Violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

On 19 September 1974 the Council of Ministers of the Republic of Cyprus approved the introduction of a scheme of aid for displaced persons and war victims. Under the scheme, displaced persons were entitled to refugee cards. The holders of such cards were (and still are) eligible for a range of benefits including housing assistance. For the purposes of the scheme the term “displaced” was determined as being any person whose permanent home was in the areas occupied by the Turkish armed forces, in an inaccessible area, or in an area which had been evacuated to meet the needs of the National Guard.

To implement the scheme, the Director of the Care and Rehabilitation of Displaced Persons Service (“SCRDP”) issued a circular on 10 September 1975. The circular provided that non-displaced women whose husbands were displaced could be registered on the refugee card of their husbands. It also provided that children whose fathers were displaced could be registered on the refugee card of their fathers (see paragraph 20 below). No provision was made for the children of displaced women to be registered on the refugee cards of their mothers.

Although the term “displaced” was extended by the Council of Ministers on 19 April 1995 (see paragraphs 23 and 24 below), at the time of the facts giving rise to the present application it had not been extended to allow children whose mothers were displaced but whose fathers were not, to qualify for refugee cards.

The applicant’s mother has been a refugee since 1974. Her mother is the holder of a refugee card.

In September 2002, the applicant married and began looking for a house for her family in Kokkynotrimithia. She wished to obtain housing assistance and so, on 27 February 2003, applied to the Civil Registry and Migration Department of the Ministry of the Interior for a refugee card with occupied Skylloura, the place from which her mother was displaced, as her place of displacement.

By letter dated 6 March 2003 the request was rejected on the basis that the applicant was not a displaced person because, while her mother was a displaced person, her father was not.

The applicant filed a recourse before the Supreme Court challenging the above decision. She claimed, inter alia, that the decision was in violation of the principle of equality safeguarded by Article 28 of the Constitution and in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. She claimed that it also breached Article 13 of the Convention.

A single judge of the Supreme Court dismissed the recourse on 12 May 2004, finding that, on the basis of the relevant case-law, the extension of the applicable criteria so as to cover the children of displaced women was not possible. The question of extending the term “displaced” to cover the children whose mothers were displaced but whose fathers were not had been repeatedly discussed before the House of Representatives’ Committee for Refugees. A proposal to change the law to that effect had been placed before the Committee but was never approved. Furthermore, because of the consequences which would ensue from such an extension of the term “displaced”, the Minister of the Interior had referred the question to the Council of Ministers for its consideration and, on 19 April 1995, the Council of Ministers had decided not to extend the term in this manner (see the relevant domestic law and practice set out at paragraphs 23 and 24 below).

On 23 June 2004 the applicant filed an appeal before the Supreme Court.

By judgment of 3 March 2006 a five-judge panel of the Supreme Court dismissed the appeal and upheld the findings of the first instance court.

The Supreme Court held as follows:

“[In the present appeal] an attempt was made to demonstrate that we must depart from the above [first instance] decision, since the Supreme Court can, in the present case, proceed to the so-called “extended interpretation” and, by invoking the principle of equality, widen the application of the criterion to the children of displaced mothers as well.

The proposed extension of the plan was placed before the Council of Ministers in Proposal no. 1852/92, which was submitted by the Ministry of the Interior to amend the criteria for providing assistance to displaced persons. However the decision taken refers only to amendments which do not concern the present case. Despite the fact that, on 19 April 1995, by decision no. 42.465 of the Council of Ministers, further amendments were made by which the term ‘displaced’ was extended and now includes other categories of those entitled, the point which concerns us in this case remains unchanged.

In accordance with the case-law (Dias United Publishing Co Ltd v. The Republic, [1996] 3 A.A.D. 550), the non-existence of a legislative provision cannot be remedied by judicial decision because, in such a case, the constitutional control which the Supreme Court exercises would be turned into a means of reshaping or supplementing the legislation.

We have given this matter very serious consideration in view also of the position that, in the case of an arrangement favouring one sex only, the extended application of the provision also finds support in European Community Law ...

However this may be, we cannot depart from the prevailing case-law. Dias United Publishing Co Ltd v. The Republic, cited above, fixed the framework of the jurisdiction of the Supreme Court. The Supreme Court has, in accordance with Article 146(4) of the Constitution, the power to uphold in full or in part the decision appealed against or to declare the act or omission invalid. It does not have jurisdiction to legislate by extending legislative arrangements which did not meet with the approval of parliament. This would conflict with the principle of the separation of powers. We note that the House of Representatives cannot of its own accord enact legislation which would incur expenditure. If the House of Representatives, the constitutionally appointed legislative organ, does not have such a right, the Supreme Court has even less of a right.

In agreement with the principles set out above, we conclude that the Supreme Court does not have the competence to proceed to an extended application of a legislative arrangement.”

The same issue of the non-extension of refugee cards to the children of displaced women was also considered by the Supreme Court in Anna Giagkozi v. the Republic (case no. 291/2001). That challenge was rejected at first instance on 30 April 2002 ((2002) 4 A.A.D. 405), the court finding that, while it was difficult to understand why there should not be uniform treatment between the children of displaced men and displaced women, on the basis of Dias United, cited above, it was unable to grant the relief sought. This was because Ms Giagkozi was, in effect, asking the court to extend the relevant legal framework so that the benefits provided to children of displaced fathers would be provided to children of displaced mothers. An appeal against that judgment was dismissed on 3 March 2006 by the same bench which dismissed the present applicant’s appeal (the appeal judgment in Giagkozi is reported at (2006) 3 Α.Α.D. 85).


Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant, Mr Nicolae Popa, is a Romanian national who was born in 1955 and lives in Orşova.

The facts of the case, as submitted by the parties, may be summarised as follows.

By an order issued on 19 June 2001 the applicant was discharged from the position of deputy chief of the Caraş Severin Border Police Department. The discharge order was not communicated to him.

From July 2001, the applicant began to submit letters to different authorities asking to be sent a copy of the order and contesting the discharge measure.

On 11 February 2002, the applicant lodged an action with the domestic courts seeking the withdrawal of the discharge order of 19 June 2001 and the recalculation of his salary rights.

After a first set of proceedings, by a judgment of 30 July 2005 the Mehedinţi County Court dismissed the applicant’s action on the ground that it had not been lodged within thirty days of the communication of the order, as required by law. It held that the applicant’s enquiries to the authorities proved that he had become aware of the discharge order more than thirty days before lodging his action.

The applicant lodged an appeal on points of law on the ground that the order of 19 June 2001 had never been communicated to him, and stated that in his letters to the authorities he had in fact been requesting them to communicate to him the reasons for his discharge. Moreover, the authority that had issued the order had an obligation to prove that it had communicated such reasons to him, which it had not done.

On 22 March 2006, the Craiova Court of Appeal dismissed the appeal. It found that the applicable legislation was section 5 of the Administrative Litigation Act (Law no. 29/1990). The relevant excerpts of its decision read as follow:

« The applicant was discharged by Order no. 231645 of 19 June 2001...

On 9 September 2001 the applicant complained of [his discharge] to the Ministry of the Interior. On page 3 of his written complaint (memoriu) he claimed to have been unjustly discharged, which proves that the applicant was already aware of the order on 9 September 2001. The time-limit for administrative complaint (contestare pe cale administrativă) runs from this date.

Having in mind the date on which the applicant was aware of the content of Order no. 231645/19 June 2001, more precisely on 9 September 2001 at the latest, the firstinstance court correctly allowed the exception and found that the action was lodged out of time ...

The applicable legal norm ... is section 5 of Law no. 29/1990.

According to section 5 paragraphs 1 and 2 of Law no. 29/1990, an individual who is deemed to have suffered as a result of an administrative act ... is to address himself to the administrative litigation tribunal within thirty days of the communication of the decision or within thirty days of the expiry of the time-limit for the administrative complaint (contestaţia administrativă).

Therefore, [the applicant] should have lodged the action on 10 November 2001 at the latest.”

The relevant provisions of the Administrative Litigation Act, in force at the material time, read as follows:

“(1) Every individual or legal person who considers that his or her rights recognised by law have been prejudiced by an administrative act or by the unjustified refusal of a public authority to resolve an issue related to a right recognised by law may address himself to the competent court to seek the quashing or withdrawal of the act, the recognition of the right that is claimed, or the reparation of the damage thus caused.

(2) If the public authority does not respond to the petitioner within thirty days of the registration of the claim, unless the law sets a different time-limit, this is also considered to be an unjustified refusal to solve a request related to a right recognised by law.”

“(1) Before requesting the courts to quash or withdraw an act or to render its delivery mandatory, the person who is deemed to have suffered damage shall address himself to the authority that issued it [the act], within thirty days of the communication of the administrative act or within thirty days of the expiry of the time-limit set out in section 1 paragraph 2; the authority that issued the act must resolve the claim within thirty days.

(2) If the person who is deemed to have suffered damage is not satisfied with the resolution of his or her claim, he or she can address the courts within thirty days of communication of the outcome ...

(4) The courts may be addressed even when the administrative authority that issued the act or its hierarchical superior have not resolved the claim within the timelimit set out in paragraph 1.

(5) In all instances, the courts may be addressed no later than one year from the day of the communication of the act in question.”

“The petitioner shall simultaneously attach the contested administrative act or, as the case may be, the response of the administrative authority which communicated the refusal to resolve the claim (which is related to a right recognised by law). If the claimant does not receive a response, he or she shall attach a copy of the request, certified for conformity ...”


Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Mr Veit Aurnhammer, is a German national who was born in 1984 and is currently detained in Straubing, Germany. When lodging his application he was represented before the Court by Mr G. Althammer, a lawyer practising in Cham, Germany. The latter informed the Court on 1 August 2014 that he no longer represented the applicant.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 19 August 2004 the applicant was convicted by the Regensburg Juvenile District Court of causing bodily harm and damage to property because he had hit two ticket collectors in the face when they tried to prevent him from evading ticket controls and had damaged their clothes and glasses. He was further convicted of defamation and attempted coercion as he had insulted a prosecutor during one of his previous trials and had tried to intimidate her. Moreover, he was convicted of dangerous bodily injury because he had attacked with a knife the neck of a sleeping cellmate of whom he had previously felt humiliated and slightly injured him. Besides, the applicant was convicted of various offences of theft, minor fraud, and trespassing. Adding on another prison sentence imposed on the applicant in a previous judgment of 15 February 2000 for various offences of defamation, resisting bailiffs, bodily injury and theft, the court sentenced the applicant to an overall prison term of two years and six months in a juvenile prison.

Besides, the Court ordered the applicant’s indefinite placement in a psychiatric hospital in accordance with Article 63 of the Criminal Code (see paragraphs 17 and 18 below).

At the time the applicant committed the relevant criminal offences he was between nineteen and twenty years old. The court decided to apply the juvenile criminal law instead of the criminal law rules applicable to adults because it found, in line with the report of the psychiatric expert Dr S., deputy medical director (Oberarzt) of the forensic psychiatry and psychotherapy department of Regensburg Psychiatric Clinic and with the additional psychological expert opinion of psychotherapist H., that the applicant’s development as an adult was delayed, that he was still immature and had therefore to be treated as a juvenile and not as an adult. The court further found, in line with the psychiatric experts’ opinions, that the applicant had committed the criminal offences of causing bodily harm and damage to property, dangerous bodily injury, defamation and attempted coercion while in a state of diminished criminal responsibility (Article 21 of the Criminal Code, see paragraph 19 below), as he suffered mainly from a “borderline personality disorder of an impulsive type with dissocial components” and also from “adult hyperactivity syndrome”, which limited his ability to control his impulses. With regard to the other criminal offences he was convicted of, the court, in line with the psychiatric experts’ opinion, regarded the applicant as fully liable.

On 2 November 2005, 27 September 2006 and 27 September 2007 the criminal courts reviewed the applicant’s compulsory confinement in the psychiatric clinic in accordance with Articles 67d and 67e of the Code of Criminal Procedure (see §§ 20/21 below) and found on all three occasions that the applicant’s detention in a psychiatric clinic could not yet be suspended on probation. For the purposes of these review decisions, the inhouse psychiatric doctors at Straubing Psychiatric Hospital issued medical opinions on 9 August 2005, 14 August 2006 and 2 July 2007.

On 9 October 2008 the District Court again decided that the applicant still suffered from the psychological disorder which had led to the criminal offences of which he had been convicted in 2004 and that he could be expected to commit further offences of a certain gravity if released. The decision was delivered after having heard the applicant on 26 September 2007 and again on 21 May 2008. It was based on the above-mentioned expert opinion of 2 July 2007 by the in-house psychiatric team at Straubing Psychiatric Hospital and on a newly commissioned external expert opinion of the psychiatric expert Prof. Dr O., head of the forensic psychiatry and psychotherapy department of the University of Regensburg at Regensburg Psychiatric Clinic, who had delivered his expert opinion on 19 February 2008, had supplemented it on 28 July 2008 and had personally been heard by the court on 21 May 2008.

In the medical report of 2 July 2007 the team of in-house psychiatric experts at Straubing Psychiatric Hospital had expressed the view that the applicant could be expected to commit further crimes if released because he showed no insight into his psychological disorder. The expert opinion had further expressed the suspicion that the applicant might in fact be schizophrenic.

In his expert opinion Prof. Dr O. had diagnosed the applicant with an “emotionally unstable personality disorder of the impulsive type” and possibly also with “adult hyperactivity syndrome”. O. had further stated that, despite the fact that the personality of the applicant had matured considerably during his confinement, he could not at this stage be expected to abstain from committing any significant crimes if released. Although the applicant had obviously benefited from his placement in a psychiatric hospital and had not committed any criminal offences within the hospital, he was still not psychologically stable enough to be released. The biggest obstacle to his release was that the applicant still had very little insight into the fact that medical treatment was necessary now and in the future after a possible release. His compliance with his treatment had hence not yet been achieved. Furthermore, the applicant would need clearly structured sheltered accommodation if released. The preparations for such accommodation were not yet in place. The expert had further stated that, if the applicant could be further stabilised by psychotherapy, if his compliance with his treatment could be achieved in the future and if a place in adequately structured sheltered accommodation was prepared, the applicant could be released but would need to be prepared over a period of six to twelve months for such release on probation.

Following an appeal by the applicant, the Regional Court upheld the decision of the District Court on 16 January 2009.

On 8 October 2009 the District Court decided in accordance with Article 67d § 2 of the Criminal Code (see paragraph 19 below) that the applicant could not yet be released because, owing to his ongoing psychiatric illness, he could still be expected to commit crimes of a certain gravity if released. The Court based its decision on a newly commissioned expert opinion of the internal psychiatric team of Straubing Psychiatric Hospital of 7 July 2009 and the oral hearing of the deputy medical director treating the applicant of 30 September 2009.

The respective medical experts were still of the view that the applicant could be expected to commit further crimes if released, because he still lacked sufficient insight into his psychological disorder. There was still a suspicion that he might in fact be suffering from schizophrenia rather than from a borderline personality syndrome. But as he refused to cooperate fully with the doctors, a clear diagnosis that would allow a more specific treatment was difficult. The idea that the applicant was suffering from schizophrenia was therefore only a presumption which could not be confirmed or refuted. More rapid results from the applicant’s treatment could only be achieved if he complied fully with the medical and psychotherapeutic treatment. As he still had a negative attitude towards the medication and the psychotherapists, sufficient progress to justify his release could not be achieved.

On 23 December 2009 the Regional Court upheld the decision. It based its decision on the above-mentioned external medical opinion of Prof. Dr O. of 19 February and 21 May 2008 respectively and on the internal expert opinion of the psychiatric team of Straubing Psychiatric Hospital of 7 July 2009. The court held that there was still a clear diagnosis of “emotionally unstable personality disorder of the impulsive type” and possibly also of “adult hyperactivity syndrome”. This diagnosis did not contradict the diagnosis of “borderline personality disorder of an impulsive type with dissocial components” established by S. at the time of the applicant’s initial compulsory confinement. According to the Regional Court, Prof. Dr O. had made it clear before the court that that diagnosis just gave a more precise description of the mental disturbance from which the applicant had already been suffering when he committed the offences of which he had been convicted and when he had been compulsorily admitted, but did not describe a new mental illness.

The court further held that the idea that the applicant in fact suffered from schizophrenia was only an unverified presumption. His situation had not changed since the external expert O. had given his opinion on 19 February and 21 May 2008. According to the statement of the in-house psychiatric doctor, the applicant had still not developed any insight into his psychological illness that would result in full cooperation with regard to his medication. At the same time no structured sheltered accommodation had yet been prepared into which he could be placed after his release. He was therefore still to be expected to commit further crimes of a certain gravity if released. Considering the criminal offences he had committed in the past and the risk that he might again commit similar offences such as causing bodily harm and aggravated bodily injury, his continued detention for more than five years by that time was not yet disproportionate.

A further appeal lodged by the applicant with the Court of Appeal was rejected on the ground that domestic law did not provide for such an appeal.

A constitutional complaint and a request for restoration of the previous situation lodged by the applicant were of no avail. On 10 June 2010 the Federal Constitutional Court declined to admit the constitutional complaint for examination, without giving any reasons, and did not rule on the request for restoration of the previous situation (no. 2 BvR 1001/10).

In accordance with Article 63 of the Criminal Code placement in a psychiatric hospital may be ordered in the case of offenders who have acted without criminal responsibility or in the case of offenders who have acted with diminished criminal responsibility in addition to their punishment. The measure must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants concerned, as well as to their dangerousness (Article 62 of the Criminal Code).

Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court must order his placement in a psychiatric hospital without specifying a maximum duration, if a comprehensive evaluation of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public.

Criminal incapacity and diminished criminal responsibility are regulated by Articles 20 and 21 of the Criminal Code, which read as follows:

Article 20 Criminal incapacity on account of psychological disturbance

“Any person who at the time of the commission of the offence is incapable of understanding the unlawfulness of his or her actions or of acting in accordance with any such understanding on account of a pathological mental disorder, a profound consciousness disorder, mental deficiency or any other serious mental abnormality, shall be deemed to have acted without guilt.”

Article 21 Diminished criminal responsibility

“If the capacity of the offender to understand the unlawfulness of his or her actions or to act in accordance with any such understanding is substantially diminished at the time of the commission of the offence for one of the reasons indicated in Article 20, the sentence may be mitigated in accordance with Article 49(1).”

Article 67d of the Criminal Code governs the duration of detention. In the version in force at the relevant time, it provided:

Article 67d Duration of detention

“(1) ...

(2) If no maximum period has been provided or the period has not yet expired, the court shall suspend the measure for a probationary period if it can be expected that the person subject to the measure will not commit any more unlawful acts if released. The order for suspension shall automatically lead to the person being subjected to supervision.

(6) If, after the enforcement of a hospital order has begun, the court finds that the conditions for the measure no longer exist or that the continued enforcement of the measure would be disproportionate, the court shall declare it terminated. Following release the person concerned shall automatically be placed under supervision. ...”

Article 67e of the Criminal Code provides for the review of a person’s detention, including in a psychiatric hospital. The court may review at any time whether the continued execution of the detention order should be suspended and the person concerned placed on probation. It is obliged to do so within fixed time-limits (Article 67e, first paragraph). For persons detained in a psychiatric hospital, this time-limit is one year (Article 67e, second paragraph).


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Robert Huitson, is a British national, who was born in 1958 and lives in Stockport. He was represented before the Court by Devonshires Solicitors, lawyers practising in London.

The applicant is a qualified electrical engineer and worked as a self-employed Information Technology (“IT”) consultant. The end users of his services were based in the United Kingdom. He would ordinarily account for income tax on the taxable profits of his trade or profession in the United Kingdom.

On 20 June 2001 the applicant became a client of Montpelier Tax Consultants (Isle of Man) Limited (“Montpelier”). Montpelier provided advice to the applicant with respect to a marketed tax avoidance scheme (“the scheme”) centred on the Isle of Man seeking advantage of the United Kingdom-Isle of Man Double Taxation Arrangement 1995 (“the DTA”).

As a result of the scheme, the applicant no longer supplied his IT consultancy services directly to his end-user clients based in the United Kingdom. Instead, an intermediary, the Allenby Partnership (“the Partnership”), which was constituted by five companies incorporated and resident in the Isle of Man, contracted, directly or indirectly with the end-users to provide the applicant’s services. The intermediary received full payment for such services and the applicant received an annual fee of GBP 15,000 (or less) from the intermediary. The rest of his reward for his services was received only in his capacity as the owner of a life interest in a Trust established in the Isle of Man and of which one of the Partnership companies was the trustee.

Until the relevant legislation was amended with retrospective effect, the applicant contended that, as a result of the DTA and the legislation then applicable, the income channelled through the trust was not subject to United Kingdom income tax. Nor, apparently, was it subject to Manx tax, since the beneficiary (the applicant), unlike the trustee, was not resident in the Isle of Man. The effect of the use of the DTA meant that the applicant was able to reduce his effective income tax rate to an average of 3.5%.

In his tax return for the period 2001/2002, the applicant claimed relief from income tax in the sum of GBP 20,350.90 representing trust income. Relying on domestic jurisprudence, the applicant’s case was that the profits received by the trustee as a partner were not treated as belonging to the trustee but to the beneficiary with an interest in possession under the trust, with the consequence that the income arising from his beneficial interest in possession under the trust could not be assessed to United Kingdom tax.

Her Majesty’s Revenue and Customs (“HMRC”) first wrote to the applicant regarding his use of the tax avoidance scheme on 4 December 2003. In that letter he was informed that HMRC was likely to challenge the validity of the claim. No basis for the challenge was mentioned. The applicant was advised to make payment on account in respect of the disputed sum, so as to avoid the accrual of interest and the incurrence of a possible penalty. It appears that he chose not to do so.

Similar correspondence followed in respect of tax years 2002/2003, for which the applicant claimed relief of GBP 27,350; 2003/2004, for which he claimed relief of GBP 32,405.71, and 2005, for which he claimed relief of GBP 38,250.

On 14 February 2006, HMRC set out reasons for the challenges to the claims of relief, and on 16 May 2007 it informed the applicant that it was preparing a number of lead cases to take to the Special Commissioners regarding the validity of the claims to the DTA.

However, before the cases were listed, the United Kingdom Government announced, in its Budget of 12 March 2008, proposals to introduce what became section 58 of the Finance Act 2008 (“the 2008 Act”), which came into force on 21 July 2008. Section 58 of the Finance Act of 2008 amended with retrospective effect the existing legislation in section 858 of the Income Tax (Trading and Other Income) Act 2005. Any assessment to income tax (in the absence of fraud or negligence) was limited to six years, so that the retrospective effect of section 58 extended no further back than to the tax year 2001/2002. The effect of this change of legislation was to render the scheme ineffectual and to impose on the applicant and others in a similar position liability to pay United Kingdom income tax on trust income received in past years.

HMRC revised the applicant’s tax assessments accordingly. The revisions and the validity of the legal basis on which they were made were challenged by the applicant by way of legal proceedings.

The applicant brought judicial review proceedings in the High Court against HMRC on 21 October 2008. At this stage his outstanding tax liability was more than GBP 100,000. He sought to challenge sections 58(4) and (5) of the 2008 Act under the Human Rights Act 1998. His ground of challenge was that these sections of the 2008 Act changed fiscal legislation regarding double taxation relief with retrospective effect and that such retrospective amendment did not strike a fair balance as required by Article 1 of Protocol No. 1 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights.

On 28 January 2010 Mr Justice Kenneth Parker dismissed the claim, finding that the challenged legislation, although having retrospective effect was, in the relevant circumstances, proportionate and compatible with Article 1 of Protocol No. 1.

The applicant appealed to the Court of Appeal, which heard the matter over three days in November 2010, and judgment was delivered on 25 July 2011. Lord Justice Mummery giving the lead judgment dismissed the appeal, finding that the High Court judge had not been wrong to conclude that the retrospective provisions of the 2008 Act were proportionate and compatible with Article 1 of Protocol No. 1. Mummery LJ noted that the applicant had taken advantage of a marketed tax avoidance scheme for no other purpose than the avoidance of United Kingdom income tax. According to him, the retrospective amendments were enacted pursuant to a justified fiscal policy that was within the State’s area of appreciation and discretionary judgment in economic and social matters. The legislation achieved a fair balance between the interests of the general body of taxpayers and the right of the applicant to the enjoyment of his possessions, without imposing an unreasonable economic burden on him. Moreover, the legislation prevented the DTA tax relief provisions from being misused for a purpose different from their originally intended use. On the issue of prior test litigation, Mummery LJ upheld Parker J’s finding that there was no legal obligation on the State to test the matter of the efficacy of the scheme in the courts before enacting legislation. Moreover, taxpayers were not powerless to bring the issue to a head themselves (under provisions in s.28A of the Taxes Management Act 1970) without waiting for HMRC to bring proceedings in respect of the arrangements. They did not pursue such a course. Concerning a possible pre-legislation assessment of the impact of retrospectivity on the taxpayers concerned, Mummery LJ found in the circumstances such an assessment would not have yielded any relevant information which HMRC did not already know.

At this stage, the figure of the tax relief the applicant was ultimately deprived of was in the region of GBP 195,000. According to Mummery LJ, this liability was no more an unjustified interference with his enjoyment of his possessions than the ordinary liability that his fellow residents in the United Kingdom were under a duty to contribute, by way of United Kingdom tax on their income, towards the costs of providing community and other benefits for the purposes of life in a civil society.

On 7 February 2012 the Supreme Court of the United Kingdom denied permission to appeal.

United Kingdom-Isle of Man Double Taxation Arrangement 1995 (“the DTA”):

“3 (2) The industrial or commercial profits of a Manx enterprise shall not be subject to United Kingdom tax unless the enterprise is engaged in trade or business in the United Kingdom through a permanent establishment situated therein. If it is so engaged, tax may be imposed on those profits by the United Kingdom, but only on so much of them as is attributable to that permanent establishment.”

Section 858 of the Income Tax (Trading and Other Income) Act 2005 provided as follows:

“858 Resident partners and double taxation agreements.

(1)This section applies if—

(a) a UK resident (“the partner”) is a member of a firm which—

(i) resides outside the United Kingdom, or

(ii) carries on a trade the control and management of which is outside the United Kingdom, and

(b) by virtue of any arrangements having effect under section 788 of ICTA (“the arrangements”) any of the income of the firm is relieved from income tax in the United Kingdom.

(2) The partner is liable to income tax on the partner’s share of the income of the firm despite the arrangements.

(3) If the partner’s share of the income of the firm consists of or includes a share in a qualifying distribution—

(a) made by a UK resident company, and

(b) chargeable to tax under Chapter 3 of Part 4,

the partner (and not the firm) is, despite the arrangements, entitled to the share of the tax credit which corresponds to the partner’s share of the distribution.”

Section 58 of the Finance Act 2008 provides as follows:

“UK residents and foreign partnerships.

(1) In section 115 of ICTA (partnerships involving companies: supplementary), after subsection (5B) insert—

“(5C) For the purposes of subsections (5) to (5B) the members of a partnership include any company which is entitled to a share of income or capital gains of the partnership.”

(2) In section 59 of TCGA 1992 (partnerships), insert at the end—

“(4) For the purposes of subsections (2) and (3) the members of a partnership include any person entitled to a share of capital gains of the partnership.”

(3) In section 858 of ITTOIA 2005 (resident partners and double taxation agreements), insert at the end—

“(4) For the purposes of this section the members of a firm include any person entitled to a share of income of the firm.”

(4) The amendments made by subsections (1) to (3) are treated as always having had effect.

(5) For the purposes of the predecessor provisions, the members of a partnership are to be treated as having included, at all times to which those provisions applied, a person entitled to a share of income or capital gains of the partnership.

(6)“The predecessor provisions” means—

(a) section 153(4) and (5) of the Income and Corporation Taxes Act 1970 (c. 10) (as it had effect under section 62(2) of F(No.2)A 1987), and

(b) sections 112(4) to (6) and 115(5) of ICTA.”

On the same day as the Court of Appeal gave judgment in the applicant’s case, the same three judges gave judgment in the case of R (Shiner & Anor) v. HMRC C1/2009/08. The claim in that case was for a declaration that the amendments in section 58 of the Finance Act 2008 were incompatible with Article 56 of the TFEU (Treaty on the Functioning of the European Union), as well as Article 1 of Protocol No. 1 of the European Convention on Human Rights. The claimants in that case argued that the amendments made by section 58 were capable of preventing, restricting or discouraging commercial investment of capital in foreign partnerships by means of unjustified discrimination between an investment of capital in a foreign partnership and an investment of capital in a United Kingdom partnership. They argued that its retrospectivity was an infringement of the European Union principles of legal certainty and legitimate expectation. The complaint was dismissed.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1980 and lives in Szigethalom.

Between 13 December 2004 and 4 April 2012 criminal proceedings, on charges of disorderly conduct, were being carried out against the applicant before the Ráckeve District Court, this period including a remittal ordered by the Pest County Regional Court.

The first judgment given by the District Court on 29 March 2010 contained the lapse of time as a minor mitigating factor.

However, the second, final judgment given by the Regional Court on 4 April 2012 (that is, after the remittal) was a simplified decision which did not contain any considerations about mitigation.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing)

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

The applicants were born in 1977, 1969, and 1975 respectively and at the time the case was introduced were imprisoned in Kochubeyevskoye and Aleksandria.

They were among 17 people facing assorted charges related to the socalled Karachay-Circassian Jamaat, a militant Islamist underground movement active in the North Caucasus in the late 1990s and early 2000s.

When the case came to trial before the Stavropol Regional Court, on 12 April 2002 a judge ordered – without giving any explanation – that the trial be held behind closed doors in remand prison IZ26/2 in Pyatigorsk.

On 11 July 2002 the court sentenced the applicants to ten, five, and six years respectively. The applicants lodged an appeal with the Supreme Court, complaining, among other things, that the trial had been closed to the public. On 14 May 2003 the Supreme Court upheld the judgment without replying to the complaint.


Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Article 8 - Right to respect for private and family life)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom

The applicant was born in 1985 and lives in Oryol. He is currently serving his sentence in IK-7 in the village of Areyskoye, Krasnoyarsk Region.

The applicant, his partner and his mother were living in Oryol when the applicant was charged with drug-related crimes.

On 2 December 2009 the Federal Penal Authority (“Федеральная служба исполнения наказаний”, “the FSIN”) of Russia sent a telegram to the FSIN department for the Oryol Region (“the Oryol FSIN”) instructing the latter to send each month up to forty people detained in remand prisons and sentenced to a term of imprisonment in a strict-regime facility to the Krasnoyarsk Region. The instruction was valid as of 1 December 2009 until further notice.

On 7 December 2009 the Sovetskiy District Court of Oryol convicted the applicant of drug-related crimes and sentenced him to twelve years’ imprisonment in a strict-regime post-conviction detention facility. On 2 February 2010 the Oryol Regional Court upheld the conviction on appeal.

Acting on the basis of the FSIN of Russia’s instruction of 2 December 2009, on an unspecified date the Oryol FSIN decided, in view of the overcrowding in the postconviction detention facilities in the Oryol Region, that the issue of which particular facility the applicant would be transferred to should be resolved by the FSIN department for the Krasnoyarsk Region (“the Krasnoyarsk FSIN”). The latter allocated the applicant to IK-7, a strict-regime post-conviction detention facility in the village of Areyskoye, Krasnoyarsk Region (about 4,200 km from Oryol), to serve his sentence. The applicant has been detained there since 20 April 2010.

The applicant has repeatedly asked the penal authorities at different levels to transfer him to a detention facility located closer to Oryol so that he could effectively maintain family ties while serving his sentence.

On 12 November 2010 the FSIN of Russia rejected the applicant’s request, informing him that, under Article 81 of the Code on the Execution of Sentences (“the CES”), in the absence of exceptional circumstances convicts were to serve their prison term in its entirety in the same detention facility, and that there were no such exceptional circumstances in the applicant’s case. They noted as follows:

“[a]s regards maintaining the convict’s social ties, the right to receive visits and parcels as well as the right to correspondence and phone calls should be realised in accordance with the laws on execution of sentences in force and does not depend on the place in which he is serving the sentence.”

The applicant brought civil proceedings against the Oryol FSIN, claiming compensation for pecuniary and nonpecuniary damage caused by their decision to transfer him to a penal facility in the Krasnoyarsk Region in breach of his right, under Article 73 § 1 of the CES, to serve his prison sentence in his home region, which had adversely affected his capacity to maintain his family and social ties.

On 3 August 2012 the Zavodskoy District Court of Oryol dismissed the claims for damages with reference to Article 73 § 2 of the CES and Ruling No. 1700-O-O of the Constitutional Court of Russia. The court held that the Oryol FSIN’s decision had been lawful because between December 2009 and February 2010 the penal facilities in the Oryol Region had been overcrowded. It also noted that the defendant had acted in accordance with the FSIN of Russia’s instructions. The court did not address the applicant’s argument regarding his difficulties in maintaining family ties because of the distance between his family home and the detention facility. It appears that the applicant did not appeal against the judgment.

Between July 2011 and October 2013 the applicant’s partner made long-term family visits to IK-7 on six occasions. In 2014 she gave birth to the couple’s daughter. While in IK-7, the applicant received a number of parcels and phone calls from his mother and partner.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1966 and lives in Şanlıurfa.

The facts of the case as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

On 4 March 2005 the applicant’s mother-in-law, Mrs Aişe Sayğı, submitted a petition to Suruç prosecutor D.K., and informed him that on 3 June 1994 her son Mustafa Sayğı, ‐ the applicant’s husband ‐ had been travelling home on his motorbike when he was stopped and apprehended by soldiers who had set up a temporary base in a public building near Yoğurtçu village. She described the motorbike as “Russian-made, red and with a basket”. She told the prosecutor that nothing had been heard from her son since that date and that the complaint she had made to the authorities some six days after the disappearance had not elucidated any response. She gave the prosecutor the names of two villagers who, she claimed, had witnessed her son being apprehended, and asked the prosecutor to make enquiries in order to find her son.

The same day the Suruç prosecutor D.K. questioned Aişe Sayğı in relation to her above-mentioned petition. Mrs Sayğı confirmed the contents of her petition detailed above and added that the family had been informed about the incident some two days afterwards by villagers who had witnessed the incident. Her elder son, Mehmet Sayğı, had then gone to the military base near Yoğurtçu village where he was informed that his younger brother had been transferred to the gendarmerie station in Suruç. When Mehmet Sayğı had gone to the gendarmerie station in Suruç, he was told that his brother’s questioning was continuing and that it would probably continue for another three days.

When Mustafa Sayğı was not released, Mehmet Sayğı had gone to the Suruç prosecutor’s office and informed the prosecutor of the detention of his younger brother. When the prosecutor had contacted the military authorities he was told that Mustafa Sayğı had never been detained by the military. The family’s subsequent attempts to find Mustafa Sayğı had not yielded any results.

A detailed investigation was carried out by Suruç prosecutor D.K. into the allegations made by Mrs Sayğı. In the course of that investigation the prosecutor questioned the two villagers named by Mrs Sayğı as eyewitnesses and identified and questioned as suspects fourteen soldiers who had been based at the temporary military station at the time of the disappearance. The prosecutor also questioned family members who informed the prosecutor about the steps they had taken to find Mustafa Sayğı. Both the police and the military authorities contacted by the prosecutor denied that Mustafa Sayğı had been detained as alleged.

The two eyewitnesses named by Mrs Sayğı told the prosecutor that on 3 June 1994 they had been travelling to their village when they were stopped by soldiers outside the temporary military base near Yoğurtçu village. While the soldiers were checking their identity documents, Mustafa Sayğı had arrived at the scene and had also been stopped by the soldiers. After their identity papers had been checked they had been allowed to leave but Mustafa Sayğı had been detained. They had then informed Mustafa Sayğı’s family about what had happened.

The security forces personnel questioned by the prosecutor as suspects confirmed that at the time of the events a disused public building outside Yoğurtçu village had been used as a temporary military base. The soldiers denied, however, that they had detained the applicant’s husband.

The gendarmerie headquarters contacted by the prosecutor stated in a letter of 11 May 2005 that they had no information in their possession to show that Mustafa Sayğı had had any links with the PKK. The police headquarters, on the other hand, informed the prosecutor that they had statements indicating that Mustafa Sayğı had been working as a courier for the PKK prior to his disappearance.

At the end of his investigation, the Suruç prosecutor D.K. concluded in his decision of 13 July 2006 that Mustafa Sayğı had been unlawfully detained by the military in the temporary military base near Yoğurtçu village. The prosecutor did not attach any weight to the denials of the military personnel who had been on duty at the time of Mustafa Sayğı’s detention and considered that the military personnel’s denials were outweighed by the consistent eyewitness accounts of civilian villagers. Nevertheless, as the end of the prescription period for the offence of false imprisonment had been reached, the prosecutor concluded that he could not indict the military personnel responsible for the unlawful detention of Mustafa Sayğı. The prosecutor also considered that there was insufficient evidence to prove that Mustafa Sayğı had been killed while in the hands of the soldiers.

The applicant lodged an objection against the prosecutor’s decision with the Siverek Assize Court and submitted that nothing had been heard from her husband after his unlawful detention. She argued that similar unlawful detentions had peaked in that area in 1994 and that the relatives of those who had disappeared had been too frightened to complain to the authorities on account of their fears of the military. She invited the Assize Court to take into account the possibility that her husband, who had been suspected of having links with the PKK, would in all likelihood be subjected to “torture” by the soldiers. Torture was a criminal offence to which the statute of limitations was not applicable; thus, the decision of the prosecutor to close the investigation on account of the expiry of the statutory time-limit had been wrong.

The objection lodged by the applicant was rejected by the Siverek Assize Court on 29 November 2006.

On 11 December 2009 a number of soldiers saw Mustafa Sayğı’s elder brother Mehmet Sayğı digging in an area near Yoğurtçu village. Mehmet Sayğı told the soldiers that he had had a dream and that, according to his dream, his brother Mustafa Sayğı was buried in that place.

The same day Mehmet Sayğı also informed the Suruç prosecutor M.A., who went to the area and ordered that the site be dug up. During the digging a total of 30 bones, fabrics, a small axe and the remains of a red motorbike were found. The bones and the motorbike parts, together with soil samples, were taken away by gendarme soldiers for forensic examinations.

The same day the applicant also talked to prosecutor M.A. and told him about the disappearance of her husband Mustafa Sayğı. She asked the prosecutor to establish whether the bones found during the excavation belonged to her husband, who had disappeared while travelling on his red motorbike.

Mustafa Sayğı’s brother Mehmet Sayğı told prosecutor M.A. that he had no doubts whatsoever that the items discovered during the excavation belonged to his brother. He said that he recognised the motorbike and the axe which had been given to Mustafa Sayğı by the family. Mehmet Sayğı also informed the prosecutor about the eyewitnesses who claimed to have seen his brother in the hands of the soldiers.

Gendarmerie forensic experts who examined the metal parts found in the area stated in their report that they belonged to a motorbike. The experts were not able, however, to identify the type or make of the motorbike due to corrosion, but considered that the motorbike resembled an “Izh” motorbike (a manufacturer at Izhevsk in Russia). The chassis numbers and letters of the motorbike – in Russian – are reproduced in the report of the experts.

The bones were examined at the Forensic Medicine Institute. It was established that the bones were animal bones.

According to a report drawn up on 1 February 2010 by the forensic laboratory of the police, the soil on the motorbike parts matched the soil samples taken from the place. However, the soil on the bones did not match the soil samples taken from the place. It was advised in this report that it had to be born in mind when evaluating the report’s conclusions that the forensic examination had not been carried out in order to establish whether the soil samples taken from the bones and the soil samples obtained from the place of digging had come from the same place. Rather, the aim of the forensic examinations had been to establish whether the two soil samples had any physical and chemical similarities.

According to a report prepared by the police on 14 January 2010, no prior applications had been made to them about the disappearance of Mustafa Sayğı. According to a similar report prepared by the military, no one had made any enquiries about any disappearance of a person with the name of Mustafa Sayğı and there had been no temporary or permanent military station at Yoğurtçu village at the time of the events.

On 7 April 2010 Suruç prosecutor M.A. decided to close his investigation on the basis that the bones were not human bones. He added that the model and make of the motorbike had not been established and that the basket attached to the motorbike had not been recovered. The prosecutor further stated in his decision that there was no evidence to show that Mustafa Sayğı had been arrested by the soldiers or to show that there had been a temporary military base near Yoğurtçu village at the time of the incident.

The applicant lodged an objection with the Siverek Assize Court against the prosecutor’s decision and argued that the investigation had been incomplete. She submitted, in particular, that prosecutor M.A. had failed to take account of the conclusion reached by his predecessor in 2006, namely that her husband had been unlawfully detained by soldiers. She also submitted that the bones had been dug up in the presence of a prosecutor and secured by that prosecutor. Thus, having regard to the finding that the soil on the bones did not match the soil samples, the prosecutor should have considered the possibility that the bones might have been switched.

In her petition the applicant also referred to the Convention, and requested that the investigation be continued to find those responsible for the disappearance of her husband. She argued that carrying out an effective investigation was necessary in order to avoid “the State being put on trial before the European Court of Human Rights for its failure to protect the right to life of her husband”.

The objection was rejected by the Siverek Assize Court on 7 June 2010. No mention was made in the decision about the points raised by the applicant in her objection. The Assize Court’s decision was communicated to the applicant on 21 June 2010.


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant, Mr Vladimir Nikolayevich Smagilov, is a Russian national, who was born in 1959 and lives in Perm.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1999 the applicant bought a desktop computer from a private company F. He subsequently brought proceedings claiming that he had been misled about the technical characteristics of the hardware, that he had not been provided with a user manual, that the seller had failed to comply with consumer protection legislation and that the warranty was partly void.

On 26 October 1999 the Sverdlovskiy District Court of Perm (“the District Court”) issued a summary judgment in the applicant’s favour annulled the sale and ordered payment of damages. However, on 19 October 2000 the judgment was set aside on appeal by the Perm Regional Court (“the Regional Court”) and the case was sent back for reconsideration.

In order to secure enforcement of the future judgment the applicant requested the District Court to apply interim measures, namely the attachment of the hardware in the defendant’s possession and an order for the defendant to deposit the amount of the damages claimed or, alternatively, the attachment of property in the same amount.

On 11 March 2001 the District Court granted the applicant’s request in part and ordered the attachment of the hardware in the defendant’s possession. The other requested measures were refused in view of the defendant’s solvency and active participation in the proceedings. The applicant did not appeal.

On 5 February 2002 the District Court gave a new judgment allowing the applicant’s claims in part concerning the warranty on the hardware and dismissing all the other claims. On 11 June 2002 the Regional Court set aside the judgment in part and required that the remaining claims be reconsidered.

In a summary judgment of 19 December 2002 the District Court awarded the applicant 357,319 Russian roubles (RUB) (10,900 euros (EUR)) in damages and ordered the defendant to replace the original desktop computer.

On 30 April 2003 the Bailiffs’ Service at the request of the applicant initiated enforcement proceedings against the debtor company F.

In view of the apparent lack of progress in the enforcement proceedings, in 2004 the applicant lodged a new action seeking annulment of the sale and recovery of damages. On 15 June 2004 the District Court in a summary judgment granted his claims, annulled the sale and awarded the applicant an additional RUB 265,879 (EUR 8,100) in damages.

On 20 May and 8 October 2004 the competent authorities refused to open criminal proceedings against the debtor company for its failure to comply with the judgment. The decision of 8 October 2004 was upheld at last instance by the Regional Court on 8 February 2005.

Discontent with the lack of progress in the enforcement of the judgment of 19 December 2002, the applicant requested that the bailiff’s actions and inaction be recognised as unlawful. On 10 November 2004 the District Court found that the enforcement proceedings were indeed tainted by unjustified delays and inaction and the bailiff’s inaction was ruled unlawful.

In 2005 the applicant also brought proceedings against the regional Judicial Department seeking damages for the allegedly unlawful refusal of the District Court judge to apply the requested interim measures to secure enforcement of the judgment (see paragraphs 6-7 above).

On 5 September 2005 the District Court dismissed the complaint without consideration on the ground that it lacked legal basis. The dismissal was upheld on appeal by the Regional Court on 4 October 2005.

In 2007 the applicant attempted to initiate civil proceedings against the Treasury of the Russian Federation and the regional Bailiffs’ Service for the failure to enforce the judgment in his favour. On 3 May 2007 the proceedings were adjourned by the District Court owing to the applicant’s failure to formulate his claims against all of the defendants and to provide their postal addresses. The applicant was given time to correct these defects. On 12 July 2007 the Regional Court upheld the adjournment on appeal. It appears that the applicant has never corrected the defects indicated by the domestic courts and that the proceedings have remained adjourned.

The basic principles regarding compensation for damage caused by public authorities and their officials are enshrined in the Constitution of the Russian Federation of 1993. In Article 53 the Constitution provides that everyone is entitled to compensation for damage caused by unlawful actions (or inaction) of State bodies and their officials. Article 52 secures the abovementioned right with a constitutional obligation of the State to ensure access to a court and compensation for damage in cases where public authorities and their officials infringe rights protected by law.

The Code of Civil Procedure of the Russian Federation of 2002, which entered into force on 1 February 2003, establishes the framework for challenging the decisions or actions (or inaction) of any State or local self-government authority or official.

Chapter 25 of the Code of Civil Procedure, entitled “Proceedings to challenge decisions and actions (or inaction) of State bodies, local selfgovernment authorities, officials or State or municipal civil servants” provides in the relevant part as follows:

“1. A citizen or legal person may challenge before a court any decision, action (or inaction) of a State or local self-government authority, official, or a State or municipal civil servant if they consider that their rights and freedoms have been violated. A citizen or legal person may lodge an application directly with a court or with a superior, in order of subordination, State or local self-government authority or official, or State or municipal civil servant.

The court may suspend enforcement of the challenged decision until entry into force of the judicial decision.”

“The decisions, actions (or inaction) of State or local self-government authorities, officials, or State or municipal civil servants, which may be challenged in civil proceedings are collective and independent decisions, actions (or inaction) resulting in:

- a violation of a citizen’s rights and freedoms,

- a restriction on the exercise by a citizen of his rights and freedoms,

- an obligation or legal responsibility of a citizen that is devoid of lawful basis.”

“1. Where the court establishes that an application is well-founded, it shall adopt a decision ordering the relevant State or local self-government authority or official, or State or municipal civil servants to provide full redress for the violation of the rights and freedoms or the restriction on the exercise by a citizen of his rights and freedoms. ...

The court shall dismiss an application if it establishes that the challenged decision or action was adopted or performed within the scope of powers of a State or local self-government authority or official, or State or municipal civil servant, and that the rights and freedoms of a citizen were not violated.”

Article 136 of the Code of Civil Procedure governs the handling of lawsuits submitted in disregard of the procedural requirements and provides as follows:

“1. A judge who establishes that a lawsuit has been submitted to the court without following the requirements [as regards its form, necessary elements and supporting documents] shall adjourn the proceedings, inform the plaintiff about the adjournment, and set a reasonable time-limit for correction of the defects.

The lawsuit shall be considered lodged on the date of its initial submission if the plaintiff complies with the instructions of the judge. Otherwise the lawsuit shall be considered as not submitted and returned to the plaintiff with all of the attached documents.

An appeal shall lie against a ruling to adjourn proceedings on a lawsuit.”

Chapter 13 of the Code governs all matters related to interim measures within the civil proceedings. In the relevant parts it provides as follows:

“Upon an application of a party to the proceedings a judge or a court may order an interim measures. An interim measure may be ordered at any stage of the proceedings, if a failure to order it may impede or prevent enforcement of a court’s decision.”

“1. An appeal shall lie against any ruling ordering an interim measure ...”

Title II of the Civil Code of the Russian Federation of 1995, which entered into force on 1 March 1996, governs liability for damage. Article 1064, establishing basic principles of civil liability for damage, provides in the relevant parts as follows:

“1. Damage caused to an individual or his property, as well as damage to the property of a legal entity, shall be subject to full compensation by the person who caused the damage.

The law may prescribe that compensation for damage be due from a person other than the person who caused the damage ...

A person who causes damage shall not be liable for compensation in respect thereof if he proves that it was not caused by any fault on his part. However, the law may prescribe that compensation for damage be due even where there was no fault on the part of the person who caused it.

Damage caused by lawful actions shall be subject to compensation where prescribed by law ...”

Article 1069 of the Civil Code dealing with damage caused by a State or local self-government authority or official provides as follows:

“Damage caused to an individual or a legal entity as a result of unlawful actions (or inaction) of State authorities, local self-government authorities or their officials, including damage resulting from an act of a State authority or local self-government authority that is incompatible with a law or another legal act, shall be subject to compensation. The damage shall be compensated for at the expense of the Treasury of the Russian Federation, the treasury of a subject of the Russian Federation, or the treasury of a municipal authority, respectively.”

In addition to the general provisions on compensation for unlawful actions (or inaction) of State authorities and their officials Title II of the Civil Code stipulates specific rules for damage caused by law-enforcement authorities and the courts:

“1. Damage caused to an individual as a result of unlawful conviction, unlawful criminal prosecution, unlawful detention or release on his recognizance, unlawful administrative arrest, and damage caused to a legal entity as a result of unlawful administrative suspension of activities, shall be fully compensated for by the Treasury of the Russian Federation, and where prescribed by law by the treasury of a subject of the Russian Federation or the treasury of a municipality, in full regardless of any guilt on the part of any official of an inquiry or preliminary investigation authority, prosecutor’s office or court.

Damage caused to an individual or a legal entity by unlawful actions of inquiry and preliminary investigation authorities and prosecutor’s offices, where they do not entail the consequences mentioned in paragraph 1 of this Article, shall be subject to compensation under Article 1069 of the present Code. Damage caused in the administration of justice shall be subject to compensation if the guilt of a judge has been established by a final and binding judgment of conviction.”

The Constitutional Court in its judgments and decisions has provided a constitutional interpretation of Article 1069 of the Civil Code in conjunction with Articles 52 and 53 of the Russian Constitution (see Judgments No. 1-P of 4 June 2009, No. 9-P of 16 June 2009, and Decisions No. 22-O of 20 February 2002, No. 1005-O-O of 4 June 2009), including the following principles:

In its decision no. 338-O of 4 October 2005 the Constitutional Court emphasised with reference to the case-law of the Court that enforcement of a judgment was an integral part of the judicial protection of rights and that the review of bailiffs’ actions (or inaction) must be performed by their superiors and by the courts.

Following the constitutional review of the specific rules stated in paragraph 2 of Article 1070 of the Civil Code on damage caused by law-enforcement authorities and the courts, the Constitutional Court found them constitutional in so far as they provided for special conditions as to State liability for damage caused in the administration of justice (Ruling no. 1-P of 25 January 2001). However the Ruling clarified that the term “administration of justice” applied only to judicial decisions on the merits of the case, while procedural rulings fell outside its scope. State liability for damage caused, unlawful procedural acts or failure to act could arise even in the absence of a final criminal conviction of a judge, if the fault of the judge had been established in civil proceedings.

Both the Supreme Court and the Supreme Commercial Court of the Russian Federation (which until unification of the courts in 2014 was the highest court for commercial disputes) have issued case-law reviews and guidelines clarifying various procedural and substantive aspects of the right to receive compensation under Article 1069 of the Civil Code as established in the practice of the Russian courts. These decisions of the Supreme Commercial Court of the Russian Federation remain in force unless superseded by newly adopted decisions of the unified Supreme Court of the Russian Federation.

In decree no. 23 of 2006 of the Plenum of the Supreme Commercial Court it was stressed that a defendant to a lawsuit under Article 1069 should always be a public entity, but not a structural unit thereof or an official in a personal capacity. The compensation must accordingly be recovered only from the public entity.

In joint Decree no. 30 / 64 of 23 December 2010 of the Plenum of the Supreme Court and the Plenum of the Supreme Commercial Court, the courts highlighted that while the post-Burdov 2 legislative scheme only guaranteed compensation for non-enforcement of judgments against the State, nothing precluded lawsuits from being brought in other disputes concerning the non-enforcement of judgments under Articles 151 and 1069 of the Civil Code.

Information Letter no. 145 of the Presidium of the Supreme Commercial Court of 31 May 2011 in particular mentioned the following points: