Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The first applicant, Mr Kovyazin, was born in 1986 and lives in Kostino, Kirov Region. The second applicant, Mr Savelov, was born in 1979 and lives in Moscow. The third applicant, Mr Gushchin, was born in 1988 and lives in Khimki, Moscow Region.

On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which had to end at 7.30 p.m. Numerous clashes between the police and protesters occurred when the marchers arrived at Bolotnaya Square. At 5.30 p.m. the police declared the early closure of the meeting and began to disperse the participants. It took them about two hours to clear the protestors away from the square.

On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate the suspected mass disorders and violent acts against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was remitted to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 the investigation was also launched into the criminal offence of organising mass disorders (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.

All applicants took part in the demonstration of 6 May 2012 at Bolotnaya Square. They were arrested on later dates indicated below and charged with participation in mass disorders; the second and the third applicants were also charged with having committed violent acts against the police officers. They were detained and tried on these charges, and the second and the third applicants have been convicted as charged, while Mr Kovyazin had been exempted of liability under the Amnesty Act.

The complaints to be examined in the present case concern various aspects of the applicants’ pre-trial detention.

From 2006 to 2012 the applicant studied culture and history at the Vyatskiy State University in Kirov while working part-time as a videooperator for a newspaper “Vyatskiy Nablyudatel”. On 1 May 2012 he dropped out of the university.

On 4 May 2012 the applicant received an assignment from the newspaper to attend the “March of Millions” on 6 May 2012 and to take video footage of the event.

The applicant claimed that on 6 May 2012 he arrived at Bolotnaya Square, filmed the event and did not take part in any disorders or clashes with the police.

On 15 May 2012 the applicant submitted the footage to the newspaper and it was published on its website.

Until 5 September 2012 the applicant continued working and living at his usual address. On the latter date he was detained and charged under Article 212 § 2 of the Criminal Code (participation in mass disorders). He was accused of having breached public order during the demonstration on 6 May 2012, in particular, of having turned over portable toilet cabins and having piled them on the road to build a barrier obstructing the riot police.

On 7 September 2012 the Basmannyy District Court of Moscow ordered the applicant’s pre-trial detention until 5 November 2012 on the grounds of the gravity of the charges and for the following reasons:

“Having regard to the circumstances of the offence under investigation, the personality of the accused, the information objectively put forward by the investigating authority, the court concludes that [the applicant], if at liberty, after being charged with a grave criminal offence will prefer, out of fear of sanctions, to abscond the investigation and trial, [or] may act in person or through proxy with the aim of avoiding criminal liability, continue [his] criminal activity, destruct the evidence and otherwise obstruct the investigation.

Operational-search activities are now underway, aimed at establishing [the applicant’s] possible connections with other active participants of the mass disorders which took place at Bolotnaya Square in Moscow and the adjacent territory, therefore, if at liberty, [he] may co-ordinate his position with unidentified accomplices whose identities are still being established by the investigation.

... selecting in respect of [the applicant] another, milder, preventive measure is not possible because it cannot rule out the very possibility for the suspect to obstruct the investigation of the criminal case, and to abscond from the bodies of criminal prosecution and trial.

No factual information excluding the detention of [the applicant] on health grounds has been submitted to the court ...”

On 1 October 2012 the Moscow City Court upheld the detention order of 7 September 2012.

On 30 October 2012 the Basmannyy District Court of Moscow examined a request for an extension of the applicant’s pre-trial detention. The applicant requested to select another preventive measure pending trial. He offered a bail of 750,000 Russian roubles (RUB), or four personal guarantee signed by his professors and colleagues. His request for an alternative preventive measure was supported by six petitions signed by 45 journalists and editors of newspapers, periodicals and on-line media: “Novaya Gazeta”, “Esquire”, “Kommersant”, “Vyatskiy Nablyudatel”, “Afisha” and “Grani.ru”. The applicant also requested release on health grounds.

On the same day the court granted an extension of the applicant’s pre-trial detention until 6 March 2013, having noted that the applicant was likely to abscond, to continue his criminal activity, to threaten witnesses, or to otherwise obstruct the course of justice.

On 28 November 2012 the Moscow City Court upheld the extension order of 30 October 2013.

On 4 March 2013 the Basmannyy District Court granted an extension of the applicant’s pre-trial detention until 6 July 2013, essentially on the same grounds as before.

On 3 April 2013 the Moscow City Court upheld the extension order of 4 March 2013.

On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of the criminal charges.

On 6 June 2013 the latter court granted another extension of the applicant’s detention until 24 November 2013. This decision concerned eleven defendants and read in so far as relevant as follows:

“... the court concludes that the preventive measure in respect of [all defendants] ... is to remain unchanged because the reasons taken into account when these measures were chosen have not ceased to exist and have not changed ...

... [the defendants] are accused of [grave crimes punishable by prison sentences] ...

Having regard to all information about the personality of [the defendants] and the nature of the crimes imputed to each of them, the court still has sufficient grounds to believe that the said defendants, if at liberty, may flee the trial or otherwise obstruct the course of justice, [motivated by] the gravity of the charges.

... no other measures of restraint would secure the aims and goals of the judicial proceedings.”

On 2 July 2013 the Moscow City Court upheld the extension order of 6 June 2013.

On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant. It ordered their detention until 24 February 2014 on the grounds of the gravity of charges. It held, in particular, as follows:

“[The defendants] are charged with a criminal offence provided for by Article 212 § 2 of the Criminal Code, which belongs to the category of grave crimes punishable by a prison sentence of over three years. Furthermore, [some defendants] are charged with a criminal offence provided for by Article 318 § 1 of the Criminal Code, also punishable by a prison sentence of over three years.

Despite the defendants being registered as having permanent residence addresses in the Russian Federation, the analysis of the overall information about [the defendants’] personalities, and the nature of the offences imputable to them, give the court sufficient grounds to consider that the defendants, if the preventive measure is changed to another one unconnected with the deprivation of liberty, may flee the trial or otherwise obstruct the course of justice, [motivated by] the gravity of the charges ... the reasons taken into account when these measures were chosen have not ceased to exist and have not changed ...”

On 17 December 2013 the Moscow City Court upheld the extension order of 19 November 2013.

On 18 December 2013 the State Duma passed the Amnesty Act which concerned persons charged with offences punishable with prison sentences of up to five years.

On 19 December 2013 the applicant requested the termination of the criminal proceedings against him by operation of the Amnesty Act. On the same day the Zamoskvoretskiy District Court granted the request and released him from detention.

At the time of arrest he applicant was unemployed and lived with his parents. On 6 May 2012 he took part in the demonstration at Bolotnaya Square. According to the applicant, at one point a stampede occurred and he was accidentally pushed through the police cordon and was arrested without any resistance on his part. On the same day he was charged with noncompliance with a lawful order by a police officer, an offence under Article 19.3 of the Code of Administrative Offences, and he was released, having committed to attend the court hearing of the administrative case on 8 May 2012.

On 8 May 2012 the applicant was convicted of non-compliance with a lawful order by a police officer, an offence under Article 19.3 of the Code of Administrative Offences. He was sentenced to a 24-hour’ detention.

On 11 June 2012 the applicant was detained on suspicion of having participated in mass disorders on 6 May 2012. He was charged with the offences provided for by Articles 212 § 2 of the Criminal Code (participation in mass disorders) and 318 § 1 (violence against a public official). He was accused, in particular, of having attempted to break through the police cordon and of having pulled a police officer on the hands and wrists towards the crowd. On the same day the Basmannyy District Court authorised the applicant’s 72-hours’ detention.

On 14 June 2012 the Basmannyy District Court examined and granted the request to detain the applicant pending criminal investigation. It dismissed the applicant’s request for an alternative preventive measure, including a RUB 150,000 bail, a personal guarantee or a house arrest, and ordered the applicant’s detention on remand until 11 August 2012 for the following reasons:

“Assessing the circumstance under investigation, the submitted materials and the indicated information in their integrity, as well as the personality of [the applicant], who is suspected of having committed criminal offences characterised as grave, punishable by up to two years of deprivation of liberty, give sufficient reasons to believe that the applicant is likely to abscond, to continue his criminal activity, to destruct evidence, or to otherwise obstruct the investigation of the criminal case.

... selecting another, milder, preventive measure is not possible because it cannot rule out the very possibility that the suspect will abscond from the bodies of criminal prosecution and trial, or obstruct the investigation of the criminal case.”

On 18 June 2012 the applicant filed an appeal, which was dismissed by the Moscow City Court on 11 July 2012.

On 9 August 2012 the Basmannyy District Court examined a request for an extension of the applicant’s pre-trial detention. The applicant objected, having reiterated his request for an alternative preventive measure. On the same day the court extended the applicant’s pre-trial detention until 6 November 2012, having noted that there remained sufficient reasons to believe that the applicant was likely to abscond, to continue his criminal activity, to threaten witnesses, or to otherwise obstruct the course of justice.

On 10 August 2012 the applicant filed an appeal, which was dismissed by the Moscow City Court on 10 September 2012.

On 2 November 2012 the Basmannyy District Court granted another extension of the applicant’s detention, until 6 March 2013, essentially on the same grounds and having noted that the circumstances which had justified the detention order had not changed. This extension order was upheld by the Moscow City Court on 28 November 2012.

On 28 February 2013 the Basmannyy District Court granted another extension of the applicant’s detention, until 11 June 2013, essentially on the same grounds as before and having noted that the circumstances which had justified the detention order had not changed. This extension order was upheld by the Moscow City Court on 17 April 2013.

On 23 April 2013 the Moscow City Court examined a fresh request for the extension of the applicant’s detention and granted it until 6 July 2013. It held, in particular, as follows:

“The materials presented [by the investigator] reveal that the grounds for choosing the preventive measure in respect of [the applicant] were not only the gravity of the charges but also the information about the personality of [the applicant] who could abscond the investigation and trial, threaten witnesses or otherwise obstruct the proceedings in the case, if released.

The aforementioned grounds ...

This term is reasonable, [it] is justified by the objective circumstances, it is not in conflict with the term of the pre-trial investigation, also extended on the same grounds.

In accordance with the Constitutional Court’s [case-law], the proportionality of the preventive measure to the [gravity of the] charges imputed to [the applicant] show that in this case the public interests, in particular those related to the criminal investigation, override the importance of the principle of respect of individual liberty.”

On 27 June 2013 the Moscow City Court acting as appeal instance upheld the same court’s extension order of 23 April 2013.

On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court for the determination of the criminal charges.

On 6 June 2013 the latter court extended the pre-trial detention of all eleven defendants, including the applicant, until 24 November 2013 (see paragraph 23 above). This decision was upheld by the Moscow City Court on 2 July 2013.

On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant, until 24 February 2014 (see paragraph 25 above). This extension order was upheld by the Moscow City Court on 17 December 2013.

On 21 February 2014 the Zamoskvoretskiy District Court found the applicant guilty as charged. He was sentenced to two years and seven months of imprisonment. The applicant’s pre-trial detention was counted towards the prison term.

On 20 June 2014 the Moscow City Court upheld the first-instance judgment.

In December 2014 the applicant was released after having served his prison term.

At the time of his arrest the applicant was a student, working parttime. On 6 May 2012 he took part in the demonstration at Bolotnaya Square, and after that date until 6 February 2013 he continued living at his usual address and pursued his usual activities.

On 6 February 2013 the applicant’s flat was searched and his travel passport was seized. The applicant was arrested on suspicion of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012. He was charged with the offences provided for by Articles 212 § 2 of the Criminal Code (participation in mass disorders) and 318 § 1 (violence against a public official). He was accused, in particular, of having snatched a police officer’s uniform and pulling him away to prevent him from arresting another protestor.

On 7 February 2013 the Basmannyy District Court ordered the applicant’s pre-trial detention until 6 April 2013, having dismissed the applicant’s request for an alternative preventive measure, such as house arrest. The court reasoned as follows:

“In assessing the circumstances of the offence under investigation, the personality of the accused , who is suspected of having committed criminal offences one of which is characterised as grave and the other – of medium gravity, the court concludes that [the applicant], if at liberty, after being charged with a grave criminal offence, will prefer, out of fear of sanctions, to abscond the investigation and trial, [or] may act in person or through proxy with the aim of avoiding criminal liability, continue [his] criminal activity, destruct the evidence and otherwise obstruct the investigation.

The aforementioned circumstances are corroborated by the operational-search materials submitted to the investigator and the court under the procedure provided for by law.

Taking into account that ... [the applicant] has been [previously] charged with an administrative offence ... and that [he] has a travel passport and thus has no obstacles to travelling abroad ... the house arrest may not be granted.”

On 27 February 2013 the Moscow City Court upheld the detention order of 7 February 2013.

On 1 April 2013 the Basmannyy District Court extended the applicant’s pre-trial detention until 6 August 2013, on the grounds that the circumstances that had justified the detention – the gravity of charges and the risk of obstructing the course of justice – had not changed.

On 24 April 2013 the Moscow City Court upheld the detention order of 1 April 2013.

On 1 August 2013 the Basmannyy District Court granted an extension of the applicant’s pre-trial detention on the following grounds:

“The investigator’s request indicates that ... during the investigation [the applicant] was making contradictory statements thus obstructing the investigation of the criminal case. Moreover, during the investigation it was found out that [the applicant] has acquaintances outside Moscow and the Moscow Region. Therefore, if [he] is subjected to a preventive measure other than detention in custody he may flee the investigation and trial.

... the victim and eye-witnesses have indicated [the applicant] as the perpetrator ...

[He] is charged with criminal offences one of which is of medium gravity and another is a grave one, punishable by over three years of deprivation of liberty.

These circumstances are substantiated, real, corroborated by the information about the defendant’s personality, including [the information] obtained through operational-search activities.”

On 28 August 2013 the Moscow City Court upheld the detention order of 1 August 2013.

On 1 October 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 6 February 2014. In its reasoning it stressed the complexity of the case, reiterated the grounds given in the previous orders and noted that the circumstances which had justified the detention order had not changed. The Moscow City Court upheld the extension order on 23 October 2013.

On 20 November 2013 the indictment was issued to the applicant, with the final charges defined under Articles 212 § 2 and 318 § 1 of the Criminal Code.

On 3 February 2014 the Moscow City Court examined a fresh request for the extension of the applicant’s detention and granted it, until 6 June 2014. The court justified this extension as follows:

“The extension of the [applicant’s] pre-trial detention is necessary because of the need to allow him and his counsel sufficient time for access to the investigation case file, which has not been finished.

... the [applicant’s] partners in crime have not all been identified and have not been arrested, he knows the personal details of the victims and the witnesses accusing him of being the perpetrator. Taking into account the total of the aforementioned circumstances, the court considers that [the applicant] is likely to flee the investigation and trial, to continue his criminal activity, to put pressure on the victims and witnesses, to induce them to give false evidence, to destruct evidence or to otherwise obstruct the course of justice in the criminal case.”

On 27 February 2014 the Moscow City Court acting as appeal instance upheld the same court’s detention order of 3 February 2014.

On 14 April 2014 the Zamoskvoretskiy District Court granted another extension of detention in respect of three defendants, including the applicant. It ordered their detention until 30 September 2014 on the following grounds:

“The reasons taken into account by the court for selecting the preventive measure... have not changed [and] have not lost their relevance to date.

The Court takes into account the nature, the gravity and the factual circumstances of the offence imputable to the defendants, the existence of the unidentified perpetrators of the mass disorders, as a real ground for the defendants’ possible unlawful conduct.

Considering the foregoing, it is obvious that the defendants [M.,], [the applicant] and [G.], if at liberty, may abscond or otherwise obstruct the course of criminal procedure”

On 18 August 2014 the Zamoskvoretskiy District Court found the applicant guilty as charged. He was sentenced to two years and six months of imprisonment. The applicant’s pre-trial detention counted towards the prison sentence.

The applicant is currently serving the remainder of the prison term.

From 8 September 2012 to 9 June 2013 the first applicant was detained in remand prison IZ-77/4, consecutively in five different cells. In each cell the applicant had at least four square metres of personal space and an individual bed at all times; he had one hour of daily outdoor exercise.

According to the Government, the applicant underwent a medical examination on his admission to IZ-77/4; on his request he received medical assistance on 8 November 2012, 9 January 2013 and 20 May 2013 and on 4 December 2012 he had a specialist consultation with an ophthalmologist.

On 9 June 2013 the applicant was transferred to IZ-77/2. According to the Government, the cell allowed the applicant at least four square metres of personal space and he had an individual bed at all times; the toilet was separated by a solid partition from the rest of the cell in order to ensure the necessary privacy; the cells were treated for disinfection and pest-control once every three month and whenever necessary; the applicant was entitled to one-hour outdoor exercise per day; the cell was cleaned and the beddings were changed once a week; the cells were equipped with forced ventilation and could be aired through the hinged window pane. The artificial light was provided at 100 watt by day and at 75 watt by night. The glazed windows let in daylight.

On 7 October 2013 and 20 October 2013 the public commission for the monitoring of detention facilities visited IZ-77/2. The applicant made no complaints about the conditions of his detention.


Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Maurice Marcellin Marie van Weerelt, is a Netherlands national, who was born in 1928 and lives in Steensel. He is represented before the Court by Mr P. van Hagen, a lawyer practising in Breda.

The German tax authorities received information concerning assets held in a Liechtenstein bank by non-Liechtenstein residents, a number of Netherlands residents among them. In May 2008 the German tax authorities transferred to the Netherlands Tax and Customs Administration (Belastingdienst) a file containing particulars concerning the Netherlands residents under the procedure for spontaneous exchange of tax information (Article 4 of Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation, see below). The Netherlands tax authorities requested the German tax authorities’ permission to use these particulars in criminal proceedings to be held in public; this was granted.

As relevant to the present case, it emerged that a Liechtenstein foundation (Stiftung) by the name of C. had been created in 1986 to administer a bank account held in Switzerland. The foundation was controlled through a trustee (Treuhand) in Liechtenstein. The “by-laws” of C. foundation, which were in English, listed as “first beneficiary of all assets and revenues, as well as of any possible liquidation proceeds ... during his lifetime and without any restriction” the applicant; upon his death, the applicant’s wife as second beneficiary; upon her death, the applicant’s brother; upon his death, the latter’s descendants. These “by-laws” were revocable at any time by the applicant during his lifetime. C. foundation was liquidated on 3 November 2000.

On 9 June 2009 the Tax Inspector wrote to the applicant stating that he had information from which it appeared that the applicant was, or had been, involved with a financial interest (als gerechtigde betrokken) in a foundation under the law of the Principality of Liechtenstein and asked him to submit certain information with a view to a tax adjustment.

The applicant, through his counsel, replied on 26 June 2009. Although he did not deny his involvement with a Liechtenstein foundation, he stated that he had only the sketchiest recollection of it and possessed no pertinent documents. He invited the Tax Inspector to share the information in his possession in order to clarify matters.

The Tax Inspector responded on 7 July 2009. He did not consider it credible that the applicant no longer had the information requested, in view of the possible financial interest involved; nor did he believe that the applicant did not remember anything about his involvement with a Liechtenstein foundation.

The applicant, through his counsel, wrote to the Tax Inspector on 14 July 2009 restating his earlier position.

The Tax Inspector replied on 20 July 2009, pointing to increases in the applicant’s asset position that could not be explained absent corresponding increases of his income or debt.

On 14 August 2009 the applicant submitted a written explanation to the effect that the increases noted had resulted from rising stock markets.

On 19 August 2009 the Tax Inspector wrote again, dismissing the applicant’s explanation of the increases in his asset position as insufficient and demanding more detailed information. He also asked for more information on the applicant’s involvement in the Liechtenstein foundation.

On 14 September 2009 the applicant submitted more detailed information in response to the request for an explanation of the increase in his asset position. In relation to the Liechtenstein foundation, he stated that he could remember nothing more than that he had once had dealings with such a body. He asked the Tax Inspector for copies of the documents concerning the Liechtenstein foundation which were apparently in his possession.

On 22 September 2009 the Tax Inspector wrote dismissing as insufficient the information which the applicant had given. With regard to the Liechtenstein foundation, he suggested that the applicant obtain the information needed from its trustee. On the information available, he reached the conclusion that the applicant was, or had been, involved with the Liechtenstein foundation and had failed to report its assets and income. He announced the intention to issue a tax adjustment based on an asset value of five million euros (EUR) and an annual interest yield of EUR 200,000, these figures to be reviewed if the applicant disproved them.

On 19 October 2009 the applicant wrote submitting further documents regarding his asset position. As to the Liechtenstein foundation, he protested that a tax adjustment based on assets worth EUR 5 million and interest in an amount of EUR 200,000 was incomprehensible, given that the Tax Inspector had not revealed anything other than that he had “information from which it appeared that the applicant was, or had been, involved with a financial interest” in such a body. He asked the Tax Inspector to specify the information on which his assessment was based.

On 27 October 2009 the Tax Inspector wrote announcing his intention to issue tax adjustments if the information asked for was not forthcoming within four weeks.

The applicant submitted further documents on various dates until May 2010. None of these concerned the Liechtenstein foundation.

On 1 June 2010 the Tax Inspector sent the applicant’s representative a summary of the information available concerning the Liechtenstein foundation “to jog [the applicant’s] memory”. The information in issue had been received by the Netherlands Tax and Customs Administration from the German tax authorities. It had emerged that the applicant had been involved in a Liechtenstein foundation called C., based in Vaduz, Liechtenstein. The applicant had been the first beneficiary without restriction of all its assets and revenue and any possible liquidation proceeds. He had had the power to revoke its by-laws and dismiss its trustee. The Netherlands tax authorities had knowledge of dozens of similar cases, the pattern in all cases being the same: although ostensibly ownership of assets was vested in the Liechtenstein foundation, the existence and content of the relevant bye-laws, letter of authority and appointment of the economic beneficiary demonstrated that in real terms ownership of the assets lay with whoever had set up the foundation. The Tax Inspector was of the view that a similar arrangement must exist for the foundation C. as well and sent a final demand for the surrender of C.’s corresponding documents and accounts. A time-limit was set for this purpose, which in subsequent correspondence was extended until 6 September 2010.

On 3 September 2010 the applicant informed the Tax Inspector that the trustee of the C. foundation had referred him to an administrator in Switzerland.

On 10 September 2010 the applicant forwarded to the Tax Inspector a letter from the administrator in Switzerland refusing to supply any information “due to confidentiality matters”.

The Tax Inspector thereupon ordered the applicant to provide information orally. A meeting for this purpose took place on 4 November 2010.

On 18 November 2010 the Tax Inspector wrote to the applicant noting that he had admitted to the possession of documents concerning the C. foundation and agreed to submit them to the Tax Inspector. The letter stated the demand that the applicant submit these documents.

On 23 November 2010 the applicant replied denying having made the admission suggested and stating that he had no such documents in his possession.

Faced with the imminent expiry, on 1 January 2011, of the statutory twelve-year time-limit for issuing tax adjustments, the Tax Inspector sent the applicant a letter on 6 December 2010 announcing that a tax adjustment would be sent shortly. The latter gave warning of the Tax Inspector’s intention to impose a tax fine (section 67g of the General State Taxes Act – Algemene wet inzake rijksbelastingen – see below). The fine was to be based on the consideration that although the applicant knew, or ought to have known, that he was the sole beneficiary of the assets held in the C. foundation, he had deliberately failed to mention the property and income derived from it on his tax returns. The Tax Inspector counted as aggravating circumstances that the applicant had resorted to subterfuge (listigheid) and conspiracy (samenspanning) with foreign entities to conceal C. foundation’s assets, and thus part of his property, from the Netherlands tax authorities and had made insufficient effort to supply to the Tax Inspector the information necessary to arrive at a correct assessment.

On 10 December 2010 the Tax Inspector sent the applicant a tax adjustment for income tax (inkomstenbelasting) and property tax (vermogensbelasting) due for 1998/1999. Absent detailed information, the estimate was that the assets in issue had a value of EUR 5 million and had yielded 4% per annum. The applicant was ordered to pay the taxes due, plus punitive fines (vergrijpboetes) in an amount equal to the taxes and tax interest (heffingsrente). The total sums came to EUR 285,656 in respect of income tax and EUR 85,890 in respect of property tax for this fiscal year alone.

The applicant lodged an objection with the Tax Inspector on 18 January 2011. As relevant to the case before the Court, he argued, firstly, that the Tax Inspector had failed to specify the demands for information which the applicant had not met and submitted in addition that he had answered each of the Tax Inspector’s questions; secondly, that the Tax Inspector had not had the right to ask questions during the meeting of 4 November 2010 and demand answers, since these questions also served for the imposition of punitive fines; and finally, that the Tax Inspector had not shown that the applicant had failed to submit a tax return required by law.

The Tax Inspector adjourned the proceedings. It would appear that no decision has yet been taken.

On 25 February 2011 the Tax and Customs Administration summoned the applicant to appear before the provisional measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of ‘sHertogenbosch in summary injunction proceedings (kort geding). The purpose was to obtain an order for the applicant to disclose all information concerning any assets held abroad, including those held in C. foundation and the allocation of the latter after the foundation had been dissolved.

The applicant submitted a counterclaim for an injunction restraining the Tax and Customs Administration from making any further such demands for information.

Having held a hearing on 22 March 2011, the provisional measures judge gave judgment on 5 April 2011. The applicant was ordered to disclose the information specified within twenty-eight days from the day on which the judgment was served on him, on pain of a penalty payment (dwangsom) of EUR 2,500 for each day or part of a day thereafter that he failed to comply up to a maximum of EUR 500,000. The judgment was provisionally executable (uitvoerbaar bij voorraad).

The judgment was served on the applicant on 6 April 2011.

On 9 May 2011 the applicant submitted a statement in writing that “to the best of his knowledge” he had held no foreign bank accounts after 1998 save for one Belgian account which he had duly declared to the tax authorities and had closed down in 2000, and a second letter from the Swiss administrator again refusing to supply information “due to reasons of confidentiality”.

On 29 April 2011 the applicant lodged an appeal with the Court of Appeal (gerechtshof) of ‘sHertogenbosch against the judgment of the provisional measures judge.

On 4 November 2011, while the appeal was pending, the lawyers representing the Tax and Customs Administration wrote to the applicant informing him that they considered him to have been liable for penalty payments in an amount of EUR 2,500 daily since 6 May 2011. The Tax and Custom Administration reserved the right to demand their payment.

The Court of Appeal gave judgment on 31 January 2012 confirming the judgment of the provisional measures judge of the Regional Court.

The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad). He complained of being forced to incriminate himself in that he was being compelled to provide evidence that would be used against him in proceedings to determine a “criminal charge”.

The Advocate General (advocaat-generaal) to the Supreme Court submitted an extensively reasoned advisory opinion in which he discussed, inter alia, the case-law of the Court and of the Supreme Court itself. He recommended that the Supreme Court should not quash the judgment of the Court of Appeal and remit the case, but dismiss the applicant’s appeal on points of law and direct that information extracted from the applicant under coercion should not be used for punitive purposes.

The Supreme Court gave judgment on 12 July 2013 (ECLI:NL:HR:2013:BZ3640). Its reasoning included the following:

“3.7. In so far as it concerns evidentiary material the existence of which is dependent on the will of the taxpayer (hereafter ‘will-dependent material’), the following applies. The principle is that the surrender of such material may be coerced for purposes of levying tax. If it cannot be excluded that the material will also be used in connection with a ‘criminal charge’ (compare [J.B. v. Switzerland, no. 31827/96, ECHR 2001III]), the domestic authorities will have to ensure that the taxpayer will be able to exercise effectively his right not to cooperate in self-incrimination. Since regulation directed to this end is lacking in the Netherlands, it is for the courts to provide the necessary guarantees.

3.8. For this reason the (provisional measures) judge will have to add a qualification to that end to the order to be given. The State has brought its claim relying on section 47 of the General State Taxes Act with a view to levying tax, while not excluding possible use of the information demanded for purposes of imposing administrative fines or prosecution. In order to comply with the requirements flowing from Article 6 of the Convention, as referred to in paragraph 3.7 above, the measure to be ordered, in so far as it concerns will-dependent material, will have to be limited in the sense that such an order may only be given subject to the restriction that the material supplied be only used for the purpose of levying tax.

Should the material that has come into the hands of the Tax Inspector, and thus the State, nonetheless be used also for purposes of imposing tax fines or prosecution, then the decision on what consequence should be attached to the violation of the restriction posed by the provisional measures judge will be for the court that decides on the tax fine or the prosecution to take.

3.9 The above reasoning means that in cases in which the surrender of material is demanded from a taxpayer under section 47 of the General State Taxes Act with a view to the correct levying of tax, and the taxpayer relies on the nemo tenetur principle, the following distinction has to be made.

(a) In civil summary injunction proceedings a taxpayer may be ordered, on pain of having to make penalty payments, to supply all material that may be relevant to the correct levying of taxes, regardless of whether it concerns will-independent or will-dependent material, subject however to the restriction that material of the latter type may only be used for the purpose of levying tax.

(b) Should the taxpayer not obey this order, he will forfeit the corresponding penalty payments. If the parties differ as to whether the taxpayer has obeyed the order, then in any ensuing execution proceedings the State will have the obligation so to state (stelplicht) and the corresponding burden of proof (bewijslast). This means that if the claim is contested, the State will have to prove – that is, make out a plausible case – that the taxpayer was in fact in a position to supply the material demanded from him but not surrendered.

(c) Will-dependent material supplied by the taxpayer in response to the order of the provisional measures judge may not be used for the purpose of imposing tax fines on, or prosecuting, the taxpayer. In the event of that happening, it will be for the tax court or criminal court to decide what consequence to attach to such use.”

The operative provisions were as follows:

“The Supreme Court:

Annuls the judgment given on 31 January 2012 by the Court of Appeal of ‘sHertogenbosch, as well as the judgment given by the provisional measures judge on 5 April 2011, but only in so far as the orders given in the latter judgment ... are given without restriction and in so far as [the applicant] is ordered to pay the costs of the proceedings in the first-instance proceedings and the appeal proceedings concerning the principal claim [principaal appel]; and, judging anew to that extent,

Determines that, in so far as those orders relate to material the existence of which is dependent on the will of [the applicant], this material shall be supplied subject to the restriction that it shall only be used for the levying of taxes;

Determines that the time-limit of ‘28 days from the date of notification of the judgment [of the provisional measures judge] shall be replaced by ‘28 days from the date of notification of the judgment pronounced by the Supreme Court on 12 July 2013’;

Orders the State to repay to [the applicant] all that he has paid to the State in compliance with the judgment of the provisional measures judge, plus statutory interest until the day of complete repayment;

Orders each of the parties to bear its own costs incurred in the proceedings at first instance, the appeal proceedings concerning the principal claim and the appeal on points of law.”

The judgment of the Supreme Court was served on the applicant on 29 July 2013, together with a letter from the lawyer acting for the State requiring him to submit to the Tax and Customs Administration the information specified in the judgment of the provisional measures judge.

On 26 August 2013 the applicant replied, through his representative, that he did not have further information than he had already given. At most, he could try approaching his Swiss administrator a third time, but in view of the replies he had already received (see paragraphs 19 and 31 above) there would be little point in doing so.

On 14 October 2013 the lawyer acting for the State wrote to the applicant taking note of his failure to submit the information demanded and informing him of the intention to enforce the penalty payments in an amount of EUR 2,500 per day from 28 August 2013.

On 23 October 2013 an enforcement notice was served on the applicant for EUR 140,000 in respect of penalty payments imposed per that date.

The applicant has maintained his position that he can neither submit nor retrieve any further information in order to comply with the orders given him.

The applicant states that on 23 August 2011 the Tax Inspector issued an information decision (informatiebeschikking) pursuant to section 52a of the General State Taxes Act, as in force by then (see below). The applicant lodged an objection; this was dismissed on 18 November 2011.

The applicant states that he lodged an appeal with the Regional Court, which was dismissed on 2 January 2013. An appeal on points of law is still pending before the Supreme Court.

The applicant states that information orders have been issued for other fiscal years, and that the objection proceedings which he has brought against these have been adjourned.

The provisions of the Constitution for the Kingdom of the Netherlands (Grondwet voor het Koninkrijk der Nederlanden) relevant to the case are the following:

“Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.”

“Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions.”

Until 1 July 2009, section 67j of the General State Taxes Act provided as follows:

“If the Tax Inspector has committed an act in relation to the taxpayer ... to which the latter can reasonably attach the corollary that a fine will be imposed on him for particular conduct, then... the taxpayer ... shall no longer be obliged to make any statement in relation to that conduct in so far as it concerns the imposition of the fine.”

Until 1 July 2011, other provisions of the General State Taxes Act relevant to the case were the following:

If the objection is directed against a tax demand [or] a tax adjustment with respect to which:

a. the required return has not been submitted; or

b. the requirements pursuant to [inter alia, sections 47 and 49] have not been fully complied with,

then the tax demand or tax adjustment shall be maintained in the objection proceedings, unless it is apparent that, and to what extent, the tax demand or tax adjustment is incorrect.

The preceding sentence does not apply in so far as the objection is directed against a punitive fine. ...”

“1. Everyone is obliged to make available to the Tax Inspector, when so requested:

a. the data and information that can be of relevance for the levying of taxes in their regard;

b. the books, documents and other information-bearing media, or their content – as the Tax Inspector sees fit – the consultation of which may be of relevance for the determination of facts that may influence the levying of taxes in their regard.

If tax law designates matters pertaining to a third party as matters pertaining to the presumed taxpayer (degene die vermoedelijk belastingplichtig is), then in so far as it concerns these matters, the same obligations apply to the third party. ...”

“1. The data and information shall be given clearly, definitely and without any reservation, orally, in writing or in some other way – as the Tax Inspector sees fit – and within a time-limit to be set by the Tax Inspector. ...”

“1. The inspector shall impose the fine in a decision against which an objection may be lodged.

... [T]he Tax Inspector shall inform the taxpayer ... of the grounds of the imposition of the fine no later than in the decision referred to in the first paragraph. ...”

On 1 July 2011 amendments to the General State Taxes Act entered into force which, among other things, changed section 25(3) and added a new section 52a. As relevant to the case before the Court, the amended provisions read as follows:

If the objection is directed against a tax demand [or] a tax adjustment with respect to which the required return has not been submitted, or if it concerns an information decision (informatiebeschikking) within the meaning of section 52a(1), then the tax demand or information decision shall be maintained in the objection proceedings, unless it is apparent that, and to what extent, the tax demand or tax adjustment is incorrect. The preceding sentence does not apply in so far as the objection is directed against a punitive fine. ...”

“1. If, in relation to a tax demand, supplementary tax demand or tax adjustment to be issued or a decision to be taken, the obligations flowing from [inter alia, sections 47 and 49] are not or not entirely complied with, ... the Tax Inspector can so establish by means of a decision against which an objection can be lodged (voor bezwaar vatbare beschikking) ([a so-called] information decision). In the information decision, the Tax Inspector shall draw attention to section 25(3).

The time-limit for issuing a tax demand, supplementary tax demand or tax adjustment to be issued or for taking a decision shall be extended by the period between the notification of the information decision taken in relation to that [tax demand, supplementary tax demand or tax adjustment] or decision in which it is established that the taxpayer has not or not entirely complied with his obligations and the moment at which this information decision becomes final or is annulled.

If the Tax Inspector issues a tax demand, supplementary tax demand or tax adjustment or takes a decision before the information decision taken in relation to that [tax demand, supplementary tax demand or tax adjustment] or decision has become final, the information decision shall lapse.

This section is without prejudice to the possibility for the Tax Inspector to bring proceedings before the civil courts with the aim to obtain an order for compliance with the obligations flowing from this Act on pain of forfeiture of penalty payments.”

“1. In accordance with the provisions of this Directive the competent authorities of the Member States shall exchange any information that may enable them to effect a correct assessment of taxes on income and on capital.

There shall be regarded as taxes on income and on capital, irrespective of the manner in which they are levied, all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the disposal of movable or immovable property, taxes on the amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.”

“1. The competent authority of a Member State may request the competent authority of another Member State to forward the information referred to in Article 1 (1) in a particular case. The competent authority of the requested State need not comply with the request if it appears that the competent authority of the State making the request has not exhausted its own usual sources of information, which it could have utilized, according to the circumstances, to obtain the information requested without running the risk of endangering the attainment of the sought after result.

For the purpose of forwarding the information referred to in paragraph 1, the competent authority of the requested Member State shall arrange for the conduct of any enquiries necessary to obtain such information.”

“1. The competent authority of a Member State shall without prior request forward the information referred to in Article 1 (1), of which it has knowledge, to the competent authority of any other Member State concerned, in the following circumstances:

(a) the competent authority of the one Member State has grounds for supposing that there may be a loss of tax in the other Member State;

(b) a person liable to tax obtains a reduction in or an exemption from tax in the one Member State which would give rise to an increase in tax or to liability to tax in the other Member State;

(c) business dealings between a person liable to tax in a Member State and a person liable to tax in another Member State are conducted through one or more countries in such a way that a saving in tax may result in one or the other Member State or in both;

(d) the competent authority of a Member State has grounds for supposing that a saving of tax may result from artificial transfers of profits within groups of enterprises;

(e) information forwarded to the one Member State by the competent authority of the other Member State has enabled information to be obtained which may be relevant in assessing liability to tax in the latter Member State.

The competent authorities of the Member States may, under the consultation procedure laid down in Article 9, extend the exchange of information provided for in paragraph 1 to cases other than those specified therein.

The competent authorities of the Member States may forward to each other in any other case, without prior request, the information referred to in Article 1 (1) of which they have knowledge.”

“For the purpose of applying the preceding provisions, the competent authority of the Member State providing the information and the competent authority of the Member State for which the information is intended may agree, under the consultation procedure laid down in Article 9, to authorize the presence in the first Member State of officials of the tax administration of the other Member State. The details for applying this provision shall be determined under the same procedure.”

“1. All information made known to a Member State under this Directive shall be kept secret in that State in the same manner as information received under its domestic legislation.

In any case, such information:

- may be made available only to the persons directly involved in the assessment of the tax or in the administrative control of this assessment,

- may in addition be made known only in connection with judicial proceedings or administrative proceedings involving sanctions undertaken with a view to, or relating to, the making or reviewing the tax assessment and only to persons who are directly involved in such proceedings; such information may, however, be disclosed during public hearings or in judgements if the competent authority of the Member State supplying the information raises no objection,

- shall in no circumstances be used other than for taxation purposes or in connection with judicial proceedings or administrative proceedings involving sanctions undertaken with a view to, or in relation to, the making or reviewing the tax assessment.

Paragraph 1 shall not oblige a Member State whose legislation or administrative practice lays down, for domestic purposes, narrower limits than those contained in the provisions of that paragraph, to provide information if the State concerned does not undertake to respect those narrower limits.

Notwithstanding paragraph 1, the competent authorities of the Member State providing the information may permit it to be used for other purposes in the requesting State, if, under the legislation of the informing State, the information could, in similar circumstances, be used in the informing State for similar purposes.

Where a competent authority of a Member State considers that information which it has received from the competent authority of another Member State is likely to be useful to the competent authority of a third Member State, it may transmit it to the latter competent authority with the agreement of the competent authority which supplied the information.”


CASE OF MITRINOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1950 and lives in Skopje.

On 6 December 2010 a three-judge panel of the Skopje Court of Appeal, presided over by the applicant (including Judges I.L. and M.S.), decided, in second instance, to grant an appeal of a detainee. The panel accepted a proposed bail and replaced an order for detention on remand with an order for house arrest (Ксж.бр. 537/2010). On 9 December 2010 the State Public Prosecutor challenged this decision by means of a request for the protection of legality (барање за заштита на законитоста). He sought that the Supreme Court declared that decision unlawful and that it be remitted for fresh consideration.

On 10 December 2010 a five-judge panel of the Supreme Court, presided over by Judge J.V., the President of the Supreme Court at the time, held a session at which the public prosecutor’s request was examined. The Supreme Court accepted the prosecutor’s amended request (преиначено) and stated inter alia that:

“The Supreme Court finds that Skopje Court of Appeal, which decided the appeal ... against the decision ... in which the Skopje Court of First Instance had dismissed a request for termination of pre-trial detention (предлог за укинување на мерката притвор) as unsubstantiated, had no statutory ground to decide the complaints on the merits, but, on the contrary, it was bound by law to establish that the appeal ... was inadmissible ...”

On 10 December 2010 the criminal division of the Supreme Court composed of six judges of that court, including Judge J.V. (see section 39(1) of the Rules of the Supreme Court, paragraph 22 below), held a session at which they discussed the case Ксж.бр. 537/2010. Following an examination of the record of the deliberations of the Skopje Court of Appeal regarding the decision of 6 December 2010 (see paragraph 7 above), the criminal division of the Supreme Court concluded that two judges had disclosed professional misconduct. The relevant part of the record of that session reads as follows:

“... the criminal division of the Supreme Court unanimously found (едногласно се донесе заклучок) that there had been professional misconduct by two judges of the Skopje Court of Appeal who had adjudicated in the case Ксж.бр. 537/2010.

The President of the Supreme Court, J.V., then closed the session of the criminal division.”

In submissions of the same date, Judge J.V., as an ex officio member of the State Judicial Council (“the SJC”, see Amendment XXVIII to the Constitution, paragraph 19 below), requested that the SJC establish professional misconduct in respect of the applicant and Judge I.L. This request was submitted pursuant to sections 78 and 79 of the State Judicial Act 2010 (“the Act”, see paragraph 20 below) according to which a member of the SJC or the president of the higher court can seek that professional misconduct proceedings were launched regarding a judge. As stated in the request, there were reasonable grounds to believe that the applicant and Judge I.L. had exercised the office of judge in an unprofessional and unconscientious manner given that they had voted in favour of the decision of 6 December 2010 in the criminal case Ксж.бр. 537/2010, which had been in violation of the Criminal Proceedings Act. In support, he submitted copies of the decisions of 6 and 10 December 2010 (see paragraphs 7 and 8 above).

On 23 December 2010 the plenary of the SJC, including Judge J.V., discussed Judge J.V.’s request for determination of professional misconduct on the part of the applicant and accepted it as timely, complete and admissible. It also set up a Commission for determination of professional misconduct by the applicant (“the Commission”), composed of five of its members, including the President of the SJC (see section 80 of the Act, paragraph 20 below). The composition of the Commission did not include Judge J.V.

On 29 December 2010 the Commission communicated Judge J.V.’s request and the supporting evidence to the applicant. On 18 January 2011 the applicant responded in writing and provided evidence in support (see section 81 of the Act, paragraph 20 below). Judge I.L. resigned in the meantime. After the Commission had obtained the material in the case Ксж.бр. 537/2010, on 14 January 2011 it submitted a report to the (plenary of the) SJC as to whether Judge J.V.’s request was justified.

On 23 February 2010, the plenary of the SJC, including Judge J.V., initiated professional misconduct proceedings against the applicant and temporarily suspended him from the office of judge. In the decision, the SJC relied on sections 84 and 86 of the Act (see paragraph 20 below). The relevant parts of this decision read as follows:

“The SJC, on the basis of (Judge J.V.’s) request ... set up (the Commission) ... After the Commission had taken actions pursuant to sections 81 and 82 of (the Act), it submitted, under section 83 of (the Act), to the SJC a report as to whether the request was justified.

The SJC ... discussed the request and the Commission’s proposal and decided to initiate professional misconduct proceedings ...”

On 19 April 2011 the Commission held, pursuant to section 87 of the Act (see paragraph 20 below), a hearing. As noted in the record of the hearing, it was attended by the applicant and his legal representative, as well as by Judge J.V. as complainant. Judge J.V.stated inter alia that:

“... I submitted the request (for determination of unprofessional and unconscientious exercise of the office of judge regarding the applicant) for the following reasons: (the applicant), as the chairman of the panel and a judge rapporteur (in the case Ксж.бр. 537/2010) and judge I.L., as a member of that panel, contrary to (the Criminal Proceedings Act) ... had unlawfully decided on the merits ... they had no statutory ground to decide on the merits of the complaints raised in the appeal, but they were bound by law to reject the appeal as inadmissible. For these reasons, I consider that in this case ... there are grounds [to be established that there was] unprofessional and unconscientious exercise of the office of judge ...

I must underline that I submitted this request to the SJC in view of the conclusion of the criminal division of the Supreme Court of 10 December 2010 [see paragraph 9 above] ...”

After the applicant had presented his arguments verbally, the President of the Commission put several questions to him. The applicant’s lawyer and judge J.V. did not put any questions notwithstanding that they were provided with such an opportunity. Then, the applicant and judge J.V. made concluding remarks. The record of the hearing indicated that under section 92 of the Act (see paragraph 20 below), the Commission would draw up a report, which would be communicated to the SJC for consideration. The record of the hearing was signed by the applicant, judge J.V., as the complainant, and the members of the Commission (see section 90 of the Act, paragraph 20 below). As evident from the available material, the Commission submitted such a report in which it proposed that the SJC dismiss the applicant for professional misconduct.

On 18 May 2011 the plenary of the SJC, which included judge J.V., dismissed the applicant from the office of judge for professional misconduct. The relevant parts of the decision read as follows:

“The SJC finds that Skopje Court of Appeal had no statutory ground to examine and decide on the merits of the complaints raised in the appeal [in the criminal case Ксж.бр. 537/2010], but it was bound by law to establish that the accused’s appeal submitted by his lawyer had been inadmissible. Accordingly, it decided in violation to (the Criminal Proceedings Act).

Such a decision is unlawful and contrary to [relevant provisions of the Criminal Proceedings Act] ...

When establishing unprofessional and unconscientious exercise of the office of judge [by the applicant], the SJC relied, as a legal ground, on the judgment of the Supreme Court [see paragraph 8 above] and the conclusion of the criminal division of the Supreme Court of 10 December 2010 [see paragraph 9 above]. The (criminal) division explicitly established that (the applicant), as chairman of the panel and a judge rapporteur, ... had been unprofessional and decided contrary to [the relevant provisions of the Criminal Proceedings Act] ...”

The applicant appealed against that decision before the second-instance body, namely an Appeal Panel formed within the Supreme Court on an ad hoc basis in each case separately and composed, as specified in section 96 of the Act (see paragraph 20 below), of nine judges, of whom three were to be Supreme Court judges, four Appeal Court judges and two judges of the court of the applicant. He also sought withdrawal of judge J.V. and all the Supreme Court judges. In support he stated that there was a conflict of interest, as judge J.V. had sought his dismissal and had later voted for it as an ex officio member of the SJC. The position he held was such that he could influence other judges of that court.

On 13 September 2011 the Appeal Panel dismissed the appeal and confirmed the SJC’s decision dismissing him from the office of judge. It also refused his request for the withdrawal of judges. It found that it was the plenary of the Supreme Court, and not the Appeal Panel, which had competence to decide on the applicant’s request for the withdrawal of the President of the Supreme Court. Relying on the Civil Proceedings Act it further rejected as inadmissible the applicant’s request for the withdrawal of all the judges of a court.


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant company was established in 1991 and has its registered office in Bratislava. It is the operator of two private television channels and the broadcaster of a television programme, JOJ PLUS. The present case concerns a commentary (glosa) delivered during a television programme broadcast on 12 April 2010 after the crash of the plane in which the late President of Poland, Lech Kaczynski, had been travelling.

The commentary’s title was “Compassion in Accordance with Protocol”; the commentary contained the following:

“The crash of a Polish plane carrying the presidential couple on board is a true human tragedy. The whole of Poland is in mourning and politicians are more or less expressing their condolences. That is required by diplomatic protocol. Thus, Slovak russophile politicians too shed a tear, albeit a forced one, over the death of the russophobe, Lech Kaczynski. Even ordinary citizens, not bound by any protocol, are expressing their sorrow. Jews, homosexuals, liberals, feminists and leftoriented intellectuals are bitterly sorry for the death of a man who represented an extreme Polish conservativism, and who was a symbol of a country where people who are not white heterosexual Catholic Poles were born as a punishment. I am sorry, but I do not pity Poles. I envy them.”

Following the broadcast of the above-mentioned commentary, the Broadcasting Council (Rada pre vysielanie a retransmisiu) commenced administrative proceedings against the applicant company, pursuant to section 19(1)(a) of the Broadcasting and Retransmission Act (Law no. 308/2000 Coll., as amended - “the Broadcasting Act”), on 25 May 2010.

On 14 September 2010 the Broadcasting Council found that the applicant company had breached its obligations under the Broadcasting Act in that the manner of processing and presenting the content of the commentary had interfered with the dignity of the late Polish President, Lech Kaczynski. It fined the applicant company 5,000 euros (EUR).

The Broadcasting Council assessed the conflict between the applicant company’s freedom of expression and the protection of the human dignity of the late President. On the one hand, it acknowledged the aim of the commentator to express his opinion and his subjective stance on the social and political event through criticism, sarcasm and irony, which were inherent to journalistic expression. On the other hand, where the Broadcasting Council found difficulties was in particular the content of the last two sentences of the commentary (“I am sorry, but I do not pity the Poles. I envy them”). The Broadcasting Council concluded that the manner in which the commentator had presented his opinion – that is to say his lack of regret for the Polish President’s death – had contravened the duty to respect his human dignity. According to the Broadcasting Council, the degree of sarcasm and irony in the broadcast commentary had been so high that its content and the manner in which the author’s opinion had been presented had been substandard and had dishonoured the late President.

The Broadcasting Council noted that Mr Kaczynski, as President, was sufficiently recognisable as an “individual”, which was a prerequisite for the applicability of the protection of the dignity, human rights and fundamental freedoms of “others” under section 19(1)(a) of the Broadcasting Act. It concluded that by broadcasting the aforesaid commentary the applicant company had committed an administrative offence (správny delikt) – in particular a breach of its duties under the said provision – and that imposing a fine on it in that respect was in order. It considered such a measure to be necessary in a democratic society, as it served a legitimate aim – that is to say the protection of the right to human dignity.

On 10 March 2011 the Supreme Court upheld the Broadcasting Council’s decision. It rejected the applicant company’s argument that the Broadcasting Council had sanctioned it for voicing its political opinion. Rather, the Supreme Court confirmed the Broadcasting Council’s conclusion about the defamatory character of the commentary in question and the interference with the late President’s human dignity.

The applicant company lodged a complaint before the Constitutional Court challenging the decisions of the Broadcasting Council and the Supreme Court under Articles 6 § 1 and 10 of the Convention and Articles 26 (freedom of expression) and 46 (right to judicial protection) of the Constitution.

It alleged that the decisions in question had been arbitrary, unfair and insufficiently reasoned and that their respective authors had breached its freedom of expression by sanctioning it for voicing its opinion regarding the late President as a politician.

On 27 July 2011 the Constitutional Court rejected the applicant company’s complaint. It considered, inter alia, that the above-mentioned authorities had duly explained their conclusions, without having overly strayed from a reasonable interpretation of the applicable rules and established practice. The Constitutional Court noted that the impugned commentary had expressed not only sarcasm and criticism of the late President’s policy but also a positive attitude towards his death. This very fact had interfered with his right to respect for his human dignity, which led the Constitutional Court to conclude that the domestic authorities’ decisions had not been arbitrary.

As to the applicant company’s complaint under Article 10 of the Convention (and Article 26 of the Constitution), the Constitutional Court held that a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of procedural rules. Given that it had rejected the complaint concerning the alleged violation of procedural rules, it also had to reject the complaint relating to an alleged violation of a substantive provision.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Sergiy Goncharenko;Yonko Grozev

The applicant was born in 1963 and lives in the town of Severodonetsk, Ukraine.

According to the applicant, in 1996 he brought criminal proceedings for libel before the Severodonetskyy Town Court, complaining that it had been noted in his employment record that he had been dismissed because he had committed theft. The applicant alleged that, following his numerous complaints to a prosecutor’s office about the failure to investigate the above case, in 2000 the prosecutor’s office had requested his placement in a psychiatric facility.

According to case-file materials, on 18 March 2000 the principal of the Severodonetsk Territorial Medical Association (Северодонецьке територіальне медичне об’єднання, hereinafter the “Severodonetsk Hospital”) received a letter from the Severodonetsk Town Prosecutor’s Office asking for an opinion on the state of the applicant’s mental health. The parties did not submit a copy of that letter to the Court.

Psychiatrists Ma. and K. studied the applicant’s letters at the prosecutor’s office and decided that the applicant should be examined, since the letters contained evidence of a “high probability of socially dangerous behaviour”. The parties did not submit copies of those letters to the Court either.

On 19 March 2000, Ma., assisted by a team of paramedics and two police officers, visited the applicant at home. The applicant stated that he had been visited by seven persons in total.

The parties differed on the circumstances of this visit. According to the applicant’s testimonies given before the court in civil proceedings (see paragraph 29 below), he opened the door only after the police had threatened to break it. Once the applicant had opened the door, Ma. said that they should go to a hospital to examine the applicant there. A police officer, P., was shouting at the applicant and threatening him with criminal prosecution for resisting the police. The applicant replied that he would “submit to force”. He was subsequently taken by his arms and put in an ambulance.

The Government submitted that there was no evidence that any pressure had been applied to the applicant. According to Ma.’s testimonies given in the same court proceedings, the applicant opened the door and let Ma. and the police officers in. Ma. introduced himself and had a conversation with the applicant. It was then proposed that the applicant accompany them to a hospital for further examination. The applicant agreed, collected his belongings, closed the door and got into the ambulance. Upon arrival in the Severodonetsk Hospital it was decided that the applicant needed hospitalisation.

On 20 March 2000 the applicant was examined by a panel of four doctors, including Ma. and K., which confirmed the necessity of his urgent hospitalisation. On the next day the applicant was examined by an assistant of the psychiatric medicine department of the Lugansk State University Hospital in the presence of Ma., and was offered hospital treatment. Since he refused, he was further examined by three doctors of the Lugansk Regional Psychoneurological Hospital (Луганська обласна клінічна психоневрологічна лікарня, hereinafter the “Lugansk Hospital”), who concluded that he should be urgently admitted for treatment because he had written threatening letters to various authorities.

Between 21 March and 7 September 2000 the applicant was a patient in the Lugansk Hospital. He was allegedly examined on 21 April, 22 May, 23 June and 22 August 2000 by a panel of three psychiatrists. Each time it was decided that his treatment had to be continued. On 26 July 2000 the applicant was examined by a regional medico-social expert commission, which established that he had a second-degree disability.

On 7 September 2000 the applicant was transferred to the Svatove Regional Psychiatric Hospital (Сватівська обласна психіатрична лікарня, the “Svatove Hospital”) to continue his treatment there. He was discharged from the hospital on 4 December 2000.

The applicant also stayed in a hospital between 31 May and 26 June 2001.

In July and August 2001 the applicant requested that the medical establishments where he had stayed in 2000 allow him to study his medical file and inform him on what legal basis he had been subjected to psychiatric treatment. According to the applicant, he received an answer only from the Lugansk Hospital but the answer was not satisfactory.

On 26 September 2001 the applicant brought proceedings before the Severodonetskyy Town Court against the Severodonetsk Hospital, complaining of its failure to reply to his request. The case file contains a copy of the applicant’s complaint dated 26 September 2001. There are two handwritten notes on it: “received on 28 September 2001” and “received on 2 October 2001”. The Severodonetskyy District Court issued a note on the progress of the applicant’s case stating that the applicant had instituted the proceedings on 2 October 2001. In October 2001 the applicant lodged a similar complaint against the Lugansk Hospital.

On 15 November 2001 the court stayed the proceedings in the case pending examination of the issue of the applicant’s legal capacity. On 26 December 2001 the request to recognise the applicant as legally incapacitated was left without consideration, so the proceedings were resumed on 1 February 2002.

On 29 April 2002 the court rejected the applicant’s claims as unsubstantiated. On 21 November 2002 the Lugansk Regional Court of Appeal quashed that decision and remitted the case for fresh consideration.

On 6 February 2003 the applicant modified his claims. In addition to his initial claims, he complained, inter alia, that his committal to the psychoneurological department of the Severodonetsk Hospital on 19 March 2000 and his confinement there until 21 March 2000 had been unlawful. He also complained that he had been unlawfully transferred to the Lugansk Hospital and the Svatove Hospital, where he had been confined until 4 December 2000. The applicant also claimed damages.

Between 23 February 2003 and 23 March 2004 ten court hearings took place and three hearings were postponed. In particular, on two occasions the defendants and/or their representatives failed to appear in court, and one hearing did not take place because the court recording equipment was not available.

Following a request by one of the defendants, on 23 March 2004 the court ordered a forensic psychiatric examination of the applicant. On 14 July 2004 the Lugansk Regional Court of Appeal quashed that decision and remitted the case for examination on the merits.

In their observations the Government provided a list of scheduled court hearings which had taken place in the applicant’s case. The case file also contains a note on the progress of the applicant’s case issued by the Severodonetskyy District Court. Those two descriptions of the progress of the proceedings in the applicant’s case contain some contradictory information.

According to the Government’s submissions, between 3 September 2004 and 14 June 2005 eleven court hearings were scheduled but only five took place because either the defendants, the applicant or their representatives failed to appear. According to the domestic court record, seven hearings took place.

On 14 June 2005 the term of office of the judge in the applicant’s case expired. The next hearing scheduled for September 2005 allegedly with a new judge did not take place because the court recording equipment was not available.

Between 3 November 2005 and 13 August 2007 forty-eight court hearings were scheduled. According to the Government, all of them took place; according to the domestic court record, ten of them did not take place because the defendants, the applicant or their representatives failed to appear. The number of such failures to appear was almost equal for both parties.

On 13 August 2007 the court partially allowed the applicant’s claims. It summarised his submissions as follows. On 19 March 2000 Ma., with the assistance of the police, had the applicant unlawfully committed to a psychoneurological department, where he stayed for two days. On 21 March 2000 the applicant was transferred to the Lugansk Hospital without his consent; he stayed there until 7 September 2000. He was then transferred to the Svatove Hospital, where he stayed until 4 December 2000. The applicant claimed that Ma. had acted unlawfully, had breached the applicant’s right to respect for his home, had examined the applicant against his will and had deprived him of his liberty. The applicant further complained that he had been unlawfully confined in all three hospitals, and that the principals of those institutions had failed to respond to his requests for information. The applicant claimed 100,000 Ukrainian hryvnas (UAH) in compensation for non-pecuniary damage.

The court further noted that in a court hearing the applicant had submitted that he had not challenged his diagnosis but considered that the doctors’ actions had been unlawful. He gave his version of the events of 19 March 2000 (see paragraph 11 above). The applicant also submitted that force had been used against him in the Severodonetsk Hospital; he had been administered with injections and had been kept behind bars in a locked room. He had been transferred to the Lugansk and Svatove Hospitals without his consent. Information about his state of health had been provided to his employers and to the relevant prosecutor’s office. He had been discharged from the Svatove Hospital having been advised not to lodge any official complaints, otherwise he would be hospitalised again. He had not lodged any complaints since he had been “afraid for his future”. The applicant stated that he had sustained non-pecuniary damage caused by his involuntary hospitalisation, the administering of unknown medication by means of injection, poor nutrition, fear for his life, unsanitary conditions and a breach of his right to respect for his home.

In court hearings Ma., and police officers Sh. and G. testified that no pressure had been brought to bear on the applicant at the time of the visit to his home. Witness Mb. testified that he did not remember the circumstances of that visit and witness Z. testified that she had seen “a doctor entering [the applicant’s house?] alone, followed several minutes later by a police officer”. She had then seen the applicant getting into an ambulance. Ma. also submitted that the applicant’s hospitalisation had been in compliance with temporary instructions nos. 16 and 17 “On procedure for the conduct of preliminary psychiatric examination of citizens” and “On procedure for urgent hospitalisation of mentally ill persons” (“Instructions nos. 16 and 17”) appended to Order no. 225 of the Ministry of Health of the USSR of 25 March 1988 “On actions for further improvement of psychiatric assistance” (“Order no. 225”), in particular, paragraphs 1, 2, and 10 to 13 of Instruction no. 16 and paragraphs 1, 2, 5 and 6 of the Instruction no. 17 (see relevant domestic law below).

The court found that the visit to the applicant’s home on 19 March 2000 when the applicant had been examined and later taken to the Severodonetsk Hospital had been performed in compliance with paragraphs 1, 2, and 10 to 13 of Instruction no. 16 and paragraphs 1, 2 (b), 5 and 6 of Instruction no. 17. Referring to the “testimonies of Ma., Mb. and G.”, the court held that the applicant had failed to prove that any force had been used against him. The decision of 19 March 2000 on the applicant’s admission to hospital had also been adopted in compliance with paragraphs 1 and 2 of Instruction no. 17. The subsequent decision of 21 March 2000 to hospitalise the applicant had also been taken in compliance with paragraph 2 (b) of Instruction no. 17. However, the applicant’s transfer to the Svatove Hospital on 7 September 2000 had been in breach of section 16 of the Psychiatric Medical Assistance Act, which was in force as of 4 April 2000. The applicant’s requests for access to information had been rejected as a result of a decision to limit his access to his medical file, which he had not challenged. Such information could have been provided to the applicant’s relatives if he so wished. The court awarded the applicant UAH 2,000 to be paid by the Svatove Hospital (approximately 286 euros (EUR) at the material time) in compensation for non-pecuniary damage.

The applicant appealed, stating, in particular, that by Order no. 81 of 18 April 1996 of the Ministry of Health of Ukraine (“Order no. 81”), Order no. 225 had been declared “not applicable on the territory of Ukraine”.

On 29 November 2007 the Lugansk Regional Court of Appeal upheld the decision of 13 August 2007. The court held that the first-instance court had correctly applied the law in force at the material time. The court rejected the applicant’s arguments about the invalidity of Order no. 225 as unsubstantiated without giving any further details. It did not comment on the validity and/or legal effect of Order no. 81.

The applicant lodged an appeal on points of law, reiterating his arguments.

On 12 February 2008 the Supreme Court of Ukraine dismissed the applicant’s appeal on points of law as unsubstantiated.

On 23 November 2010 the applicant complained to the Severodonetskyy Town Court that he had not received a writ of enforcement. In reply, the court informed him that he could receive the writ of enforcement from the court’s secretariat upon a written request.

It is unclear whether the applicant received the compensation awarded to him.


No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom to impart information)

Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicants were born in 1954, 1976 and 1971 respectively and live in Lecco.

The first applicant is the editor of a local online newspaper in the province of Lecco. The other two applicants are journalists working for the newspaper.

In the course of their activities, the applicants used radio equipment to access frequencies used by the police or the carabinieri. This enabled them to learn of any communications transmitted in that way, so that they could arrive quickly on the scene when wishing to report on specific incidents.

On 1 August 2002 the applicants listened in on a conversation during which the Merate carabinieri operations centre decided to send a patrol to a location where, according to anonymous sources, weapons had been stored illegally.

The carabinieri accordingly went to the location mentioned, and the second and third applicants arrived on the scene immediately afterwards.

Having obtained a search warrant, the carabinieri searched the applicants’ car, finding two frequency-modulation transmitter/receivers that were capable of intercepting police radio communications.

The carabinieri then went to the two journalists’ editorial office and seized two fixed radio receivers, which were tuned to the frequencies used by the carabinieri. Other frequencies used by police operations centres were stored in the devices’ memory.

Criminal proceedings were instituted against the first and second applicants for illegally installing equipment designed to intercept communications between law-enforcement agencies’ operations centres and patrols (Articles 617, 617 bis and 623 bis of the Criminal Code). The third applicant was charged with accessing the aforementioned communications (Articles 617 and 623 bis of the Criminal Code).

On 9 November 2004 the Lecco District Court acquitted the applicants. It held that the relevant Articles of the Criminal Code were to be interpreted in the light of Article 15 of the Constitution, which only protected communications of a confidential nature.

The District Court observed that the radio device used by the law-enforcement agencies was unable to ensure the confidentiality of the information it transmitted. Accordingly, the interception of the communications in question did not constitute an offence. Moreover, the possession and use of radio receivers were not prohibited as such.

The Milan principal public prosecutor and the Lecco public prosecutor appealed. They argued that the Lecco District Court’s interpretation was inconsistent with the Court of Cassation’s case-law in such matters (citing in particular judgment no. 12655 of 23 January 2001) and that the communications in issue were clearly confidential, bearing in mind the aims of ensuring public safety and protecting public order. In addition, the communications concerned the initial investigations following the commission of an offence. They were therefore subject to a confidentiality requirement pursuant to Article 329 of the Code of Criminal Procedure.

The confidential nature of the communications was also obvious from the fact that the carabinieri used coded language for communications concerning the location and the type of intervention, clearly seeking to ensure that no third parties had knowledge of the information being exchanged. In addition, the radiofrequencies involved had been exclusively assigned to operations centres by the Ministry of Defence.

Furthermore, in order to listen in on the conversations, the applicants had had to purchase special radio equipment, as ordinary equipment could not be used for this purpose. On the other hand, the fact that such devices were freely available on the market did not justify their use for intercepting conversations between law-enforcement officers.

In addition, in accordance with Presidential Decree no. 447/2001, as in force at the material time, devices of this kind were intended to be purchased by amateur radio operators but could not be used to intercept police radiofrequencies. Lastly, the Ministry of Communications’ decree of 11 February 2003 had expressly prohibited amateur radio operators from intercepting communications which they were not entitled to receive.

In a judgment of 15 May 2007 the Milan Court of Appeal found the first and second applicants guilty and sentenced them to one year and three months’ imprisonment. The third applicant was sentenced to six months’ imprisonment. The Court of Appeal suspended the applicants’ sentences.

It observed that Article 623 bis of the Criminal Code, as amended by Law no. 547 of 23 November 1993, had extended the scope of criminal responsibility to cover all remote data transmission, thus including the interception of conversations between the law-enforcement agencies’ operations centres and patrols.

Such communications were, moreover, clearly confidential. Reiterating all the arguments put forward by the Milan and Lecco public prosecutors, particularly regarding the aims of ensuring public safety and protecting public order, the Court of Appeal held that Article 329 of the Code of Criminal Procedure was also at issue in the present case.

The applicants appealed to the Court of Cassation. They contended that the communications in question had been transmitted on unencrypted frequencies and thus could not be treated as confidential. Furthermore, they had been acting in a professional capacity as journalists, and their actions were therefore justified under Article 51 of the Criminal Code and in terms of freedom of the press.

In a judgment of 28 October 2008 the Court of Cassation found against the applicants, upholding the Court of Appeal’s position as to the confidential nature of the communications and reiterating that this interpretation was consistent with its own approach in similar cases, particularly in judgments no. 25488 of 6 May 2004 and no. 5299 of 15 January 2008.

Addressing the applicants’ argument concerning freedom of the press, the Court of Cassation stated that the right to impart information, which they had relied on, might have prevailed over the public interests protected by criminal law in a case of alleged defamation. However, that right could not take precedence in a case concerning the illegal interception of communications between law-enforcement officers.


CASE OF ZELENCHUK AND TSYTSYURA v. UKRAINE

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Respondent State to take measures of a general character (Article 46-2 - General measures);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The first applicant was born in 1947 and lives in Dolyna, a city in the Ivano-Frankivsk Region.

In December 1996 her mother obtained a share of land in the village of Kopytkove in the Zdolbunivsky district of the Rivne region (see paragraphs 11 to 14 below concerning the nature of shares of land and their subsequent conversion into plots). Following her mother’s death in November 1999, the first applicant inherited that share and obtained a certificate confirming that she had become its new owner on 25 May 2000. On 10 January 2006 the Zdolbuniv District State Administration allocated a plot of land to her measuring 2.5917 hectares, zoned for use as an individual smallholding (особисте селянське господарство, see paragraph 18 below for a description of zoning categories of agricultural land under Ukrainian law).

The applicant obtained a property certificate in respect of that land on 13 August 2007. She rented out 2.0917 hectares to a company under a lease registered on 30 May 2015 and due to expire on 10 November 2021, and 0.5 hectares to another company under a fifteen-year lease registered on 10 August 2016. According to the applicant, she receives rent in kind, either in grain or sunflower oil, depending on the crops grown on the land in a given year.

The second applicant was born in 1939 and lives in Ternopil.

On an unspecified date his mother obtained the right to a share of land in the village of Rakovets in the Zbarazh district of the Ternopil region. In November 2004 he inherited it from her. On 27 March 2008 the Zbarazh District State Administration allocated 3.41 hectares of agricultural land to him, zoned for commercial agricultural production (товарне сілськогосподарське виробництво). He obtained a property certificate on 22 July 2008.

The land is rented by a limited liability company. Since 2010 the second applicant has received rent in the following amounts:

The applicants’ land is subject to legislative restrictions on alienation and change of designated use, which are described in “Relevant domestic material” and, as regards their current state, in paragraph 22 below.