OTHYMIA INVESTMENTS BV v. THE NETHERLANDS

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

The applicant company, Othymia Investments B.V., is a limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the law of the Netherlands and having its statutory seat in Rotterdam. The applicant company was represented by Mr L.E.C. Neve, a tax consultant practising in Rotterdam. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

summarised as follows.

On 14 December 2007 the Deputy Minister of Finance (Staatssecretaris van Financiën) gave notice (kennisgeving) to the applicant company of the fact that he had been requested by the Spanish tax authorities to provide them with information on the relations, the links and transactions between the applicant company and a certain company in Spain as well as information on the bank accounts and the activities of the applicant company with a certain bank.

In the notice sent to the applicant company, the Deputy Minister stated that he had complied with this request on 18 August 2007 and 29 November 2007 respectively, pursuant to section 1(1) of the International Assistance (Levying of Taxes) Act (Wet op de internationale bijstandsverlening bij de heffing van belastingen); as appropriate, 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; and, as appropriate, Article 28 of the Convention on the prevention of double taxation between Spain and the Netherlands.

The notice, which had been sent pursuant to section 5(2) of the International Assistance (Levying of Taxes) Act, listed the information and the enclosures sent to the Spanish tax authorities. They included the shareholders’ register (register van aandeelhouders) of the applicant company; the annual accounts (jaarrekeningen) of the applicant company for 2003 and 2004; bank statements; two e-mails; correspondence and other documents concerning the establishment of a certain company; a statement concerning the owners of shares in a certain company; and documents that concerned the sale of shares. Part of the information sent had been gathered in the course of an investigation into the applicant company carried out by the Netherlands Tax and Customs Administration (Belastingdienst) in August 2006 which had been announced to the applicant company beforehand.

On 17 December 2007 the applicant company lodged an objection (bezwaar) against the Deputy Minister of Finance’s decision to provide the Spanish tax authorities with the requested information. It argued that the provisions stated by the Deputy Minister in his notice could not be relied on as a legal ground for his decision.

After a hearing had been held in the objection proceedings, the applicant company argued additionally that its privacy of correspondence had been violated by the provision of the documents in issue to the Spanish tax authorities.

On 29 August 2008 the Deputy Minister dismissed the applicant company’s objection. Its argument in relation to the violation of the right to respect for correspondence was rejected because, firstly, the inquiry had been carried out to provide information under the International Assistance (Levying of Taxes) Act and not under the General Act on State Taxes (Algemene wet inzake rijksbelastingen); secondly, the applicant company had not invoked its right to privacy of correspondence during the inquiry in 2006; and lastly, the correspondence did not concern the applicant company.

On 23 September 2008 the applicant company appealed against the decision claiming, inter alia, that its right under Article 8 of the Convention had been violated because there had been no legal basis for the provision of the information to the Spanish tax authorities. It further argued that it might suffer damage as a result of the Deputy Minister’s decision, that it would need a judicial decision in order to submit a claim for compensation, and that it had incurred legal costs in relation to the proceedings.

On 29 April 2009 the Dordrecht Regional Court (rechtbank) declared the appeal inadmissible. It held that the applicant company had no standing because it had not substantiated that it had suffered any loss as a result of the Deputy Minister’s decision to supply the information to the Spanish tax authorities.

On 4 May 2009 the applicant company lodged a further appeal with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) arguing, among other things, that it had an interest in the examination of the lawfulness of the inquiry because the forwarding of its correspondence to the Spanish tax authorities constituted an interference of Article 8 of the Convention for which there had been no legal basis and the necessity of which in a democratic society was open to serious doubt. The applicant company suggested that this claim warranted an examination on the merits by a judicial authority.

Additionally, the applicant company argued that not only had prior judicial examination of the Deputy Minister’s decision been impossible, owing to the fact that for “urgent reasons” the notice had been given to the applicant company after the implementation of the Spanish request, but the Regional Court’s judgment had also made retrospective judicial examination impossible. This lack of an effective remedy appropriate to its complaint under Article 8 of the Convention, so it argued, constituted a violation of Article 13 of the Convention.

On 16 June 2010 the Administrative Jurisdiction Division of the Council of State dismissed the applicant company’s arguments and upheld the judgment of the Regional Court. In relation to the alleged violation of Article 8 of the Convention it held that the mere fact that the applicant company wanted a judgment of principle on the issue did not constitute a sufficient interest. It further held that the applicant company had neither substantiated any pecuniary damage nor specified any non-pecuniary damage allegedly suffered as a result of the Deputy’s Minister’s decision. The requirement of actual harm did not impinge on the applicant company’s rights to the point of violating Article 13 of the Convention.

At the relevant time, the International Assistance (Levying of Taxes) Act, as applicable to the case before the Court, read as follows:

“1. The provisions of this Act serve the interest of complying with obligations flowing from Directives of the Council of the European Union and other international and interregional legal arrangements for the provision of mutual assistance in the levying of taxes, as well as interest thereon and administrative sanctions and fines connected therewith. ...”

“1. At the request of a competent authority, Our Minister [of Finance] may decide to provide them with information which they request and which may serve for the levying of taxes within the meaning of section 1, as well as the interest or the administrative sanctions and fines connected therewith.

Our Minister shall notify the person from whom the information originated and who is resident or located in the Netherlands of his decision to comply with the request for information. In so doing, Our Minister shall identify the competent authorities who have made the request and specify the information that will be provided.

Unless urgent reasons have given rise to it, the implementation of the request for information shall not take place within ten days after the date that notice ... is given.

When urgent reasons have given rise to it, Our Minister may ... implement the request for information before the person from whom the information originated has been notified. In this case, notice shall be given as soon as possible but not later than four months after the implementation of the request.”

“1. Our Minister shall, if necessary, give instructions for an official of the Tax and Customs Administration to make investigations for the purpose of providing information as referred to in [section 5] ...”

“1. Our Minister shall provide no information if:

a. the provision thereof does not flow from obligations under [Council Directive 77/799/EEC] or other obligations under international and interregional law;

b. ordre public of the Netherlands State opposes it; ...”

In its relevant parts, the Instruction on mutual international assistance in the levying of taxes (Voorschrift internationale wederzijdse bijstand bij de heffing van belastingen) promulgated on behalf of the Deputy Minister of Finance by the Director General of the Tax and Customs Administration (directeur-generaal Belastingdienst) (Official Gazette (Staatscourant) of 30 May 2002, no. 100, page 9) reads as follows:

“1. Introduction

The relevant international agreements are: the bilateral tax treaties, ..., Council Directive 77/799/EEC (also referred to hereafter as ‘the Mutual Assistance Directive’), ... and the bilateral Memoranda of Understanding between the Netherlands and the various treaty partners. ...

1.1. Definition

Mutual assistance in the levying of taxes is the aggregate of possibilities of administrative cooperation between treaty partners. The exchange of fiscal information is a part of that. Carrying out investigations for each other’s taxation, permitting officials onto each other’s territory and the setting up of joint controls for internationally operating enterprises are other forms.

The provision of ‘assistance in levying taxes’ (heffingsbijstand) is regulated in the Netherlands by the International Assistance (Levying of Taxes) Act.

3.4. Directive 77/799/EEC

[European Economic Community] Council Directive of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the fields of direct taxation and indirect taxation (77/799/EEC, as amended by the Directives of 6 December 1979 (79/1070/EEC) for value-added tax and of 25 February 1992 (92/12/EEC) for excise duties), is part of Community, or European Union, legislation (...). The aim of the Mutual Assistance Directive is to strengthen cooperation between the tax authorities of the EU Member States in order better to counter international tax evasion and tax fraud. In the Netherlands, the Mutual Assistance Directive is implemented in the International Assistance (Levying of Taxes) Act. ...

The provision of data on the basis of the International Assistance (Levying of Taxes) Act

The possibility of obtaining information goes hand in hand with the duty to provide information, whether on request, automatically or spontaneously.

The agreements which create those duties as regards direct taxes and income tax (inkomstenbelasting) are ...

- the bilateral treaties;

- the Mutual Assistance Directive 77/799/EEC;

The International Assistance (Levying of Taxes) Act provides for the provision of information on request, the automatic provision of information, the spontaneous provision of information and the presence of officials in another country within the framework of a (simultaneous) bookkeeping investigation.

The International Assistance (Levying of Taxes) Act sets out in what cases, on what conditions and in what way the Netherlands Tax and Customs Administration provides these forms of assistance. The point of departure in each case is the scope of the treaty obligations existing in a given treaty relationship. Without an international obligation the Netherlands cannot provide [such] assistance (...).

5.1.1. Speediness and time-limits

In view of the time-limits for tax adjustments, which exist also in other states, it is important to deal with a foreign request for information as speedily as possible. Speedy handling of the request by the Netherlands will also increase the willingness of the foreign competent authority to deal with Netherlands requests rapidly. The same applies to the back-reporting of results. It is therefore important that a request for information from abroad is answered within eight weeks after it is received at the Tax and Customs Administration unit (Belastingdiensteenheid). In urgent cases, the aim is to reply within four weeks. ...

5.1.5. Notification

If the information can be given, the International Bureau of the Fiscal Intelligence and Information Service (Fiscale Inlichtingen- en Opsporingsdienst, ‘FIOD’) will prepare a notification for the interested party on the basis of section 5(2) of the International Assistance (Levying of Taxes) Act. If there is no fraud or urgency, the interested party will be informed of the information to be provided before this is done. Provision of the information will be suspended for ten days from the date of the notification. In this context, ‘interested party’ means only the person from whom the information derives and who is resident or based in the Netherlands.

By means of this notification, the interested party is informed of the decision to provide information concerning them to a foreign competent authority and a description of the information to be provided is given. An objection and an appeal are possible against this notification.

An objection and/or an appeal can result in the information to be provided, or actually provided, to be corrected. A request for a provisional measure can suspend the provision of the information to the foreign authority (...).

6.2. Mandate to the Director General of the Tax and Customs Administration

The Deputy Minister of Finance has appointed the Director General of the Tax and Customs Administration to act in his name as the competent authority ... and to decide in his name on the basis of section 5 of the International Assistance (Levying of Taxes) Act (the provision of information on a request from abroad), ...”

As relevant to the case before the Court, and as in force at the time of the events complained of, Council Directive 77/799/EEC of 19 December 1977 provided as follows:

“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.”

“The competent authority of a Member State which, under the preceding Articles, is called upon to furnish information, shall forward it as swiftly as possible. If it encounters obstacles in furnishing the information or if it refuses to furnish the information, it shall forthwith inform the requesting authority to this effect, indicating the nature of the obstacles or the reasons for its refusal.”

“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.”

In its judgment of 22 October 2013 (Jiří Sabou v Finanční ředitelství pro hlavní město Prahu (Case No. C-276/12), “the Sabou judgment”), the Grand Chamber of the Court of Justice of the European Union held as follows:

“38. The Court has previously ruled that observance of the rights of the defence is a general principle of European Union law which applies where the authorities are minded to adopt a measure which will adversely affect an individual (see [Case C349/07 Sopropé [2008] ECR I10369], paragraph 36). In accordance with that principle, the addressees of decisions which significantly affect their interests must therefore be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision (see, inter alia, C‑32/95 P Commission v Lisrestal and Others [1996] ECR I‑5373, paragraph 21, and Sopropé, paragraph 37). The authorities of the Member States are subject to that obligation when they take decisions which come within the scope of European Union law, even though the European Union legislation applicable does not expressly provide for such a procedural requirement (see Sopropé, paragraph 38, and Case C‑383/13 PPU G and R [2013] ECR, paragraph 35).

The question arises as to whether the decision of a competent authority of a Member State to request assistance from a competent authority of another Member State and the latter’s decision to examine witnesses for the purposes of responding to that request constitute acts which, because of their consequences for the taxpayer, make it necessary for him to be heard.

All the Member States which submitted observations to the Court argued that a request for information by one Member State sent to the tax authorities of another Member State does not constitute an act giving rise to such an obligation. They rightly consider that, in tax inspection procedures, the investigation stage, during which information is collected and which includes the request for information by one tax authority to another, must be distinguished from the contentious stage, between the tax authorities and the taxpayer, which begins when the taxpayer is sent the proposed adjustment.

Where the authorities gather information, they are not required to notify the taxpayer of this or to obtain his point of view.

A request for assistance made by the tax authorities under Directive 77/799 is part of the process of collecting information.

The same applies to the reply made by the requested tax authorities and the inquiries carried out to that end by those authorities, including the examination of witnesses.

It follows that respect for the rights of the defence of the taxpayer does not require that the taxpayer should take part in the request for information sent by the requesting Member State to the requested Member State. Nor does it require that the taxpayer should be heard at the point when inquiries, which may include the examination of witnesses, are carried out in the requested Member State or before that Member State sends the information to the requesting Member State.

None the less, there is nothing to prevent a Member State from extending the right to be heard to other parts of the investigation stage, by involving the taxpayer in various stages of the gathering of information, in particular the examination of witnesses.

Accordingly, the answer to the first and second questions is that European Union law, as it results in particular from Directive 77/799 and the fundamental right to be heard, must be interpreted as not conferring on a taxpayer of a Member State either the right to be informed of a request for assistance from that Member State addressed to another Member State, in particular in order to verify the information provided by that taxpayer in his income tax return, or the right to take part in formulating the request addressed to the requested Member State, or the right to take part in examinations of witnesses organised by the requested Member State.”

and ruled as follows:

“1. European Union law, as it results in particular from 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 and taxation of insurance premiums, as amended by Council Directive 2006/98/EC of 20 November 2006, and the fundamental right to be heard, must be interpreted as not conferring on a taxpayer of a Member State either the right to be informed of a request for assistance from that Member State addressed to another Member State, in particular in order to verify the information provided by that taxpayer in his income tax return, or the right to take part in formulating the request addressed to the requested Member State, or the right to take part in examinations of witnesses organised by the requested Member State.

Directive 77/799, as amended by Directive 2006/98, does not govern the question of the circumstances in which the taxpayer may challenge the accuracy of the information conveyed by the requested Member State, and it does not impose any particular obligation with regard to the content of the information conveyed.”

Spain joined the European Communities on 1 January 1986 in accordance with the provisions of an Accession Treaty signed on 12 June 1985. The parties to the Accession Treaty, in addition to the Kingdom of Spain (by this time the successor to the State of Spain) were the existing Member States (including the Kingdom of the Netherlands) and the Portuguese Republic.

Appended to the Accession Treaty was an Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties, which, in its relevant part, provides as follows:

“From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions of the Communities before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.”

At the time of the events complained of, and in its relevant part, the Convention between the Government of the Kingdom of the Netherlands and the Government of the State of Spain for the avoidance of double taxation with respect to taxes on income and on capital (Tractatenblad (Netherlands Treaty Series) 1971, no. 144), provided as follows (official and authoritative English text):

“1. The competent authorities of the States shall exchange such information (being information which such authorities have in proper order at their disposal) as is necessary for the carrying out of this Convention. Any information so exchanged shall be treated as secret and shall not be disclosed to any persons or authorities other than those concerned with the assessment or collection of the taxes which are the subject of this Convention.

In no case shall the provisions of paragraph 1 be construed so as to impose on one of the States the obligation:

a. to carry out administrative measures at variance with the laws or the administrative practice of that or of the other State;

b. to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other State;

c. to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy.”


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall

The applicant, Mr Fuat Öztürk, is a Turkish national, who was born in 1968 and lives in Rotterdam. He is represented before the Court by Ms J. Serrarens, a lawyer practising in Maastricht. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs.

The Government of the Republic of Turkey were informed of their right to take part in the proceedings (Article 36 § 1 of the Convention) but did not express the desire to do so.

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

In April 2007 the applicant, a convict prisoner who had been in detention since 1999, was transferred to the Penal Institution “Dordtse Poorten” in Dordrecht.

By letter of 2 April 2007 the Correctional Institutions Agency of the Ministry of Justice (Dienst Justitiële Inrichtingen van het Ministerie van Justitie) informed the Governor of “Dordtse Poorten” about a project for the taking of prisoners’ biometric data (photographic likenesses and fingerprints), referred to by the name of “Biometrics”, which was prompted by the finding that a number of prisoners in a different institution had assumed a false identity. The project, referred to as a “catch-up exercise” (inhaalslag), was intended to constitute the initial phase of a complete overhaul of the prisoner identification system. As part of this project, the Governor of “Dordtse Poorten” was asked to take biometric data of certain prisoners in his institution.

As one of the prisoners chosen, the applicant was informed by letter of the intention of the Governor to take his fingerprints and digital photograph. The letter did not provide information on the storage or use of the data taken. The applicant states that the penal institution’s staff members, when asked, told him that the data would be stored for “decades” in a national database that would be accessible to the police and the judicial authorities.

On 23 April 2007 the applicant was asked to submit to the taking of his fingerprints and a digital photograph. He refused to do so, firstly, because he had already given these data when he was admitted to the penal institution and, secondly, because he opposed the fact that his data would be stored in a national database for an unknown length of time and that they would be accessible to the police and the judicial authorities.

Because of the applicant’s refusal to cooperate, the Unit Director of the penal institution imposed on the applicant three days’ solitary confinement in his own cell which included the removal of his television, starting on 24 April 2007. Later that day, the applicant submitted a complaint against this punishment to the Complaints Commission (beklagcommissie) of the penal institution’s Supervisory Board (Commissie van Toezicht), stating that he had complied with his obligations under Section 28 (2) of the Prisons Act (Penitentiaire Beginselenwet) when he had submitted to the taking of his fingerprints and digital photograph during his admittance to the penal institution. He further argued that he was not obliged to submit his data again because they would not be used internally, within the penal institution, but for a national database for which there was no legal basis in the Prisons Act or any other act.

On 25 July 2007 the Unit Director sanctioned the applicant a second time and the institution’s staff members threatened to report the applicant to the Public Prosecution Service for refusal to comply with an official order if he continued to refuse to provide his fingerprints and digital photograph. Following this threat, the applicant cooperated and submitted his data. He was, neither then, nor after his release, given any information on the way his data would be stored or used.

On 24 June 2008 the Complaints Commission of the penal institution’s Supervisory Board rejected the applicant’s complaint. It held that the sanction had not been unreasonable because the Governor had been obliged to comply with the instructions of the Correctional Institutions Agency; because the refusal of a prisoner to comply with an order of the Governor was a disciplinary offence; and because the applicant had refused to submit his data when ordered to do so by the Governor.

In his appeal to the Appeals Board (beroepscommissie) of the Council for the Application of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming) the applicant largely restated his arguments. He further submitted that the existence of a Determination of the Identity of Suspects, Convicted Persons and Witnesses Bill (Wetsvoorstel Wet identiteitsvaststelling verdachten, veroordeelden en getuigen), which provided a legal basis for the taking and processing of prisoners’ biometric data in a national database, proved that section 28 (2) of the Prisons Act did not yet confer any such power.

On 3 December 2008 the Appeals Board noted that in practice the identity of prisoners was checked at the time of admission to the institution. It further noted that on entering the institution the applicant had complied with this obligation to submit identifying data as provided for in section 28 (2) of the Prisons Act. It held that, even though the collection of the data itself had not been unlawful, it had been up to the Governor to explain to the applicant why his data needed to be taken a second time and to provide him afterwards with another opportunity to submit his data. As the Governor had failed to do so, the Appeals Board held that the sanction had been unreasonable. The Appeals Board awarded the applicant financial compensation in an amount of 22.50 euros (EUR).

The applicant was released on 7 September 2009.

In their further observations submitted in response to the applicant’s observations, the Government submitted a written statement on paper bearing the letterhead of the Judicial Information Service (Justitiële Informatiedienst) and dated 22 March 2013. It reads as follows:

“Destruction

The undersigned, J.J. Wiltvank, General Director of the Judicial Information Service, makes the following declaration:

It is described in the official record (proces-verbaal) of destruction dated 12 December 2012 (annexed) that the personal information as used during the so-called ‘catch-up exercise’ has been destroyed;

Supplementing this official record, the undersigned also declares that:

during the period of processing the data were stored in a safe;

the data were not used for any other purpose than for checking, once only;

the data were compared, during this once-only check, against the HAVANK data [HAVANK, acronym for Het Automatisch Vinger Afdrukkensysteem Nederlandse Kollektie, The Automatic Fingerprint System Netherlands Collection];

as far as the Judicial Information Service are able to observe, these data have not been entered in the HAVANK database.

I declare this to be a statement of the truth, made on 26 March 2012 [sic].

J.J. Wiltvank

General Director of the Judicial Information Service”

This document bears no manuscript signature.

Also annexed to the Government’s further observations were an official record attesting the destruction of “personal data of the catch-up exercise”, recording the destruction of information stored on CDs and external hard disc drives by Ministry of Justice officials and of the original fingerprints by a waste-processing company, Milieu Service Nederland. The official record includes the following:

“Instruction

On 21 November 2012 the Director of the Judicial Information Service instructed the undersigned to ensure the destruction of any personal data from the catch-up exercise that might still unjustifiably be stored (de mogelijk nog ten onrechte in bewaring zijnde persoonsgegevens).

Stocktaking

During stocktaking a search was carried out for other media that might exist outside the Judicial Information Service. From the information obtained from the then keeper of the mobile kits it appears that

there are no data bearers left there

all information was removed from the mobile kits upon transfer to the Judicial Information Service

the mobile kits were dismantled a considerable time ago by the supplier HSB. ...”

Attached to the official record is a “Destruction and Recycling Certificate” dated 10 December 2012, provided by Milieu Service Nederland.

The Prisons Act, as in force at the relevant time, in its relevant part provided as follows:

“1. The Governor can oblige the prisoner to carry a valid identity document and to show this at the request of a civil servant or a staff member.

The prisoner is obliged to cooperate with the recording of his digital photograph, the taking of a fingerprint or the taking of a hand scan.”

“Rules will be laid down by or pursuant to order in council concerning the creation of files. These rules will in any event give a definition of the detainees about whom a file must be created, the nature of the information contained therein, the right of the detainee concerned to inspect or obtain a copy of the file and the limits to this right, and the length of time and way in which the file is to be kept.”

“1. A detainee may lodge a complaint with the Complaints Committee against a decision concerning him taken by or on behalf of the Governor.

A failure or refusal to give a decision is equated with a decision as referred to in subsection 1. If no decision has been given within the statutory time limit or, in the absence thereof, within a reasonable time limit, this is deemed to be a failure or refusal to give a decision.

The Governor must ensure that a detainee wishing to lodge a complaint is given an opportunity to do so as quickly as possible.”

The following is taken from the drafting history of the Prisons Act (Explanatory Memorandum (Memorie van Toelichting), Lower House of Parliament, no. 24,263, 1994-95 session, no. 3):

Chapter VI of the Bill specifies permissible interferences with the constitutional rights of respect for one’s privacy and for the integrity of the body, the clothing and of the prisoner’s bodily secretion.

The following powers are granted to the Governor to exercise control over the prisoners and the use of force against them:

a. to impose a duty to provide proof of identity;

a. Duty to provide identity

The duty to provide proof of identity is copied from section 27 of the [former] Prison Rules (Gevangenismaatregel) with the addition of the [prisoner’s] explicit duty to cooperate with the recording of his likeness, or the taking of a fingerprint for the purpose of an identity check.”

The Prison Rules (Penitentiaire maatregel), as in force at the relevant time, in their relevant part provided as follows:

The other documents relating to the detainee are to be collated in an institutional file [i.e. a file peculiar to the institution]. They are to be arranged by subject in chronological order.”

The institutional file referred to in article 37, paragraph 2 must be destroyed six months after the detainee’s stay at the institution has ended. If the detainee is again confined in the institution before the end of this period, the limited retention period ceases to apply.”

“1. In the event that inspection by the detainee of his file is denied on one of the grounds laid down in section 43 of the Personal Data Protection Act, the Governor may arrange for a member of the Supervisory Committee authorised by the detainee to inspect the data which the detainee has been denied leave to inspect. Sections 57 and 58 of the Act [i.e. the Prisons Act] apply mutatis mutandis.

Data from the file may be disclosed to Our Minister and the civil servant or staff designated by him in so far as necessary with a view to:

a. dealing with requests concerning the detainee;

b. dealing with procedures concerning the detainee;

c. managing the files;

d. dealing with other decisions concerning the detainee. The same applies to the assignment officer, the Governor and the civil servants or staff designated by them.”

The Act on the determination of the identity of suspects, convicted persons and witnesses (Wet identiteitsvaststelling verdachten, veroordeelden en getuigen) entered into force on 1 October 2010. It altered section 28 of the Prisons Act so as to empower the Governor to take a prisoner’s biometric data (fingerprints, DNA, photographic likeness). Delegated legislation is to govern the processing of these data.

Article 27b § 4 of the Code of Criminal Procedure (Wetboek van Strafvordering) now provides for data needed to establish the identity of a suspect or convict to be stored in the “criminal procedure database” (strafrechtsketendatabank).

Detailed regulation of the criminal procedure database is provided by the Determination of the Identity of Suspects and Convicted Persons Decree (Besluit identiteitsvaststelling verdachten en veroordeelden), which also entered into force on 1 October 2010. This Decree sets rules for the organisation of the database in which biometric data of convicted persons are kept, storage and destruction of those data and access to them.


No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Síofra O’Leary

The applicant was born in 1967 and is currently serving his prison sentence.

At about 10 a.m. on 1 June 2005 O., the president of the Ukrainian Dental Association, was shot at his office with a rifle which the applicant had brought. The applicant was present at O.’s office at the time of the event. He asked for the police and an ambulance to be called and, once the police arrived, stated that an accident had happened. He explained that he and O. were interested in hunting and he had brought the shotgun to O. as a present. While he had been demonstrating the gun to O., the latter had wanted to see it closer and had pulled it towards himself; the gun had accidentally gone off. According to the applicant, once he had replied to the questions of the police, handcuffs were put on him; he was searched and samples were taken from him for forensic examination. His request for a lawyer was allegedly ignored.

On the same date the applicant’s arrest report was drawn up which stated that the applicant had been arrested for the murder of O. at 10 p.m. at the police station. He was subsequently questioned in the presence of K., his lawyer. He pleaded not guilty and repeated his statements made earlier. According to the applicant, his lawyer immediately indicated to the investigator that, under the Code of Criminal Procedure, the applicant had to be provided with the possibility to talk with him in private before the questioning, with a view to defining the legal defence strategy. Having heard that, the applicant insisted on such a meeting. The investigator, however, rejected that request on the ground that the applicant would be able to talk to his lawyer later.

On 2 June 2005 a reconstruction of the crime was carried out in the presence of the applicant’s lawyer.

On 3 June 2005 the applicant’s pre-trial detention was ordered by a court.

On 6 June 2005 L. was admitted to the proceedings as the applicant’s second lawyer.

On 9 June 2005 the applicant was charged with murder and questioned in the presence of his lawyers. He pleaded not guilty and repeated his previous statement that O. had been shot by accident.

On 11 August 2005 the applicant was questioned in the presence of K. The applicant repeated his previous statements.

On the same date the applicant and the lawyer K. became aware of the results of a number of forensic examinations in the case. They made no observations in this connection.

On 17 November 2005 criminal proceedings were instituted against the applicant for illegal production, possession and storage of firearms. On the same day the applicant was charged with the above offence and questioned in the presence of K. Those proceedings were subsequently joined to the murder case against the applicant.

On 16 January 2006 the case was referred to the Kyiv City Court of Appeal (“the Court of Appeal”) for trial. Throughout the trial the applicant denied the murder charge and consistently claimed that O. had been shot by accident.

On 19 May 2006 the Court of Appeal, acting as a first-instance court, found the applicant guilty as charged and sentenced him to fifteen years’ imprisonment. The court found that on 27 May 2005 the coordinating council of the Ukrainian Dental Association had held its meeting in Kyiv and the applicant had run for the position of acting executive director of the Association. The victim, O., had proposed another candidate for the same position and that candidate had been elected. The applicant had therefore decided to take revenge and had come to the office of O. with a shotgun and fired twice at O.’s head. The applicant had also been found guilty of modifying the shotgun in question prior to the incident.

The Court of Appeal noted that although the applicant had never pleaded guilty and had claimed that the incident had been an accident, his guilt was proved by the testimonies of witnesses and the results of forensic examinations. In particular, O.’s wife had testified that she had been in the neighbouring office when the incident had taken place and when she had entered her husband’s office she had seen the applicant smiling with satisfaction. She had also maintained that her husband had not liked hunting and therefore would not have accepted a shotgun as a present. The negative attitude of O. to hunting had also been confirmed by his brother. O.’s secretary and one of his colleagues had also confirmed that the applicant had been smiling when they had entered the office after the incident.

Several witnesses had also confirmed that the applicant had shown dissatisfaction with the fact that he had not been elected to the position of the executive director of the Dental Association.

The forensic expert, questioned in the court hearings, had confirmed the conclusions of the examination that the shots had been fired from some distance and not from close range, as the applicant had suggested, given that traces of metals and gunpowder, typically found following close-range shots, had not been found on the victim. The court also noted that the outcome of the ballistic examination as to the distance, trajectory and angle of the entry wounds had not matched the applicant’s version of events.

The applicant appealed. He submitted, inter alia, that his defence rights had been violated as he had not been given an opportunity to talk to his lawyer in private before his questioning at the police station on 1 June 2005, with no further details given.

On 28 November 2006 the Supreme Court, in the presence of the applicant and his two lawyers, upheld the decision of the Court of Appeal, noting the aggregate of evidence against the applicant.

From 5 July 2005 to 25 January 2007 the applicant was detained at Kyiv pre-trial detention centre no. 13 (“the SIZO”).

According to the applicant, the facility was often overcrowded with the number of detainees exceeding the number of beds. It was infested with insects, cockroaches and mice. The quality and quantity of food was unsatisfactory. There was only one pair of scissors and one hair clippers for the whole SIZO and they were not disinfected prior to or after use. As a result, the applicant contracted Hepatitis B.

From 8 July until 8 November 2005 he was detained in cells nos. 18 and 116 in conditions which were detrimental to his health and incompatible with human dignity. In particular, those cells had no access to natural light as the windows were obscured by metal slats. The walls were permanently wet and covered with mould. The applicant had to share cell no. 116, which measured about 12 square metres, with three other detainees who were heavy smokers. The artificial lighting was not sufficiently powerful with the result that the cells were dim. Their clothes and linen were always wet and cold.

On 7 September, 7 and 21 November 2006 the applicant requested that the investigator allow visits from his family but to no avail; the investigator attempted to extort money from him for granting permission to see the relatives.

On 5 February and 4 July 2006 the applicant asked the Court of Appeal to allow him to correspond with his relatives but received no answer. He unsuccessfully complained of these matters to the prosecutor’s office on a number of occasions.

The applicant was not allowed to visit the SIZO church. His requests to the SIZO governor of 15 July and 1 August 2005 to meet with a priest also remained unanswered. On 6 and 7 September 2005 the applicant further complained to the SIZO administration that his religious literature and some items of a religious nature had been seized by the SIZO staff. On 23 September 2005 a “talk” was held with the applicant by one of the prison staff on account of his complaints during which it was explained to him that nothing untoward had happened. On 1 October 2006 the applicant complained to the Prosecutor General about the violation of his right to practise his religion but received no reply.

During his stay at the SIZO the applicant was held in twelve different cells (including cells nos. 18 and 116) and was moved fourteen times.

The Government could not provide any information about the number of inmates in the cells at the relevant time or regarding the conditions of the floor, walls and linen because the compulsory period for keeping the relevant documents had expired and the records had been destroyed.

They stated that the general detention conditions in the SIZO had been satisfactory and in compliance with the domestic standards: all the cells had had windows and had been equipped with sufficient artificial lighting; the applicant had been provided with adequate nutrition in accordance with the applicable standards. Scissors and other hairdressing implements had been disinfected after each use in accordance with the relevant regulations. That fact had been confirmed by the results of an investigation conducted by the Ministry of Health and the prosecutor’s office following the applicant’s complaints.

The Government submitted, having provided the relevant documents, that the applicant had requested family visits before the relevant authorities only on 10 and 20 October and 29 December 2005 and on 11 January and 5 February 2006 and had asked for permission to send correspondence to his relatives on 10 and 27 October 2005 and 5 February and 8 August 2006. All his requests were rejected for security reasons.

The applicant had been free to ask the investigator in his case or a court to allow him to meet with a priest but had failed to do so. He had also been entitled by law to possess religious literature and other items of a religious nature and never raised any complaint in this connection either before the SIZO governor or with the prosecutor responsible for observing compliance with the law in the detention facilities.

No medical aid was provided to the applicant in respect of his heart and teeth problems. On 3 June 2006 the applicant asked the SIZO governor to conduct a medical examination as he believed he had contracted hepatitis B because of the failure of the SIZO staff to respect hygiene rules. This request was rejected; so was another request for a special diet in view of his possible hepatitis infection. On 2 November 2006 the applicant asked the Minister of Health to order a medical examination in view of his possible hepatitis infection, to no avail. No copies of the mentioned requests have been provided by the applicant.

According to the Government, during his stay in the SIZO the applicant never went to the medical unit on account of his suffering from hepatitis B, heart pain or problems with his teeth and never lodged any complaints regarding a lack of medical assistance. His state of health did not necessitate a special diet.

Following a liver-related complaint that the applicant was suffering from, he was diagnosed with bile-duct dyskinesia (дискінезія сечовивідних шляхів) and from 20 October to 15 November 2006 he underwent inpatient treatment in the SIZO medical unit. A number of laboratory tests were carried out on the applicant, including a specialised blood test for hepatitis indicators. The latter revealed hBs antigens, which meant that the applicant had hepatitis B antibodies in his blood but not that he had been definitely suffering from the active form of the disease. The applicant was prescribed the relevant treatment (Carsil, Livolin, Alochol, Gastronorm, Ursohol), which he received in full, and at the end of his treatment he was deemed to be in good health.

On 1 July 2007 the applicant was transferred to prison no. 72 to serve his sentence. On 11 August 2007 he was diagnosed with hepatitis B. Thereafter he lodged a number of complaints with different State bodies alleging that he had contracted hepatitis in the SIZO owing to the failure to disinfect hairdressing implements, and demanding investigation of this matter. Following his allegations, investigations were conducted by the Health Ministry and the prosecutor’s office, which found no evidence to support the applicant’s allegations. The applicant was informed of the results of the investigation by a prosecutor’s letter of 27 July 2009.


Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström

The applicant, Ms V.P., is an Estonian national who was born in 1928 and lives in X. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Mr A. Junti, a lawyer practising in Tallinn.

The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

The applicant was born in 1928 and lives in X.

The case concerns the suicide of the applicant’s son, L., who was born in 1955. He had a history of mental illness (paranoid schizophrenia) and had been placed in a psychiatric hospital fourteen times from 1980. From 1989 he was also classed as a disability pensioner.

On 30 April 2012 L. attempted to commit suicide by taking a large number of pills that had been prescribed for him and the applicant. The applicant called an ambulance. L. was diagnosed with intoxication and taken to Hospital Y. An extract from L.’s medical file (haiguslugu) contains a reference that after admission to hospital he had intermittently expressed suicidal thoughts. Owing to a lack of space L. was initially placed in the intensive care unit of the renal department. On 1 May 2012 he was transferred from the renal department to the intensive care unit of the department of internal medicine, located on the twelfth floor of the hospital. L. committed suicide on the same day by jumping out of the window.

Hospital staff immediately notified the police and the officer who responded to the call wrote up a report. According to the report, documents were drawn up on site, the deceased was photographed and the body was sent for an autopsy, and the doctor on duty gave a statement. The report stated that the doctor had noted that the windows on the twelfth floor did not have locks, and that two nurses on duty had been dealing with another patient in a neighbouring room at the time of the incident. The report also noted that patients were not restrained and kept in their beds in the intensive care unit, as that was considered too extreme a measure.

On 1 June 2012 the applicant requested an explanation from the hospital as to why, in particular, the safety of L., who had been a suicidal patient, had not been ensured and why he had not been sent to a psychiatric clinic. According to the reply of 19 July 2012, victims of poisoning were usually taken to that particular hospital as they needed special supervision and care. That had been the case with L., who had been under regular supervision. However, hospital staff had not been with the patient at all times. The reply referred to the fact that symptoms of poisoning usually took one to three days to go away. Patients then had a psychiatric consultation and were transferred for inpatient treatment at a psychiatric clinic or were referred for outpatient care.

An autopsy was performed on L. on 2 May 2012. The death certificate (arstlik surmateatis) stated that he had died from injuries to his internal organs and that he had fractures of the skull and skeletal bones and trauma to the head, torso and limbs. The death was initially noted as “accidental” (the relevant box on the form having been ticked). A new death certificate was issued on 5 February 2014, where the cause of death was updated to “suicide” by jumping out of a window.

On 30 October 2012 the applicant turned to the Expert Committee on the Quality of Health-Care Services (Tervishoiuteenuse kvaliteedi ekspertkomisjon; hereinafter the “Expert Committee”). The Expert Committee heard the applicant and examined the medical documentation concerning L. It also had an expert opinion of one of its members at its disposal. The Expert Committee gave its opinion on 13 December 2012. It found that the psychiatric treatment L. had received had been in compliance with standard medical practice, and that there had been no link between his previous psychiatric treatment and the attempted suicide on 30 April 2012. Placing L. in the renal and internal medicine departments had been justified as he had been in need of medical supervision. His suicidal tendencies had been properly assessed upon his admission to hospital on 30 April 2012. However, the supervision he had been under had been insufficient and the technical characteristics of the building – the fact that the windows could not be closed to prevent people jumping out – had also served as factors contributing to his suicide. The Expert Committee recommended that Hospital Y implement a procedure for the supervision of suicidal patients and train its staff accordingly. It recommended the use of technical solutions to minimise the risk of suicide, such as monitoring equipment in the rooms and windows with shatterproof glass that could not be opened. The Expert Committee noted that its assessment created no legal rights or obligations but that it could be used as evidence in civil proceedings.

On 14 May 2013 the applicant lodged an offence report with the local prosecutor’s office. The prosecutor analysed three potential offences – manslaughter, manslaughter by negligence and placing a person in danger. However, by a letter of 23 May 2013 he refused to institute criminal proceedings on the grounds that the elements of a criminal offence were lacking. According to the prosecutor, there was no reference to the fact that someone might have assisted L. in jumping out of the window. The prosecutor also noted that hospital personnel were responsible for protecting the life and health of their patients (a so-called duty of care, garandikohustus), but he considered that hospital personnel could not objectively be expected to constantly monitor patients or that patients should be tied to their beds or placed in windowless rooms with the door locked. With regard to the offence of placing a person in danger, the prosecutor considered that the height of the hospital and the existence of a window in the hospital room had not, as such, been dangerous, but they had become a threat in the light of L.’s own self-harming activity. Hence, it had not been the medical personnel who had placed L. in danger, rather he had created the danger himself.

On 31 May 2013 the applicant appealed to the Office of the Prosecutor General (Riigiprokuratuur), referring to the liability of the health-care provider and the obligation to effectively investigate incidences of death in hospitals. She also noted that it was not clear whether someone else might have been involved in L.’s jumping out of the window. Her appeal was dismissed on 18 June 2013. The Prosecutor General considered that it had been correct to take L. to the regional hospital, Y, where it had been possible to treat him for poisoning, which would not have been possible in a psychiatric clinic. The Prosecutor General also noted that although there had been deficiencies in the training of medical personnel and that the risk of suicide had not been kept at a minimum by applying all the possible technical means, those shortcomings had not reached the level required for criminal liability.

On 10 July 2013 the applicant lodged an appeal with the Tallinn Court of Appeal (Tallinna Ringkonnakohus), requesting that the court oblige the prosecutor to institute criminal proceedings. She acknowledged that such an appeal had to be filed by a lawyer (advokaat) but noted that she had been assisted by a legal adviser (jurist) from the Estonian Patient Advocacy Association (a non-governmental organisation promoting patient rights) and asked the court of appeal to make an exception in the question of legal representation in her case. If an exception could not be made, the applicant requested that she be granted legal aid and given more time to draw up a request to that effect.

By a decision of 21 August 2013 the Tallinn Court of Appeal declined to examine the appeal since it had not been lodged by a lawyer and there were no grounds for making an exception to that requirement. The court of appeal also rejected the application for more time for lodging a request for legal aid, noting that no reasons had been advanced for the applicant’s failure to submit supporting documents in time to prove her lack of means. In addition, the court of appeal noted that the applicant’s prospects of success in the appeal were negligible. The refusal to institute criminal proceedings and the decision of the Office of the Prosecutor General had contained detailed reasons as to why there were no grounds to initiate criminal proceedings. The conclusion that the hospital staff had not committed any criminal offence had been well-founded.

The applicant then asked the Supreme Court (Riigikohus) to grant her legal aid to lodge an appeal against the court of appeal’s decision. An appeal to the Supreme Court also had to be lodged by a lawyer. By a decision of 30 September 2013 the Supreme Court refused to grant legal aid. It considered that the decisions of the Prosecutor General and the court of appeal had been well reasoned, showing why no criminal proceedings had been commenced and that an appeal against the court of appeal’s decision would have had no prospect of success.

The relevant domestic law, namely references to the Obligations Act, the Code of Criminal Procedure and the Penal Code is set out in the case of Rõigas v. Estonia (no. 49045/13, §§ 25–47, 12 September 2017).

In addition, further references to domestic law are relevant in the instant case.

Under Article 207 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik), a victim can lodge an appeal with the Office of the Prosecutor General against a refusal to institute criminal proceedings.

Under Article 208, if the appeal mentioned in Article 207 is dismissed by order of the Office of the Prosecutor General, the victim of an alleged offence may lodge a complaint with the court of appeal. Such a complaint must be lodged through a lawyer (advokaat).

The Health-Care Services Organisation Act (Tervishoiuteenuste korraldamise seadus) sets out how the provision of health services should be organised and the requirements for such services. It regulates, inter alia, the registration of health-care professionals and the recognition of their professional qualifications as well as the licensing of activities in certain fields of health-care services. All such activities are carried out by the Health Board (Terviseamet) (Chapter 3 of the Act).

In addition, the Health-Care Services Organisation Act regulates the role and competences of the Expert Committee:

“(1) The Expert Committee on the Quality of Health-Care Services ... is an advisory committee whose purpose is to assess the quality of health-care services provided to patients and to make proposals arising from that assessment to the Health Board, the Estonian Health Insurance Fund and health-care providers.

(2) The Committee’s competencies are to:

assess the quality of health-care services provided to patients;

make proposals to the Health Board for the initiation of supervisory proceedings over the activity of health-care providers;

make proposals to health-care providers for assessing the competence of healthcare professionals and sending them to in-service training; 4. make proposals to health-care providers for changing the way they organise their work; ...”

Under section 60 of the Health-Care Services Organisation Act and section 1 of the Statute of the Health Board (Terviseameti põhimäärus), the Health Board is a governmental authority operating within the purview of the Ministry of Social Affairs. It has supervisory powers over compliance with the requirements established for health-care providers. Individuals have the right to submit complaints to the Health Board regarding such compliance.

Section 3 of the Regulation on the requirements for ensuring the quality of health-care services (Tervishoiuteenuste kvaliteedi tagamise nõuded), as in force at the material time, stated that a patient’s health-care provider was responsible for the health-care service provided to that person. In order to ensure and develop the quality of health-care services and reduce the risks entailed in the provision of such services, health-care providers had to develop and implement quality management systems in line with good medical and service practice. That quality management system had to, inter alia, address the question of ensuring a professional quality and quality in the organisation’s management of its work (section 5).

Section 8 of the regulation concerned the annual training of health-care professionals in order to ensure their professional development and raise their competence. The provision obliged each health-care provider to draw up a training plan for health-care professionals for each calendar year. In line with such training plans, health-care providers had to ensure at least sixty hours of specialised training for health-care professionals.

The Regulation on requirements for types of hospital (Haigla liikide nõuded) establishes a list of mandatory and permissible inpatient and outpatient services to be provided by general hospitals, central hospitals, regional hospitals, specialist hospitals, rehabilitation hospitals and local hospitals, as well as minimum requirements for staff, equipment and furnishings for the provision of inpatient and outpatient health-care services and for the main facilities used for treatment and diagnostics.

As relevant in the instant case, the regulation provides that regional hospitals must provide inpatient and outpatient services in all fields, including emergency and psychiatric care (section 31(1)). It requires certain medical professionals to be present at the hospital at all times, including doctors for emergency treatment, internal medicine and a psychiatrist (section 31(3)). Section 44 provides that in order to offer psychiatric health-care services, certain types of equipment (including stomach pumps in case of poisoning) and rooms that meet certain specifications as to size need to be available. Among other things, the regulation requires that it be possible to securely isolate and constantly monitor patients. It states that a security alarm should also be provided.

The relevant case-law regarding criminal and civil remedies is set out in the case of Rõigas (mentioned above, §§ 51–64).


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1942 and lives in Montana.

On 20 August 1997 the applicant’s daughter was killed in a traffic accident. Several other people were killed or injured as well. The accident was the fault of H.H., a lorry driver.

Criminal proceedings were opened against H.H. and in 1998 he was indicted and brought to court. At the first court hearing the relatives of the other victims brought civil claims against H.H. and his employer. The applicant did not bring such a claim.

In a judgment of 30 June 1999 the Vidin Regional Court (hereinafter “the Regional Court”) convicted H.H. of negligently causing the deaths of several people, including the applicant’s daughter, and injuring others, and sentenced him to a term of imprisonment. It allowed the civil claims, finding H.H. and his employer jointly liable to pay damages to the civil parties.

Upon appeal, the Regional Court’s judgment was quashed on 19 April 2000 by the Sofia Court of Appeal (hereinafter “the Court of Appeal”). Finding serious breaches of the procedural rules, it remitted the case to the prosecuting authorities, so that it could be restarted from the stage of the preliminary investigation.

On an unspecified date in 2000 or 2001 the prosecution prepared a new indictment against H.H. and he was once again brought to court.

The first court hearing was held on 30 March 2001. The Regional Court accepted for examination a civil claim against H.H. and his employer brought by the applicant, and recognised her as civil party to the proceedings.

In a judgment of 18 September 2002 the Regional Court convicted H.H. of causing the deaths of several people and injuring others, and sentenced him to a term of imprisonment. In addition, it awarded damages to the remaining civil claimants – damages due jointly from H.H. and his employer – but it did not make any decision in respect of the applicant’s claim.

On 12 March 2003 the Court of Appeal upheld H.H.’s conviction, reducing his sentence. That part of the judgment became final on 8 October 2003 when it was upheld by the Supreme Court of Cassation. However, as concerns the civil claims, the Court of Appeal quashed the lower court’s judgment and remitted the case for fresh examination. It reasoned that the Regional Court had committed serious procedural breaches by, among other things, not taking a decision on the applicant’s claim.

The Regional Court examined the case for a third time, only in relation to the part concerning the civil claims, and on 6 April 2004 gave a judgment. It ordered H.H. and his employer to pay damages to the civil parties, including 10,000 Bulgarian levs (BGN – the equivalent of 5,100 euros (EUR)), plus default interest, to the applicant.

Upon an appeal by H.H. and his employer, on 8 March 2006 the Court of Appeal quashed the lower court’s judgment in so far as it concerned the award made to the applicant, and discontinued the examination of her claim. It found that that claim was inadmissible, on the grounds that it had been submitted outside the time-limit provided for in Article 61 § 4 of the 1974 Code of Criminal Procedure (see paragraph 22 below). It pointed out that the requirement under that provision that a claim should be brought before the commencement of the examination of a case by a court had to be interpreted as referring to the initial examination by a court of first instance. The applicant had brought her claim during the subsequent examination of the case, after its remittal.

Upon an appeal by the applicant, that conclusion was upheld by the Supreme Court of Cassation on 4 March 2007.

On 22 August 2007 the applicant brought a tort action against H.H. and his employer before the civil courts. She claimed BGN 10,000 in respect of non-pecuniary damage, plus default interest as of 20 August 1997.

In a judgment of 17 July 2008 the Sofia District Court dismissed the claim. It held that the applicant’s inadmissible civil claim brought in the context of the criminal proceedings could not have interrupted the running of the relevant limitation period, which was five years. Only a claim brought in accordance with the relevant procedural requirements and subsequently found to be well-founded could have had such an effect. In addition, even if the running of the limitation period could be considered to have been interrupted by the applicant’s bringing her claim in the context of the criminal proceedings, that interruption had been retroactively invalidated by the Court of Appeal’s decision of 8 March 2006 finding that the claim was inadmissible and discontinuing the proceedings. Accordingly, the running of the limitation period – which had started in 1997 because the perpetrator’s identity had been known immediately after the accident in which the applicant’s daughter had died – had never been validly interrupted. The applicant’s claim for damages, brought ten years later, was time-barred. The applicant had brought her claim before a tribunal, namely the criminal court, which had been barred from examining it; this meant that this tribunal had had to transfer the claim to the civil courts with jurisdiction, but this had not been done.

The applicant filed an appeal, which was dismissed by a judgment of the Sofia City Court of 13 March 2009. While it considered the applicant’s claim well-founded in principle, since the tort resulting in the liability of H.H. and his employer had been proven, that court agreed that the claim was time-barred. It pointed out that the applicant’s bringing her claim in the context of the criminal proceedings could only have interrupted the running of the relevant time-limit if the claim had been allowed. However, after the proceedings had been discontinued, in the absence of recognition of the applicant’s right to receive damages, the time-limit had to be considered to have never been interrupted. The applicant had to bear the adverse consequences of having brought her claim in the context of the criminal proceedings in breach of the rules, and this was so notwithstanding the fact that the claim had been, erroneously, initially accepted for examination by the Regional Court.

The applicant lodged an appeal on points of law. In a final decision of 9 July 2009 the Supreme Court of Cassation refused to accept the appeal for a cassation review.


Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1976.

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

In 1994, the applicant was convicted of theft and given a two-year custodial sentence conditional on one year’s probation. However, the court applied a general amnesty act and the applicant’s conviction, including the probation period, was spent with immediate effect.

Less than one year later, on 29 May 1995, a different court convicted the applicant of aggravated robbery and sentenced him to six years’ imprisonment. Considering that the applicant had breached the terms of his probation by committing a new offence, the court ordered the suspended sentence to be activated and increased the total length of the sentence by one year.

On 11 December 2001 the Presidium of the Omsk Regional Court acknowledged that the 1995 judgment had been unlawful in the part relating to the increase of the final sentence in connection with the prior conviction that had already been spent. The length of the sentence was varied to six years’ imprisonment, calculated from 2 January 1995 which was the date of the applicant’s arrest. Given that the applicant had already spent more than six years in detention, the Presidium ordered his immediate release.

The applicant unsuccessfully tried several avenues for claiming compensation for his unlawful detention during eleven months and fourteen days.

He sought first to exercise the “right to rehabilitation” under the Code of Criminal Procedure (see paragraph 13 below). On 5 August 2003 the Oktyabrskiy District Court in Omsk rejected his application, pointing out that the “right to rehabilitation” only accrued to those who have been acquitted or exonerated which was not the applicant’s case. The applicant did not appeal against that decision.

The applicant also tried to initiate criminal proceedings against Judge B. who had given the judgment of 29 May 1995. His criminal-law complaint was rejected on the ground that the limitation period had expired.

Finally, the applicant filed a civil claim for compensation under the tort provisions of the Civil Code (see paragraph 14 below). On 20 December 2005 the Tsentralniy District Court in Omsk rejected his claim, finding that paragraph 1 of Article 1070 did not apply because the applicant had been found guilty rather than acquitted and that the special condition of applicability of paragraph 2 – the criminal conviction of the judge – was not fulfilled. On 14 June 2006 the Omsk Regional Court rejected an appeal against that decision.


CASE OF SOCIEDADE DE CONSTRUCOES MARTINS AND VIEIRA, LDA v. PORTUGAL

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46-2 - General measures)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant company is a Portuguese limited liability company. The second and third applicants are the applicant company’s managing partners (see Annex for details).

On 17 September 1999 the Porto Criminal Department for Investigation and Prosecution (Departamento de Acção e Investigação Penal) started an investigation into the applicant company’s fiscal activity between 1994 and 1997.

Following the investigation, two sets of fiscal criminal proceedings were instituted before the Porto and Barcelos Criminal Courts.

On 20 December 1999 the applicants were made defendants (arguidos) in both sets of proceedings.

On 5 November 2003 the public prosecutor brought charges (acusação) against the applicant company and third applicant in the Porto Criminal Court for tax fraud in relation to activities dating back to 1997, when the applicant company was registered in Porto.

On 27 September 2005 the trial began. The hearing was adjourned to October and then to 27 March 2006 due to the absence of some of the defence witnesses.

On the day of the hearing, the applicant company’s and third applicant’s representative resigned. The hearing was adjourned pending his replacement.

In June 2006 the applicant company and third applicant gave power of attorney to the same lawyer.

On 14 November 2006 the applicants informed the Porto Criminal Court that they had sought a judicial review before the Porto Administrative and Fiscal Court of a tax adjustment applied to them regarding the applicant company’s fiscal activity between 1994 and 1997.

On 29 November 2006 the Porto Criminal Court suspended the fiscal criminal proceedings in accordance with Article 50 § 1 of the Legal Framework for Non-Customs Tax Offences (Regime Jurídico das Infracções Fiscais não Aduaneiras – “RJIFNA”).

On 19 December 2008 the applicants applied to the High Council of Magistrates (Conselho Superior de Magistratura) for an order to have the criminal proceedings expedited (pedido de aceleração processual).

On 5 May 2009 the High Council of Magistrates dismissed their application on the grounds that the delay in the proceedings, under the law, was attributable to the Porto Administrative and Fiscal Court rather than the Porto Criminal Court. The Council pointed out that the applicants should have therefore lodged their expedition application with the High Council of the Administrative and Fiscal Courts.

The proceedings are still pending before the Porto Criminal Court.

On 28 April 2003 the public prosecutor of the Barcelos Criminal Court brought charges against the three applicants for tax fraud and abuse (fraude fiscal e abuso de confiança fiscal) in relation to activities that had taken place between 1994 and 1996, when the applicant company was registered in Barcelos.

On 1 October 2003 the applicants contested the proceedings. On the same date they applied for them to be suspended until a final decision was adopted in relation to the judicial review pending before the Porto Administrative and Fiscal Court (see paragraph 13 above).

On 17 November 2003 the Barcelos Criminal Court ordered that the proceedings be suspended in accordance with Article 50 § 1 of the RJIFNA and requested information from the Porto Administrative and Fiscal Court regarding the progress of the judicial review.

On 14 December 2006 the Porto Administrative and Fiscal Court informed the Barcelos Criminal Court that the proceedings brought by the applicants against the tax adjustment were still pending.

On 23 April 2007 the Barcelos Criminal Court suspended the proceedings until a final decision was adopted by the Porto Administrative and Fiscal Court.

On 20 October 2008 the Porto Administrative and Fiscal Court informed the Barcelos Criminal Court that the judicial review was still pending.

On 19 December 2008 the applicants applied to the High Council of Magistrates to have the proceedings expedited.

On 13 January 2009 the High Council dismissed their application on the grounds that the fiscal criminal proceedings had been suspended in accordance with the law. It also considered that their request should have been made to the High Council of the Administrative and Fiscal Courts.

The proceedings are still pending before the Barcelos Criminal Court.

On 10 October and 27 October 2006 the applicants instituted proceedings in tort (ação de responsabilidade civil extracontratual) against the State in the Porto and Braga Administrative and Fiscal Courts (case nos. 2533/06.6BEPRT and 1789/06.6BEBRG respectively), claiming damages for the excessive length of the above-mentioned criminal proceedings.

According to the latest information received by the Court on 14 February 2014, the proceedings are still pending.


CASE OF KITANOVSKA STANOJKOVIC AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

On 25 October 2011 two persons wearing black masks entered the applicants’ house with an intention to rob them. They hit V.K., the applicants’ husband and father, as well as the first applicant, inflicting on them severe injuries. In consequence, on 1 November 2011 V.K. died. After the incident, the first applicant was admitted to hospital where she remained in the intensive care unit until 4 November 2011.

On 3 November 2011 the public prosecutor requested that the Skopje Court of First Instance (“the trial court”) launched preliminary proceedings against F.T. (seventeen-year old at the time) on account of aggravated robbery and remanded him in custody. On the same date, the trial court ordered F.T.’s detention for fifteen days. The detention was ordered on account of the risk of him absconding and interfering with the investigation, namely “influencing the victims witnesses, in particular since they live in (F.T.’s) vicinity”.

By a decision of 17 November 2011, an investigating judge of the trial court extended F.T.’s detention for fifteen days for the same reasons as before. On 1 December 2011 the investigating judge ordered his release finding that “his attendance at the trial can be secured with a more lenient measure (seizure of passport and obligation to report to the court) ... Taking into account the individual circumstances and needs of [F.T.], his age, the fact that he is a regular student in third year of secondary school and a young man in development, [the court] considers that there are grounds for termination of the detention order ...”

On 13 January 2012 the public prosecutor lodged an indictment against F.T. and a certain S.G. They were indicted on charges of aggravated robbery with respect to the incident of 25 October 2011.

On 7 June 2012 the Skopje Court of First Instance, after it had heard evidence from the accused, the applicants, witnesses, experts, representatives of a Social Welfare Centre (who suggested that F.T. should be sentenced to a prison term if he was found guilty), and admitted considerable material evidence, including several expert reports (including a psychiatric expert report which confirmed that F.T. had been mentally fit when the crime had been committed) established the following:

“At 1.30 a.m. on 25 October 2011 the accused S.G. and F.T., on the basis of a prior agreement, arrived [at the applicants’ house] with an intention to steal movable objects. With the use of force and dangerous object – a metal hammer with a wooden grip, they intentionally inflicted serious injuries on the now deceased V.[K.] and [the first applicant] in order to achieve their aim ... Wearing black masks, [S.G. and F.T.] arrived in front of [the applicants’ house] ... V.K. opened the door. They both entered the house. S.G. immediately started hitting V.K. on the head and hands with the metal hammer. V.K. sustained serious injuries-head wounds, multi-fragmented fractures accompanied with brain haemorrhages under the hard tissues of the brain ... linear skull fracture, as a result of which he died on 1 November 2011. Soon after, L.J., [the first applicant’s daughter and the second and third applicants’ sister] appeared and started screaming. S.G. then physically assaulted her by hitting her on the head ... She fell down, pretending to be dead. After [the first applicant] had heard L.J.’s screaming, she arrived in the kitchen in order to see what was going on, but when she arrived in the living room, she was assaulted by the minor F.T. He punched her hard in the head, inflicting severe injuries, namely four head wounds [cuts and bruises]; two sizeable skull fractures; haemorrhages under the soft tissues of the brain; and a brain lesion in the area of the left temple ... ... [the first applicant], V.[K.] and L.[J.] were taken by ambulance to Skopje Hospital. They were admitted by I.S., a doctor who was on duty at the time, who noted the serious physical injuries which both V.[K.] and [the first applicant] had sustained. They were kept in hospital, since their injuries were life-threatening ...”

As stated in the judgment, “[the second applicant] was not able to recognise her parents given their injuries. Her mother was so much beaten that she could not see; her eyes were closed and her face was so much coloured (модро) that she could not recognise her.”

The court found S.G. and F.T. guilty of aggravated robbery and, relying on Article 237(4) in relation to sub-paragraph 1 of the Criminal Code (see paragraph 16 below), sentenced them to six and five years’ imprisonment respectively. The time which F.T. had spent in pre-trial detention was to be deducted from the total length of his custodial sentence. As victims, the applicants were advised to pursue compensation claims by means of a separate civil action for damages.

By judgments of 26 November 2012 and 12 March 2013, the Skopje Court of Appeal and the Supreme Court, respectively, dismissed F.T.’s complaints about alleged errors on the facts and law, as well as alleged violations of the procedural rules. Both courts upheld the lower court’s judgment finding no grounds to depart from the facts as established by the trial court and the reasons given for the conviction.

On 2 January 2013 an enforcement judge responsible for execution of the custodial sentence issued an incarceration order (упатен акт) in respect of F.T. According to that order, F.T. was required to report to Ohrid Detention Centre on 30 January 2013 in order to serve the sentence. On 17 January 2013 F.T. requested that the sentence be postponed for family and health reasons. This request was dismissed by decisions of 21 January and 12 February 2013 by the enforcement judge and a three-judge panel of the trial court, respectively. On 21 February 2013 the detention centre informed the enforcement judge that F.T. had not arrived at the facility on the specified date. By letters dated 28 February, 8 April and 20 May 2013, the enforcement judge notified the trial court in Skopje responsible for minors about F.T.’s failure to report to the detention facility and sought instructions “given the urgent nature of the proceedings”. These letters remained unanswered.

The Government submitted that after the above correspondence, no enforcement judge had been appointed to deal with the case for over eight months. After such a judge had been appointed, on 27 March 2014 another incarceration order had been issued in respect of F.T. The latter sought, to no avail, for the custodial sentence to be adjourned. On 2 May 2014 the detention centre advised again that F.T. had not arrived at the facility.

On 30 June 2014 the enforcement judge ordered F.T.’s arrest. F.T. was arrested on 10 July 2014 and started serving his custodial sentence on 11 July 2014. The detention centre confirmed by letter that F.T. would remain in custody until 27 June 2019.


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

The applicant, Mr Grigoriy Vladimirovich Smadikov, is a Russian national who was born in 1964 and lives in Khabarovsk.

In 2012 the applicant was accused of an administrative offence under Article 12.28 of the Federal Code of Administrative Offences (CAO). According to the applicant, he was unaware of the charge.

A hearing was listed for 18 June 2012. Since the hearing notification was returned to the court as “after expiry of the storage term”, the judge rescheduled to 16 July 2012 and issued a new notification. This notification was also returned to the court with the same note.

According to the applicant, he remained unaware of the charge and did not receive the above notifications.

By a judgment of 16 July 2012 a justice of the peace convicted the applicant; his driving licence was suspended for one year and six months. The applicant allegedly first learned about this judgment on 19 May 2014, when he was involved in a traffic accident.

The applicant appealed against the judgment. On 21 July 2014 the Khabarovskiy District Court of Khabarovsk held a hearing; heard the applicant’s representative (the applicant waiving his right to be present); examined evidence; and upheld the judgment.

On 27 August and 3 December 2014 the Khabarovsk Regional Court and the Supreme Court of Russia respectively rejected the applicant’s applications for review under Article 30.12 of the CAO (see paragraphs 1721 below as regards the applicable procedure).

Under Article 25.11 and 28.4 of the CAO a prosecutor institutes administrative-offence proceedings for a number of offences, but also has the right to institute administrative-offence proceedings in any other case. He can participate in the examination of the case, lodge various applications, and issue a report on issues arising in the case. He can also appeal against the decision in the case, irrespective of whether he previously participated in the proceedings.

Under the CAO, depending on the subject matter decisions concerning administrative offences can be issued either by a non-judicial authority or by a court (Chapter 23 of the CAO).

At the relevant time, Chapter 30 of the CAO contained provisions concerning review of such decisions.

Review could be sought by the person or legal entity accused of the administrative offence, the victim of the offence, or their representative (Article 30.1). If the decision on the administrative offence concerned a legal entity or a person engaged in entrepreneurial activities it was reviewed by a commercial court in accordance with the rules of commercial procedure (Article 30.1).

An ordinary appeal against a ruling on an administrative offence could be lodged within ten days (or fifteen days for some offences) following receipt of the copy of the decision (Article 30.3). The appeal should be examined within ten days (or less for some offences) following receipt of the case file by the reviewing court or authority (Article 30.5). The reviewing authority or court is not bound by the scope of arguments, and reviews the case in its entirety (Article 30.6).

Article 30.10 gave prosecutors the right to seek review of decisions on administrative offences within the procedure and time-limits set out in Articles 30.1-30.3 of the CAO.

Article 30.11 provided for further review of final court decisions on administrative offences. A regional prosecutor or deputy or the Prosecutor General of the Russian Federation or deputy had the right to apply for such a further review. According to the ruling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia, individuals prosecuted in an administrative-offences case also had a right to lodge an application for supervisory review (paragraph 34).

If the judge in the supervisory review had doubts about the lawfulness of the impugned court decisions he or she could request the case file and then examine the case in its entirety, going beyond the grounds for review raised by the author of the supervisory-review application (paragraph 34 of the ruling of 24 March 2005).

Supervisory review was to be carried out by the presidents of the regional courts or their deputies, or by the President of the Supreme Court of Russia or her deputies. Reviewing this provision, the Constitutional Court of Russia (decision no. 113-O of 4 April 2006 concerning the constitutional interpretation of Article 30.11 of the CAO; this decision was officially published in July 2006) stated that the reviewing court was to inform the person affected by the administrative offence proceedings about the application for review lodged by the victim. The Constitutional Court also stated that until legislative amendment of the CAO concerning the scope of review, grounds for review, the reviewing courts’ powers, timelimits for seeking review, and the procedure for such a review, the reviewing courts were to be guided by the relevant provisions of Chapter 36 of the Code of Commercial Procedure (see paragraphs 24-29 below).

Article 30.11 of the CAO was deleted. Article 30.12 provides that the first-instance and appeal judgments, which became final, can be challenged by way of review by the defendant or his counsel, the victim, legal representative of a minor or another vulnerable person, or legal representatives of a legal entity. Review can be sought by a regional prosecutor or deputy or the Prosecutor General or deputy. Since October 2014 the public official who submitted the administrative offence case for judicial examination is also entitled to seek review.

Requests for review should be lodged before regional courts or the Supreme Court of Russia. Such requests are to be examined by the presidents of such courts or their deputies. The Supreme Court is empowered to deal with appeals against decisions taken on review at the regional level. In other cases, the Supreme Commercial Court should have similar competence (Article 30.13).

Requests for review should indicate the grounds for the review (Article 30.14). The scope of the review should be limited to the grounds indicated in the request and observations in reply. If the interests of legality so require, the review judge can review the case in its entirety. Renewed requests for review on the same grounds before the same court are not allowed (Article 30.16).

The reviewing court should issue a decision within two months of receipt of the application or within one month of receipt of the case file, if so requested by the reviewing court (Article 30.16).

The Constitutional Court held that the review procedure in respect of final court decisions under the CAO is aimed at the correction of fundamental errors in such decisions, in line with the requirements of Article 4 § 2 of Protocol No. 7 to the Convention (decision no. 1788-O of 16 July 2015).

Apparently, the decision of 113-O of 4 April 2006 was not applied by some regional courts (see decision no. 4a10-790 of 31 August 2010 by the Chelyabinsk Regional Court, and, a contrario, decision no. 4-a-854 of 24 November 2010 by the Rostov Regional Court); some regional courts stated that this decision was no longer applicable following the deletion of Article 30.11 of the CAO during the legislative reform in December 2008 (see decision no. 4a10-1227 of 28 December 2010 by the Chelyabinsk Regional Court). It appears that a number of regional courts have recently maintained the position that there is no time-limit for seeking review proceedings under the CAO:

- Moscow City Court: decisions no. 4a-1328/15 of 1 June 2015, no. 4a3046/2015 of 8 September 2015, no. 4a-2641/2015 of 2 October 2015, no. 4a-3465/2015 of 5 October 2015, no. 4a-4770/2015, no. 4a123/16 of 15 March 2016;

- Novosibirsk Regional Court: decisions no. 4a-214/2016 of 2 March 2016, no. 4a-252/2016 of 14 March 2016, no. 4a-260-2016 of 6 April 2016, no. 4a-376-2016 of 12 May 2016;

- Krasnoyarsk Regional Court: decisions no. 4a-606/2015 of 6 August 2015, no. 4a-624/2015 of 7 August 2015;

- Primoskiy Regional Court: decisions no. 7-21-958 of 19 August 2015, no. 7-21-1034 of 14 September 2015;

- Ivanovo Regional Court: decision no. 4a-284/2015 of 8 October 2015;

- Pskov Regional Court: decision no. 7-78/2015 of 9 June 2015;

- Chelyabinsk Regional Court: decision no. 4a16-157 of 1 March 2016;

- Supreme Court of the Tatarstan Republic: decision no. 4a-299 of 14 April 2016.

Cases concerning the charges under the CAO in respect of legal entities and entrepreneurs are examined according to the procedures prescribed by the Code of Commercial Procedure (CCOmP).

Prior to the changes which entered into force on 6 August 2014 (Federal Law no. 186-FZ of 28 June 2014), supervisory review of final judgments issued by commercial courts was regulated under Chapter 36 of the CComP.

Article 292 of the CComP provided that supervisory review of final judgments was carried out by the Supreme Commercial Court of Russia. This review could be sought by the parties to the proceedings and, in some cases, by a prosecutor (see also Articles 42 and 52 of the CComP).

The grounds for review included “substantial violations of rights and legitimate interests relating to entrepreneurial or another economic activity as a result of a violation or wrong application of material or procedural law” (Article 292 of the CComP). The application for review was to be lodged within three months of the date the last impugned judgment entered into force, provided that the other review remedies had been exhausted (ibid.).

Article 293 provided that the application was to be examined by a panel of judges, who had to decide whether the case was to be transferred for examination by the Presidium of the Supreme Commercial Court (see also Article 299 of the CComP).

Article 304 of the Code contained the grounds for varying or overturning lower courts’ decisions: violation of consistency in interpretation and application of the law by commercial courts; violation of human rights and freedoms, as protected by the well-recognised principles and rules of international law or by an international treaty of the Russian Federation; and violation of the public interest.

On this Court’s position concerning the supervisory review procedure under the CComP prior to the amendments in 2014, see Kovaleva and Others v. Russia (dec.), no. 6025/09, 25 June 2009.

For a summary of the amended provisions of the CComP in force since August 2014, see Sakhanov v. Russia (dec.), no. 16559/16, §§ 13-30, 28 October 2016.