ITEMID: 001-58404
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF SALGUEIRO DA SILVA MOUTA v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää
TEXT: 8. The applicant is a Portuguese national born in 1961. He lives in Queluz (Portugal).
9. In 1983 the applicant married C.D.S. On 2 November 1987 they had a daughter, M. The applicant separated from his wife in April 1990 and has since then been living with a man, L.G.C. Following divorce proceedings instituted by C.D.S., the divorce decree was pronounced on 30 September 1993 by the Lisbon Family Affairs Court (Tribunal de Família).
10. On 7 February 1991, during the divorce proceedings, the applicant signed an agreement with C.D.S. concerning the award of parental responsibility (poder paternal) for M. Under the terms of that agreement C.D.S. was to have parental responsibility and the applicant a right to contact. However, the applicant was unable to exercise his right to contact because C.D.S. did not comply with the agreement.
11. On 16 March 1992 the applicant sought an order giving him parental responsibility for the child. He alleged that C.D.S. was not complying with the terms of the agreement signed on 7 February 1991 since M. was living with her maternal grandparents. The applicant submitted that he was better able to look after his child. In her memorial in reply C.D.S. accused L.G.C. of having sexually abused the child.
12. The Lisbon Family Affairs Court delivered its judgment on 14 July 1994 after a period in which the applicant, M., C.D.S., L.G.C. and the child’s maternal grandparents had been interviewed by psychologists attached to the court. The court awarded the applicant parental responsibility, dismissing as unfounded – in the light of the court psychologists’ reports – C.D.S.’s allegations that L.G.C. had asked M. to masturbate him. It also found, again in the light of the court psychologists’ reports, that statements made by M. to that effect appeared to have been prompted by others. The court added:
“The mother continues to be most uncooperative and it is wholly improbable that her attitude will change. She has repeatedly failed to comply with the Court’s decisions. The finding is inescapable that [the mother] has not shown herself capable at present of providing M. with conditions conducive to the balanced and calm life she needs. The father is at present better able to do so. In addition to providing the economic and living conditions necessary to have the child with him, he has shown himself capable of providing her with the balanced conditions she needs and of respecting her right to maintain regular and sustained contact with her mother and maternal grandparents.”
13. M. stayed with the applicant from 18 April to 3 November 1995, when she was allegedly abducted by C.D.S. The applicant reported the abduction and criminal proceedings are pending in that connection.
14. C.D.S. appealed against the Family Affairs Court’s judgment to the Lisbon Court of Appeal (Tribunal da Relação), which gave judgment on 9 January 1996, reversing the lower court’s judgment and awarding parental responsibility to C.D.S., with contact to the applicant. The judgment was worded as follows.
“In the proceedings for the award of parental responsibility for the child M., born on 2 November 1987, daughter of [the applicant] and C.D.S., the decision given on 7 February 1991 confirmed the agreement between the parents as to parental responsibility for the child, contact and the amount of maintenance payable by the father, since custody of M. was awarded to the mother.
On 16 March 1992 [the applicant] applied for a variation of the order granting parental responsibility, alleging that the child was not living with her mother in accordance with what had been decided, but with her maternal grandparents, which – he argued – was unsatisfactory. It was for that reason that the custody arrangements should be varied so as to allow him to have his daughter and apply to the mother the contact and maintenance arrangements which had hitherto been applied to him.
The child’s mother not only opposed the application lodged by the applicant, but also relied on evidence supporting her contention that the child should not remain in the company of her father because he was a homosexual and was cohabiting with another man. After a number of steps had been taken in connection with those proceedings, the following decision was given on 14 July 1994:
‘1. Custody and care of the child is awarded to the father, in whom parental responsibility shall be vested.
2. The child may see her mother on alternate weekends, from Friday to Monday. Her mother shall collect her from school on the Friday and bring her back to school on Monday morning before lessons start.
3. The child may also see her mother every Tuesday and Wednesday; her mother shall fetch her from school after lessons and bring her back the following morning.
4. The child shall spend Christmas Eve and Christmas Day alternately with her father and her mother.
5. The child shall spend the Easter holidays with her mother.
6. During the school summer holidays the child shall spend thirty days with her mother. The dates must be agreed on with the father at least sixty days beforehand.
7. The mother shall pay the father maintenance of 30,000 escudos per month, payable before the 8th of every month. Those maintenance payments shall be adjusted once annually on the basis of the inflation index for the previous year published by the INE (National Institute of Statistics).’
That decision specifically governed arrangements applicable to the year 1994. C.D.S., who was dissatisfied with the decision, appealed. She had previously appealed against the decision appearing on page 238, which dismissed an application for a stay of the proceedings, and the decision given at the hearing of 29 April 1994 on the application for an examination of the document appearing on page 233; both those appeals were adjourned and did not have the effect of staying the proceedings.
The appellant sets out the following grounds in her appeal:
…
In his pleadings [the applicant] submitted that the judgment of the first-instance court should be upheld.
State Counsel attached to the Court of Appeal has recommended that the decision be set aside, but not on the grounds relied on by the appellant.
After examining the case, we shall give our decision.
We shall first examine the following facts, which the first-instance court considered to be established.
1. The child, M., who was born on 2 November 1987, is the daughter of [the applicant] and C.D.S.
2. Her parents married on 2 April 1983.
3. Divorce was granted on 30 September 1993 and their marriage dissolved.
4. The parents have been living separately since April 1990, when [the applicant] left his home to go and live with another man, whose first name is L.
5. On 7 March 1991 the Loures Court gave a decision in case no. 1101/90 confirming the following agreement on the exercise of parental responsibility for the child:
‘I. The mother shall have custody of the child.
II. The father may visit his daughter whenever he likes provided that he does not disrupt her schooling.
III. The child shall spend alternate weekends and Christmas and Easter with her father.
IV. The child shall spend the father’s holidays with him unless those holidays coincide with those of the mother, in which case the child shall spend fifteen days with each parent.
V. On the weekends which the child spends with her father, he shall collect her from her mother’s house on Saturday at about 10 a.m. and bring her back on Sunday at about 8 p.m.
VI. The child shall go to a kindergarten as soon as possible, the enrolment fees to be paid by the father.
VII. The father shall pay maintenance of 10,000 escudos per month, which shall be adjusted once annually by the same percentage as the net increase in his salary. That sum shall be paid into the account of the child’s mother – account no. …– before the 5th day of the following month.
VIII. The father shall also pay half his daughter’s kindergarten fees.
IX. The father shall pay half of any special expenses for his child’s health.’
6. From April 1992 the child stopped seeing her father on the agreed terms, against his wishes.
7. Until January 1994 the child lived with her maternal grandparents [name] at Camarate [address].
8. From that date the child went to live with her mother and her mother’s boyfriend [address] in Lisbon.
9. She continued, however, to stay overnight at her maternal grandparents’ house from time to time.
10. On schooldays when the child did not stay overnight with her grandparents, her mother used to drive her to her grandparents’ house where she used to stay after school from 5 p.m.
11. During that school year M. was in the first year primary at … school, for which the fees came to 45,400 escudos per month.
12. Her mother has been cohabiting with J. for at least two years.
13. J., who is a business manager, works in the imports and exports sector, the major part of his activity being in Germany where he has immigrant status. His income amounts to some 600,000 escudos per month.
14. The mother, C.D.S., is the manager of DNS, the partners of which are her boyfriend and his brother, J.P.
15. She has been registered with the State agency for employment and vocational training since 17 February 1994.
16. Her expenses are paid for jointly by herself and her boyfriend.
17. She states that she pays 120,000 escudos in rent and spends approximately 100,000 escudos per month on food.
18. The father, João Mouta, is in a homosexual relationship with L.G.C., with whom he has been living since April 1990.
19. He is the head of his sector at A., and his net monthly income, plus commission, comes to just over 200,000 escudos.
20. The child is very close to her maternal grandmother, who is a Jehovah’s Witness.
21. Following her failure to comply with the decision referred to in paragraph 5, the child’s mother was ordered, on 14 May 1993, to pay a fine of 30,000 escudos because since April 1992 she had been refusing to allow the father to exercise his ‘right to contact with his daughter in accordance with the decision given’.
22. On 25 June 1994, after interviewing the father and mother both individually and together, and M. without her parents or her maternal grandmother being present, and the maternal grandmother and the father’s partner individually, and performing a psychological examination of M., the court psychologists drew up the following report:
‘M. is a communicative child of normal intellectual development for her age and above average intelligence. She is very attached to her father and mother, and the conflict between her parents is a source of some insecurity. She would like her parents to live closer together because she finds it difficult to understand why she has to live with her grandparents and not see her father or to accept this. She has a very good relationship with her father, who is very affectionate and attentive towards his daughter. Both [the applicant] and his ex-wife are affectionate and flexible parents and both invest in their daughter’s upbringing and emotional security. The reasons for their separation were subsequently a source of substantial conflict between them, exacerbated by M.’s maternal grandmother, who does not accept [the applicant’s] lifestyle and unconsciously tries to keep him away from his daughter. To sum up, both parents are capable of overseeing their daughter’s satisfactory psychoaffective development, but we do not feel that it is right for her to live with her grandmother, who exacerbates the conflict between the two parties and fuels it by trying to keep [the applicant] away because she does not accept his lifestyle.’
23. On 16 August 1993 M. told the psychologist and her father that the latter’s partner had asked her, while her father was out, to go into the bathroom with him, that he had locked the door and asked her to masturbate him (she made gestures imitative of masturbation) and then told her that she did not need to wash her hands and that she should not say anything to her father. The psychologist stated that the manner in which the child had related that episode had made her doubt the truthfulness of the story, which might have been suggested by repeated promptings. She added that while the daughter was describing the episode, the applicant had been understanding and asked for clarification, which confirmed that the father and daughter had a good relationship.
24. During the interview with the psychologist on 6 December 1993 the child stated that she was still living with her maternal grandmother and that from time to time she stayed with her mother where she would sleep on a sofa in the living room because there was no bedroom for her.
25. In a report dated 17 January 1994, drawn up following a meeting between the daughter and her father, the psychologist concluded that ‘although M. has observed during her meetings with her father that he is living with another man, her parental images have been fully assimilated and she presents no problem relating to psychosexual identity, be it her own or that of her parents’.
26. Dr V., a psychiatrist, stated, after interviewing the boyfriend of [the applicant], the child’s father, that in his opinion the partner was well adjusted and of satisfactory emotional and cognitive development. He found nothing abnormal about the boyfriend either as an individual or in terms of his relationship with the child’s father. He considered it wholly improbable that the episode related by the child, as described in paragraph 23, had really occurred.
27. The final report drawn up by the court psychologists, dated 12 April 1994, indicated that M. was suffering from a degree of insecurity due in part to the conflict between her mother’s side of the family and her father, and that she had a defensive attitude which manifested itself in a refusal to confront potentially stressful situations. The child is aware that her family opposes her meetings with her father, their opposition being justified by the child’s description of an episode which had allegedly occurred between her and her father’s boyfriend, L.G.C., in which L.G.C. had asked her to masturbate him. With regard to that account, it is difficult to imagine how a 6-year-old child could relate in detail an episode which had occurred several years earlier. The experts conclude in their report that the fact that M. had described in detail the above-mentioned masturbation episode did not mean that it had actually occurred. They reiterate that the father is a very affectionate father, full of understanding and kindness towards his daughter, while also imposing on her, satisfactorily and instructively, limits which were necessary and made her feel secure.
The experts also reiterate that the child’s mother is a very affectionate mother, but rather permissive, which is not conducive to a feeling of security, although she is capable of improving. They also conclude that it is not advisable for the child to live with her grandmother because the religious fanaticism present in her environment not only condemns the father, but excludes him on grounds of the individual and emotional choices he has made. This has contributed to sowing confusion in the child’s mind and exacerbating her sense of conflict and anxiety, thus compromising her healthy psychoaffective development.
28. At the hearing on 24 January 1994 the following interim decision was given with the agreement of both parents: (I) M. could spend every Saturday from 10 a.m. to 10 p.m. with her father, (II) to that end, her father would fetch her from her mother’s house accompanied by her paternal grandmother and/or her paternal great-grandmother.
29. The mother did not allow her daughter to see her father on the terms fixed by the above-mentioned decision.
30. On 22 April 1994 the child psychiatry department of D. Estefânea Hospital decided that M. should be monitored because her feelings of anxiety were such as might inhibit her psychoaffective development.
Those facts, found at first instance, are considered to have been definitively established, without prejudice to the possibility of considering a further factor in delivering this judgment. With regard to the other appeals, since the mother has not submitted any pleadings they are considered to be inoperative under Articles 292 § 1 and 690 § 2 of the Code of Civil Procedure. Apart from the fact that factual evidence has not been submitted, these aspects appear to us to be sufficient to give a ruling here as we understand that the lower court ruled on the essential issue of the case, that is to which of the two parents custody of the child should be awarded. The shortcomings in the decision referred to by State Counsel, although relevant, do not warrant setting it aside.
Let us now examine the appeal:
Article 1905 § 1 of the Civil Code provides that in cases of divorce, judicial separation of persons and possessions, declarations of nullity or annulment of marriage, child custody, maintenance and the conditions of payment are governed by agreement between the parents, that agreement being subject to confirmation by the court; confirmation is refused if the agreement is contrary to the child’s interests, including the child’s interest in maintaining a very close relationship with the non-custodial parent. Paragraph 2 adds that, in the absence of an agreement, the court shall decide, while protecting the child’s interests, including his or her interest in maintaining a very close relationship with the non-custodial parent, it being possible to award custody of the child to one or other parent or, if one of the cases provided for in Article 1918 applies, to a third party or to an educational or welfare establishment.
The Guardianship Act also deals with this point. Section 180(1) of that Act provides that any award of parental responsibility must be in the child’s interests.
A judgment of the Lisbon Court of Appeal of 24 April 1974, summarised in BMJ (Bulletin of the Ministry of Justice) no. 236, p. 189, states: ‘The Convention on the Rights of the Child – Resolution of 20 November 1989 of the General Assembly of the United Nations – proclaims with rare concision that children, for the full and harmonious development of their personality, require love and understanding; they should, as far as possible, grow up under the protection and responsibility of their parents and, in any event, in a climate of affection and psychological and material security, with young children not being separated from their mother save in exceptional cases.’
We do not have the slightest hesitation in supporting that declaration, which fully corresponds to the realities of life. Despite the importance of paternal love, a young child needs the care which only the mother’s love can provide. We think that M., who is now aged 8, still needs her mother’s care. See on this point the judgment of the Porto Court of Appeal of 7 June 1988, in BMJ no. 378, p. 790, in which that court held that ‘in the case of young children, that is until 7 or 8 years of age, the emotional tie to the mother is an essential factor in the child’s psychological and emotional development, given that the special needs of tenderness and attentive care at this age can rarely be replaced by the father’s affection and interest’.
The relationship between M. and her parents is a decisive factor in her emotional well-being and the development of her personality, particularly as it has been demonstrated that she is deeply attached to her parents, just as it has been shown that both of them are capable of guiding the child’s psychoaffective development.
In the official record of the decision of 5 July 1990 awarding parental responsibility, [the applicant] acknowledged that the appellant was capable of looking after their daughter and suggested that custody be awarded to the mother, a statement he repeated in the present proceedings to vary that order, as recorded in the transcript of the hearing of 15 June 1992, declaring that he wished to waive his initial application for custody of the child because she was living with her mother again. M.’s father expresses the wish that his daughter not stay with her maternal grandparents, referring to the numerous difficulties he encounters when trying to see his daughter, given the conduct of the appellant and her mother who do all they can to keep him away from his daughter because they do not accept his homosexuality.
Section 182 of the Guardianship Act provides that previous arrangements can be varied if the agreement or final decision is not complied with by both parents or if subsequent circumstances make it necessary [to vary] the terms. Consideration needs to be given, however, to whether there is a justified ground for varying the decision awarding custody of the child to her mother.
On examining the content of the initial application for a variation of the order it can be seen that emphasis is placed on the fact that the child was living with her maternal grandparents who are Jehovah’s Witnesses. The truth of the matter, however, is that [the applicant] has not produced any evidence to prove that this religion is harmful and has merely stressed the grandparents’ stubborn refusal to allow the father and daughter to see each other. To the Court’s knowledge, the beliefs of Jehovah’s Witnesses do not incite to evil practices, although fanaticism does exist.
Are there adequate reasons for withdrawing from the mother the parental responsibility which was granted her with the parents’ agreement?
There is ample evidence in this case that the appellant habitually breaches the agreements entered into by her with regard to the father’s right to contact and that she shows no respect for the courts trying the case, since on several occasions, and without any justification, she has failed to attend interviews to which she has been summoned in the proceedings. We think, however, that her conduct is due not only to [the applicant]’s lifestyle, but also to the fact that she believed the indecent episode related by the child, implicating the father’s partner.
On this point, which is particularly important, we agree that it is not possible to accept as proven that such an episode really occurred. However, we cannot rule out the possibility that it did occur. It would be going too far – since there is no conclusive evidence – to assert that the boyfriend of M.’s father would never be capable of the slightest indecency towards M. Thus, although it cannot be asserted that the child told the truth or that she was not manipulated, neither can it be concluded that she was telling an untruth. Since there is evidence to support both scenarios, it would be wrong to give greater credence to one than the other.
In the same way, the accepted principle in cases involving awards of parental responsibility is that the child’s interests are paramount, completely irrespective of the – sometimes selfish – interests of the parents. In order to establish what is in the child’s interests, a court must in every case take account of the dominant family, educational and social values of the society in which the child is growing up.
As we have already stated and as established case-law authority provides, having regard to the nature of things and the realities of daily life, and for reasons relating to human nature, custody of young children should as a general rule be awarded to the mother unless there are overriding reasons militating against this (see the Evora Court of Appeal’s judgment of 12 July 1979, in BMJ no. 292, p. 450).
In the instant case parental responsibility was withdrawn from the mother despite the fact that it had been awarded her, we repeat, following an agreement between the parents, and without sufficient evidence being produced to cast doubt on her ability to continue exercising that authority. The question which therefore arises, and this should be stressed, is not really which of the two parents should be awarded custody of M., but rather whether there are reasons for varying what was agreed.
Even if that were not the case, however, we think that custody of the child should be awarded to the mother.
The fact that the child’s father, who has come to terms with his homosexuality, wishes to live with another man is a reality which has to be accepted. It is well known that society is becoming more and more tolerant of such situations. However, it cannot be argued that an environment of this kind is the healthiest and best suited to a child’s psychological, social and mental development, especially given the dominant model in our society, as the appellant rightly points out. The child should live in a family environment, a traditional Portuguese family, which is certainly not the set-up her father has decided to enter into, since he is living with another man as if they were man and wife. It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations; such are the dictates of human nature and let us remember that it is [the applicant] himself who acknowledged this when, in his initial application of 5 July 1990, he stated that he had definitively left the marital home to go and live with a boyfriend, a decision which is not normal according to common criteria.
No doubt is being cast on the father’s love for his daughter or on his ability to look after her during the periods for which she is entrusted to his care, for it is essential that they do see each other if the objectives set out above are to be met, that is ensuring the child’s well-being and the development of her personality. M. needs to visit her father if her feelings of anxiety and insecurity are to be dissipated. When children are deprived of contact with their father, their present and future development and psychological equilibrium are put at risk. The mother would be wise to try to understand and accept this if she is not to cast doubt on her own ability to exercise parental responsibility.
At present, the failure to comply with the decision confirming the contact arrangements does not amount to a sufficient reason for withdrawing from the appellant the parental responsibility awarded to her by that decision.
Accordingly, we reverse the judgment of the lower court as regards the child’s permanent residence with her father, without prejudice to the father’s right to contact during the periods which will be stipulated below.
It should be impressed upon the father that during these periods he would be ill-advised to act in any way that would make his daughter realise that her father is living with another man in conditions resembling those of man and wife.
For all the foregoing reasons the Court of Appeal reverses the impugned decision and rules that the appellant, C.D.S., shall continue to exercise parental responsibility for her daughter, M.
The contact arrangements shall be established as follows:
1. The child may see her father on alternate weekends from Friday to Monday. To that end the father shall fetch his daughter from school at the end of classes on the Friday and bring her back on Monday morning before classes start.
2. The father may visit his daughter at school on any other day of the week provided that he does not disrupt her schooling.
3. The child shall spend the Easter holidays alternately with her father and her mother.
4. The Christmas holidays shall be divided into two equal parts: half to be spent with the father and the other half with the mother, but in such a way that the child can spend Christmas Eve and Christmas Day with one and New Year with the other alternately.
5. During the summer holidays the child shall spend thirty days with her father during the latter’s holidays, but if that period coincides with the mother’s holidays the child shall spend fifteen days with each of them.
6. During the Easter, Christmas and summer holidays the father shall fetch the child from the mother’s house and bring her back between 10 a.m. and 1 p.m. unless the parents agree on different times.
7. In accordance with the date of this decision, the child shall spend the next Easter and Christmas holidays with the parent with whom she did not spend those holidays in 1995.
8. The matter of maintenance payable by the father and the manner of payment shall be examined by the Third Section of the Third Chamber of the Lisbon Family Affairs Court in case no. 3821/A, which has been adjourned pending the present decision regarding the child’s future.
Costs are awarded against the respondent.”
15. One of the three Court of Appeal judges gave the following separate opinion:
“I voted in favour of this decision, with the reservation that I do not consider it constitutionally lawful to assert as a principle that a person can be stripped of his family rights on the basis of his sexual orientation, which – accordingly – cannot, as such, in any circumstances be described as abnormal. The right to be different should not be treated as a ‘right’ to be ghettoised. It is not therefore a matter of belittling the fact that [the applicant] has come to terms with his sexuality and consequently of denying him his right to bring up his daughter, but rather, since a decision has to be given, of affirming that it cannot be declared in our society and in our era that children can come to terms with their father’s homosexuality without running the risk of losing their reference models.”
16. No appeal lay against that decision.
17. The right to contact granted to the applicant by the judgment of the Lisbon Court of Appeal was never respected by C.D.S.
18. The applicant therefore lodged an application with the Lisbon Family Affairs Court for enforcement of the Court of Appeal’s decision. On 22 May 1998, in connection with those proceedings, the applicant received a copy of a report drawn up by the medical experts attached to the Lisbon Family Affairs Court. He learnt from this that M. was in Vila Nova de Gaia in the north of Portugal. The applicant made two unsuccessful attempts to see his daughter. The enforcement proceedings are apparently still pending.
19. Article 1905 of the Civil Code provides:
“1. In the event of divorce …, child custody, maintenance and the terms of payment shall be determined by agreement between the parents, which is subject to confirmation by the ... court
…
2. In the absence of an agreement, the court shall decide on the basis of the interests of the child, including the child’s interest in maintaining a very close relationship with the non-custodial parent ...”
20. Certain provisions of the Guardianship Act are also relevant to the instant case.
“1. ... a decision as to the exercise of parental responsibility shall be made on the basis of the interests of the child, custody of whom may be awarded to one of the parents, a third party or an educational or welfare establishment.
2. Contact arrangements shall be made unless, exceptionally, this would not be in the child’s interests ...”
“If one of the parents does not comply with the agreement or decision reached in respect of the child’s situation, the other parent may apply to the court for enforcement ...”
“If the agreement or final decision is not complied with by both the father and the mother or if fresh circumstances make it necessary to vary the terms, one of the parents or the guardian may apply to the ... court for variation of the award of parental responsibility ...”
VIOLATED_ARTICLES: 14
8


ITEMID: 001-4804
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: A.T. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Finnish national, born in 1961 and living in the Helsinki area.
A.
In 1987 a daughter, J., was born to the applicant and M. In 1989 the parents divorced. In 1990 the applicant was awarded sole custody of J. During the court proceedings J. was occasionally placed in a children’s home and with substitute parents, following the applicant’s consent.
In 1994 a second daughter, A., was born to the applicant, the father being P. In 1994 P. brought proceedings before the Turku District Court, seeking to obtain sole custody of A. The applicant also requested sole custody.
On 30 May 1995 an official acting on behalf of the Turku Social Welfare Board (sosiaalilautakunta, socialnämnden) placed both children in immediate public care in a children’s home in pursuance of Section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 as amended by Act 13/1990). The applicant had left the children on the premises of the Turku District Court, objecting to its processing of P.’s action for sole custody of A. The applicant had told J. she no longer had the strength to care for the children and that they “no longer had a mother”. After the incident the applicant could not be reached. A few days later she had telephoned a social welfare official to say she had “bid farewell to her children” and “had stopped being a mother”.
By decisions of 28 June 1995 the Social Welfare Board, in pursuance of Section 16 of the Child Welfare Act, maintained the public care of the children after having heard the applicant and the respective fathers. The applicant had opposed the public care. On 31 August 1995 the Turku and Pori County Administrative Court (lääninoikeus, länsrätten) heard the applicant, a social welfare official, the applicant’s psychologist and a nurse of the children’s home. In its decisions of 21 September 1995 the County Administrative Court upheld the care orders, essentially considering that the applicant’s uncontrolled and unforeseeable behaviour had seriously jeopardised the children’s health and development. Although the applicant had previously availed herself of support measures for herself and the children, she was no longer willing to co-operate with the social welfare officials, being of the opinion that there was no need for such measures. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). On 23 February 1996, however, she withdrew her appeals, considering that the she could not expect an impartial examination thereof. On 9 May 1996 the cases were struck out.
For the follow-up of its care orders the Social Welfare Board, on 21 July 1995, requested the Tampere University Hospital to disclose information of significance to the applicant’s children’s growth and development. The request was made pursuant to Section 56 of the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982).
On 16 June 1995 the District Court refused the applicant’s request for the appointment of a guardian ad litem for herself and her children. The applicant had argued that a guardian was needed to protect them “against the arbitrary acts of the Social Welfare Office” until the custody proceedings had come to an end. The applicant’s extraordinary appeal was rejected by the Turku Court of Appeal (hovioikeus, hovrätten; “the Court of Appeal”) on 28 February 1996. Her extraordinary appeal to the Supreme Court (korkein oikeus, högsta domstolen) was rejected on 19 June 1996.
On 24 August 1995 the District Court, at P.’s request, appointed a guardian ad litem for A. for the purposes of the custody proceedings. The applicant’s appeal was rejected by the Court of Appeal on 28 February 1996. Leave to appeal was refused by the Supreme Court on 19 June 1996.
On 27 October 1995 the District Court granted P. sole custody of A. The applicant had not requested access to A. in the event of her not being awarded sole custody. Her request for an order regarding access arrangements solely between her two daughters was refused as not being based on law. The applicant’s appeal was refused by the Court of Appeal on 11 March 1996 after a re-hearing. On 12 September 1996 she was refused leave to appeal to the Supreme Court.
On 1 November 1995 P. requested that the public care of A. be revoked. On 13 December 1995 the Social Welfare Board considered that although the original grounds for the public care of A. were no longer at hand, its termination at that moment would run counter to the child’s best interest. The Board decided to revert to the matter within three months but allowed the public care to be implemented in P.’s home. On 12 January 1996 the County Administrative Court declined to examine the applicant’s various petitions in which she objected, inter alia, to the implementation of the public care in P.’s home. The applicant’s respective appeals were rejected by the Supreme Administrative Court on 12 February 1997. Her extraordinary appeals were rejected on 30 December 1997.
On 20 December 1995 an official of the Social Welfare Board refused to disclose to the applicant an assessment of P.’s parental abilities which she had requested for the purpose of the pending custody and public care proceedings concerning A. The refusal was upheld by the Social Welfare Board on 17 January 1996. On 29 February 1996 the County Administrative Court quashed the Board’s decision, referred the matter back to the Board and directed it to disclose the assessment to the applicant. On 6 June 1996 P.’s appeal was rejected by the Supreme Administrative Court.
On 27 March 1996 the Social Welfare Board terminated the public care of A. pursuant to Section 20 of the Child Welfare Act. The Board noted that P. had now been awarded sole custody of A. and had assumed and organised her care in an adequate manner. The applicant appealed, requesting that she and A. immediately be reunited or, in the alternative, that the public care be continued but implemented in her home until she had again been awarded custody of her children. The applicant’s appeal was rejected by the County Administrative Court on 12 July 1996 and her further appeal was rejected by the Supreme Administrative Court on 12 February 1997.
On 13 December 1995 an official of the Social Welfare Board authorised the implementation of J.’s public care in M.’s home in Austria, where he had founded a new family. On 19 June 1996 the Social Welfare Board decided to maintain the public care of J. but directed that she should continue to live with the father M. The applicant had requested that the public care be terminated and that J. be returned to her. Her appeal was rejected by the County Administrative Court on 12 November 1996.
On 13 May 1996 the Helsinki Court of Appeal rejected the applicant’s application to have J. returned to Finland in accordance with the Hague Convention on the Civil Aspects of International Child Abduction. The Helsinki Court of Appeal noted, inter alia, that J. had not been removed from Finland in contravention of the Hague Convention, given the Social Welfare Board’s competence to order the implementation of her public care in Austria. On 5 September 1996 the Supreme Court rejected the applicant’s appeal. The Social Welfare Board and the administrative courts declined to examine the applicant’s requests and appeals related to J.’s placement in M.’s home in Austria.
On 15 August 1995 M. filed a civil action seeking sole custody of J. The applicant opposed the action but stated, on 31 October 1995, that she would not participate in the further proceedings, considering that the District Court would not be independent and impartial in the case. On 2 November 1995 the District Court, without holding an oral hearing, awarded M. custody of J., as the applicant could no longer be considered opposed to the action. On the applicant’s appeal the Court of Appeal on 26 January 1996 returned the case to the District Court, directing it to hold an oral hearing and to ascertain the child’s best interest in the matter. The applicant was refused leave to appeal to the Supreme Court on 23 May 1996. In the ensuing proceedings before the District Court the Social Welfare Board stated that the applicant had consistently declined to attend meetings whereby her current conditions for assuming custody of J. could be assessed. In its fresh decision of 11 September 1997 the District Court again awarded M. sole custody of J., considering, inter alia, the opinions of the Social Welfare Board and the social welfare authorities in Austria.
On 24 July 1996 the Social Welfare Board refused various requests made by the applicant, inter alia to the effect that J. be returned to Finland, where the applicant should be entitled to see her every night and weekend. The applicant appealed, requesting, inter alia, that the results of a lie detector test of the judges and referendary of the County Administrative Court be attached to its decision. On 12 November 1996 the applicant’s appeals were rejected except in so far as her access request had been refused. As this refusal had amounted to an access restriction, the Social Welfare Board was directed to issue a formal decision to this end. The applicant’s further appeals were rejected by the Supreme Administrative Court on 9 May 1997.
On 8 January 1997 the Social Welfare Board refused the applicant’s request for access to J. but granted the applicant the right to visit J. in the children’s home in Turku up to three times a year when J. would visit Finland at the Board’s expense. No restriction was issued in respect of correspondence and telephone calls. The applicant’s appeal was rejected by the County Administrative Court on 13 March 1997. The said court noted that since J. was living in Austria the access as requested by the applicant could not be implemented already for practical reasons and would in any case manifestly jeopardise the child’s development and safety. On 9 May 1997 the Supreme Administrative Court declined to examine the applicant’s further appeal as no such appeal was allowed. The applicant was invited to meet J. in August 1997 but did not show up.
On 4 February 1998 the Social Welfare Board revoked the public care of J. The applicant’s appeal was rejected by the County Administrative Court on 22 May 1998. Her further appeal was rejected by the Supreme Administrative Court on 3 December 1998.
In decisions of 18, 19 and 20 October 1995 the Public Prosecutor of Turku declined to bring charges against P. or any official of the Social Welfare Board or the Tampere University Hospital. In contrast with the applicant’s accusations the Prosecutor found no evidence showing that P. or any of the officials had committed a criminal offence during their involvement in the applicant’s matters. Moreover, the University Hospital had certified not having received any written request for disclosure of the applicant’s medical records. Moreover, any such request would have had to include the applicant’s consent.
On 26 August 1997 the Häme County Administrative Board (lääninhallitus, länsstyrelsen) found that the Deputy Chief Physician of the Tampere University Hospital had failed to ensure, in response to the Social Welfare Board’s request of 21 July 1995, that only relevant parts of the applicant’s care records were disclosed to the Board.
In decisions of 9 and 10 July 1997 the Public Prosecutor, for want of evidence, declined to bring charges against the lawyer of the Social Welfare Board or A.’s guardian ad litem, whom the applicant had accused of offences in office.
On 27 November 1998 the Deputy Chancellor of Justice (apulaisoikeuskansleri, justitiekanslersadjointen) found no grounds for taking action against any of the judges whom the applicant had accused of offences in office.
On 28 March 1997 the applicant gave birth to a third child, whose father has apparently not been identified. It appears that the applicant and this child continue to live together.
B. Relevant domestic law
1. Access to documents
Section 40 of the Social Welfare Act provides for the right of a social welfare client and the client’s guardian to obtain information concerning the client. According to Section 40 (3), a social welfare client shall have access to documented information and other data which relate to the matter concerned and are in the possession of social welfare personnel or a Social Welfare Board.
The Act on Publicity of Official Documents (laki yleisten asiakirjain julkisuudesta, lag om allmänna handlingars offentlighet 83/1951) stipulates that even information in a non-public document shall be disclosed to an applicant, appellant or other person whose interest, right or obligation the matter concerns, if the information may influence or may have influenced the consideration of the case (Section 19 (1)).
In accordance with Section 56 of the Social Welfare Act social welfare authorities are entitled to obtain the necessary information from other authorities in the performance of their work, without prejudice to the obligation of confidentiality.
2. Remedies against public officials
According to the Penal Code (rikoslaki, strafflag 1889), a civil servant who, by intent or neglect or carelessness, acts or omits to act in breach of his or her professional duties as provided for in statute or regulation is liable to punishment, if the act or omission is not insignificant, having regard to the damage caused and other circumstances (chapter 40, sections 10 and 11). In accordance with Section 57 of the Social Welfare Act public officials and members of, for instance, a municipal board must maintain secrecy in respect of information of a confidential nature which has been disclosed to them for the performance of their duties. Various provisions in the Penal Code may become applicable if this obligation of secrecy is not respected (Section 58 of the Social Welfare Act).
Under the Constitution (Suomen Hallitusmuoto, Regeringsform för Finland) anyone whose rights have been infringed and who has suffered damage as a result of an illegal act, or by the negligence of a civil servant, is entitled to prosecute the civil servant, or demand that he or she be prosecuted, and to claim damages (Article 93). Under the Damage Compensation Act (vahingonkorvauslaki, skadeståndslag 412/1974) proceedings may also be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties (chapters 3 and 4).


ITEMID: 001-72796
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: PAULOW v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Yrjö Paulow, is a Finnish national, who was born in 1928 and lives in Helsinki. He is represented before the Court by Mr G. O. Zacharias Sundström, a lawyer practising in Helsinki. The respondent Government are represented by Mr Arto Kosonen, Director in the Ministrty for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a businessman and a trader. In the course of his trading activities the applicant has built up a considerable fortune by way of increasing the value of companies which he owns and operates. It is the sale of one of these companies, the Tex-Invest Oy (“T” hereinafter), and the tax levied on the transaction that has led to this application.
On 30 June 1988 the applicant sold the shares of T to a company called Traducon Oy to be further sold to a party to be later nominated by the buyer. The sales price of the shares was 137 million Finnish marks (FIM; approximately 23 million euros (EUR)). The buyer company went into liquidation approximately two months after the transaction. According to the applicant he in no way contributed to the financing of the transaction and did not own any joint undertakings with the buyer. The Government contended that the transaction had been given a form disguising its real nature as a transfer of assets (taseyhtiökauppa, skalbolagstransaktion). The Government maintained that the assets of T were transferred to another company also owned by the applicant and the company was allegedly sold at a price significantly exceeding the net amount of the company’s assets.
In the regular taxation for the year 1988 the applicant was taxed for the capital gains. The tax payable amounted to FIM 13,5 million (approximately EUR 2.27 million). The applicant paid in full the tax levied on him.
On 18 November 1992 the National Board of Taxation (verohallitus, skattestyrelsen) sent an internal letter titled “Abuses related to avoir fiscal tax rebates” to county tax offices (lääninverovirasto, länsskatteverk). In the letter it was held that the amount of tax refunds issued in probable abuse of the Avoir Fiscal Act (laki yhtiöveron hyvityksestä, lag om gottgörelse för bolagsskatt; 1232/1988, which entered into force on 1 January 1990) was significant in some regions for the tax year 1991. The county tax offices were prompted to select the most significant refund recipients so that possible abuses might be addressed in connection with the dividend recipients’ regular taxation. In an accompanying memorandum it was explained, inter alia, that dividend receiving companies were entitled to an avoir fiscal tax rebate and that if it was a loss-making company it would receive a tax refund. The avoir fiscal system was most commonly exploited in connection with so-called balance sheet company transactions, such a company having no tangible assets but only cash assets and receivables. Attention had to be paid to transactions whereby the company’s balance sheet and deferred tax liabilities were transferred to a buyer while the company’s actual business assets were transferred to a new company (often owned by the vendor). The buyer of the balance sheet obtained a tax refund which was paid over to the seller together with the dividends as part of the purchase price. Such transactions could be executed with the intention of not paying any tax.
From 16-18 November 1992, there was a tax inspection concerning the transfer of shares from the applicant’s company. On 7 June 1993, the applicant was sent a preliminary tax inspection report by the County Tax Office (verotoimisto, skattebyrån).
On 9 September 1993 the National Board of Taxation sent an internal memorandum titled “Transfer of assets arrangements and taxation” to, inter alia, county tax offices. In an accompanying letter it was explained that the memorandum discussed transfer of assets arrangements involving so-called balance sheet companies and various principles related to the tax treatment of those arrangements. In order to develop the said memorandum further, county tax offices were invited to express their views on the positions taken in the memorandum.
On 31 December 1993 the County Tax Office issued a final report. On the basis of that report, the Tax Office of Helsinki found on 18 May 1994 that there were no reasons to reassess the taxes paid by the applicant for the year 1988.
The competent tax agent of Helsinki (veroasiamies, skatteombudet; “the Agent” hereinafter) however considered that the nature of the above-mentioned transaction was not an “arm’s length” sale, but a transaction intended to benefit the applicant in violation of the Revenue’s right to tax. The Agent appealed on 17 June 1994 against the decision and recommended to the Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden) that a re-assessment of tax be imposed making the applicant liable for tax for the year 1988 to the extent of the full sales price of FIM 137 million on the grounds that the transaction was a disguised means of taking out dividends, i.e. benefit from the company.
On 15 August 1994 the applicant objected to the requests in written observations maintaining that the transaction was a true arm’s length transaction. The applicant, inter alia, criticised the Agent’s arguments insofar as the Agent had claimed that an affidavit made by a managing director of the bank responsible for the financial arrangements for the transactions (submitted by the applicant previously to the Tax Office of Helsinki) was unreliable. The applicant also rejected the Agent’s criticism of a statement by a tax expert also submitted previously by the applicant.
On 7 February 1995 the Tax Rectification Committee decided that arrangements violating the Taxation Act (verotuslaki, beskattningslag) had been undertaken in order for the applicant to be able to transfer the assets of the company to himself with as little tax consequences as possible. It held that the transfer of assets was in fact a disguised means of taking out dividends from company T. The Committee calculated the tax from the entire sales price to cover the amount considered to actually have benefited the seller, i.e. FIM 42 million (approximately 7,063,000 euros), on which a 10 per cent tax surcharge (veronkorotus, skatteförhöjning) was imposed. The tax surcharge totalled approximately EUR 3 million. The decision was based on sections 56, 57, 77 and 83 of the Assessment Act
On 11 April 1995 the applicant appealed to the County Administrative Court (lääninoikeus, länsrätten) of Uusimaa demanding quashing of the entire tax decision. The applicant maintained, inter alia, that no such changes had occurred in case law between the report of the tax auditors and the decision of the Tax Rectification Committee that would have provided the latter with a valid basis for viewing the reassessment of tax issue differently from the tax auditors or the Local Tax Office. The applicant also emphasised that no discussions took place in connection with the audit about the transaction at issue, and that he had only had an opportunity to provide his response after he received a preliminary report. The applicant further maintained that the Tax Rectification Committee had reviewed the matter more on the basis of impressions created by the preliminary report than by considering the actual facts of the case and had replaced facts with suppositions. The applicant also claimed that the chairman of the Tax Rectification Committee was biased. He further maintained that the Tax Rectification Committee had examined the matter on the basis of the tax authority’s treatment of abuses related to the avoir fiscal system and maintained that nothing was known about the avoir fiscal system and the opportunities it presented for gaining tax-related advantages in 1989. In that context he referred to the first guidelines on abuses being issued by the National Board of Taxation on 18 November 1992.
On 2 May 1995 the Tax Office submitted to the court a statement from the Agent, and on 17 May 1995 the applicant submitted his comments on the statement.
On 22 May 1995 the Tax Office submitted further documents.
On 29 May 1995, the applicant lodged further evidence.
On 9 June 1995 the County Administrative Court issued an order prohibiting the enforced collection of the taxes in question until the end of 1996 (later extended during 1997). This was as the Supreme Administrative Court was expected to give judgment in cases concerning the imposition of taxes in cases concerning the circumstances in which share transactions constituted a transfer of assets. The Supreme Administrative Court issued its decisions in these cases on 3 October 1997.
On 27 November 1997 the County Administrative Court rejected the applicant’s appeal without an oral hearing. It held that there had been no economic business grounds for the transaction at issue, that the measures did not comply with the actual nature and purpose of the matter and in reality the cash assets of the company had been used to pay the purchase price to the applicant. In the circumstances it had to be deemed that the arrangement had been undertaken in order to evade taxes contrary to sections 56 and 57 of the Assessment Act. It further concluded that the amount of surcharge to be paid was not unreasonable.
On 24 February 1998 the applicant sought leave to appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) repeating his earlier requests and arguments and providing further observations on the findings of the County Administrative Court, in particular alleging that its decision was not consistent with legal precedent.
On 11 August 1998, the Agent submitted observations, as did the Tax Office of Helsinki on 31 August 1998. On the latter date the applicant was requested to submit his comments. Following an extension in the time-limit, the applicant submitted his further observations on 5 October 1998. The applicant emphasised, inter alia, that the whole proceedings were based on allegations and suppositions as the County Administrative Court operated on the basic premise that the matter had from the start involved bad faith although not the least shred of evidence has been produced in support of this presumed bad faith.
On 14 June 1999 the Supreme Administrative Court refused the applicant leave to appeal.
The tax imposed together with the tax surcharge and interest on arrears was in 2002 approximately EUR 11,600,000.
Section 56 of the Assessment Act (verotuslaki, beskattningslag; 482/1958, as in force up to and including 31 December 1993 (74/1987)) contained the general rule applicable to cases of tax evasion, under which taxes may be reassessed so as to correspond to the real nature of transactions, irrespective of their legal form. Pursuant to subsection 2, the tax payer must be given an opportunity to comment on each relevant point.
Section 57, as in force at the relevant time, provided for the taxation of assets taken out of a company as veiled dividends (peitelty osinko, förtäckt dividend).
Under section 77 (as in force at the relevant time and up to and including 31 December 1993 (74/1987)) a tax surcharge was to be imposed, inter alia, where the taxpayer had, knowingly or grossly negligently, given incorrect information in the tax return or otherwise given wrong information or documents, a surcharge of a maximum of 100 per cent was to be imposed. The tax surcharge was imposed on that income in respect of which defective or incorrect information had been provided. According to the provision there was no discretion as to the imposition of the tax surcharge in the described circumstances (see Government Bill 122/1993).
Section 77, subsection 3, (which was amended on 1 January 1994 (Act 963/1993) and which was for the first time applied to the assessment of taxes levied for the year 1993 and which Act was in force until and including 31 December 1996) provided, inter alia, that where the taxpayer had, knowingly or grossly negligently, given incorrect information in the tax return or otherwise given wrong information or documents, a surcharge of 5-30 per cent of the additional amount of taxes was to be imposed, if there were no particular reasons against the imposition of the tax surcharge. The amended provision enabled the local tax offices to use their discretion as to whether or not to impose the tax surcharge.
Section 83, as in force at the relevant time, provided that if a taxpayer, due to the fact that he had not given a tax return or he had given a defective, misleading or wrong tax return or other information or document, had not been taxed fully or taxed only in part, the tax which had not been levied for the said reason was to be levied with interest on the arrears and with a tax surcharge. The re-assessment could be conducted within five years from the beginning of the year which followed the termination of the taxation. If possible, the taxpayer was to be given an opportunity to be heard before the reassessment of tax. However, if the hearing of the taxpayer would probably not benefit the decision making, there was no need to give the taxpayer a possibility to be heard. The said section corresponds in substance to section 57 of the existing Act on Assessment Procedure (laki verotusmenettelystä, lag om beskattningsförfarande; 1558/1995, as in force as from 1 January 1996) with the exception of a strict obligation to give the taxpayer a possibility to be heard.
The provisions concerning appeal contained in Chapter 6 of the Assessment Act (as amended by Act 963/1993 effective as from 1 January 1994) were in substance the same as in the provisions in the existing Act on Assessment Procedure.
Under section 72a of the Assessment Act, as in force at the relevant time, an appeal against a decision on taxation shall, as a first instance, be made to the Assessment Adjustment Board. Appeal from the Board lay to the Administrative Court and then, with leave to appeal, to the Supreme Administrative Court.
In the appeals procedure the interests of the State or other tax recipients were represented by a tax agent (Act on Tax Administration, section 4(6): verohallintolaki, lag om skatteförvaltningen 1557/1995 as in force at the relevant time).
According to the reservation made by Finland in accordance with Article 64 of the Convention, as in force at the relevant time, Finland could not guarantee a right to an oral hearing in so far as the Finnish laws at the time of the events at issue did not provide such a right. This applied, inter alia, to proceedings which were held before the County Administrative Court, in accordance with Section 16 of the County Administrative Courts Act (laki lääninoikeuksista, lag om länsrätt) and proceedings before the Supreme Administrative Court, in accordance with Section 15(1) of the Supreme Administrative Court Act (laki korkeimmasta hallinto-oikeudesta, lag om högsta förvaltningsdomstolen) and in which the decision subject to appeal was rendered before 1 December 1996. The reservation was withdrawn on 1 April 1999.


ITEMID: 001-57821
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF CHORHERR v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5;No violation of Art. 10
JUDGES: N. Valticos
TEXT: 6. Mr Otmar Chorherr is an Austrian citizen and currently resides in Vienna.
7. On 26 October 1985 a military ceremony was held in the Rathausplatz in Vienna to mark the thirtieth anniversary of Austrian neutrality and the fortieth anniversary of the end of the Second World War. It started at 11 a.m. with the taking of the oath by some 1,200 conscripts and continued with a march past which ended at around 1 p.m. It was attended by about 50,000 people, in addition to numerous dignitaries on the official platform.
During the ceremony the applicant and a friend distributed leaflets calling for a referendum on the purchase of fighter aircraft by the Austrian armed forces ("Volksbegehren für eine Volksabstimmung gegen Abfangjäger"). They wore rucksacks to the backs of which were attached enlargements of the leaflet; these measured about 50cm by 70cm, projected approximately 50cm above the heads of the persons carrying them and bore the slogan "Austria does not need any interceptor fighter planes" ("Österreich braucht keine Abfangjäger").
8. According to the judgment delivered by the Constitutional Court (Verfassungsgerichtshof) on 28 November 1986 on the basis of the police file and the statements of the parties (see paragraph 10 below), what happened subsequently can be summarised as follows.
The actions of the two men had caused a commotion among the spectators, whose view had been blocked. Two policemen informed the applicant and his friend that they were disturbing public order and instructed them to cease what could only be regarded as a demonstration. However, they refused to comply, asserting their right to freedom of expression. When they persisted despite further warnings from police officers and increasingly loud protests from the crowd, they were arrested (festgenommen) at 11.15 a.m. and were taken to Central Vienna police station (Bezirkspolizeikommissariat Innere Stadt), where administrative criminal proceedings (Verwaltungsstrafverfahren) were instituted against them.
9. At the police station the applicant was placed in police custody (in den Arrest abgegeben) at 11.35. After ascertaining whether he had a criminal record, a police officer questioned him from 2.15 p.m. Mr Chorherr denied that he had been warned that he was committing administrative offences (Verwaltungsübertretungen); he would otherwise, so he said, have immediately ceased his action. He was released at 2.40 p.m.
10. On 4 April 1986 he filed an appeal (Beschwerde) in the Constitutional Court against his arrest and the prohibition on distributing leaflets. He relied inter alia on Articles 5 and 10 (art. 5, art. 10) of the Convention and asserted his right to personal freedom (Recht auf persönliche Freiheit) and freedom of expression (Freiheit der Meinungsäußerung).
Mr Chorherr claimed that he had not disturbed the crowd in any way and had never been ordered by the police to cease demonstrating. The Constitutional Court did not, however, give credence to his statements, as in its opinion the majority of the spectators had come to watch the parade and some of them had had their enjoyment of it marred by the applicant’s conduct.
The appeal was dismissed on 28 November 1986. The Constitutional Court found, in relation to the applicant’s arrest, that Mr Chorherr’s conduct could properly have been considered an administrative offence and that the applicant, caught in the act of committing the offence, had continued despite the instructions of the police officers. It took the view that the requirements of Article 4 of the Law on the Protection of Personal Freedom (Gesetz zum Schutz der persönlichen Freiheit), section 35, sub-paragraph 3, of the Law on Administrative Offences (Verwaltungsstrafgesetz) of 1950 and section IX(1), sub-paragraph 1, of the Introductory Law of the Administrative Procedure Laws (Einführungsgesetz zu den Verwaltungsverfahrensgesetzen - "the Introductory Law") had therefore all been complied with in this respect (see paragraph 12 below).
As to the custody (Anhaltung), the Constitutional Court held that this had been in conformity with section 36 (1), first sentence, of the Law on Administrative Offences, since there had been no particular circumstance to make the police think that the applicant, if released, would not recommence his culpable actions.
Finally, the court considered that the order to remove the placards and cease distributing leaflets had not in any way infringed the constitutional right to freedom of opinion, as its aim was not to prevent the applicant exercising such freedom, but rather to put an end to a breach of the peace.
11. At the conclusion of the administrative criminal proceedings the Federal Police Authority (Bundespolizeidirektion) in Vienna made a sentence order (Straferkenntnis) on 29 April 1987, fining Mr Chorherr 1,000 schillings for causing excessive noise and a breach of the peace (section VIII, second limb, and section IX(1), sub-paragraph 1, of the Introductory Law - see paragraph 12 below). On appeal by the applicant, the Public Security Authority (Sicherheitsdirektion) on 3 March 1988, while amending the wording of the decision, upheld the conviction on the latter charge and reduced the fine to 700 schillings; on 25 April 1988 it withdrew the charge of causing excessive noise. The applicant did not appeal to the Administrative Court or the Constitutional Court.
12. The administrative procedure legislation, reissued on 23 May 1950 by a decision of the Federal Government (Kundmachung der Bundesregierung vom 23. Mai 1950 über die Wiederverlautbarung von Rechtsvorschriften auf dem Gebiet des Verwaltungsstrafverfahrens), includes the following provisions.
Introductory Law of the Administrative Procedure Laws
"A person who ... offends public decency or causes excessive noise commits an administrative offence ..."
"A person who ... causes a breach of the peace by conduct likely to cause annoyance ... commits ... an administrative offence ..."
Law on Administrative Offences
Arrest (Festnahme)
"The agents of the security forces may, except in the cases specially regulated by law, arrest persons caught in the act of committing an offence, for the purpose of bringing them before the authorities, if
...
(3) despite being warned, the person in question persists in the culpable conduct or attempts to repeat it."
"Every arrested person must immediately be brought before the nearest competent authority, or released if the reason for the arrest has already ceased to exist ..."
13. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, the following reservation:
"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution."
NON_VIOLATED_ARTICLES: 10
5


ITEMID: 001-111362
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: LANG v. THE UNITED KINGDOM AND HASTIE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: 1. These cases concern two applicants who in 2008 were convicted in separate, unrelated criminal proceedings in Scotland. The common complaint in the applications is that each applicant was interviewed by the police without access to a lawyer and the evidence obtained from that interviewed was relied on by the prosecution at trial.
2. The first applicant, Mr John Paul Lang, is a British national who was born in 1974. He is currently detained at HMP Glenochil. He is represented before the Court by Mrs Rosemary Cameron, a lawyer practising in Edinburgh with John Pryde & Co SSC.
3. The second applicant, Ms Tracey Hastie, is also a British national. She was born in 1970 and is currently detained at HMP Cornton Vale. She is represented by Jim Friel, a lawyer practising in Glasgow with Jim Friel & Co Solicitors.
4. The facts of the case, as submitted by the first applicant, may be summarised as follows.
5. In the early hours of Saturday 21 April 2007, the first applicant had a sexual encounter with a woman who was spending the night at his flat. Later that morning the woman attended a police station where she made an allegation of rape against him. The first applicant was then detained by the police and interviewed by them without the presence of a lawyer. In the interview he made a statement that he and the woman had had consensual sex. He was subsequently charged with rape and tried on indictment at the High Court of Justiciary sitting at Paisley between 7 and 11 June 2008. At trial the prosecution relied on the statement the first applicant had given to the police. On 11 June 2008, he was convicted by a majority verdict of the jury. He did not appeal against his conviction.
6. On 22 October 2010, four days before the delivery of the judgment of the Supreme Court in Cadder v. HM Advocate [2010] UKSC 43 (see paragraphs 15–17 below), the first applicant applied to the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) for an extension of time in which to lodge an appeal against conviction and sentence. In the Note of Appeal which accompanied the application for an extension of time, the first applicant submitted inter alia that his trial had been unfair because he had not been give access to a lawyer while in police custody and the prosecution had relied on the contents of his police interview at trial.
7. The application for an extension of time was initially refused by a Single Judge and then, following an oral hearing on 17 November 2010, by a bench of three judges.
8. The facts of the case, as submitted by the second applicant, may be summarised as follows.
9. On 22 July 2008, after a trial at the High Court of Justiciary sitting at Glasgow, the second applicant was convicted of murder. In the course of the trial, the prosecution had relied on statements given by the second applicant in the course of a police interview, which took place on 3 November 2006 without the presence of a lawyer.
10. The second applicant was advised by her then legal representatives that she had no grounds for appealing against her conviction and accordingly did not do so within the statutory time-limit. However, it appears that, in September 2008 and again in January and February 2009, she was granted extensions of time in which to lodge a Note of Appeal, but failed to do so.
11. On 15 November 2010, on the basis of advice from new legal representatives, the second applicant lodged an application for extension of time in which to lodge an appeal against conviction. The application and an accompanying devolution minute alleged inter alia that the second applicant’s trial had been unfair as a result of the admission of the statements she had given in her police interview.
12. The application was refused by a Single Judge on 26 November 2010. The second applicant appealed against that decision and a hearing was convened before three judges of the Appeal Court on 16 December 2010. Before the hearing senior counsel advised the second applicant that none of her grounds of appeal were arguable: in particular, he advised that the Supreme Court’s finding in Cadder that its ruling should not apply to “closed cases” (see paragraph 17 below) meant that the second applicant’s ground of appeal relating to the admission of her statements to the police could not succeed. Consequently, at the hearing on 16 December, the second applicant sought to withdraw her application for an extension of time. The Appeal Court allowed the application to be withdrawn on the same date.
13. At the time of the above judgment (and the time of the present applicants’ trial), sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) provided that a person detained at a police station had the right to have the fact and place of his detention intimated to a solicitor, but did not have the automatic right of access to a solicitor either prior to or during a police interview.
14. The compatibility of sections 14 and 15 of the 1995 Act with this Court’s judgment in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 was considered by the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) in HM Advocate v. McLean, judgment of 22 October 2009. The Appeal Court considered that it was not necessary to give effect to the Salduz judgment in Scotland, finding instead that the guarantees available under the Scottish system were sufficient to secure a fair trial of someone who was interviewed without access to a lawyer and whose responses were relied on by the prosecution.
15. Peter Cadder was detained in May 2007 following an incident in which two men had been attacked by a group of youths. He was taken to a police station and interviewed, under caution but without the presence of a lawyer, by two police officers. During the interview he made a number of admissions with regard to the offences with which he was later charged. He was then arrested, cautioned and charged with assault and breach of the peace. At trial the audio tape recording of his police interview was played in full to the jury and they were given copies of the transcript. On 29 May 2009 he was convicted on all charges. He appealed against conviction inter alia on the ground that his interview had been relied on at trial. His appeals to the Appeal Court were refused on the papers at the first and second sift stages. He then submitted an application for special leave to appeal to the Supreme Court.
16. On 26 October 2010 the Supreme Court unanimously found that: (i) McLean had been incorrectly decided by the Appeal Court; (ii) Cadder’s case should be remitted to the Appeal Court for further consideration; (iii) and its ruling should not apply retroactively.
17. On the third issue, both Lord Hope and Lord Rodger (with whom the other Justices agreed) held that, in the interests of legal certainty, the ruling should not permit the re-opening of closed cases, but rather only apply to cases which had not yet gone to trial, to cases where the trial was still in progress and to appeals that had been brought timeously. For all closed cases it was a matter for the Scottish Criminal Cases Review Commission to decide whether the cases should be referred back to the Appeal Court and for that court to decide what course it ought to take if a reference were to be made to it by the Commission.
18. Immediately after the Cadder ruling, the above Act (“the 2010 Act) was passed by the Scottish Parliament. It amends the Criminal Procedure (Scotland) Act 1995 to allow a suspect the right to have intimation sent to a solicitor inter alia that the solicitor’s professional assistance is required by the suspect. It also provides for the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning. Consultation includes, for example, consultation by means of telephone. The 2010 Act also provides that a suspect must be informed of these rights.
19. The Scottish Criminal Cases Review Commission is a public body with the task of reviewing and investigating cases where it is alleged a miscarriage of justice has occurred. The 2010 Act amends the provisions of the 1995 Act which give the Commission the power to refer cases to the Appeal Court. The 2010 Act directs the Commission, in determining whether or not it is in the interests of justice that a reference should be made, to have regard to the need for finality and certainty in the determination of criminal proceedings. The 2010 Act also gives the Appeal Court the power to reject a case which has been referred to it by the Commission if the court considers that it is not in the interests of justice that any appeal arising from the reference should proceed. The Act provides that, in determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the Appeal Court must have regard to the need for finality and certainty in the determination of criminal proceedings.


ITEMID: 001-61440
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF SCALERA v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1917 and lives in Rome.
5. She is the owner of four flats in Rome, which she had let to P.C., G.F. and R.R., E.T. and S.A..
6. In a writ served on the tenant on 19 November 1990, the applicant informed him of her intention to terminate the lease on expiry of the term on 31 December 1991 and summoned him to appear before the Rome Magistrate.
7. By a decision of 3 May 1991, which was made enforceable on 15 May 1991, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.
8. On 1 February 1993, the applicant served notice on the tenant requiring him to vacate the premises.
9. On 17 February 1993, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 April 1993.
10. Between 7 April 1993 and 18 November 1999, the bailiff made twenty-three attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
11. On 15 December 1999, the applicant recovered possession of the flat.
12. In a registered letter of 14 September 1989, the applicant informed the tenants that she intended to terminate the lease on expiry of the term on 30 April 1990 and asked them to vacate the premises by that date.
13. In a writ served on the tenants on 19 November 1990, the applicant reiterated her intention to terminate the lease and summoned them to appear before the Rome Magistrate.
14. By a decision of 3 May 1991, which was made enforceable on 17 May 1991, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 3 May 1992.
15. On 19 October 1992, the applicant served notice on the tenants requiring them to vacate the premises.
16. On 18 December 1992, she served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 8 January 1993.
17. Between 8 January 1993 and 6 October 1999, the bailiff made twenty-four attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
18. On 10 January 2000, the applicant recovered possession of the flat.
19. In a writ served on the tenant on 19 November 1990, the applicant informed him of her intention to terminate the lease on expiry of the term on 31 December 1991 and summoned him to appear before the Rome Magistrate.
20. By a decision of 3 May 1991, which was made enforceable on 15 May 1991, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.
21. On 1 February 1993, the applicant served notice on the tenant requiring him to vacate the premises.
22. On 17 February 1993, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 April 1993.
23. Between 7 April 1993 and 24 November 2000, the bailiff made thirty-two attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
24. On 15 December 2000, the applicant recovered possession of the flat.
25. In a writ served on the tenant on 20 July 1990, the applicant informed the tenant of her intention to terminate the lease on expiry of the term on 30 June 1991 and summoned him to appear before the Rome Magistrate.
26. By a decision of 17 January 1991, which was made enforceable on 15 April 1991, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 April 1992.
27. On 19 October 1992, the applicant served notice on the tenant requiring him to vacate the premises.
28. On 19 December 1992, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 January 1993.
29. Between 8 January 1993 and 6 October 1999, the bailiff made twenty-five attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
30. On 4 February 2000, the applicant recovered possession of the flat.
31. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003.
32. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
33. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
34. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
35. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
36. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”
37. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
38. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
39. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78661
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: WALSH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant is an Irish citizen born in 1966 and currently serving a prison sentence in HM Prison Maghaberry, Lisburn, Northern Ireland. He is represented by Mr P. Pierce, a solicitor practising in Belfast.
The applicant has an extensive criminal record, commencing in February 1980. This record includes some 132 road traffic offences, one offence of conspiracy to rob, four of burglary, eight of theft and 14 of going equipped for theft, together with other miscellaneous convictions.
On 13 June 2003, the applicant, with other co-defendants, was acquitted of offences of obtaining services and property by deception. The restraint order imposed on the applicant’s property pending any eventual confiscation order on conviction was discharged.
On 2 July 2003, the Assets Recovery Agency served a summons on the applicant for the purposes of recovery proceedings. The Agency sought recovery of the sum of GBP 70,250 allegedly paid to his solicitor in 2001 for buying a house and the sum of GBP 5,969.10 held in a bank account, alleging that these were the proceeds of unlawful conduct within the meaning of the Proceeds of Crime Act 2002 (“POCA”).
At an interlocutory hearing, it was contended on behalf of the applicant, that the proceedings for recovery of his assets were not “civil” but criminal in nature and that the guarantees of Articles 6 §§ 1 and 2 applied, in particular as regarded the standard of proof.
On 1 April 2004, the High Court judge rejected the applicant’s claims on this interlocutory matter, considering, on examination of domestic and Strasbourg authority, that there was no criminal charge being determined in the recovery proceedings.
On 26 June 2005, the Court of Appeal in Northern Ireland rejected the applicant’s appeal. It found, applying the Engel criteria, that in domestic law the proceedings were classified as civil, not involving the preferring of a criminal charge in a criminal setting, or giving rise to any criminal record; that the purpose of the proceedings was not to make him amenable to punishment for a specific crime by way of imprisonment or a fine but that they were restitutionary in nature seeking the recovery of assets acquired through criminal conduct.. As to the nature of any penalty, while the recovery of assets could readily be described as a preventative measure, it considered that even if the proceedings did impose a penalty that this was not sufficient to classify the proceedings as criminal for the purposes of Article 6 § 1 of the Convention.
It concluded, rejecting arguments that cumulatively the proceedings were criminal:
“The essence of article 6 in the criminal dimension is the charging of a person with a criminal offence for the purpose of securing a conviction with a view to exposing that person to criminal sanction. These proceedings are obviously and significantly different from that type of application. They are not directed towards him in the sense that they seek to inflict punishment beyond the recovery of assets that do not lawfully belong to him. As such, while they will obviously have an impact on the appellant, these are predominantly proceedings in rem. They are designed to recover the proceeds of crime, rather than to establish, in the context of criminal proceedings, guilt of specific offences. The cumulative effect of the application of the tests in Engel is to identify these clearly as civil proceedings.”
On 7 July 2005, the House of Lords refused leave to appeal.
On 6 July 2006, in determining the application for a civil recovery order against the applicant for the sums, principally, of GBP 70,250 alleged to have been paid by the applicant in January 2001 for the purpose of purchasing property and of GBP 5,969.10 currently held in a bank account, the High Court judge took into account the applicant’s criminal convictions up until 2003 as showing a clear indication of his propensity to indulge in serious criminal conduct. He did not take into account the offences for which the applicant was acquitted as he had not had the opportunity of assessing the quality of the evidence of the one identifying witness, and while he noted that no prosecution was brought following the arrest of the applicant and E. on suspicion of robbery, he did take into account that the applicant had been found, on the day of the robbery, in company with E. who was carrying marked bank notes as confirming his criminal associations, as did evidence from police officers as concerns his associations with other persons with criminal records. The judge went on to to find that the applicant had not accounted for his assets. There had been no evidence to support his alleged car dealing and no record with the Inland Revenue that he had been in employment. Only small sums, from alleged employment with a cleaning business (which earnings dubiously overlapped with a period in prison) and from state benefits were accounted for. He concluded that he was satisfied on the balance of probabilities that the applicant had for some time pursued a criminal lifestyle involving dishonest and acquisitive criminal conduct with a willingness to resort to violence if necessary. His criminal record and in particular his conviction for conspiracy to rob, his association with criminals with a similar background of offences together with the circumstances in which he had most recently been arrested served to convince him that crime had been his primary means of acquiring funds for a number of years. In the circumstances he was satisfied that the sums that the Agency sought to recover represented property obtained through unlawful conduct and he accordingly made a recovery order for the sums set out in the application.
According to the Proceeds of Crime Act 2002, application may be made to the High Court for the civil recovery of property representing the proceeds of “unlawful conduct”
By virtue of section 241(1) unlawful conduct is defined as:
“Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part.”
Section 241(3) provides that the standard of proof of unlawful conduct is that of the balance of probabilities.


ITEMID: 001-69420
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BULYNKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Partly inadmissible;Non-pecuniary damage - financial award
JUDGES: Zoryana Bortnovska
TEXT: 6. The applicant was born in 1935 and currently resides in Torez, the Donetsk Region.
7. On 30 November 2000 the applicant was dismissed from her position in the State Holding Company “Torezantratsit” (the “SHC”).
8. In July 2000 the applicant instituted proceedings in the Torez City Court against the SHC seeking to recover salary owed to her.
9. On 7 August 2000 the Torez City Court allowed her claims and ordered the SHC to pay the applicant UAH 2,379.76 in compensation.
10. On 14 June 2001 the Torez Execution Service informed the applicant that the judgment of 7 August 2000 could not be executed due to the SHC’s lack of funds.
11. On 10 October 2002 the applicant informed the Court that the judgment of 7 August 2000 had still not been executed.
12. The Government stated that between 9 November 2000 and 15 April 2003 the bailiffs conducted 8 inspections of the company’s accounts and found that there were no funds available to enforce the judgment. They also stated that the bailiffs were enforcing 92 writs of execution against the company, with a total debt of UAH 213,526.
13. On 2 July 2003 the applicant received UAH 2,379.76 in execution of the judgment of 7 August 2000.
14. On 3 July 2003 the enforcement proceedings on the applicant’s writ of execution were discontinued as the amount awarded by the judgment had been paid.
15. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83279
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SIZER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Thomas Sizer, is a British national who was born in 1938 and lives in Devon. He was represented before the Court by Ms J. Starling, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 29 February 1996, leaving a child born in 1982. His second claim for widows’ benefits was made on 4 January 2001 and was rejected on 8 January 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.