. On 5 July 2006 the applicant lodged an action with the Bielefeld District Court (Amtsgericht) to have his paternity established, submitting that he had had sexual intercourse with the child’s mother during the period of conception. Ms D. replied that Mr E. was the biological father and that he lived with the child and herself in a social and family relationship.
11. On 18 August 2006 Mr E. and Ms D. got married. The couple live together with the child M. and with two further children, born in June 2006 and May 2008.
12. On 22 August 2006 the applicant further requested the District Court to establish that Mr E. was not the child’s father and submitted a statutory declaration that he had had sexual intercourse with the child’s mother during the time of conception.
13. On 24 August 2006, during a first hearing, the District Court informed the parties that a guardian ad litem should be appointed to represent the child’s interests, as a conflict of interests had arisen due to the fact that Mr E. and Ms D. had married. Ms D. declared that the applicant was not the child’s father.
14. On 30 August 2006 the District Court judge submitted the case file to the judicial officer in charge of appointing guardians (Rechtspfleger). On 10 October 2006 the judicial officer refused to appoint a guardian.
15. On 31 October 2006 the District Court instituted separate proceedings aimed at appointing a guardian ad litem. On 27 November 2006 the Youth Office submitted their comments. On 30 January 2007 the District Court appointed a guardian ad litem to represent the child in the pending proceedings and also in case the child should lodge an action in her own right challenging paternity.
16. On 27 February 2007 Mr. E and Ms. D lodged an appeal against the guardian’s appointment. On 28 March 2007 they submitted reasons for their appeal. On 31 May 2007 the applicant requested that the appeal be rejected. On 26 June 2007 the Hamm Court of Appeal (Oberlandesgericht) scheduled a hearing for 11 September 2007 which was postponed on the applicant’s request to 20 September 2007.
17. On 20 September 2007 the Court of Appeal confirmed the appointment of a guardian, but quashed the District Court’s decision insofar as it concerned the child’s representation in case she should lodge her own action.
18. On 4 January 2008 the District Court scheduled a hearing for 29 January 2008.
19. On 24 January 2008 the guardian ad litem submitted his observations to the Regional Court. Following a visit to the family home, he concluded that there existed a strong social and family relationship between the child and Mr E., and considered that it was most important to assure that the child was allowed to grow up undisturbed within her family. On the same day, the District Court cancelled the hearing and invited the parties to submit comments on the guardian’s observations.
20. On 22 February 2008 the District Court ordered an expert opinion on the question whether a social and family relationship existed between the child and Mr E., and requested the applicant to pay an advance of 1,000 euros (EUR). On 28 March 2008 the District Court reminded the applicant to pay the advance.
21. On 14 April 2008 the applicant, referring to the guardian’s submissions, conceded that a social and family relationship existed between the child and Mr E. He therefore did not consider it necessary to hear expert opinion in this respect. He contended, however, that his action should be allowed because the applicable legislation did not sufficiently take into account his rights as a parent.
22. On 24 April 2008 the District Court scheduled a hearing for 29 May 2008.
23. On 6 May 2008 the District Court, on the applicant’s request, postponed the hearing to 10 June 2008.
24. On 27 May 2008 the applicant, relying on Article 1598a of the Civil Code as in force since 1 April 2008 (see Relevant domestic law, below), lodged an alternative request to order the child to undergo genetic testing in order to establish her descent.
25. On 10 June 2008, during the hearing, the parties unanimously declared that a social and family relationship existed between Mr E. and the child. Following the hearing, the District Court rejected the applicant’s request. According to that court, the applicant was precluded from contesting paternity under Article 1600 § 2 of the Civil Code (see Relevant domestic law, below) because a social and family relationship existed between the child and her legal father. He did not have the right to have his paternity established or to demand genetic testing because the child already had a legal father.
26. On 2 December 2008 the Hamm Court of Appeal rejected the applicant’s appeal lodged on 10 July 2008. It noted that it was no more in dispute between the parties that a social and family relationship existed between the child M. and her legal father, who, in the meantime, had married the child’s mother and fathered two further children. Confirming the District Court’s judgment, that court further considered that the relevant legislation did not violate the applicant’s rights under the German constitution and under Articles 8 and 14 of the Convention. Referring to its own constant case-law and to the case-law of the Federal Constitutional Court, the Court of Appeal considered that the legislature had been entitled to let the interests of the child and of her legal parents prevail over the biological father’s interest to have his paternity legally established and to preclude the biological father from contesting paternity. There was no room for the court to examine in individual cases whether it was necessary in the child’s best interests to allow the presumed biological father to contest paternity. This general approach also protected the concerned families from being forced to reveal intimate details of their family life.
27. The Court of Appeal further confirmed that the applicant’s request to have his paternity established was inadmissible as the child already had a legal father. Relying on the case-law of the Federal Constitutional Court, the court considered that Mr E.’s acknowledgment of paternity had been valid and that the relevant legislation did not violate the applicant’s constitutional rights. It was, in particular, justifiable to make acknowledgement of paternity dependent on the mother’s consent. The legislature was not obliged to make acknowledgment of paternity dependent on a genetic examination of descent. It was acceptable to base the granting of legal status on an assumption which was based on specific factual and social situations. Such an assumption existed if a man declared in a legally binding way and with the express consent of the mother of a child born out of wedlock that he was willing to assume parental responsibility. The Court of Appeal further considered that the child’s rights were sufficiently protected by her own right to challenge paternity upon reaching the age of majority.
28. The Court of Appeal further considered that the Constitution protected a man’s interest to learn whether a child was his descendant and to have this fact legally established. However, this did not include the right to examine descent in any conceivable case. When developing the procedure for examining a child’s true descent, the legislature had to take into account the child’s interest in the stability of his legal and social-family affiliation and the mother and child’s interest not to have personal data and intimate circumstances revealed, and had done so in an acceptable way. There was, in particular, no right under the Constitution to have biological descent legally established as long as another man’s legal paternity persisted.
29. The Court of Appeal finally considered that the applicant’s alternative request to order the child to undergo genetic testing was inadmissible, because such a request had to be lodged in separate proceedings.
30. On 20 March 2009, following a complaint by the applicant, the Court of Appeal confirmed its judgment of 2 December 2008 and stated that the alternative request to clarify the child’s genetic descent was not inadmissible but unfounded, as Article 1598a of the Civil Code did not entitle the presumed biological father to demand genetic testing. Relying on the Federal Constitutional Court’s case-law, the Court of Appeal considered that the applicant did not have the right to have biological paternity established without establishing legal paternity.
31. On 30 June 2009 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint for adjudication. This decision was served on the applicant’s counsel on 8 July 2009.
32. Under Article 3 of the Basic Law, everyone is equal before the law (§ 1); men and women have equal rights (§ 2).
33. Article 6 of the Basic Law, in so far as relevant, provides:
“(1) Marriage and the family shall enjoy the special protection of the State.
(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty.”
34. According to Article 1592 of the Civil Code, a child’s father is either the man who on the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2), or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3). An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code). Paternity can only be validly acknowledged with the mother’s consent (Article 1595 § 1).
35. Paternity may be challenged within a time-limit of two years. The period commences on the date on which the entitled person learns of the circumstances that militate against the established paternity; and the existence of a social and family relationship does not prevent the period from running (Article 1600b § 1). Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, under Article 1600 § 2, the biological father has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if there is no social and family relationship between the legal father and the child. A social and family relationship is considered to exist if the legal father has or had actual responsibility for the child at the relevant point in time. There is, as a rule, an assumption of actual responsibility if the legal father is married to the mother of the child or has lived together with the child in a domestic community for a long period of time (Article 1600 § 4).
36. Under Article 1598a of the Civil Code as in force since 1 April 2008, the legal father, the mother and the child can request the examination of paternity by genetic testing. The outcome of these proceedings does not change the legal status of the persons involved. However, no such right is granted to a third person alleging that he is the biological father.
37. Research undertaken by the Court in respect of twenty-six Council of Europe Member States shows that in twenty-one of those States acknowledgment of the paternity of a child born out of wedlock requires the mother’s consent. In seventeen Member States (namely Azerbaijan, Croatia, Cyprus, Estonia, France, Georgia, Ireland, Italy, Lithuania, Moldova, Romania, Russia, San Marino, Spain, Turkey, Ukraine and the United Kingdom), the presumed biological father is entitled to challenge the legal paternity of a third party established by acknowledgment. This right may be subject to certain time-limits. In fifteen States this remains the position where the legal father has lived with the child in a social and family relationship. In France and Spain, the biological father may not challenge paternity if the child has lived in a social and family relationship with the legally acknowledged father for a period of at least five or four years, respectively (la possession d’état conforme au titre).
38. By contrast, in nine Member States (Armenia, Bulgaria, Hungary, Iceland, Latvia, the Netherlands, Poland, Slovakia and Switzerland) the biological father does not have standing to challenge the paternity of the legal father established by acknowledgement. In those nine jurisdictions, the courts are not entitled to judicially consider (on the grounds of the best interests of the child or otherwise) whether the biological father should be allowed to challenge paternity.
39. None of the Member States examined provide a procedure to establish biological paternity without formally challenging the recognised father’s paternity and without changing the child’s legal status.
NON_VIOLATED_ARTICLES: 14
8
NON_VIOLATED_PARAGRAPHS: 8-1
8-2


ITEMID: 001-100281
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MURUKIN v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1961 and lives in Dnipropetrovsk.
6. On 3 July 2002 the applicant manoeuvred his car negligently in the street and crashed into another car which was being driven by a Ms Kh. As a result of the incident, Ms Kh. sustained concussion and injuries of medium severity.
7. Following the incident, the applicant was charged with the crime, set out in Article 286 § 1 of the Criminal Code, of breaching traffic rules resulting in injuries of medium severity to the victim. As a preventive measure, the applicant signed a written undertaking not to abscond.
8. On 5 June 2003 the Dnipropetrovskyy District Court (“the District Court”), taking note of the fact that the applicant had failed to appear at the hearing of his case, scheduled for that day, replaced the written undertaking by the applicant for his detention in custody.
9. Between 19 and 23 June 2003, the applicant was undergoing medical treatment in Dnipropetrovsk no. 7 City Hospital. According to the applicant, he was visited there by police officers who handcuffed him and guarded him until the end of the medical treatment. The officers allegedly did not allow him to use the toilet and prevented him from seeing his relatives and friends. The applicant did not complain to the investigating authorities on account of the conduct of the police officers.
10. On 23 June 2003 the applicant was arrested and placed in a cell at the Dnipropetrovsk District Police Department.
11. On 25 June 2003 the Dnipropetrovsk Regional Court of Appeal (the “Court of Appeal”) rejected the applicant's appeal against the decision of 5 June 2003 of the District Court, stating that, under domestic law, the decision was not subject to appeal.
12. On 27 June 2003 the applicant was transferred to the Dnipropetrovsk no. 3 Pre-Trial Detention Centre (“the Dnipropetrovsk SIZO”).
13. On 3 July 2003 the District Court found the applicant guilty of a crime under Article 286 § 1 of the Criminal Code and sentenced him to two years' “restriction of liberty” and a one-year driving ban. It further stated that the sentence should be calculated from 23 June 2003 and maintained the preventive measure (detention in custody) in respect of the applicant.
14. On 14 and 15 July 2003 the applicant complained to the President of the Court of Appeal and the President of the Supreme Court, alleging that his detention in custody had been unlawful. The complaints were unsuccessful.
15. On 21 July 2003 the applicant appealed against the judgment of 3 July 2003, alleging specifically that his detention had been unlawful since, first, under the provisions of Article 155 of the Code of Criminal Procedure the crime he was charged with did not entail the possibility of pre-trial detention, and, secondly, Article 342 of the same Code provided that he should have been released immediately after the court hearing of 3 July 2003.
16. On 6 October 2003 the Court of Appeal dismissed the applicant's appeal as unfounded and upheld the judgment of 3 July 2003, which then came into effect. The Court of Appeal ordered that the period of the applicant's detention in custody should be reckoned as a part of the applicant's sentence.
17. On 19 December 2003 the applicant was released from the Dnipropetrovsk SIZO, and moved to no. 133 Correctional Centre to serve his sentence.
18. On an unspecified date the applicant lodged a cassation appeal against the judgment of 3 July 2003, contending, in particular, that his detention in custody had been contrary to Articles 155 and 342 of the Code of Criminal Procedure and Article 107 of the Correctional Labour Code.
19. On 23 December 2004 the Supreme Court dismissed the applicant's cassation appeal as unfounded. It noted, inter alia, that the period of the applicant's detention in custody had been reckoned as a part of his sentence and therefore the procedural shortcomings complained of, namely, the application of the preventive measure of detention did not necessitate the quashing of the judgments of the lower courts.
20. The relevant provisions of the Code read as follows:
“The following types of punishment may be imposed on persons who are found guilty of crimes:
...
8) arrest;
9) restriction of liberty; ...
11) imprisonment for a defined term;
12) life imprisonment.”
“Restriction of liberty is a type of punishment which consists in holding a person under supervision in an open-prison-type establishment without isolating such a person from society and including an obligation on him or her to work. ...”
“1. Violation of traffic safety rules or misuse of a vehicle by a driver, if this results in injuries of medium severity to the victim, –
shall be punished either by a fine in an amount of up to one hundred times the tax -free monthly income, or by correctional work for up to two years, or by arrest for up to six months, or by restriction of liberty for up to three years, combined, if required, with a driving ban for up to three years. ...”
21. Chapter 13 of the Code deals with preventive measures that can be applied in the course of criminal proceedings. The relevant provisions of that Chapter of the Code read as follows:
“The preventive measures are as follows:
(1) a written undertaking not to abscond;
(2) a personal guarantee;
(3) the guarantee of a public organisation or labour collective;
(3-1) bail;
(4) detention in custody;
(5) supervision by the command of a military unit.
As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.”
“Detention in custody as a preventive measure shall be applied in cases concerning crimes for which the law envisages a punishment of more than three years' imprisonment. In exceptional circumstances this preventive measure can be applied in cases concerning crimes for which the law envisages a punishment of up to three years' imprisonment. ...”
“If a defendant fails to appear at a court hearing in a case in which his appearance is obligatory, without a valid reason, ... the court shall adjourn consideration of the case ...
In addition, the court ... may order the defendant's compulsory appearance and apply a more severe preventive measure ...”
“Upon the acquittal of the defendant, or his release from sentence, or the imposition on him of a punishment other than imprisonment, the court shall immediately release the defendant from custody in the courtroom if he or she is in detention.”
“When adopting a judgment by which the defendant is sentenced to a certain type of punishment, the court should consider the question of applying the preventive measure for the period before the judgment comes into effect, and has the right to apply new preventive measures, or quash, change, or maintain the preventive measures that have been applied earlier.
Application of such a preventive measure as detention in custody shall be permissible only on the grounds set out in relevant Articles of Chapter 13 of this Code.”
22. The relevant provisions of the Code read as follows:
“Persons sentenced to restriction of liberty shall undergo their punishment in open-prison-type establishments (“correctional centres”) ...”
“Persons sentenced to restriction of liberty shall personally relocate to the places in which they are to serve their sentences. ... If a person sentenced to restriction of liberty is detained, he or she shall be released from the detention centre when the sentence comes into effect. ...
the sentenced person, who is detained in custody until the judgment comes into effect, be moved to the place where they must serve their sentence in accordance with the procedure for persons sentenced to imprisonment. In the latter case the sentenced person shall be released from custody upon his or her arrival at the place of serving the sentence. ...”
“Persons sentenced to restriction of liberty shall be entitled:
...to have unlimited short-term visits and long-term visits (of up to three days) once a month;
to leave the correctional centre for short periods of time, with appropriate permission ...
Persons sentenced to restriction of liberty shall be obliged:
...to work diligently at the designated place;
to remain under supervision in the correctional centre and to leave it only by special permission issued by the administration of the correctional centre...
to live, as a rule, in special dormitories ...
After six months of the sentence has been served, those persons who have not violated disciplinary rules may be allowed to live outside the dormitories with their families ...
Those persons shall appear at the correctional centre for registration not more than four times a week. ...”
23. Section 7 of the Act reads as follows:
“... The basic requirements of the pre-trial detention regime are the isolation of detainees, the full supervision of them and separation from each other, as provided by Section 8 of this Act ...”
24. The other relevant provisions of this Act describing the pre-trial detention regime can be found in the judgment in the case of Dvoynykh v. Ukraine (no. 72277/01, §§ 33-36, 12 October 2006).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1