ITEMID: 001-57791
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF PHAM HOANG v. FRANCE
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion);No violation of Art. 6-1;No violation of Art. 6-2;Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland
TEXT: 8. Mr Tuan Tran Pham Hoang, a French national who was born in Saigon in 1963, was unemployed and living at Aulnay-sous- Bois (France) at the material time.
9. On 3 January 1984 he was arrested in Paris with four other people from Hong Kong, Cambodia or Vietnam, Mr Cheng Man Ming, Mr Fu Wing Kin, Mr Ngo Pan and Mr Tran Gia Quong. He was at the wheel of a car towards which Mr Cheng and Mr Fu were walking; they had just emerged from a hotel and were carrying two bags containing 2,750 grams of heroin base and 85 grams of almost pure heroin, together with a pair of scales, one pan of which bore traces of heroin. Two other people, Mr Jip Quang Duong and Mr Hanh Phuoc, were arrested after weapons and 5kg of caffeine were discovered by police while searching a flat visited by the applicant.
Since the end of December 1983 officers of the Drugs and Vice Squad had been carrying out surveillance and shadowing operations; they had got wind of preparations for heroin trafficking in relation to individuals from Hong Kong.
10. On 7 January 1984 an investigating judge charged the applicant with an offence under the drugs legislation and remanded him in custody. The applicant was released under judicial supervision on 6 March 1984.
11. In an order of 25 March 1984 the investigating judge committed the applicant and the six others mentioned above for trial on the charge that they had "conspired in Paris during 1983-84, in particular up to 3 January, to produce, possess and supply drugs, namely heroin".
12. At the trial on 2 May 1985 the Director-General of Customs asked the court to
"Find Cheng, Fu Wing, Ngo, Tran, Hanh, Jip and Pham guilty of having committed within the French customs territory from 1 December 1983 to 3 January 1984 as persons in possession or having an interest in customs evasion, the class 3 customs offence of smuggling prohibited goods by means of a self-propelled vehicle and in a group of more than six individuals;
Sentence them jointly and severally on this charge to pay the customs authorities:
(a) a sum of 2,835,000 (two million eight hundred and thirty-five thousand) francs in lieu of forfeiture of the goods, which will be destroyed (Art. 435 of the CC [Customs Code]);
(b) a fine of 2,835,000 (two million eight hundred and thirty-five thousand) francs, being the value of the smuggled goods (Art. 414 of the CC);
Pass the maximum sentence of imprisonment provided for in the event of non-payment;
Order that the defendants shall be held in custody, within the limit of the term of that imprisonment, until such time as the customs penalties have been paid (new Article 388 of the Customs Code);
The above measures being pursuant to Articles 38, 215, 343, 373, 382, 388, 392, 399, 409, 416, 417, 419, 435 and 438 of the Customs Code, Article 750 of the Code of Criminal Procedure and the Order of 11 December 1981 made by the Minister for the Budget;
Without prejudice to the sentence of imprisonment provided for in Article 416 of the Customs Code and which the public prosecutor is asked to apply for pursuant to Article 343-1 of that Code."
The Director-General’s submissions included the following details:
"The defendants’ statements and the police surveillance disclosed the following:
Cheng Man Ming and Fu Wing Kin left Bangkok together by air on 26 december 1983 carrying a suitcase with a false bottom containing the heroin subsequently seized. When they arrived in Athens, Cheng continued his journey by air to Paris and instructed Fu to bring the suitcase by rail in order to avoid the thorough checks made at airports in Paris.
In France Ngo Pan accompanied Cheng to make a number of purchases: the receptacle which would have served to mix the heroin and the caffeine [and] the secateurs for cutting open the hidden compartment in the suitcase.
The heroin subsequently seized was to be transported in Pham’s motor vehicle, and Tran was to drive with it to the home of Jip Quang Duong and Hanh Phuoc, where the 5kg of caffeine were seized.
It has therefore been established that the seven defendants constituted a group of individuals (whether or not all of them were in possession of the smuggled goods) formed with a view to importing heroin base, converting it, possessing it, transporting it and mixing it with caffeine in order to produce a commodity whose street value would have been trebled by virtue of this blending.
...
AS TO THE LAW
The goods in question are mentioned by name in the Order of 11 December 1981 made by the Minister for the Budget, which lists the substances to which Article 215 of the Customs Code is to apply.
Those who possess or transport goods specially designated in orders made by the Minister for Economic Affairs and Finance must, when first asked to do so by customs officers, produce either receipts certifying that the goods have been lawfully imported or invoices, manufacture notes or any other proof of origin from individuals or companies lawfully established within the customs territory.
In the absence of any proof of origin as indicated above, the goods in question are deemed to have been imported unlawfully (Art. 419 of the CC).
This constitutes the offence of unlawfully importing prohibited goods, namely 2,835 grams of heroin base or almost pure heroin with a value of 2,835,000 F, punishable under Articles 38, 215, 373, 414, 417, 419 and 435 of the Customs Code; with the following aggravating circumstances:
1. Heroin is the most strictly prohibited commodity in customs terms and the most harmful under health legislation; 2. ... the offence was committed by a group of six or more individuals (Art. 416 of the CC);
3. ... the goods were to be transported by a self- propelled vehicle (Art. 416 of the CC).
SPECIAL FEATURES OF CUSTOMS LAW
Art. 373 of the CC: in any proceedings concerning a seizure of goods, it shall be for the person whose goods have been seized to prove that he has not committed an offence.
The defendants cannot avoid their criminal liability by relying on their good faith, since the latter is of absolutely no effect in customs law.
Art. 409 of the CC: any attempted offence is punishable in the same way as the offence itself. Delivery was going to be taken of the smuggled goods in Pham’s vehicle by Pham, Ngo and Tran.
LIABILITY
The offence described above is imputable to the above-mentioned persons as being in possession - in possession in law - or having an interest in customs evasion.
A person in possession of smuggled goods is deemed responsible for customs evasion (Art. 392 para. 1 of the CC).
By Art. 399 of the CC,
1. Anyone who as a person having an interest has taken part in any way in a smuggling offence or an offence of undeclared importation or exportation is liable to the same penalties as anyone committing the offence and, furthermore, to the loss of rights provided for in Article 432 of the Customs Code.
2. The following are deemed to have an interest:
(a) owners and members of business undertakings, insurers, insurance policyholders, moneylenders, owners of goods and in general anyone who has a direct interest in customs evasion;
(b) anyone who has contributed in any way to a series of acts committed by a number of individuals acting in concert, in accordance with a customs-evasion plan drawn up in order to achieve the jointly pursued purpose;
(c) anyone who has knowingly concealed the activities of smugglers or attempted to help them evade punishment or has purchased or possessed, even outside the customs zone, goods obtained by means of a smuggling offence or an offence of undeclared importation.
3. An interest in customs evasion cannot be imputed to anyone who has acted from necessity or as a result of an unavoidable mistake.
Where more than one person is found guilty of a single customs-evasion offence, they are jointly and severally liable for the penalties, both as regards pecuniary penalties in lieu of forfeiture and as regards fines and costs (Art. 406 para. 1 of the CC).
The owners of smuggled goods, anyone who has undertaken to import or export them, anyone with an interest in the customs evasion, accomplices and adherents are all jointly and severally liable and are subject to imprisonment for non-payment of fines, sums in lieu of forfeiture and costs (Art. 407 of the CC).
..."
13. On 31 May 1985 the Paris tribunal de grande instance (16th Criminal Division) acquitted the applicant, Mr Jip and Mr Hanh on all the charges against them for lack of sufficient evidence.
As regards the proceedings in respect of the ordinary criminal offence (see paragraph 11 above), it held:
"... there is no evidence that Pham Hoang, who was involved only on an ad hoc basis, knowingly agreed to transport the goods and those in possession of them in his car.
..."
As regards the proceedings in respect of the customs offence (see paragraph 12 above), it said:
"...
As far as the customs offence is concerned, no physical act of aiding and abetting or of having an interest in the customs evasion can be proved against Jip, Hanh and Pham.
It should be noted that the police intervened before they had been able to do anything to take possession of the prohibited goods. Accordingly, the question of any good faith on their part does not even arise.
..."
The other defendants, however, were sentenced to imprisonment for terms ranging from six to twelve years.
14. The Director-General of Customs appealed against the decision to acquit the applicant, Mr Jip and Mr Hanh of the customs offence. For the hearing on 23 September 1985 he made the following submissions:
"As regards Pham, it should be stated that he has always claimed that he ‘knew nothing about the operation in which he took part’. He cannot be acquitted on this account, since intention does not have to be taken into consideration by the court for the customs offence to be made out (Art. 373 of the CC).
It was Pham who drove the motor vehicle in which Tran and then Ngo had travelled. On several occasions the police saw them going to shops to buy hydrochloric acid - which is used to turn heroin base into soluble heroin.
Again driven by Pham, the two men went to Cheng’s hotel. Cheng and Fu were arrested as they were about to put the heroin base into Pham’s vehicle.
It is thus established that Pham was going to be in possession of 2,835 grams of heroin base. For a reason beyond his control, the drug did not in the end come into his possession.
Furthermore, the fact that Pham drove in his own vehicle two traffickers who firstly went to buy an ingredient of the smuggled goods, the hydrochloric acid, and secondly were about to take delivery of a strictly prohibited commodity, the heroin base, warrants the assertion that he had an interest in the customs evasion.
In short, it has clearly been established that Pham, Jip and Hanh had indeed formed a group of individuals together with the four others with a view to possessing, transporting or attempting to transport consumable heroin and to convert it by attempting to add hydrochloric acid to heroin base and thereafter adding caffeine to the heroin hydrochloride in order to increase both the weight of the goods to be supplied on the illicit market and, above all, the profit to be derived from the trafficking.
In respect of the three defendants, the court below thus disregarded Articles 373, 392, 399 and 409 of the Customs Code.
Extenuating circumstances:
Pursuant to Article 369 of the CC, the court below was, however, entitled to find that there were extenuating circumstances in respect of Pham, Hanh and Jip and accordingly to reduce the sum to be paid in lieu of forfeiture and the fine to one-third of the value of the smuggled goods (2,835,000 * 3 = 945,000 F) and not make an order for the forfeiture of Pham’s vehicle.
Special features of customs law
Offences under the drugs legislation are inseparable from smuggling offences.
Customs offences, however, are strict-liability offences provided for and punishable under a body of law separate from the ordinary law, and in particular under: 369 para. 2: good faith is of absolutely no effect 373: where goods have been seized, the burden of proving that no offence has been committed is on the person whose goods have been seized 392: possession 399: interest in customs evasion
..."
15. In their written submissions made for the hearing on 2 December 1985 the two counsel for the applicant - Mr Lestourneaud and Mr Pugliesi-Conti - argued in particular that Articles 369 para. 2, 373, 392 para. 1 and 399 para. 2 of the Customs Code were "incompatible with the concepts of a fair trial and of presumption of innocence contained in Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the European Convention on Human Rights".
16. On 10 March 1986 the Paris Court of Appeal found the applicant "guilty of having, in Paris and within the customs territory, from 1 December 1983 to 3 January 1984, committed as a person in possession or having an interest in customs evasion, the class 2 customs offence of unlawfully importing prohibited goods by means of a self-propelled vehicle and in a group of more than three individuals".
He was sentenced to "pay the customs authorities, jointly and severally with Cheng Man Ming, Fu Wing Kin, Ngo Pan and Tran Gia Quong:
(a) a sum of 2,835,000 francs in lieu of forfeiture of the goods, which [were to] be destroyed, and
(b) a fine of 2,835,000 francs, being the value of the smuggled goods,
his personal liability being limited in both cases to the sum of 1,000,000 francs".
The judgment contained the following reasons:
"A. As to the defence submissions concerning Pham
In submissions filed with the Court, counsel for Pham Hoang Tuan Khanh sought to have upheld the defendant’s acquittal and to have dismissed the case put forward by the customs authorities as sole appellant against the defendant, on the ground that Articles 392-1, 373, 399-2 and 3, and 369 of the Customs Code were incompatible with the provisions of Article 6 (art. 6) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 14 of the International Covenant on Civil and Political Rights signed in New York on 16 December 1966, both of which have been ratified by France and embody the principles of a ‘fair trial’ and ‘the presumption of innocence in criminal proceedings’.
This ground does not amount to a preliminary objection, seeing that the conventions prayed in aid do not provide for applications for preliminary rulings to the supervisory bodies set up to implement them.
As it relates to the lawfulness of the prosecution, it must be considered, although it was not raised before any defence on the merits.
The defence submissions do not allege any breach of the rules governing the procedure followed during the judicial investigation or at the trial, but it is argued in them that under the provisions of the Customs Code relied on by the prosecution a person in possession of the goods is deemed responsible for customs evasion, and all those who come within specified categories are deemed to have an interest in customs evasion, in both cases regardless of their good faith or their intention, such that these provisions provide for a presumption of guilt which makes them incompatible with the provisions of the European Convention for the Protection of Human Rights and of the International Covenant, which provide that ‘everyone is entitled to a fair ... hearing’ and that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’.
It was pointed out that the European Court of Human Rights in Strasbourg has held that the presumption of innocence is one of the ingredients of a fair trial and that applying provisions which remove the burden of proof from the prosecution puts the defendant at a disadvantage, negates the equality of arms to his detriment, and, ultimately, deprives him of a fair trial.
But while it is true that the customs authorities do not have to prove bad faith on the part of the person in possession of the smuggled goods or of the person having an interest in customs evasion, they must establish the physical fact of possession and show that the defendant in some way took part, as a person having an interest, in an offence of smuggling or of undeclared importation or that he belongs to one of the categories of those who are deemed to have a direct interest in customs evasion.
It is the special nature of customs offences, which are complete as soon as the smuggled goods cross the border, that compels the legislature to define them as offences which are made out as soon as the physical acts which disclose their existence have been evidenced on French territory.
The special nature of these offences does not, however, deprive the offender of any possibility of raising a defence, seeing that the law provides that a person in possession can exonerate himself by proving force majeure and that an interest in customs evasion cannot be imputed to anyone who has acted from necessity or as a result of an unavoidable mistake.
It appears from the evidence in the file that Pham, who was remanded in custody on 7 January 1984 and released under judicial supervision on 6 March 1984 and was acquitted by the court below, was consistently presumed innocent and had every possibility of putting forward the grounds allowed him by the law in order to exonerate himself.
That being so, there is no incompatibility in this case between the impugned provisions and the principles laid down in the conventions relied on, seeing that the customs authorities are prosecuting Pham for an offence of unlawfully importing strictly prohibited goods, namely 2,835 grams of heroin base or almost pure heroin, a commodity whose importation is strictly prohibited on account of its harmfulness to public health and of the damage its consumption causes both to the users’ physical health and to the social order.
In the face of a scourge affecting young people more particularly and which is spreading alarmingly, the impugned provisions of the Customs Code, which were applied in conformity with the rules laid down in the Code of Criminal Procedure, can be seen as the response made within the constitutional framework and the limits of a European State’s sovereignty to offences that are particularly serious and call for appropriate special punishment.
There is accordingly no ground for holding that these provisions are inapplicable.
B. As to Pham’s guilt
It is established that on the afternoon of 3 January 1984 Ngo, who played an important part in the importation of the heroin, was driven by Pham in his Peugeot 104 car to buy hydrochloric acid in various shops to blend the pure heroin brought into France by Cheng and Fu.
Pham was present in the flat at 110 boulevard de la Chapelle at 1 p.m. when the 5kg of caffeine were delivered there by an Asian who was said by the other defendants to be the head of the trafficking network.
He agreed to drive Tran and Ngo to their rendezvous with Cheng and Fu.
At the time he was arrested, he was waiting for Cheng to get into his car so that he could drive him to Tran’s flat in the boulevard de la Chapelle.
He was therefore on the point of being in possession of the smuggled goods, which only the intervention of the police prevented from being placed in his vehicle.
The customs authorities therefore rightly argued that the attempt is regarded in the same way as the offence itself, that it was for reasons beyond his control that Pham did not physically come into possession of the heroin that was going to be placed in his car and that the fact of his having driven in his own vehicle two traffickers who were on the point of taking delivery of the prohibited goods warranted the assertion that he had an interest in customs evasion.
He did not claim to have acted from necessity, and the circumstances in which he was implicated in the operation and arrested do not allow him to maintain that he acted as a result of an unavoidable mistake."
17. On the very day that the Court of Appeal gave its judgment, Mr Pham Hoang appealed to the Court of Cassation. Mr Lestourneaud wrote to the Chairman of the Conseil d’État and Court of Cassation Bar on 10 March 1986 applying for counsel to be officially assigned as his client was not in a position to meet further costs. The principles which the applicant intended to assert before the Court of Cassation were, he said, complex and the advice of a member of the Court of Cassation Bar was essential for following the proceedings. He reiterated this request in a letter of 21 March 1986.
18. On 26 March the Chairman of the Bar replied as follows:
"Legal aid is not available to convicted persons, who are infinitely numerous, in criminal cases which come before the Court of Cassation.
In certain exceptional cases, where the heaviest sentences are at stake, I assign one of my colleagues free of charge for the purposes of studying the file.
But Mr Pham Hoang does not come into this category and I cannot grant his request."
19. On 7 August 1986 the applicant sent a registered letter to the registry of the Court of Cassation; he indicated that he was filing, as pleadings, a copy of the appeal submissions lodged on 2 December 1985 by his two counsel (see paragraph 15 above).
20. The Court of Cassation (Criminal Division) dismissed the appeal on 9 March 1987 for the following reasons:
"Having regard to the personal application, which was properly produced, and to the pleadings in support;
The personal application does not in itself raise any point of law for determination and does not allege a breach of any provision. Accordingly, since it does not comply with the requirements of Article 590 of the ... Code [of Criminal Procedure], it is not admissible.
The Court of Appeal’s judgment, moreover, contains no formal defect."
21. In France customs offences are criminal offences with various special features.
The Customs Code essentially prohibits smuggling (Articles 417 and 422) and undeclared importation or exportation (Articles 423-429). This case is concerned solely with smuggling. Smuggling is defined as "any importation or exportation effected outside official customs premises and any infringement of the statutory provisions or regulations concerning the possession and transport of goods within the customs territory" (Article 417 para. 1), for example - but not exclusively - if importation of the goods is prohibited (Article 418 para. 1, to be read in conjunction with Article 38).
22. The following are the main provisions of the Customs Code that are referred to in the instant case:
"The courts shall not acquit offenders for lack of intent."
This paragraph was repealed by Law no. 87-502 of 8 July 1987, which changed tax and customs procedure, but the Law did not apply to the instant case.
"In any proceedings concerning a seizure of goods, the burden of proving that no offence has been committed shall be on the person whose goods have been seized."
"A person in possession of smuggled goods shall be deemed responsible for customs evasion."
Taken literally, this provision appears to create an irrebuttable presumption. The courts have, however, mitigated its strictness. Thus the Criminal Division of the Court of Cassation now upholds the unfettered power of courts of trial and of appeal to assess the "evidence adduced by the parties before them" (see, for example, the Abadie judgment of 11 October 1972, Bulletin (Bull. crim.) no. 280, p. 723) and recognises that an accused may exonerate himself by establishing "a case of force majeure" resulting "from an event responsibility for which is not attributable" to him and which "it was absolutely impossible [for him] to avoid", such as "the absolute impossibility ... of knowing the contents of [a] package" (see, for example, the Massamba Mikissi and Dzekissa judgment of 25 January 1982, Gazette du Palais, 1982, jurisprudence, pp. 404-405, and the Salabiaku judgment of 21 February 1983, extracts from which are reproduced in the Series A volume no. 141-A, p. 10, para. 15).
"1. Anyone who as a person having an interest has taken part in any way in a smuggling offence or an offence of undeclared importation or exportation shall be liable to the same penalties as anyone committing the offence and, furthermore, to the loss of rights provided for in Article 432 hereinafter.
2. The following shall be deemed to have an interest:
(a) owners and members of business undertakings, insurers, insurance policyholders, moneylenders, owners of goods and in general anyone who has a direct interest in customs evasion;
(b) anyone who has contributed in any way to a series of acts committed by a number of individuals acting in concert, in accordance with a customs-evasion plan drawn up in order to achieve the jointly pursued purpose;
(c) anyone who has knowingly concealed the activities of smugglers or attempted to help them evade punishment or has purchased or possessed, even outside the customs zone, goods obtained by means of a smuggling offence or an offence of undeclared importation.
3. An interest in customs evasion cannot be imputed to anyone who has acted from necessity or as a result of unavoidable mistake."
Under French case-law, having an interest is distinct from the criminal offence of aiding and abetting as defined by Articles 59 and 60 of the Criminal Code, to which Article 398 of the Customs Code refers (27 April 1967, Bull. crim. no. 137).
"Unavoidable mistake" is to be understood as a mistake as to some physical fact, made in circumstances precluding any fault or negligence on the part of the person making it, such that the mistake could not be avoided, even after checks had been made; it is not a simple matter of good faith (24 November 1980, Bull. crim. no. 313). In a judgment of 12 November 1985 the Criminal Division of the Court of Cassation held: "Article 399 para. 2 of the Customs Code requires, in order for a person to be found guilty of having an interest in customs evasion committed by third parties, that the court should find that the defendant knowingly contributed to an unlawful operation which might result in customs evasion, even if he was ignorant of the actual arrangements" (Bull. crim. no. 350).
"Any attempted customs offence shall be regarded in the same way as the offence itself."
23. Legal representation is not compulsory for applications to the Court of Cassation in criminal cases. A convicted defendant can lodge an appeal on points of law himself and set out his grounds of appeal in writing (Articles 568, 584 and 585 of the Code of Criminal Procedure). Only members of the Conseil d’État and Court of Cassation Bar, however, have the right of audience.
24. For many years there were no provisions to deal with the problem of legal aid for persons whose means were insufficient to ensure the exercise of their rights in the criminal courts.
Section 4 of Law no. 72-11 of 3 January 1972 on legal aid and payment of officially assigned or appointed counsel provided merely:
"Legal aid shall be granted for both contentious and non-contentious proceedings.
It shall be available for:
Any proceedings brought either before an ordinary court other than a criminal court or before the Conseil d’État, the administrative courts of appeal, the administrative courts or the Jurisdiction Disputes Court;
Any action in courts of trial or of appeal concerning a person’s civil liability;
Any action brought by a civil party to criminal proceedings before investigating judges or courts and trial or appeal courts;
Any protective measure;
Any procedure for enforcement of either a judicial decision or any other legal transaction."
According to the Conseil d’État and Court of Cassation Bar, the situation before the 1991 reform (see paragraph 25 below) was as follows:
"...
In the absence of any provisions, it has always been the tradition of the French bars ... to ensure that persons unable to meet the costs of their defence are defended by counsel assigned officially by the Chairman of the Bar. Lack of means is a matter of presumption for these purposes and there is no kind of means test.
If it becomes apparent that a person to whom counsel has been assigned officially for proceedings in courts of trial or of appeal, generally at his own request but sometimes, to ensure the proper conduct of the proceedings, at the request of an investigating judge or of the presiding judge of the court (at the Assizes, for example), has means of his own, the official assignment (free of charge) may, at his request, be converted into an official appointment, the lawyer initially assigned then having the right to charge fees, under the supervision of the chairman of the bar.
Counsel at the Conseil d’État and the Court of Cassation have similarly always contributed to the provision of free representation in criminal cases; but, given the small size of the Conseil d’État and Court of Cassation Bar and the ‘extraordinary’ nature of an appeal to the Court of Cassation, it was necessary to adapt the procedure.
This adaptation was twofold in nature.
Firstly, the Chairman of the Conseil d’État and Court of Cassation Bar never officially assigned a colleague directly. Where it was possible for an official assignment to be made, he would appoint a member of the Bar to study the file; the latter would report to the Chairman, and if he had identified a ground of appeal, the appointment to study the file would be informally converted into an official assignment.
This preliminary study corresponded to the preliminary study made by the Legal Aid Office, and the same resources were available.
Where a ground of appeal could be set out at length, the appointed member of the Bar would produce pleadings on a voluntary basis.
Secondly, counsel was not automatically appointed following an application.
A study of the file was ordered as of right where there had been a conviction by an assize court and in the event of a case being remitted to an assize court or of a prison sentence being passed by a criminal court where the applicant was in custody pending trial. Study of the file was also ordered in the cases of those convicted by a criminal court of first instance or appeal who were not in custody but whose sentence was above a certain level, the level apparently having varied over time.
In all cases, if the Chairman indicated that he was unable to appoint a colleague, he qualified this by saying that he would have the file studied by one of his colleagues if his attention was drawn to a point of law that could be submitted for review by the Court of Cassation. Study of the file was in fact ordered fairly generously once counsel before a court of trial or of appeal had drawn the attention of the Chairman of the Bar to a specific point.
It is to be noted that such precautions were necessary, not only because of the small size of the Conseil d’État and Court of Cassation Bar but also because appeals to the Court of Cassation in criminal cases (except in respect of judgments in associated civil-party proceedings) have a suspensive effect. It was important that the hearing of appeals that could not be sustained should not be systematically delayed on the ground that the file was being officially studied (or that counsel had been officially assigned to it).
It must not be overlooked that when a file is allocated to counsel, he is given a deadline. Moreover, when pleadings are produced, the Court of Cassation is obliged to give a reasoned judgment, after the case has been examined by a reporting judge; whereas when an appeal is not supported in that way, the case is automatically entered in a list known as the ‘formal list’ because the Court of Cassation essentially considers only whether the impugned judgment is free from any formal defect; in actual fact, it also satisfies itself that the statutory maximum sentence has not been exceeded.
In 1985 the Chairman of the Conseil d’État and Court of Cassation Bar who had then been elected became concerned about the increasing number of applications made to him for official assignment of counsel and the number of official appointments he had to make for study of files in accordance with the foregoing criteria; the number of such appointments had indeed increased from 110 in 1975 to 200 in 1985.
He felt it his duty, on his own initiative, to make a slight alteration if not to the actual criteria, at least to the letter previously sent to those applying for an official assignment of counsel or to lawyers applying for it on their behalf. In these replies he ceased to mention automatically that counsel would be officially instructed to study the file if a point of law was brought to his attention; and he also changed the criterion for an official appointment, in respect of applicants who were not in custody, to a two-year prison sentence (instead, apparently, of one year previously).
When a point of law was notified to him, he did in fact order an official study of the file, as in the past; the same applied when it was justified by the applicant’s psychological state.
These measures reduced the number of appointments made for study of files from 200 in 1985 to 170 in 1986.
The Chairman who was elected in 1988 took a decision to order study of all files without any distinction when an application for official assignment of counsel was made to him; the number of files studied rose from 189 in 1987 to 220 in 1988, and reached 342 in 1990, falling back to 315 in 1991.
..."
25. It is now provided, in Law no. 91-647 of 10 July 1991 on legal aid:
"Legal aid shall be granted to plaintiffs or defendants in contentious or non-contentious proceedings before any court.
It may be granted for all or part of the proceedings.
It may also be granted in respect of the execution of a judicial decision or of any other authority to execute."
Following an agreement between the Court of Cassation and the Conseil d’État and Court of Cassation Bar, a system of legal aid in criminal cases has been set up.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-89881
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF STADNYUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1931 and lives in Andrushivka, Zhytomyr region, Ukraine.
5. By its judgment of 8 December 2000, the Andrushivka District Court awarded the applicant 700 Ukrainian hryvnyas (UAH) in compensation for pecuniary and non-pecuniary damage caused to her by Mr Y. It appears that this judgment became final and the enforcement proceedings were initiated. No further information about enforcement of this judgment is available.
6. In February 2002 the applicant lodged a claim with the Bogunsky District Court of Zhytomyr against the Bogunsky District Bailiffs’ Service of Zhytomyr (відділ державної виконавчої служби Богунського районного управління юстиції м. Житомира), alleging the latter’s inactivity in respect of the enforcement of the judgment of 8 December 2000 and claiming compensation for pecuniary and non-pecuniary damage she had sustained as a result.
7. On 17 April 2003 the court found in part for the applicant and ordered the defendant to pay her a total of UAH 450.39. The applicant did not appeal against this judgment.
8. On 21 November 2003 the Bogunsky District Bailiffs’ Service of Zhytomyr instituted enforcement proceedings. Subsequently, the latter transferred the enforcement writ to the Zhytomyr Regional Bailiffs’ Service (відділ примусового виконання рішень державної виконавчої служби Житомирської області) for enforcement.
9. In the course of these enforcement proceedings the Zhytomyr Regional Bailiffs’ Service requested the Bogunsky District Court of Zhytomyr to replace the Bogunsky District Bailiffs’ Service of Zhytomyr with the local department of the State Treasury of Ukraine, as the debtor under the judgment of 17 April 2003. On 28 October 2004 the court rejected this request. The applicant did not attend this hearing.
10. On 21 May 2004 the State Treasury of Ukraine replied, upon the applicant’s request, that the 2004 State Budget of Ukraine did not provide funds for payment of compensation for damage caused by officials of the State Bailiffs’ Service.
11. Between July 2004 and April 2006 the Zhytomyr Regional Bailiffs’ Service several times terminated and resumed the enforcement proceedings in respect of the judgment of 17 April 2003. By the decision of 18 April 2006, the Zhytomyr Regional Bailiffs’ Service terminated the enforcement proceedings of the judgment of 17 April 2003 on the ground that the debtor had been liquidated. Apparently the applicant did not appeal against this decision.
12. The judgment of 17 April 2003 remains unenforced.
13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-87466
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FIGIEL v. POLAND (No. 1)
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1955 and lives in Warsaw.
7. On 25 October 1999 the applicant lodged a civil claim for payment with the Warsaw District Court (Sąd Rejonowy). The applicant requested the court to make an order for payment against his business partner. The value of the claim was 500 zlotys (PLN) (about 150 euros (EUR)).
Between 25 October 1999 and 27 October 2004 the court held seven hearings, three of which were postponed for various reasons.
At the hearing on 27 October 2004 the parties concluded a friendly settlement. On the same day the Warsaw District Court (Sąd Rejonowy) discontinued the proceedings.
8. On 21 September 2004 the applicant lodged a complaint with the Warsaw Regional Court under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). He sought a ruling that the length of the proceedings before the Warsaw District Court had been excessive and an award of just satisfaction.
On 19 October 2004 the Warsaw Regional Court gave a decision in which it acknowledged the excessive length of the proceedings (35 months and 21 days of inactivity on the part of the Warsaw District Court) but refused to grant the applicant any just satisfaction, holding that the applicant had failed to reason his request for just satisfaction and that the proceedings for payment of PLN 500 “were not particularly important for the applicant who is an entrepreneur, because the consequences are not attributable to the excessive length of the proceedings”.
9. On 29 January 2005 the applicant lodged another application concerning the length of a different set of civil proceedings for payment. These proceedings lasted 5 years and 22 days at two court instances. The applicant made use of the complaint provided for by the 2004 Act and the domestic court acknowledged the excessive length of proceedings (36 months and 7 days of inactivity on the part of the Warsaw District Court) but refused to grant the applicant any just satisfaction.
10. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6


ITEMID: 001-112312
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: GRAINGER AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The following summary of the facts is based on the applicants’ submissions and the findings of the domestic courts.
2. The names of the applicants and their representatives are set out in the attached table. One of the applicants, SRM Ltd Global Master Fund Partnership, is an investment fund incorporated in the Cayman Islands. As a result of transactions between 14 September 2007 and 12 February 2008 it became the largest shareholder in Northern Rock plc, with 48,452,655 shares, amounting to 11.5% of the issued ordinary share capital. Another applicant, RAB Special Situations (Master) Fund Ltd is also an investment company incorporated in the Cayman Islands. It acquired its shares in Northern Rock by transactions between 19 September 2007 and 14 February 2008. By the date of Northern Rock’s nationalisation, it owned 34,444,299 shares, amounting to 8.18% of the issued ordinary share capital. The remaining applicants are individual small shareholders, some of whom acquired their shares on demutualisation; others of whom acquired theirs as employees under an approved profit share scheme or share incentive plan, or other incentive schemes, or by contributions to the company pension fund. Others were small investors who bought their shares on the stock exchange. At the date of nationalisation there were some 150,000 small shareholders.
3. Northern Rock was originally a building society. In 1997 it was converted into a public limited company, listed on the London Stock exchange and authorised to carry on business as a bank. On its demutualisation, shares were issued to its existing depositors. Its core business remained residential mortgage lending. It grew to become the fifth largest United Kingdom mortgage lender and the eighth largest United Kingdom bank.
4. Unlike most other banks in the United Kingdom, Northern Rock financed a large part of the loans it made to lenders by borrowing money and by issuing bonds backed by a pool of mortgage loans. As a result of turbulence in the international financial markets, by August 2007 it had become impossible for it to raise sufficient money on the wholesale market. Moreover, the problems in the United States of America associated with the securitisation of subprime mortgages made it impossible for Northern Rock to raise funds by securitising its own mortgage book.
5. Northern Rock’s assets, as valued and stated in its balance sheet, exceeded its liabilities. However, because of the impossibility of borrowing in the wholesale financial markets it did not have the liquid funds to pay its current liabilities and to repay depositors, and so it could not pay its debts as they fell due.
6. On 13 August 2007 Northern Rock alerted the Financial Services Authority to its liquidity problems and its doubts over the sustainability of its situation. On 3 September 2007 the Treasury, the Bank of England and the Financial Services Authority (“the Tripartite Authorities”) agreed in principle to provide financial support, as a “Lender of Last Resort” (“LOLR”), to allow Northern Rock to maintain liquidity. It was considered that Northern Rock’s problems constituted a genuine threat to the stability of the financial system, with a risk of serious disturbance in the wider economy.
7. LOLR Assistance is made under procedures set out in a Memorandum of Understanding between the Tripartite Authorities, which provides:
“14. In exceptional circumstances, there may be a need for an operation which goes beyond the Bank’s published framework for operations in the money market. Such a support operation is expected to happen very rarely and would normally only be undertaken in the case of a genuine threat to the stability of the financial system to avoid a serious disturbance in the UK economy. If the Bank or the FSA identified a situation where such a support operation might become necessary, they would immediately inform the other authorities and invoke the co-ordination framework outlined in paragraph 16 below. Ultimate responsibility for authorisation of support operations in exceptional circumstances rests with the Chancellor. Thereafter they would keep the Treasury informed about the developing situation, as far as circumstances allowed.
15. In any such exceptional circumstances, the authorities’ main aim would be to reduce the risk of a serious problem causing wider financial or economic disruption. In acting to do this, they would seek to minimise both moral hazard in the private sector and financial risk to the taxpayer arising from any support operation.”
The principles on which LOLR is provided by the Bank of England were further explained in a lecture given at the London School of Economics in 1993 by the then Governor of the Bank. In particular, he underlined that LOLR is designed not to protect the individual bank or its shareholders, but to safeguard the financial system as a whole from contagion, thereby preventing damage to the wider economy.
8. On 13 September 2007 the BBC broadcast leaked information about the bank’s liquidity problems which, over the following three days, led depositors to withdraw GBP 4.45 billion, nearly 20% of Northern Rock’s retail deposits.
9. On 14 September 2007 the Tripartite Authorities authorised the Bank of England to provide LOLR support, in the form of a secured loan at a premium rate of interest. On 17 September 2007 the Chancellor of the Exchequer announced that the Tripartite Authorities would guarantee the safety of all existing deposits in Northern Rock. By 9 October 2007 the loan provided by the Bank of England was virtually exhausted. To prevent the company from collapsing, a further loan was put in place, which was repayable on demand, again at a premium rate of interest and secured against all assets of the company.
10. The Government had duly informed the European Commission of the measures it had taken in relation to Northern Rock. On 5 December 2007 the Commission issued a decision. The Commission concluded that the measures taken by the Government between 17 and 20 September 2007 and those announced on 9 October 2007 constituted non-notified State aid pursuant to Article 87(1) of the Treaty establishing the European Community. However, the measures were compatible with the Common Market as rescue aid pursuant to Article 87(3)(c), and the Commission raised no objection to them. Nonetheless, it informed the Government that:
“The Commission expects your authorities to respect their commitment to communicate to the Commission, not later than 17 March 2008, a credible and substantiated restructuring plan or a liquidation plan or a proof that the aid measures granted have been repaid in full and that the guarantees have been terminated.”
11. On 21 January 2008 the Treasury announced that the preference of the Tripartite Authorities was to find a private sector solution for Northern Rock. However, if no suitable private sector solution could be found, the Government would bring forward legislation which would empower the Treasury to take Northern Rock into temporary public ownership, since it was not considered that it would be in the public interest to allow the bank to go into administration. If Northern Rock were taken into public ownership, the legislation would provide for the assessment by an independent valuer of compensation payable to the former shareholders. The principles for assessing compensation, which would be set out in the legislation brought forward, would reflect:
“the principle that the Government should not be required to compensate shareholders for value which is dependent on taxpayers’ support and the fact that public sector ownership would be an alternative to an administration of the company. Accordingly, the compensation would be assessed by the valuer on the basis, among other things that all financial assistance to Northern Rock from the Bank of England or HM Treasury (including HM Treasury’s existing guarantee arrangements) had been withdrawn and no other financial assistance (apart from Bank of England assistance on its usual terms through standing facilities or open market operations) were made available by them to Northern Rock.”
12. By 17 February 2008 there were two private sector proposals for the future of Northern Rock. However, both involved the continuation of public financial support to the company, and the Government did not consider that either would deliver sufficient value for money for the taxpayer. The Chancellor of the Exchequer therefore announced that legislation would be brought forward to take Northern Rock into a period of temporary public ownership.
13. The power to nationalise Northern Rock was conferred on the Government by the Banking (Special Provisions) Act 2008 (“the 2008 Act”), which was passed into law on 21 February 2008. The nationalisation of the company was effected by the Northern Rock plc Transfer Order 2008, which was made on the same date and came into force on 22 February 2008. It transferred the shares in the company to the Treasury Solicitor as nominee of the Treasury at the beginning of 22 February 2008.
14. The total amount lent by the Bank of England to Northern Rock as at 31 December 2007 was some GBP 27 billion. In addition, the Treasury had assumed contingent liability under guarantees of some GBP 29 billion. As at 31 March 2008, GBP 24.1 billion of the loans remained outstanding.
15. Immediately before nationalisation, the market price of Northern Rock shares was 90 pence, giving a market capitalisation of approximately GBP 379 million.
16. The statutory instrument making provision for the determination of the compensation payable to the former shareholders of Northern Rock was the Northern Rock plc Compensation Scheme Order 2008 (“the Compensation Scheme Order”: see paragraph 26 below), made on 12 March 2008. It required the independent valuer, when calculating the amount of compensation to be paid by the Treasury, to assume that Northern Rock was unable to continue as a going concern and was in administration.
17. On 2 April 2008, the European Commission informed the United Kingdom that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty in relation to State aid potentially incompatible with the common market. However, it did not consider that the proposed compensation scheme was incompatible, for the following reasons:
“The decision of 5 December 2007 already established that Northern Rock is a firm in difficulty. Its situation has not improved since then. In particular, if all the rescue aid measures were withdrawn, the firm would immediately exit the market. ...
The Commission has accordingly decided that the measures implemented on 18 December 2007 are compatible with the EC Treaty and that if the shareholders are only compensated on the basis of an independent valuation of the company without any State support, the purchase of the shares from existing shareholders does not constitute State aid.”
18. On 7 December 2009 the Valuer wrote to the former shareholders informing them that his provisional view was that, applying the statutory assumptions, there would be no residual value in the company and therefore no compensation would be payable.
19. The applicants challenged the assumptions required by the Compensation Scheme Order by way of judicial review proceedings in the Administrative Court. They contended that, contrary to Article 1 of Protocol No. 1 to the Convention, the assumptions imposed on the Valuer failed to strike a fair balance; gave rise to procedural unfairness, since the Valuer could not take into account all relevant facts; and wrongly prevented the regulatory failures of the State from being taken into account in the assessment of compensation.
20. The Divisional Court dismissed the proceedings on 13 February 2009 ([2009] EWHC 227 (Admin)). It took the view that the statutory assumptions imposed on the Valuer reflected the fact that, but for the support provided by the Bank of England, Northern Rock would have been unable to pay its debts as they fell due and would have had to cease carrying on business. The court further held that its function was one of review: to determine whether the State had exceeded its margin of appreciation. It held that the margin of appreciation in this case was narrower than it had been in the cases of James and Others v. the United Kingdom, 21 February 1986, Series A no. 98; Lithgow and Others v. the United Kingdom, 8 July 1986, Series A no. 102; and Mellacher and Others v. Austria, 19 December 1989, Series A no. 169, since the decision to nationalise Northern Rock was made on narrower economic grounds, by comparing the financial benefits to the taxpayer of nationalisation with the alternatives available. However, following Katikaridis and Others v. Greece, 15 November 1996, Reports of Judgments and Decisions 1996V, the court considered that the relevant test was whether the determination under challenge was “manifestly without reasonable foundation”, and it did not consider that the Compensation Scheme could be so condemned. Moreover, there had been no procedural unfairness and Northern Rock’s problems were due to the failures of its managers, rather than the State’s lack of regulation.
21. The applicants’ appeal to the Court of Appeal was dismissed on 28 July 2009 ([2009] EWCA Civ 788). The Court of Appeal held that the Government support accorded to Northern Rock from September 2007 onwards had constituted a “Lending of Last Resort” (“LOLR”) operation, carried out in the context of macro-economic policy, strictly and exclusively for the protection of the banking system as a whole and not in the interests of Northern Rock or its shareholders. As with all LOLR support, it was always intended to be a short-term operation. The decision to take the company into public ownership was a strategic exercise of Government policy, intended to preserve for the sake of the national economy the benefits of the LOLR operation at the least possible cost to the taxpayer. In these circumstances, the margin of appreciation available to the State had to be wide. The court should only interfere if it were to conclude that the State’s judgment as to what was in the public interest was manifestly without reasonable foundation, which was not the case here. LOLR assistance would not have been provided if support had been available on the market and nationalisation was only carried out because no commercial entity was prepared to acquire Northern Rock except on terms that the Government continued to provide support and carried the risk of default. There was no evidence to support the applicant’s allegation that the Government were motivated by profit. The purpose of the statutory assumptions was to put the shareholders in the position they would have occupied had no LOLR support been provided. If the assumptions produced a nil value for the shares, this was only because the business was shown to be worthless without the support put in by the Government and there was nothing in the assumptions to prevent the Valuer from attaching a premium value to Northern Rock’s loan book and other assets.
22. The applicants were refused further permission to appeal by the Supreme Court on 16 December 2009.
23. The 2008 Act conferred power on the Treasury to make an order transferring securities issued by an authorised United Kingdom deposittaker to the Treasury’s nominee. By virtue of section 2(1) read with section 2(2) of the 2008 Act, the power was exercisable by the Treasury if it considered it desirable to do so for either or both of the following purposes:
“(a) maintaining the stability of the UK financial system in circumstances where the Treasury consider that there would be a serious threat to its stability if the order were not made;
(b) protecting the public interest in circumstances where financial assistance has been provided by the Treasury to the deposit-taker for the purpose of maintaining the stability of the UK financial system.”
24. Section 5 required the Treasury to make a scheme for determining the amount of any compensation payable by the Treasury to persons who held the securities immediately before they were transferred. Section 5(4) read as follows:
“(4) In determining the amount of any compensation payable by the Treasury by virtue of any provision in an order under this section, it must be assumed –
(a) that all financial assistance provided by the Bank of England or the Treasury to the deposit-taker in question has been withdrawn (whether by the making of a demand for repayment or otherwise), and
(b) that no financial assistance would in future be provided by the Bank of England or the Treasury to the deposit-taker in question (apart from ordinary market assistance offered by the Bank of England subject to its usual terms).”
“Ordinary market assistance” was defined in subsection (5)(b) and did not include the financial support that had been provided to Northern Rock since September 2007.
25. The nationalisation of Northern Rock was effected by the Northern Rock plc Transfer Order 2008 made under the 2008 Act. It came into force on 22nd February 2008, and transferred all the shares in Northern Rock to the Treasury Solicitor as nominee of the Treasury with effect from the beginning of that date.
26. The Compensation Scheme Order 2008 gave effect to the compensation scheme set out in the Schedule to the Order (“the Compensation Scheme”). It required:
“The amount of compensation payable to a person [to] be an amount equal to the value immediately before the transfer time of all shares in Northern Rock held immediately before the transfer time by that person”.
27. The Compensation Scheme contained provision for the appointment of an independent valuer to assess compensation and for any person dissatisfied with his determination of compensation to refer the matter to the Financial Services and Markets Tribunal.
Paragraph 6 of the Compensation Scheme provided:
“6. In determining the amount of any compensation payable by the Treasury to any person in accordance with paragraphs 3 to 5, it must be assumed (in addition to the assumptions required to be made by section 5(4) of the Act (compensation etc. for securities transferred etc.)) that Northern Rock —
(a) is unable to continue as a going concern; and
(b) is in administration.”


ITEMID: 001-21951
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: LUTTA v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Heinz Lutta, is a Swiss national born in 1950 who resides in Bäch in Switzerland. Before the Court he is represented by Mr M. Ziegler, a lawyer practising in Lachen.
The facts of the case as submitted by the applicant may be summarised as follows.
Criminal proceedings were instituted against the applicant on account of water pollution. During the course of the investigations he was remanded in custody for a period of three days. On 2 May 1994 the Horgen District Court (Bezirksgericht) convicted the applicant of various charges of having contravened the Environment Act (Umweltschutzgesetz) and the Protection of Waters Act (Gewässerschutzgesetz). The conviction was confirmed upon appeal by the Court of Appeal (Obergericht) of the Canton of Zürich on 23 September 1996 which sentenced the applicant to three months’ imprisonment, suspended on probation, a fine of 5,000 Swiss francs (CHF), and damages of CHF 1,500.10.
The applicant then filed two pleas of nullity (Nichtigkeitsbeschwerde), one with the Court of Cassation (Kassationsgericht) of the Canton of Zürich in which he complained of various procedural deficiencies, the other with the Federal Court (Bundesgericht) in which he complained of his conviction. On 28 October 1997 the Court of Cassation partly upheld the applicant’s plea of nullity. In particular, it found that the Horgen District Court, contrary to Article 6 § 1 of the Convention, had not pronounced its judgment publicly; however, the Court of Cassation considered it unnecessary for this reason to quash the previous decision as this would unnecessarily prolong the proceedings.
Against the decision of the Court of Cassation the applicant filed on 15 December 1997 a public law appeal (staatsrechtliche Beschwerde) with the Federal Court. Therein, he complained, inter alia, that the Court of Cassation had not conducted an oral hearing and had disregarded certain submissions of his; that it had failed to transmit one submission of a lower instance to him for observation; that it had failed to draw the necessary conclusions from the fact that the judgment of the Horgen District Court had not been pronounced publicly; that a District Attorney who had ordered the applicant’s detention on remand had breached Article 5 § 3 of the Convention; that certain District Court judges had been biased; and that previous instances had in various respects incorrectly assessed the evidence. In his public law appeal the applicant also requested all submissions in the proceedings to be transmitted to him for his observations.
The Federal Court transmitted a copy of the applicant’s public law appeal to the Court of Cassation of the Canton of Zürich and to the Zürich Public Prosecutor’s Office. The latter filed no observations, whereas the Court of Cassation submitted a reply, numbering three pages, on 2 April 1998. Therein it explained, inter alia, why the applicant could in respect of one issue no longer be considered a victim, and why certain other submissions were new and could not therefore be considered by the Federal Court. It pointed out that the Court’s jugment in the Nideröst Huber-case (judgment of 18 February 1997, Reports 1997I, p. 101) would, if applied consistently, prolong proceedings ad infinitum, and it also explained its point of view in respect of the complaint under Article 5 § 3 of the Convention.
On 22 April 1998 the Federal Court transmitted a copy of the observations of the Court of Cassation to the applicant. By letter of 24 April 1998 the applicant filed a request with the Federal Court, asking for the opportunity to reply to the observations of that court, though it appears that he received no reply thereto.
In two judgments of 3 June 1998 the Federal Court dealt with the applicant’s plea of nullity and public law appeal. Both judgments were served on the applicant on 15 June 1998.
In the judgment of 3 June 1998 concerning the applicant’s plea of nullity, the Federal Court considered the various relevant legal provisions and concluded that the applicant had been incorrectly convicted. As a result, it quashed the judgment of the Court of Appeal of the Canton of Zürich of 23 September 1996. The applicant was awarded CHF 2,200 as compensation for costs.
In the other judgment of 3 June 1998, numbering 29 pages, the Federal Court dismissed the applicant’s public law appeal, while imposing CHF 2,000 as court costs on him. In its judgment it dismissed the applicant’s complaints that he had not had an oral hearing before the Court of Cassation and that his subsequent submissions had not been considered. To the extent that the applicant had not been able to comment before the Court of Cassation on the observations of a lower instance, the Federal Court considered a reply unnecessary as the submissions had been “completely irrelevant” (völlig belanglos). Insofar as the applicant complained about the consequences of the lack of public pronouncement, the Federal Court found that the applicant had insufficiently substantiated this complaint, and that in any event it found the Court of Cassation’s reasoning pertinent. The Federal Court also dismissed the applicant’s complaints about the taking of evidence.
Proceedings were then resumed before the Court of Appeal of the Canton of Zürich which on 19 October 1998 acquitted the applicant of the various offences.


ITEMID: 001-5633
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: OLBERTZ v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Bernhardt Olbertz] is a German national who was born in 1945 and lives in Munich.
He was represented before the Court by Mr C. Lenz, of the Stuttgart Bar.
The facts of the case, as put forward by the applicant, may be summarised as follows.
The applicant was originally from the Federal Republic of Germany (FRG), where he had first worked as a chartered accountant and later managed an office for a firm of tax consultants. In 1984 he set up his own business, specialising in advising and rescuing companies in difficulty. In 1990, before Germany’s reunification, which came into effect on 3 October 1990, he moved to Potsdam in the German Democratic Republic (GDR) with the intention of setting up a tax consultancy there although he had not taken the examination required in the FRG for carrying on the occupation of a tax consultant (Steuerberater). Also in 1990 the applicant acquired East German citizenship so as to be able to set up his tax consultancy in the GDR.
In a decision taken on 6 September 1990 the Ministry of Finance (Finanzministerium) of the GDR, acting through the Director of the Tax Department (Leiter der Abteilung Besitz- und Verkehrsteuern), granted the appointment (Bestellung) of tax consultant to the applicant although he had not taken the examination likewise normally required in the GDR for the practice of that profession.
The applicant then set up his tax consultancy, which was quite successful. In 1995 he had seventeen employees and an annual turnover of 1,600,000 German marks (DEM).
After reunification, the Berlin tax authorities (Senatsverwaltung für Finanzen) stated in a note (Vermerk) of 14 March 1991 that the applicant’s appointment had been lawful and that none of the grounds for revocation referred to in section 46(1) of the FRG’s Tax Consultants Act 1990 (Steuerberatungsgesetz 1990 – see Relevant domestic law and practice below) existed.
In a decision of 13 April 1993 the tax authorities of the Land of Brandenburg (Landesfinanzverwaltung) revoked the appointment pursuant to section 46(1) as amended in the Tax Consultants Act 1992 (Steuer- beratungsgesetz 1992 – see Relevant domestic law and practice below) on the ground that the appointment had been made in breach of the statutory provisions then in force in the GDR. They said that conditions of appointment at the relevant time, – namely, the requirement of fifteen years’ previous experience as a tax consultant in the GDR – as set out in Article 15 §§ 1 and 2 of the GDR’s Tax Consultants Order 1990 (Steuerberatungs-ordnung – see Relevant domestic law and practice below) had not been satisfied. According to the tax authorities, that Order did not take into account experience gained as a tax consultant in the FRG. The purpose of the Order was, in fact, to facilitate access to the occupation of tax consultant by citizens of the GDR who had the knowledge of the subject required in the GDR, not to allow citizens of the FRG to use it as a roundabout way of gaining appointment without taking the requisite examination.
The applicant appealed against that decision. According to him, his appointment as a tax consultant by the Finance Ministry of the GDR was permanent and lawful. By virtue of section 40a(1) of the Tax Consultants Act 1990 (see Relevant domestic law and practice below), tax consultants appointed between 6 February 1990 and 1 January 1991 had been granted provisional appointments until at least 1997; and the subsequent amendment of the Act in 1992 was unconstitutional because in section 46 a new ground for revocation had been added, one not mentioned in the previous Act (see Relevant domestic law and practice below). Moreover, he had acted in good faith since he had given all the requisite details to the Finance Ministry, which in full knowledge of the facts had appointed him as a tax consultant. He had then, he said, made substantial investments in the running of his firm and he could not at the time foresee that his appointment would be revoked following subsequent legislative amendments.
In a judgment of 18 April 1996 the Tax Court (Finanzgericht) dismissed the applicant’s appeal and upheld the decision of the tax authorities on the same grounds. It stated, inter alia, that the provisions of Article 15 § 2 of the GDR’s Tax Consultants Order were clear, as was apparent from the settled case-law of the Federal Tax Court (Bundesfinanzhof) in similar cases, and that the provisions excluded any experience gained in the FRG. At the time of the applicant’s appointment in September 1990, there might have been isolated instances of East German civil servants who, given the general “end-of-an-era” state of the regime, had made appointments based on their own interpretations of the relevant statutory provisions, but that had not in any way reflected a general practice.
In a decision of 14 November 1996 the Federal Tax Court refused to allow an appeal on points of law by the applicant, on the ground that it did not raise a new question of law.
In a decision of 5 February 1997 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, refused to stay execution of the decisions of the lower courts. It held that neither the interpretation nor the application of the relevant legislative provisions by the Tax Court, which had relied on settled case-law of the Federal Tax Court, infringed the applicant’s fundamental rights. That applied both to the Tax Court’s analysis of the initial conditions to be met for the applicant’s appointment and to its belief that the applicant must, in view of section 46(1) of the Tax Consultants Act, have known why his appointment was illegal.
In a decision of 18 February 1997 the Federal Constitutional Court refused to consider the merits of the applicant’s appeal.
In late 1997, as a result of those decisions and in accordance with section 40a(1) of the 1992 Tax Consultants Act (see Relevant domestic law and practice below), the applicant had to close his firm of tax consultants. He subsequently sold his firm and his good will.
The GDR’s Tax Consultants Order (Steuerberatungsordnung) was issued by the Cabinet (Ministerrat) in the State’s final months. It was dated 27 June 1990 and came into force on 27 July 1990.
In Article 13 § 1 it provided that in order to be appointed as a tax consultant, a candidate had to have taken an examination for tax consultants or have been granted an exemption.
Under Article 14 of the Order, two of the conditions for being appointed as a tax consultant were that the candidate was a citizen of the GDR and resided there.
Article 15 provided:
“Conditions of exemption from the examination
(1) Candidates shall be exempted from the examination for tax consultants if they satisfy the conditions set out in Article 14 § 1 and
1. ...
2. ...
3. establish that they have fifteen years’ experience as a ‘skilled worker’ in the area of tax consultancy as their main occupation.
(2) The following shall be deemed to be carrying on their main occupation in the area of tax consultancy:
1. assistant accountants admitted under Article 107a of the Tax Code,
2. former directors and executives of ‘people’s enterprises’ in accountancy and business consultancy and of the financial bodies,
3. authorised tax agents, in accordance with Article 19 of this Order.
(3) ...
(4) Exemption from the examination shall be subject to the consent of the supervisory authority.”
(“Voraussetzungen für die Befreiung von der Prüfung
(1) Von der Steuerberaterprüfung sind die Bewerber zu befreien, die die Voraussetzungen gemäß § 14 Absatz 1 erfüllen und
1. ...
2. ...
3. als Facharbeiter mindestens eine fünfzehnjährige hauptberufliche Tätigkeit auf dem Gebiet des Steuerwesens nachweisen.
(2) Eine hauptberufliche Tätigkeit auf dem Gebiet des Steuerwesens üben aus:
1. praktizierende Helfer in Steuersachen, die über eine Zulassung gemäß § 107a der Abgabenordnung (Sonderdruck Nr. 681 des Gesetzblattes) verfügen,
2. ehemalige verantwortliche und leitende Mitarbeiter der VEB Rechnungsführung und Wirtschaftsberatung sowie der Finanzorgane,
3. Steuerbevollmächtigte gemäß § 19 dieser Verordnung.
(3) ...
(4) Die Befreiung von der Prüfung bedarf der Zustimmung durch die Aufsichtsbehörde.”)
As a result of the German Unification Treaty (Einigungsvertrag) of 31 August 1990, all the FRG’s legislation was extended to cover the territory of the GDR. This was also true of the FRG’s Tax Consultants Act whose provisions applied to the former GDR from 1 January 1991. Reunification itself took effect on 3 October 1990.
After the treaty had been signed, the 1975 version of the FRG’s Tax Consultants Act (Steuerberatungsgesetz) was twice amended: once in 1990 and once in 1992.
In the 1990 version section 40a(1), first paragraph, was worded as follows:
“A tax consultant shall be regarded as having been appointed provisionally (vorläufige Bestellung) if he was appointed in the former GDR after 6 February 1990 and before 1 January 1991 in accordance with the legislative provisions then in force. This provisional appointment shall allow him to practise his profession in the district in which he was appointed. After 31 December 1994 the highest Land authority shall decide on his permanent appointment after consulting with the relevant Chamber of Tax Consultants (Steuerberaterkammer). Permanent appointment cannot be refused if the candidate has successfully completed a training course. ...”
(“Als vorläufig bestellt gelten Steuerberater und Steuerbevollmächtigte, die nach dem 6. Februar 1990 und vor dem 1. Januar 1991 bestellt worden sind. Steuerbevollmächtigte haben mit der vorläufigen Bestellung das Recht zur uneingeschränkten Hilfe in Steuersachen für das Gebiet des Bezirks, in dem sie bestellt worden sind. Über die endgültige Bestellung entscheidet die zuständige oberste Landesbehörde im Benehmen mit der zuständigen Steuerberaterkammer nach dem 31. Dezember 1994. Die endgültige Bestellung darf nicht versagt werden, wenn der Berufsangehörige an einem Übergangsseminar erfolgreich teilgenommen hat. ...”)
In the 1992 version the following two sentences were added to section 40a(1):
“... Permanent appointment also presupposes that none of the grounds set out in section 46(1), second sentence, for revoking a provisional appointment exists. Provisional appointments shall expire on 31 December 1997 at the latest. ...”
(“... Die endgültige Bestellung setzt ferner voraus, daß Gründe für eine Rücknahme der vorläufigen Bestellung nach § 46 Abs. 1 Satz 2 nicht vorliegen. Eine vorläufige Bestellung erlischt spätestens mit dem 31. Dezember 1997. ...”)
In the 1990 version section 46(1) read:
“The appointment shall be revoked if the tax consultant secured it by means of intentional deception, threat or bribery or by supplying information that was incorrect or incomplete in a material respect.”
(“Die Bestellung ist zurückzunehmen, wenn der Steuerberater ... die Bestellung durch arglistige Täuschung, Drohung oder Bestechung oder durch Angaben erwirkt hat, die in wesentlicher Beziehung unrichtig oder unvollständig waren.”)
In the 1992 version a second sentence was also inserted in section 46(1) which provided:
“... A provisional appointment of a tax consultant (section 40a) shall be revoked if it was unlawful (rechtswidrig) and the person knew or should have known the circumstances giving rise to the unlawfulness...”
(“... Eine vorläufige Bestellung (§ 40a) ist zurückzunehmen, wenn sie rechtswidrig war und der Begünstigte die Umstände kannte oder kennen mußte, die die Rechtswidrigkeit begründen...”)
In the following years the finance ministries of the various Länder carried out a general check on the provisional appointments made during the transitional period.


ITEMID: 001-103153
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF HÜSEYİN HABİP TAŞKIN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-3-c+6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 4. The applicant was born in 1960 and lives in Izmir.
5. On 9 July 2002 at 4 p.m., the applicant was taken into custody by police officers from the Anti-Terrorist Branch of the Izmir Security Directorate. Immediately, he was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body. The applicant was then taken to the Izmir Security Directorate Building for interrogation.
6. According to a form dated 9 July 2002 that explained arrested persons' rights, and which was signed by the applicant, he had been reminded of his right to remain silent.
7. On 10 July 2002 the applicant was interrogated at the Anti-Terrorist Branch in the absence of a lawyer. In his statement, the applicant gave a detailed description about his involvement in an illegal organisation, namely the Bolşevik Parti - Kuzey Kürdistan/Türkiye (Bolshevik Party – North Kurdistan/Turkey). The applicant further took part in an identification parade with other accused persons and identified certain persons as members of the said organisation.
8. On 12 July 2002 the applicant was visited by a lawyer, Mr M.R., for a short period of time. The applicant told the lawyer that he did not need anything and that during his trial he wished to be represented by Mr H.D., a lawyer practising in Izmir.
9. On 13 July 2002 the applicant was again examined by a doctor, who stated that there were no traces of ill-treatment on his body.
10. On the same day, the applicant was brought before the public prosecutor and the investigating judge respectively, again in the absence of a lawyer. Before the public prosecutor and the investigating judge, the applicant repeated his police statement. After the questioning was over, the investigating judge remanded the applicant in custody.
11. On 6 September 2002 the public prosecutor at the Izmir State Security Court filed an indictment with that court accusing the applicant of membership of an illegal organisation, an offence under Article 168 of the former Criminal Code and Section 7 of the Prevention of Terrorism Act (Law no. 3713). During the proceedings, the applicant was represented by his lawyer, and he denied his police statement alleging that it had been extracted under duress. On 21 January 2003 the applicant was released pending trial.
12. On 24 July 2003 the Izmir State Security Court found the applicant guilty as charged and sentenced him to four years and two months' imprisonment under Section 7 of Law no. 3713.
13. On 8 April 2004 the Court of Cassation quashed the judgment, holding that the first instance court should have taken into account the recent amendments made to Law no. 3713 when giving its judgment. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Izmir Assize Court.
14. On 12 October 2004 the Izmir Assize Court found the applicant guilty as charged and sentenced him to two years and six months' imprisonment. In convicting him, the court had regard to the applicant's statements to the police, the public prosecutor and the investigating judge respectively. The applicant appealed against this decision. While the appeal was pending before the Court of Cassation, in 2005 new legislation amending the Criminal Procedure Code came into force. By a decision dated 10 November 2005, the Chief Public Prosecutor at the Court of Cassation sent the case file back to the first instance court and requested the latter to reconsider the case in the light of the amendments made to the Code of Criminal Procedure. On 16 March 2006 the Izmir Assize Court repeated its previous judgment and held that the new provisions were not more favourable to the applicant. On 25 December 2006 the Court of Cassation upheld the judgment dated 16 March 2006.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c