Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-d - Educational supervision;Minors);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing) (Article 6-3-d - Obtain attendance of witnesses;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;András Sajó;Dean Spielmann;Dmitry Dedov;Erik Møse;George Nicolaou;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Robert Spano;Ksenija Turković

The applicant was born in 1992 and lives in Novosibirsk.

At some point before September 2004, the applicant’s parents were deprived of their parental responsibility and the applicant was placed in a local orphanage until his grandfather was assigned as his guardian in October 2004 and the applicant was placed with him. On 28 February 2005 the grandfather’s guardianship was revoked but he was reinstated as guardian at the beginning of 2006.

From 2002 to 2005, the applicant allegedly committed offences prohibited by the Criminal Code of the Russian Federation, including disorderly acts, aggravated robbery and extortion, alone or in a group of minors. Since he was under the age of criminal responsibility, no criminal proceedings were instituted against him but he was the subject of five pre-investigation inquiries and placed under the supervision of the Juveniles Inspectorate within the Department of the Interior of the Sovetskiy District of Novosibirsk (hereafter “the Juveniles Inspectorate”). Moreover, following the fourth inquiry, he was placed in a temporary detention centre for juvenile offenders on 21 September 2004 for thirty days.

According to the applicant’s medical records, he suffered from an attention deficit hyperactivity disorder (a mental and neurobehavioural disorder characterised by either substantial attention difficulties, or hyperactivity and impulsiveness, or a combination of the two; hereafter “ADHD”) and a neurogenic bladder causing enuresis (a disorder involving urinary incontinence).

On 27 December 2004 and 19 January 2005 he was examined by a neurologist and a psychiatrist. He was prescribed medication, regular supervision by a neurologist and a psychiatrist and regular psychological counselling.

On 3 January 2005 the applicant, who at that time was twelve years old, was at the home of his nine-year old neighbour S. when his mother, Ms S., called the police, who came and took the applicant to the police station of the Sovetskiy District of Novosibirsk. He was not informed of the reasons for his arrest.

According to the applicant, he was put in a cell that had no windows and the lights in the cell were turned off. After he had spent about an hour in the dark, he was questioned by a police officer. The police officer told him that S. had accused him of extortion. He urged the applicant to confess, saying that if he did so he would be immediately released, whereas if he refused he would be placed in custody. The applicant signed a confession statement. The police officer then immediately telephoned the applicant’s grandfather to tell him that the applicant was at the police station and could be taken home. When his grandfather arrived at the police station, the applicant retracted his confession and protested his innocence.

The Government disputed the applicant’s account of the events at the police station. They submitted that the applicant had been asked to give an “explanation” rather than being formally questioned, that he had been interviewed by a police officer who had pedagogical training, and that he had been apprised of his right to remain silent. He had not been subjected to any pressure or intimidation. His grandfather had been present during the interview.

On the same day the applicant’s grandfather signed a written statement describing the applicant’s character and way of life. He stated that two days earlier he had seen the applicant in possession of some money. When asked where the money had come from, the applicant had said that he had got it from his father.

S. and his mother were also heard by the police about the incident and they claimed that on two occasions, on 27 December 2004 and 3 January 2005, the applicant had extorted 1,000 roubles (RUB) from S., threatening him with violence if he did not hand over the money.

On 12 January 2005 the Juveniles Inspectorate refused to institute criminal proceedings against the applicant. Relying on the applicant’s confession and the statements of S. and S.’s mother, it found it to be established that on 27 December 2004 and 3 January 2005 the applicant had extorted money from S. His actions therefore contained elements of the criminal offence of extortion, punishable under Article 163 of the Criminal Code. However, given that the applicant was below the statutory age of criminal responsibility he could not be prosecuted for his actions.

On 3 February 2005 the applicant’s grandfather complained to the Prosecutor’s Office of the Sovetskiy District of Novosibirsk that the applicant, a minor suffering from a psychological disorder, had been intimidated and then questioned in the absence of his guardian and that his confession had been obtained under duress. The grandfather requested that the confession statement be declared inadmissible as evidence and that the pre-investigation inquiry be closed on account of lack of evidence of an offence, rather than the applicant’s age.

On 8 June 2005 the Prosecutor’s Office of the Sovetskiy District of Novosibirsk quashed the decision of 12 January 2005, finding that the preinvestigation inquiry had been incomplete. It ordered a further pre-investigation inquiry.

On 6 July 2005 the Juveniles Inspectorate again refused to institute criminal proceedings against the applicant, for the same reasons as before.

During the following months the applicant’s grandfather lodged several complaints with prosecutors’ offices of various levels, asking for a fresh examination of the case against the applicant. He complained that the applicant’s confession had been obtained as a result of intimidation by the police; in particular, he had been placed in a dark cell for an hour and he had then been questioned by a police officer in the absence of a guardian, psychologist or teacher. The police officer had coerced the applicant into signing the confession statement without the benefit of legal advice. He had then issued a decision refusing to institute criminal proceedings on the ground that the applicant had not reached the statutory age of criminal responsibility, while stating at the same time that the applicant’s involvement in extortion had been established.

By letters of 4 August, 9 November and 16 December 2005 the Prosecutor’s Office of the Sovetskiy District of Novosibirsk and the Prosecutor’s Office of the Novosibirsk Region replied that no criminal proceedings had been instituted against the applicant on grounds of his age. He therefore did not have the status of a suspect or a defendant. On 3 January 2005 he had been asked to give an “explanation” rather than questioned by the police. In those circumstances the participation of a lawyer, psychologist or teacher had not been mandatory. There was no evidence that the applicant had been held in a dark cell before the interview and he had had to wait no more than ten minutes for an officer from the Juveniles Inspectorate to arrive and interview him. That the applicant had committed extortion had been established on the basis of the statements of S. and S.’s mother and the applicant’s admission of guilt during the interview of 3 January 2005.

On 10 February 2005 the Head of the Sovetskiy District Police Department of Novosibirsk asked the Sovetskiy District Court of Novosibirsk to order the applicant’s placement in a temporary detention centre for juvenile offenders.

On 21 February 2005 the Sovetskiy District Court held a hearing at which the applicant and his grandfather attended and submitted medical certificates confirming that the applicant suffered from a psychological disorder and enuresis.

On the same day the court delivered its judgment in which it ordered the applicant’s placement in the temporary detention centre for juvenile offenders for thirty days. It held as follows:

“The Head of the Sovetskiy District Police Department of Novosibirsk has applied to the court with a request to place [the applicant], who has been registered with the [Juveniles] Inspectorate as a delinquent minor since 4 January 2002, in the temporary detention centre for juvenile offenders for thirty days.

On 14 May 2003 [the applicant] committed an offence proscribed by Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility.

On 24 July 2003 [the applicant] again committed an offence proscribed by Article 213 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility.

On 27 August 2004 [the applicant] again committed a criminal offence under Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. [The applicant] was placed in the temporary detention centre for juvenile offenders for thirty days.

The minor lives in unfavourable family conditions in which his grandfather is responsible for his upbringing in so far as possible; [the applicant’s] parents are alcoholics and have a negative influence on their son. Before [the grandfather] was given guardianship status, [the applicant] had lived in an orphanage and studied in school no. 61. At the material time he studied in school no. 163, often played truant from school, and stopped attending school entirely from December onwards. Given that the requisite control over him is absent, the minor spends the major part of his day on the streets, committing socially dangerous offences.

On 27 December 2004 [the applicant] committed another offence proscribed by Article 163 of the Criminal Code of the Russian Federation; a criminal case was not opened because he had not reached the age of criminal responsibility.

Taking the above-mentioned circumstances into account, [the Head of the Police Department] considers it necessary to place [the applicant] in the temporary detention centre for juvenile offenders for a period of thirty days to prevent his further unlawful actions.

The representative of the Juveniles Inspectorate supported the request made by the Head of the Police Department and explained that [the applicant’s] guardian had requested in writing that his guardianship rights be lifted and the [Inspectorate] had accepted that request.

[The applicant] refused to provide any explanations.

The [applicant’s] representative [the grandfather] objected to [the applicant’s] placement in the temporary detention centre, having noted that [the applicant] had not committed a criminal offence on 27 December 2004 as he had been with [the grandfather] at a doctor’s surgery for an examination at that time.

The lawyer, Ms [R.], asked the court to dismiss the request of the Head of the Police Department.

The prosecutor asked the court to accept the request and to place [the applicant] in the temporary detention centre for juvenile offenders, taking into account that the documents presented by [the applicant’s] guardian did not confirm that [the applicant] had been at a doctor’s surgery on 27 December 2004 at 1 p.m. or that he had been unable to commit the criminal offence, particularly taking into account the [applicant’s] personality and the fact that he had already committed a number of offences.

Having heard the parties to the proceedings and having examined the materials submitted by them, the court considers that the request must be allowed for the following reasons: [the applicant] is registered in the database of [the Juvenile Department of the police]; he was previously placed in the [temporary detention centre for juvenile offenders] for behaviour correction but did not draw the proper conclusions and committed further delinquent acts; the preventive measures put in place by the [Juveniles] Inspectorate and by the guardian have not produced results, which shows that [the applicant] has not learnt his lesson. [The applicant] must be placed in the [temporary detention centre for juvenile offenders] for thirty days for behaviour correction.

The case-file materials examined by the court confirm that [the applicant] committed a socially dangerous offence: a complaint by Ms [S.] shows that on 27 December 2004, at approximately 1 p.m., [the applicant] extorted 1,000 roubles from her son [S.] in a yard; he accompanied those actions with threats of violence. On 3 January 2005 [the applicant] again came to their house and again extorted 1,000 roubles from her son, having again threatened the son with violence. Explanations by [S.] indicate that on 27 December 2004, at approximately 1 p.m., [the applicant] told [S.] to give him 1,000 roubles in a yard; he accompanied those actions with threats of violence and [S.] gave him the money. On 3 January 2005 [the applicant] again came to their house and requested 1,000 roubles from [S.], having again threatened him with violence. [S.] complained to his mother, who called the police.

The court takes into account that those circumstances are corroborated by the statement made by [the applicant], who did not deny that he had received money from [S.] on 27 December 2004 as the latter had been afraid of the applicant. [The applicant] also did not deny that he had come to [S.’s] house on 3 January 2005. A criminal case in respect of the events on 27 December 2004 and 3 January 2005 was not opened as the applicant had not reached the age of criminal responsibility.

Having taken these circumstances into account, the court finds unsubstantiated and far-fetched the explanations by the applicant’s guardian that [the applicant] did not commit the offences on 27 December 2004 and 3 January 2005.

Having regard to the above-mentioned facts and ruling under section 22(2)(4) of the Minors Act, the court grants the request of the Head of the Police Department and decides to place the applicant in the temporary detention centre for juvenile offenders for thirty days.”

On 21 February 2005 the applicant was placed in the Novosibirsk temporary detention centre for juvenile offenders, where he remained until 23 March 2005.

According to the applicant, he had shared his bedroom in the centre with seven other inmates. The lights were kept on all night.

During the day inmates were forbidden to lie on their beds or to enter the bedroom. They had to spend the whole day in a large empty room which had no furniture or sports equipment. On a few occasions they were given a chess set and other board games. They were allowed to go out into the yard only twice during the applicant’s thirty-day stay in the centre.

Inmates had classes twice a week for about three hours. They had mathematics and Russian grammar classes only. They were not taught any other courses from the officially approved secondary school curriculum. About twenty children of different ages and school levels were taught together in one class.

The supervisors applied collective punishment to the inmates. If one of them committed a breach of the centre’s strict regime, all inmates were forced to stand in line against the wall without moving, talking or being allowed to sit down. Given that many inmates were psychologically unstable and unruly, because of their socially disadvantaged background, such punishment was applied every day and often lasted for hours.

Inmates were not allowed to leave the room where they were assembled. They had to ask for the supervisor’s permission to go to the toilet and were accompanied there in groups of three. They therefore had to wait until such a group was formed before being able to go to the toilet. Given that the applicant suffered from enuresis, the fact that he could not go to the toilet as often as he needed caused him bladder pain and psychological suffering. If his requests for permission to go to the toilet became too frequent, the supervisors punished him by making him do particularly arduous cleaning work.

Although the applicant’s grandfather had informed the staff of the centre about the applicant’s enuresis and his attention deficit hyperactivity disorder, the applicant did not receive any treatment.

According to the Government, each bedroom in the temporary detention centre for juvenile offenders measured seventeen square metres and was equipped with four beds. Access to the bathrooms and toilets situated on each floor was not limited.

The centre had a dining room where meals were served five times a day. There was also a games room and a sports room. Audio and video equipment, educational games and fictional works were available.

The supervisors carried out “preventive work” with each inmate of the centre and could apply incentive measures or punitive measures in the form of oral reprimands. Corporal punishment was not used; nor were juvenile inmates ever required to do hard or dirty work.

The centre’s medical unit had all the necessary equipment and medicine. It could be seen from the staff list of the centre submitted by the Government that the medical unit was staffed by a paediatrician, two nurses and a psychologist. According to the Government, each child was examined by the paediatrician on his admission and every day thereafter. Treatment was prescribed when necessary. It could be seen from the temporary detention centre’s “accounting and statistical record” concerning the applicant that he had not informed the doctor about his enuresis.

The applicant’s personal file, containing, in particular, the information about his medical condition on admission, the preventive work carried out and the punishment applied to him, had been destroyed on 17 January 2008 after the expiry of the statutory time-limit on storage, in accordance with Order no. 215 of the Ministry of the Interior of 2 April 2004 (see paragraph 73 below). However, the Government stated that the applicant’s “accounting and statistical record”, referred to above, had been retained since its storage period was unlimited in accordance with Order no. 215 (see paragraph 74 below).

According to the Government, the applicant’s other medical records and logbooks at the temporary detention centre had been destroyed as soon as they had become unnecessary, without any records being compiled in this respect. This had been possible because there had been no regulations on storing such documents until Order no. 340 of the Ministry of the Interior had entered into force on 12 May 2006 (which provided that medical records were to be stored for three years).

However, the Government submitted a written statement by a supervisor at the detention centre dated 23 December 2010. She confirmed the Government’s description of the conditions of detention in the centre. She also stated that one of the supervisors was always present in the room where the inmates were gathered, which ensured continuity of the educational process. Teachers from the neighbouring school regularly came to the centre so that the inmates could follow the secondary-school curriculum. After their release from the centre, they received an education progress record. She stated that she did not remember the applicant but asserted that she had not received any requests or complaints from him or from any other inmate.

The Government also submitted a copy of an agreement of 1 September 2004 between the detention centre and secondary school no. 15 according to which the school undertook to organise secondary-school courses in the centre in accordance with a curriculum developed by the centre. A copy of an undated two-week curriculum was produced by the Government. It included four classes per day on Tuesdays, Thursdays and Fridays.

On 23 March 2005 the applicant was released from the detention centre. On the following day he was taken to hospital, where he received treatment for neurosis and attention deficit hyperactivity disorder. He remained at the hospital until at least 21 April 2005.

On 31 August 2005 the applicant was placed in an orphanage and, according to an extract from the applicant’s medical record drawn up at the orphanage, he was on the run between 14 September and 11 October 2005 and again between 13 and 23 October 2005.

On 1 November 2005 he was transferred to a children’s psychiatric hospital, where he remained until 27 December 2005. At some point after this, he was returned to his grandfather who had been reinstated as his guardian.

On 4 October 2005 the applicant’s grandfather complained to the Prosecutor General’s Office that the applicant, who suffered from a mental disorder, had not received any medical treatment in the temporary detention centre for juvenile offenders, which had caused a deterioration in his condition; nor had he been provided with any educational courses. He reiterated his complaints to the prosecution authorities in a letter dated 30 November 2005. While the Prosecutor’s Office of the Sovetskiy District of Novosibirsk sent a reply to the applicant’s grandfather on 9 November 2005 and the Prosecutor’s Office of the Novosibirsk Region sent a reply on 16 December 2005, both of these dealt exclusively with the procedural issues related to the applicant’s case (see paragraph 24 above) and did not contain any answer to the grandfather’s complaints in so far as they related to the applicant’s health and the conditions of detention.

Meanwhile, on 2 March 2005, the applicant’s grandfather appealed against the detention order of 21 February 2005. He submitted, firstly, that the detention was unlawful because the Minors Act did not permit detention for “behaviour correction”. Secondly, he complained that he had not been informed of the decision of 12 January 2005 refusing to institute criminal proceedings against the applicant and had therefore been deprived of an opportunity to appeal against it. He further submitted that the court’s finding that the applicant had committed an offence had been based on the statements of S. and his mother and the applicant’s confession statement. However, the applicant had made his confession statement in the absence of his guardian. Nor had a teacher been present. No teacher had been present during the questioning of S. either. Their statements were therefore inadmissible as evidence. Moreover, S. and his mother had not attended the court hearing and had not been heard by the court. Nor had the court verified the applicant’s alibi. Lastly, the applicant’s grandfather complained that the court had not taken into account the applicant’s frail health and had not verified whether his medical condition was compatible with detention.

On 21 March 2005 the Novosibirsk Regional Court quashed the detention order of 21 February 2005 on appeal. It found that behaviour correction was not among the grounds listed in section 22(2)(4) of the Minors Act for placing a minor in a temporary detention centre for juvenile offenders. Detention for behaviour correction therefore had no basis in domestic law. Moreover, the District Court had not stated reasons why it considered it necessary to detain the applicant. The mere fact that the applicant had committed an offence for which he was not liable to prosecution because of his age could not justify his detention. Such detention would be permissible only if one of the additional conditions listed in section 22(2)(4) of the Minors Act (see paragraph 66 below) was met. The Regional Court remitted the case to the District Court for fresh examination.

On 11 April 2005 the Sovetskiy District Court discontinued the proceedings because the Head of the Sovetskiy District Police Department of Novosibirsk had withdrawn his request for the placement of the applicant in the temporary detention centre for juvenile offenders. The applicant and his grandfather were not informed of the date of the hearing.

On 22 March 2006 the applicant’s grandfather lodged an application for supervisory review of the decision of 11 April 2005. He complained that as a result of the discontinuation of the proceedings the applicant had been deprived of an opportunity to prove his innocence in respect of the offence for which he had already unlawfully served a term of detention in the temporary detention centre for juvenile offenders.

On 3 April 2006 the President of the Novosibirsk Regional Court quashed the decision of 11 April 2005. He found, firstly, that, in accordance with section 31.2(3) of the Minors Act, a judge examining a request for the placement of a minor in a temporary detention centre for juvenile offenders had the power either to grant or to reject the request. He had no power to discontinue the proceedings. Secondly, the applicant and his guardian had not been informed of the date of the hearing and had therefore been deprived of an opportunity to make submissions on the issue of the discontinuation of the proceedings.

On 17 April 2006 the Prosecutor of the Novosibirsk Region lodged an application for supervisory review of the Regional Court’s decision of 21 March 2005.

On 12 May 2006 the Presidium of the Novosibirsk Regional Court quashed the decision of 21 March 2005, finding that it had been adopted by an unlawful composition of judges. It remitted the case for a fresh examination on appeal.

On 29 May 2006 the President of the Novosibirsk Regional Court held a fresh appeal hearing and upheld the decision of 21 February 2005 ordering the applicant’s placement in the temporary detention centre for juvenile offenders. He found that the applicant had committed a delinquent act punishable under Article 163 of the Criminal Code but that no criminal proceedings had been instituted against him because he had not reached the statutory age of criminal responsibility. He belonged to a “problem family”; his parents had been deprived of parental responsibility and he was cared for by his grandfather. He played truant from school and spent most of the time on the streets or in a computer club. In those circumstances, it had been necessary, in accordance with section 22(2)(4) of the Minors Act, to place him in the temporary detention centre for juvenile offenders for thirty days to prevent him from committing further delinquent acts. The fact that the District Court had referred to “behaviour correction” as a ground for detention had not made the detention order of 21 February 2005 unlawful. The applicant’s detention had been justified by other grounds. Nor could the detention order of 21 February 2005 be quashed on account of the applicant’s frail health, given that it had already been enforced in March 2005.


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

András Sajó;Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1972 and lives in Sutomore.

On 24 April 2000 the applicant instituted civil proceedings against the Municipality of Bar concerning a plot of land.

Following a remittal, on 23 January 2003 the Court of First Instance (Osnovni sud) in Bar ruled partly in favour of the applicant.

On 27 April 2004 the High Court (Viši sud) in Podgorica upheld a part of this judgment but quashed the remainder.

On 16 September 2004 the applicant filed at the same time a request for reopening of the proceedings with the Court of First Instance and an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud), both in respect of the part of the judgment which had been upheld.

On 2 February 2005 the case-file was transmitted to the Supreme Court, which court returned the case-file to the Court of First Instance on 20 December 2005.

On 20 October 2006 the Court of First Instance dismissed the applicant’s request for reopening of the proceedings, which decision was upheld by the High Court on 9 May 2008.

On 13 June 2008 the Supreme Court dismissed the applicant’s appeal on points of law.

On 9 October 2008 the Court of First Instance joined the examination of the remainder of the applicant’s claim with other two claims previously lodged by the applicant.

On 27 October 2008 the applicant filed another submission to the court, in view of the joined proceedings.

On 5 May 2009 the applicant specified his claim, in substance repeating his earlier submissions.

On 18 June 2009 the hearing started anew given that the case had been assigned to a new judge. The applicant notified the court that he was withdrawing his submission of 27 October 2008. The court invited the applicant to specify his claim, which the applicant did the next day.

On 9 September 2009 the hearing started anew given that the case had been assigned to a new judge.

On 2 November 2009 the Court of First Instance declared it lacked competence to deal with the case (sud se oglašava nenadležnim) and rejected the claim. On an unspecified date thereafter this decision was quashed by the High Court and in March 2010 the proceedings were again pending before the Court of First Instance.

Between April and August 2010 the parties attempted to reach a friendly settlement but to no avail.

On 14 February 2011 the hearing started afresh given that the case had been assigned to another judge.

On 17 February 2011 the Court of First Instance ruled against the applicant, which decision was quashed by the High Court on 20 September 2011.

On 10 May 2012 the Court of First Instance again ruled against the applicant. This judgment was upheld by the High Court and the Supreme Court on 19 October 2012 and 7 February 2013 respectively.

In 2003 and 2004 the applicant proposed that another set of civil proceedings be suspended (prekid postupka) until the proceedings initiated upon the claim lodged in 2000 were concluded. On 6 November 2006 the applicant proposed that this other set of proceedings be continued.

On 20 March 2013 the applicant instituted another set of civil proceedings, which are currently pending before the High Court.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1974 and lives in Straszęcin.

On 27 October 1995 R, with whom the applicant had been in a relationship but to whom he was not married, gave birth to a son, D.

R and the applicant got married on 31 October 1995. On 2 November 1995 the applicant acknowledged paternity of D before the Dębica Registry Office (Urząd Stanu Cywilnego). In accordance with Article 77 § 1 of the Family and Custody Code R, the mother of the minor child, gave her consent to the applicant’s acknowledgment of paternity.

On an unspecified date R lodged a petition for divorce with the Zielona Góra Regional Court. On 12 January 2000 the Regional Court granted a decree of divorce. The court awarded the custody of D to the mother. Both parents were ordered to contribute to the maintenance and upbringing of the child. The applicant was ordered to pay first 300 PLN and later 400 PLN per month in child maintenance. No questions as to the applicant’s paternity were raised in the divorce proceedings.

Soon after, R married D.S. and their son B was born in 2000.

The applicant submitted that he subsequently began having doubts as to his paternity of D and decided to undergo a DNA test.

On 4 January 2007 the applicant took D to a private DNA analysis laboratory and had a DNA paternity test conducted. The DNA test confirmed that the applicant was not D’s father. As the applicant could not personally initiate civil proceedings for denial of paternity, due to the expiry of the time-limit specified in Article 80 § 1 of the Family and Custody Code, he requested the Nowa Sól District Prosecutor to file a claim in his name.

On 7 February 2007 the District Prosecutor questioned the applicant about the circumstances surrounding the recognition of his paternity of D. The applicant stated, among others, that:

“She told me that I had had sexual intercourse with her during a party to which she had invited me as her fiancé. .... I do not remember having had sexual intercourse [with R] at the time... Never before marrying R did I have physical contact with her. ...

I have never believed that I am the father of the child. I have recognised this child as mine because I thought I did not have any other option. ...

Even before the birth of the child I learnt that R, who at that time had the family name N, had had sexual intercourse with other men during the period in which D had been conceived. .... ”

With regard to his contact with D, the applicant stated that he had not yet informed D that he was not his father. D still considered him as his father and called him “Dad”. However, their contact was rare and not particularly warm. He requested the prosecutor to file a claim disclaiming his paternity because he had been deceived by R.

R was also questioned by the prosecutor. She stated that the applicant had been aware that he may not have been the father of D. Nonetheless, he had voluntarily decided to recognise his paternity of D. She also stated that D had close emotional ties with the applicant and that the annulment of recognition would be a terrible shock for D.

D.S., R’s current husband, stated that he did not intend adopting D because the child had a difficult personality and suffered from the ADHD (Attention Deficit Hyperactivity Disorder). Furthermore, D knew that D.S. was not his father.

On 22 March 2007 the District Prosecutor filed a statement of claim with the Nowa Sól District Court asking for the annulment of the applicant’s recognition of paternity of D. The defendants in the proceedings were the applicant, R and D. The prosecutor referred to the DNA test results and to the child’s mother’s testimonies which confirmed that at the time when D had been conceived she had had sexual contact with other men. The prosecutor further stressed that R’s new husband D.S. confirmed that he treated D as his son and together with his biological son B they all formed a family. Lastly, the prosecutor submitted that the applicant’s contact with D was rare and mostly amounted to his obligation to pay maintenance.

The District Court appointed a guardian ad litem for D. The guardian requested the court to dismiss the prosecutor’s claim as it was contrary to the child’s interests.

The court heard evidence from the applicant, R and D.S.

The applicant testified that he had been aware that D may not have been his child at the time of the recognition of his paternity in November 1995.

R objected to the prosecutor’s claim on the ground that the applicant had recognised his paternity of D being aware that he could not have been his father. She had not deceived the applicant because the applicant had known that she had had sexual contact with other men. She stated that D had close emotional ties with the applicant and was convinced that the applicant was his father. It would have been very traumatic for D to learn that the applicant was not his father given his ADHD. She submitted that the applicant had stopped paying child maintenance in January 2007.

On 20 June 2007 the Nowa Sól District Court dismissed the prosecutor’s action.

The court established the following facts. Before the birth of D the applicant and R were cohabiting. However, they also had sexual contact with other partners of which they were both perfectly aware. In 1995 R fell pregnant. She told the applicant that he had been the father of the child and that the child had been conceived during a party. The applicant’s mother put pressure on the applicant to marry R.

D was a pupil at primary school. He was diagnosed with the ADHD. From the age of seven years old D was certified as disabled and in need of assistance in his education. The court further established that the applicant had had sporadic contacts with D and that the latter had considered the applicant his father. The court noted that the private DNA paternity test confirmed that the applicant was not D’s biological father. The current husband of R did not treat D as his own child and had no intention of adopting D even in the case of the applicant’s acknowledgment of paternity being annulled.

Having regard to these facts, the District Court held that the prosecutor’s claim was ill-founded. The court noted that the applicant could not personally file a claim under Article 80 § 1 of the Family and Custody Code due to the fact that more than one year had elapsed since the date of the recognition of the child. However, even assuming that that the relevant time-limit had not yet expired, his claim would not have been successful since he was required to prove that his recognition of paternity was affected by one of the defects of his declaration of will specified respectively in Articles 82, 84, 86 or 87 of the Civil Code.

The court stressed that the applicant had confirmed that he had been perfectly aware that R had had sexual relationships with other men. It did not find credible the applicant’s assertion that he had recognised his paternity of D simply because he had been told by R that D had been conceived at a party. There were no grounds to consider that R had deceived the applicant in order to make him to recognise the child. The court held that the applicant had been fully aware that D might not have been his child; nevertheless, he decided to acknowledge his paternity of D.

Furthermore, it was not established that the applicant’s recognition of D had been affected by any other fault which could affect its validity. Accordingly, the court found that there were no grounds to annul the applicant’s recognition of D on the basis of Article 80 § 1 of the Family and Custody Code.

However, the claim was filed by a prosecutor who was not bound by the conditions specified in Article 80 § 1 of the Family and Custody Code. Therefore, the court had to examine whether the child’s interest and the rule of law required the annulment of the act of recognition of paternity.

The court noted that the institution of recognition of paternity was based on the premise that the child’s interest and the proper functioning of the family were priority values. In this connection, the legislature assumed that for the protection of these values it was justified in some cases to accept a legal fiction that a child was recognised by a man who was not his biological father. In principle, the act of recognition of paternity should reflect the actual legal situation; however, the legislature did not exclude that an act of recognition of paternity would be furnished by a man who only considered having a duty of care towards the child. This was reflected in the fact that there was no duty to verify whether an act of recognition of paternity conformed to the reality.

The court held that the arguments put forward by the prosecutor did not justify the finding that the annulment of recognition would be in the child’s interest. The court found, in so far as relevant:

“First of all, the prosecutor’s argument, that due to sporadic contacts between the defendant [the applicant] and the minor and the fact that the current husband of R accepted the boy and treats him as his biological son there are no contraindications to the annulment of recognition, was not confirmed.

It was established in the proceedings that the minor D still considers the defendant [the applicant] as his father. DS [R’s husband] does not intend to adopt the boy or even to treat him as his own son. In this situation there is a real risk that making the boy aware after so many years that the man who he has considered as his biological father, was not his real father, would constitute a traumatic experience for him. Such information would have been also very difficult to convey due to the fact that it is not possible to establish who the real father is.

It does not seem either that the protection of the rule of law would justify the annulment of recognition. It is not possible to defend the argument that the existence of a legal relationship in which a man, who is not a biological father of the child, is considered the father of the child would be an affront to the rule of law, in particular where a man conscientiously decided to recognise his paternity of the child. In the present case it should be firmly underlined that the defendant [the applicant] knew perfectly well that he may not be the father of the child, yet he decided to recognise his paternity. ... Accordingly, the defendant [the applicant] should bear the consequences of his conscious decisions for the sake of the child’s well-being and the child’s proper development.

The position of the legislature in this respect is perfectly clear. The rationale of the provisions concerning the acknowledgment of paternity of a child clearly indicates that the legislature considers this manner of establishing the filiation too serious so as to make its existence dependent on a free wish of a man. For this reason the law treats the recognition of paternity of a child as a definitive act and permits that it will be questioned only when the act was affected by defects or in the case of unforeseen special circumstances – which cannot be accepted in the light of the existing legal order or the principles of social co-existence.

There were no such circumstances in the present case. The protection of the rule of law does not justify, as claimed by the prosecutor, the disclaiming of the recognition of paternity and the child’s interest goes against the change of the existing legal relationship.”

The applicant appealed against the District Court’s judgment. He argued that the court had disregarded the DNA evidence which excluded his paternity of D. He also submitted that the interest of the minor and the rule of law required that the child’s paternity be assigned to the biological father in order to terminate the legal fiction.

The prosecutor requested the Regional Court to dismiss the appeal. In his view, the interest of the child no longer justified the pursuance of the original claim. The prosecutor also raised the issue of the applicant’s standing to file an appeal.

On 29 November 2007 the Zielona Góra Regional Court dismissed the applicant’s appeal.

The court firstly referred to the Supreme Court’s resolution of 20 March 1975 (case no. III CZP 81/74) according to which a legally recognised father was not entitled to file an appeal against the judgment dismissing the prosecutor’s claim on the basis of an accepted fact that he was not the child’s biological father. The Regional Court noted that the Family and Custody Code did not bestow on the man who had recognised paternity of a child the right to sue for annulment of his recognition on the ground that he was not the child’s father. The right to sue for annulment of recognition of paternity in such circumstances was bestowed on the child so recognised when he or she reached the age of majority (Article 81 of the Family and Custody Code).

The court further considered that, even assuming that the applicant had standing to file an appeal, there were no grounds to change the firstinstance judgment. The lower court found that the rule of law required maintaining the status quo and that the child’s well-being justified a departure from the biological truth. In addition, the Regional Court relied on the applicant’s divorce file from which it transpired that he had treated D as his own child. It also referred to the Supreme Court’s view that in matters of establishing paternity there was no absolute priority for biological truth. In the light of the above, the applicant’s claim for annulment of the recognition was ill-founded.

The applicant filed a cassation appeal. However, on 17 October 2008 the Supreme Court refused to entertain it.


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

The applicant, Mr Lars Åberg, is a Swedish national, who was born in 1947 and lives in Landskrona. He was represented before the Court by Mr O. Lekander, a lawyer practising in Limhamn.

The Swedish Government (“the Government”) were represented by their Agents, Ms I. Kalmerborn, Ms H. Kristiansson and Mr. A. Rönquist, Ministry for Foreign Affairs.

By decisions of 4 October 2002 and 7 October 2004 the Tax Agency (Skatteverket) reviewed the applicant’s taxation for income received in the years 2000, 2001 and 2002 (i.e. the taxation years 2001, 2002 and 2003) and found that payments made by Swedish county councils and health care districts to a company registered in Gibraltar and 90% owned by the applicant should be considered as salary for work performed as a medical doctor for which he was liable to pay income tax in Sweden. His income was revised upwards by approximately 1.9 million, 2.8 million and 3.7 million Swedish kronor (SEK), respectively, for the three years. Furthermore, as the applicant had failed to account for the amounts in question in his annual tax returns and had thus supplied the Tax Agency with incorrect information, the Agency ordered him to pay tax surcharges (skattetillägg), amounting to 40% of the increased tax liability.

Following the applicant’s appeals, the Tax Agency made obligatory reviews of its decisions but did not change them.

By judgments of 11 November 2004 and 27 April 2006 the County Administrative Court (länsrätten) in Skåne upheld the Tax Agency’s decisions.

It is not clear whether the applicant appealed against the judgment of 11 November 2004, but he did so against the judgment of 27 April 2006 which concerned income received in 2001 and 2002.

On 26 February 2008 the Administrative Court of Appeal (kammar-rätten) in Gothenburg agreed with the principal considerations in the Tax Agency’s decision but lowered the amounts in question – following new information obtained by the Agency – to approximately 1.8 million and 1.2 millon SEK for the two years (in total about 330,000 euros (EUR)).

By a decision of 3 November 2008 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal.

It appears that the Tax Agency and, upon appeal, the administrative courts have made similar tax revisions for income received in 2003 and 2004.

Criminal proceedings were initiated against the applicant on 11 February 2008 in regard to the above conduct.

By a judgment of 30 September 2008 the Lund District Court (tingsrätt) convicted the applicant of an aggravated tax offence (grovt skattebrott) and sentenced him to two years and six months in prison. The conviction concerned the period 2000-2004, corresponding to all the five years which had been subject to tax revisions, and thus including the three years – 2000-2002 – which are relevant in the present case before the Court. The court found that the applicant had systematically and intentionally given the Tax Agency misleading information as to where he lived and worked. Although he had lived and worked in Sweden during the years in question, he had incorrectly claimed that he had left the country and worked abroad. The total undeclared income amounted to more than 6 million SEK and the evaded income tax came to approximately 2.9 million SEK. In sentencing the applicant, the court took into account that a long time had passed since the offences had been committed.

On 28 April 2009 the Court of Appeal (hovrätt) of Skåne and Blekinge upheld the District Court’s judgment. While the appellate court did not find that the time between the commission of the offences and the indictment gave reason to reduce the length of the prison sentence, it found that the considerable tax surcharges imposed on the applicant constituted such a reason. The court did not, however, give any details as to how much the sentence was reduced due to the surcharges. In conclusion, it upheld the sentence passed by the District Court.

The Supreme Court (Högsta domstolen) granted leave to appeal with respect to the question whether, pursuant to Article 4 of Protocol No. 7 to the Convention, the imposition of tax surcharges barred the criminal trial or conviction of the applicant.

By a decision of 31 March 2010 the Supreme Court found, by a majority of 3 votes to 2, that there was no reason generally to invalidate the Swedish system with double proceedings by virtue of Article 4 of Protocol No. 7 (published in Nytt juridiskt arkiv (NJA) 2010, p. 168). The court considered that, following the judgment in Sergey Zolotukhin v. RussiaIf the later proceedings concerned identical or essentially the same facts as the earlier proceedings, it was a matter of proceedings concerning the same offence. However, the Supreme Court noted that the Strasbourg case-law left some room for several punishments for the same offence that could be decided by separate organs at different times and mentioned by way of example, inter alia, the conviction for a traffic offence and the resultant withdrawal of the offender’s driving licence. The Supreme Court further found that the invalidation of a Swedish system regulated by domestic law with reference to the Convention required that either the Convention itself or the Court’s jurisprudence provided clear support for that conclusion and considered that neither Article 4 of Protocol No. 7 nor the jurisprudence provided such support in the matter at hand. There were no other grounds for finding that Article 4 of Protocol No. 7 prevented the trial or conviction of the applicant because of the fact that tax surcharges had been imposed on him. In these circumstances, there was no reason to grant leave to appeal in regard to the applicant’s conviction and sentence. The Court of Appeal’s judgment was accordingly upheld.

The applicant started to serve his prison sentence on 28 April 2011. He was released on probation on 17 January 2013.

On 23 October 2013 the Supreme Court, at the applicant’s request, decided to re-open the criminal proceedings in so far as they concerned the applicant’s liability for tax offences in the years 2000-2002 (corresponding to the taxation years 2001-2003) and the sentence fixed by the Court of Appeal. In those respects, the case was referred back to the appellate court for a new examination. Referring to Article 4 of Protocol No. 7 and to its decisions of 11 June and 16 July 2013 (see further paragraphs 26 and 27 below), the Supreme Court noted that the applicant had been convicted by the Court of Appeal after the Sergey Zolotukhin judgment of 10 February 2009 and that the tax surcharges previously imposed on him concerned the same conduct as the criminal indictment. However, the court rejected the petition for a re-opening of the criminal case to the extent that it concerned offences committed in 2003 and 2004 as, in those respects, the conviction had occurred before the Tax Agency’s decisions on surcharges.

On 1 July 2014 the Court of Appeal quashed its judgment of 28 April 2009 in so far as it concerned the part that had been re-opened by the Supreme Court (that is, the years 2000-2002) and dismissed the indictment in that respect. The sentence for the remaining tax offences, committed in 2003 and 2004, was fixed at eight months’ imprisonment.

The applicant has appealed to the Supreme Court against the sentence fixed by the Court of Appeal. Thus, his appeal does not concern the years relevant in the present case. The appeal is presently pending.

On 17 September 2013 the applicant instituted proceedings for damages against the State before the Stockholm District Court. He claimed SEK 347,500 (approximately EUR 38,000) for suffering due to his having been imprisoned following dual proceedings that allegedly violated Article 4 of Protocol No. 7. The claimed amount was calculated in accordance with the practice of the Chancellor of Justice (Justitiekanslern) (see further paragraph 33 below). The compensation proceedings have been adjourned pending the outcome of the re-opened criminal proceedings.

The rules on taxes and tax surcharges relevant to the present case were primarily laid down in, as far as income tax was concerned, the Tax Assessment Act (Taxeringslagen, 1990:324) and, with respect to VAT, the Tax Payment Act (Skattebetalningslagen, 1997:483). Both laws have since been replaced by the Tax Procedure Act (Skatteförfarandelagen; 2011:1244).

A tax surcharge could – and still can – be imposed on a taxpayer in two situations: if he or she, in a tax return or in any other written statement, has submitted information of relevance to the tax assessment which is found to be incorrect (Chapter 5, section 1 of the Tax Assessment Act, and Chapter 15, section 1 of the Tax Payment Act) or if, following a discretionary assessment, the Tax Agency decides not to rely on the tax return (Chapter 5, section 2, and Chapter 15, section 2, respectively). It is not only express statements that may lead to the imposition of a surcharge; concealment, in whole or in part, of relevant facts may also be regarded as incorrect information. A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the Tax Agency cannot base its tax assessment on it or if he or she has not filed a tax return despite the obligation to do so. In certain circumstances, the tax surcharges may be exempted.

A person who intentionally furnishes incorrect information to an authority or fails to file a tax return or other required information, thereby causing a risk that taxes will be withheld from the public treasury or wrongly credited or repaid to him or her, is criminally liable under sections 2-4 of the Tax Offences Act (Skattebrottslagen, 1971:69). The possible sentence ranges from a fine for a tax misdemeanour (skatteförseelse) to imprisonment for a maximum of six years for an aggravated tax offence. Section 5 provides that a person who is not considered to have furnished incorrect information with intent but to have been grossly negligent in doing so (vårdslös skatteuppgift) may be sentenced to a fine or a maximum of one year in prison. The term “incorrect information” in the Tax Offences Act is considered to have the same meaning as in the above provisions on tax surcharges (Government Bill 2010/11:165, p. 1110).

In a judgment of 29 November 2000 the Supreme Court considered whether a person could be convicted of a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings (NJA 2000, p. 622). Having noted that, under internal Swedish law, a surcharge is not considered a criminal penalty and does not prevent trial and conviction for a tax offence relating to the same act, the Supreme Court went on to examine the matter under the Convention. It first considered, in the light of the Court’s case-law, that there were weighty arguments for regarding Article 6 as being applicable under its criminal head to proceedings involving a tax surcharge. Even assuming this to be the case, it held, however, that the principle of ne bis in idem, as set forth in Article 4 of Protocol No. 7 to the Convention presupposed that the initial conviction or acquittal had been delivered in accordance with the penal procedure of the State. Therefore the principle did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied. This view was confirmed in later judgments delivered by the Supreme Court.

On 17 September 2009 the Supreme Administrative Court examined the reverse situation, that is, where the question of imposition of tax surcharges arose after a criminal conviction for a tax offence (judgment published in Regeringsrättens årsbok (RÅ) 2009, ref. 94). In assessing whether there was a violation of the prohibition on double punishment under Article 4 of Protocol No. 7 to the Convention, the court referred to the fact that the relevant Swedish provisions aimed at ensuring that the combined sanctions – criminal conviction and imposition of tax surcharges – were in reasonable proportion to the conduct for which the individual had been found liable. It further noted that the Swedish legal system contained the special feature of separate general courts and administrative courts. In the court’s opinion, Article 4 of Protocol No. 7 had to be interpreted in the light of such special features in the national legal systems. While acknowledging that the Court’s recent judgments in Sergey Zolotukhin v. Russia (cited above) and Ruotsalainen v. Finland (no. 13079/03, judgment of 16 June 2009) suggested a change in the Strasbourg case-law, the Supreme Administrative Court noted that they did not relate to the Swedish legal system and concluded that this system, allowing for both a conviction for a tax offence and an imposition of tax surcharges, was in conformity with the Convention.

On 31 March 2010, in its decision concerning the present case, the Supreme Court examined the issue anew and again found that there was no reason generally to invalidate the Swedish system with double proceedings by virtue of Article 4 of Protocol No. 7 (see further paragraph 14 above).

By a plenary decision of 11 June 2013 (NJA 2013, p. 502) the Supreme Court overturned its previous conclusions. In line with its 2010 decision, the court held that the imposition of tax surcharges and the conviction for a tax offence based on the same information supplied in a tax return are founded on identical factual circumstances and the relevant proceedings thus concern the same offence within the meaning of Article 4 of Protocol No. 7. However, where the court in 2010 had found that the invalidation of the Swedish system required clear support in the Convention itself or in Strasbourg case-law, the court now noted that the judgment of the European Court of Justice in the case of Åkerberg Fransson (26 February 2013, case no. C-617/10) already prohibited double proceedings and punishments with respect to VAT. As the Swedish system had thereby been partially invalidated, the legal and practical consequences of further changes were not so radical as to require the intervention of the legislature. The court also took into account that no legislative amendments had been made despite the developments in Strasbourg case-law since 2009 and that it would be inexpedient and difficult to apply different rules on similar contraventions within a system meant to be coherent. Consequently, the court held that there was sufficient support for concluding that the Swedish system of tax surcharges and tax offences was incompatible with Article 4 of Protocol No. 7. This conclusion applied not only to VAT, but also to income tax, employer’s contributions and similar payments.

The Supreme Court further found that the protection under Swedish law against double proceedings and punishments was valid also in cases where the state exacted personal liability on an individual for tax surcharges imposed on a legal person. Having regard to the strong and systematic connection in Swedish law between the principles of res judicata and lis pendens, the court also held, although the Court’s jurisprudence was unclear on this point, that ongoing, not finalised proceedings on tax surcharges precluded a criminal indictment concerning the same factual circumstances. The procedural hindrance against an indictment materialised when the Tax Agency took its decision to impose surcharges.

However, whereas the imposition of tax surcharges and the conviction for a tax offence based on the same factual circumstances concerned the same offence and were thus prohibited, the situation was different when the criminal conviction concerned a bookkeeping offence. According to the Supreme Court, which had regard to the case-law of the Court, the concrete factual circumstances forming the basis of a bookkeeping offence could normally not be considered inextricably linked to the factual circumstances leading to the imposition of tax surcharges. In addition to the breach of bookkeeping obligations under the Accountancy Act, the imposition of a tax surcharge involved a further factual element, namely the submission of incorrect information in a tax return.

In the case at hand, which involved the imposition of tax surcharges against an individual in November 2009 and the criminal indictment of him in June 2010 for, inter alia, aggravated tax offences and an aggravated bookkeeping offence, the Supreme Court quashed the appealed judgment of the Court of Appeal in so far as it concerned the tax offence relating to his personal income tax and dismissed the indictment in that respect. However, nothing prevented the examination of the bookkeeping offence or the tax offences concerning VAT and employer’s contributions. In the latter respect, the conclusion was due to the tax surcharges relating to VAT and employer’s contributions having been imposed on the appellant’s limited liability company and not on him personally.

In a further decision, taken on 16 July 2013 (NJA 2013, p. 746), the Supreme Court examined the question whether a former defendant could be granted a re-opening of criminal proceedings (resning) under Chapter 58, section 2 of the Code of Judicial Procedure (Rättegångsbalken) if he or she had been convicted of an offence under the Tax Offences Act in a manner incompatible with Article 4 of Protocol No. 7, as interpreted by the decision of 11 June 2013. The court concluded that, on the basis of the Convention, in particular Article 13, a Swedish court may decide, in certain situations, that a case is to be re-opened notwithstanding the special conditions specified in Chapter 58, section 2. The court also took the position that the incompatibility of Swedish legislation regarding sanctions for tax-related offences with Article 4 of Protocol No. 7 had arisen by virtue of the Sergey Zolotukhin judgment (cited above), thus on 10 February 2009. The Supreme Court’s decision led to criminal proceedings being re-opened in respect of an individual’s conviction for an offence under the Tax Offences Act. As a result, the possibility of being granted a re-opening of criminal proceedings applies retroactively to judgments having been delivered in criminal proceedings as from 10 February 2009.

On 25 July 2013 the Supreme Court took another decision of relevance (NJA 2013, p. 780). It stated therein that, if criminal proceedings have commenced before the Tax Agency has decided to impose tax surcharges, the prohibition against ne bis in idem cannot result in a criminal judgment that has become final being re-opened and quashed. Instead, it is the second set of proceedings to be commenced – the tax proceedings involving surcharges – that are contrary to the law. The violation of the right not to be tried or punished twice for the same offence is therefore in this situation a matter for the administrative courts.

By a plenary judgment of 29 October 2013 (HFD 2013 ref. 71), the Supreme Administrative Court (now Högsta förvaltningsdomstolen) reversed the position taken in its judgment of 17 September 2009 and confirmed in a judgment of 21 December 2010 (RÅ 2010 ref. 117). Agreeing with the conclusions drawn by the Supreme Court, the Supreme Administrative Court found that the same principles should apply when the order of the tax and criminal proceedings is different, that is, when the tax proceedings are commenced later. Accordingly, a criminal indictment constitutes a procedural hindrance against imposing tax surcharges based on the same submission of incorrect information.

In the case at hand, where the individual had been indicted in February 2005 and surcharges had been imposed by the Tax Agency in April 2005, the Supreme Administrative Court concluded that the latter decision violated Article 4 of Protocol No. 7. The appeal made against the appellate court’s judgment on tax surcharges was accordingly granted and the surcharges set aside.

The Supreme Administrative Court has since examined several petitions for the re-opening of tax proceedings in which tax surcharges had been imposed. In a decision of 2 December 2013 (cases nos. 5850-13 and 5851-13) it rejected the petition, stating that the earlier criminal proceedings had not led to an indictment of the individual but to a decision by the prosecutor to discontinue the preliminary investigation and that, accordingly, no violation of the prohibition against double proceedings had occurred. In a judgment of 5 June 2014 (cases nos. 1112-14 and 1113-14) it granted a re-opening, noting that, pursuant to the Supreme Court’s decision of 16 July 2013, the applicant would have had a right of re-opening of the criminal proceedings if the tax surcharge decision had preceded the indictment and finding that the situation at hand, which was the reverse, should not be treated differently. The Supreme Administrative Court accordingly re-opened the tax proceedings and quashed the tax surcharges in question. The latter case had already been examined by the Supreme Administrative Court as part of the original tax proceedings in December 2010 – prior to the recent developments in Swedish case-law – and had then been considered not to involve a breach of Article 4 of Protocol No. 7.

In a judgment of 19 June 2014 (cases nos. 7110-13 and 7111-13) the Supreme Administrative Court examined a different situation where tax surcharges had been imposed on a person by a decision of the Tax Agency in May 2011, upheld by the County Administrative Court in February 2012. During the subsequent examination before the Administrative Court of Appeal, the person in question was, in separate criminal proceedings, indicted for a tax offence but acquitted thereof by a judgment of the District Court in April 2013 which soon afterwards acquired legal force. As a consequence, the Administrative Court of Appeal, in September 2013, quashed the surcharges that had been imposed. The Supreme Administrative Court agreed with this course of action, noting that the Court had established in several judgments (including Nykänen v. Finland, no. 11828/11, 20 May 2014) that, in the event that one of two concurrent sets of proceedings becomes final, Article 4 of Protocol No. 7 required that the other set of proceedings be discontinued. The Supreme Administrative Court’s judgment was delivered in ordinary proceedings which had not involved any re-opening. Furthermore, all the decisions and judgments in the case were delivered after the Sergey Zolotukhin judgment.

Following the above judicial changes, the Prosecutor-General (Riksåklagaren) and the Economic Crime Authority (Ekobrotts-myndigheten) decided to examine all tax cases where there may have been double punishments in accordance with the conclusions by the two supreme courts. Whenever the conditions were met, the prosecutor would file a petition for the criminal proceedings to be re-opened, provided that the individual agreed to this course of action and had not already sought a re-opening him- or herself. The undertaking, expected to be finalised by mid-March 2014, was to cover all cases ending with a judgment, an order of summary punishment (strafföreläggande) or a decision not to prosecute (åtalsunderlåtelse) since 10 February 2009.

On 25 April 2014 the Swedish newspaper Dagens Nyheter, basing itself on information provided by the Economic Crime Authority, reported that close to 3,000 cases concerning tax offences had been examined. Out of more than 110 individuals who were serving prison sentences, 42 had been released. Those who had not been released had been convicted also for other crimes than tax offences. A further number of persons who were about to start serving prison sentences did not have to do so. 800 individuals who had already served their sentences had been asked whether they wished assistance in filing petitions for re-opening of proceedings and, so far, 541 of them had accepted and 128 cases had been re-opened. In some re-opened cases the convictions had been quashed in their entirety; in others, involving several offences, the proceedings had to be repeated.

Section 4 of the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövande och andra tvångsåtgärder; 1998:714) stipulates that a person who has served a prison sentence is entitled to compensation if, following an appeal or a re-opening of proceedings, he or she is acquitted or given a less severe sentence or the judgment containing the conviction is quashed. Under section 7 of that Act, compensation is awarded for costs, loss of income, interference in business activities and suffering. Normally, in accordance with the practice of the Chancellor of Justice, compensation for suffering is set at a rate of SEK 30,000 (approximately EUR 3,300) for the first month, SEK 20,000 (EUR 2,200) for each additional month up to and including the sixth month and SEK 15,000 (EUR 1,600) per month after that. Certain circumstances can lead to a higher rate of compensation. This is primarily the case if the suspicions have concerned a particularly serious crime or if the matter has attracted extensive media attention.

An action for damages can also be based on the Tort Liability Act (Skadeståndslagen, 1972:207). Under Chapter 3, section 2 of that Act, compensation is awarded for damage caused by fault or negligence on the part of a public authority. Requests can be lodged with the Chancellor of Justice. If dissatisfied with the Chancellor’s decision, the individual has the option of bringing an action for damages against the State in the general courts. He or she may also institute such proceedings directly without having made a request to the Chancellor.

In addition, the Supreme Court has developed case-law which provides that, in order to provide redress for victims of Convention violations, compensation may be awarded without direct support in Swedish law. Based on this case-law, the Chancellor of Justice has awarded compensation in many cases following requests from individuals. The Court has had regard to this development and has concluded that, following a Supreme Court judgment of 3 December 2009 (NJA 2009 N 70), there is an accessible and effective remedy of general applicability, capable of affording redress in respect of alleged violations of the Convention (see, for example, Eriksson v. Sweden, no. 60437/08, §§ 48-52, 12 April 2012, and Marinkovic v. Sweden (dec.), no. 43570/10, § 43, 10 December 2013, and – in regard to the domestic case-law developments – the latter decision, §§ 21-31).


András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant, Ms Mahsume Şedal, is a Turkish national, who was born in 1977 and is currently serving a prison sentence in İzmir. She was represented before the Court by Mr K. Bayazıt, a lawyer practising in Hakkari, Turkey. The Government were represented by their Agent.

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

On 28 August 2004, at around 4 p.m., the applicant was arrested on suspicion of involvement in the armed operations of the PKK (the Kurdistan Workers’ Party), an illegal armed organisation.

Following her arrest, at 6 p.m., she underwent a medical examination at the Istanbul Forensic Medicine Institute. The report drawn up there noted no injuries on her body.

Later on the same day, the applicant was taken to the AntiTerrorist Branch of the Istanbul Security Headquarters, where she was placed in custody.

According to the records held, that day the applicant met with her lawyer. The document was signed by both the applicant and her lawyer.

The next day, on 29 August 2004, the applicant was questioned by the police. Before the questioning, she was reminded of her rights, including the right to benefit from legal assistance. According to the official statement, she refused legal assistance and proceeded to give certain information about her training within the PKK and the structure of the illegal organisation. She signed both the official statement and an additional document indicating her refusal of legal assistance.

On 30 August 2004 the applicant consulted with her lawyer in person once again. Both the applicant and her lawyer signed the police records noting that meeting.

On 1 September 2004 the applicant underwent a second medical examination at the Forensic Medicine Institute. She complained that during her police custody she had been slapped, had her hair pulled, been pushed to the ground and been deprived of sleep. The report drawn up following the examination noted no indication of physical violence on the applicant’s body.

On the same day the applicant was brought before the Istanbul public prosecutor, when she gave her statements in the presence of a lawyer. She reiterated her allegations of ill-treatment and denied her previous statements, indicating that they had been taken under duress. The applicant’s lawyer also maintained before the public prosecutor that he had not been allowed to see the applicant at the Anti-Terrorist Branch.

Subsequently, the applicant was brought before the investigating judge at the Istanbul Assize Court. There, once again in the presence of her lawyer, she repeated the statements she had made before the public prosecutor. She further maintained that she had been beaten while in police custody. At the end of the questioning, the investigating judge ordered the applicant’s detention on remand.

On 29 September 2004 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, accusing the applicant of membership of the PKK, an offence under Article 168 § 2 of the Criminal Code in force at the time (Law no. 765).

At various hearings before the Istanbul Assize Court, the applicant stated that she had left the PKK on account of her health problems and of her own free will, and had never been involved in any armed acts carried out by the illegal organisation. She also reiterated her allegations of illtreatment in police custody before the court. During the course of the proceedings, the applicant was represented by a lawyer.

At a hearing on 25 December 2006 the Istanbul public prosecutor submitted his observations, further accusing the applicant of carrying out activities with the aim of bringing about the secession of part of the national territory, under Article 125 of the former Criminal Code.

On 7 May 2007, on the basis of various pieces of evidence, including the applicant’s statements before the public prosecutor and the investigating judge, the findings of two searches conducted in her residence, telephone records and several witness statements, the Istanbul Assize Court sentenced the applicant to life imprisonment under Article 125 of the former Criminal Code. The court also relied on the applicant’s police statements and maintained that they were corroborated by evidence obtained subsequently from the Şırnak Gendarmerie Command. In response to the applicant’s submissions about the use of those statements, taken in the absence of a lawyer, the court indicated that she had waived her right to legal assistance before being questioned. The court did not make any comments with regard to the applicant’s allegations of ill-treatment.

On 13 February 2008 the Court of Cassation upheld the judgment of the first-instance court, again with no mention of the alleged ill-treatment.

A description of the relevant domestic law can be found in Yoldaş v. Turkey, no. 27503/04, §§ 24-27, 23 February 2010.


CASE OF COUDERC AND HACHETTE FILIPACCHI ASSOCIÉS v. FRANCE

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information)

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicants are the publication director and the publisher respectively of the weekly magazine Paris Match. Ms Anne-Marie Couderc is a French national and was born in 1950. The company Hachette Filipacchi Associés, a legal entity incorporated under French law, has its registered office in Levallois-Perret.

On 3 May 2005 the British newspaper The Daily Mail published claims by Ms C., alleging that Albert Grimaldi, reigning Prince of Monaco since his father’s death on 6 April 2005, was the father of her son. The article referred to the forthcoming report in the Paris Match magazine and reproduced the main points of that report, together with three photographs, one of which showed the Prince holding the child in his arms.

On 3 May 2005, having been informed that an article was about to appear in Paris Match, Prince Albert served notice on the applicants to refrain from publishing the article in question.

In spite of the notice to refrain, the weekly magazine Paris Match, in its edition no. 2920 of 5 May 2005, 1,010,000 copies of which were printed, published an interview in which Ms C. presented her son A. as having been born from her intimate relationship with the Prince, who had succeeded his father on the previous 6 April. Publicised on the magazine’s cover under the headline “Albert of Monaco: A., the secret child” (“Albert de Monaco: A., l’enfant secret”) the ten-page article, entitled “A. is Albert’s son, says his mother”, included several photographs showing the Prince beside Ms C. or the child. Those of the Prince and the child had been taken by Ms C. with the Prince’s consent. Ms C., who had sole parental authority, had handed them over to Paris Match for publication.

The article, in which Ms C. replied to the questions put by a journalist, gave details about the circumstances in which she had met the Prince, their meetings, their intimate relationship and feelings, the way in which the Prince had reacted to the news of Ms C.’s pregnancy and how he had behaved on meeting the child. It noted that the boy had been born on 24 August 2003 and that the Prince had formally recognised him before a notary on 15 December 2003, but had requested that this fact should not be made public before the death of his own father, Prince Rainier III.

On 19 May 2005 the Prince brought proceedings against the applicants in the Nanterre tribunal de grande instance on the basis of Article 8 of the Convention and Articles 9 and 1382 of the Civil Code, seeking compensation for invasion of privacy and infringement of his right to protection of his image through the publication of the above-mentioned article on 5 May 2005.

On 29 June 2005 the court allowed the Prince’s claim, awarding him 50,000 euros in damages and ordering that details of the judgment be printed in a full-page feature on the magazine’s front page, on pain of a daily fine and at the publisher’s expense, under the headline “Court order made against Paris Match at the request of Prince Albert II of Monaco”. The judgment was immediately enforceable.

In allowing the Prince’s claims, the court noted, in particular, that from the first page onwards, the magazine disclosed the Prince’s paternity through the headline “Albert of Monaco: A., the secret child”, accompanied by a photograph showing him holding the child.

It added that the ten-page article dealt with the issue of the Prince’s father-son relationship with the child, by means of questions which led the child’s mother to discuss her relationship with the Prince, the feelings of those involved, the Prince’s private life and reactions and the child’s recognition child before a notary. It added that numerous photographs, clearly taken in the context of the intimacy of the protagonists’ private life, had been deliberately chosen to illustrate and lend support to the disclosure; they were accompanied by the magazine’s own captions, which also referred to the Prince’s emotional life, analysing his conduct, his reactions to the young woman and the child, and speculating as to his feelings with regard to this secret child.

The court considered that the entire article and the accompanying pictures came within the most intimate sphere of emotional and family life and that they were not apt to be the subject of any debate of general interest.

It added that the claimant’s accession to the throne of the Principality of Monaco did not deprive him of the right to respect for his private life, nor of his right to protection of his own image in the face of mere rumours concerning the civil status of a child, which could not serve as a legitimate pretext for providing information to a prying and curious public about the lives of public figures, their feelings and their private conduct. In addition, the court held that a newspaper could not seriously claim to take the place of the courtroom, where the rights of children and women were lawfully defended.

The court concluded that the impugned article, which treated rumours in a sensational manner, both in its wording and through the completely irrelevant accompanying pictures, amounted to a serious breach of the claimant’s fundamental personality rights, the latter having specifically served notice by a bailiff on the publishing company to respect those rights on 3 May 2005.

The applicants appealed against that judgment and obtained a suspension of the judgment’s immediate enforceability.

On 6 July 2005 the Prince issued a statement in which he publicly recognised the child. The notarised document was entered in the register of births, deaths and marriages during the same period.

On 24 November 2005 the Versailles Court of Appeal gave judgment.

It noted that, through the interview with the child’s mother, the impugned article focused on revealing the birth of the child, who was presented as having been born from the intimate relationship she had conducted with the Prince since 1997.

Furthermore, on the date of the article’s publication, both his birth and his father’s identity were unknown to the public.

The court of appeal emphasised that emotional, love or family life and issues of paternity and maternity came within the sphere of private life and were protected by Article 9 of the Civil Code and Article 8 of the Convention, which, according to the court, made no distinction between anonymous persons and public figures, whatever their civil, political or religious functions.

It noted that the fact of the Prince’s fatherhood “had never been publicly recognised”, that the Monegasque Constitution made it impossible for a child born outside wedlock to accede to the throne and that the Prince had not given his consent to the disclosure of his possible paternity of the child, having on 3 May 2005 indicated to the applicant company his opposition to the publication of those facts. In consequence, it concluded that the applicant company had deliberately breached the provisions of Article 9 of the Civil Code and of Article 8 of the Convention. It considered that this offence could not be justified by the requirements of current affairs reporting, the legitimacy of the information or readers’ right to information, which did not cover the Prince’s secret paternity, even if he had become the reigning Prince of the Principality since his father’s death in April 2005.

The court of appeal further noted that the article did not merely disclose the existence of a “secret” child. It also contained numerous digressions derived from the confessions made by the child’s mother, concerning the circumstances of their meeting, the Prince’s feelings, his most intimate reactions in response to the news of the pregnancy and his attitude towards the child during private encounters. It considered that this could not be justified by the concomitant publication of these facts in a German magazine, or by the media impact caused by the content of the article, or by the fact that other publications had subsequently repeated these reports (which had become common knowledge through the fault of the publishing company), or by the alleged legitimacy of such a disclosure. The child had no official status which would have rendered his birth and the disclosure of the father’s identify a subject which the media, as part of their duty to provide information, were required to bring to the public’s attention.

It found that although the photographs which accompanied the article and showed the respondent with the child had been taken by the latter’s mother and with the Prince’s consent, he had not consented to their publication, and that consequently she was at fault.

The court of appeal concluded that the publication in question had caused the Prince irreversible damage, in that the fact that he was the child’s father, which he had wished to keep secret, and which had remained so from the child’s birth until publication of the impugned article, had suddenly become public knowledge, against his wishes. The non-pecuniary damage thus caused justified the issuing of an order for publication, as supplementary compensation, which, in view of the nature of the breach and the seriousness of its consequences, was in no way disproportionate to the competing interests and, on the contrary, represented the most adequate redress in such circumstances.

The Versailles Court of Appeal upheld the contested judgement, in particular the payment of 50,000 euros in damages, and merely varied the conditions of the order for publication, which was no longer to appear under a headline and occupy one third of the front cover. Thus, the court ordered that in the first issue to be published in the week following service of the judgment, a box covering the lower third of the front page and containing the following text was to be printed on a white background, failing which the applicant company would be fined 15,000 euros per issue:

“By a judgment of the Versailles Court of Appeal, upholding the judgment delivered by the Nanterre tribunal de grande instance, the company Hachette Filipacchi Associés in issue no. 2920, dated 5 May 2005, of the newspaper Paris Match, in an article entitled ‘Albert of Monaco: A. The secret child’ has been found to have invaded the privacy and infringed the right to his own image of Albert II of Monaco.”

This statement was published on the front cover of edition no. 2955 of the magazine, dated 5 January 2006, under the following editorial commentary: “Albert of Monaco: The truth is condemned. Paris Match disclosed the existence of his son, A. The courts have penalised freedom to impart information. The international press reacts to support us.”

The applicants appealed on points of law. In their further pleadings, they relied, in particular, on Article 10 of the Convention, given that the disclosure of the Prince’s paternity was a matter of public life and was justified by the requirements of imparting information, in view of the functions that he occupied as sovereign of a Principality with a hereditary monarchy.

By a judgment of 27 February 2007, the Court of Cassation dismissed the appeal on the grounds, inter alia, that:

“... every person, whatever his rank, birth, property or present or future functions, is entitled to respect for his private life; the judgment notes on the one hand that, on the date on which the article was published, the child’s existence and his family relationship were unknown to the public, and that, on the other, the Principality’s Constitution rules out the possibility of his accession to the throne, since he was born outside wedlock, a situation that, moreover, the company did not allege to be a subject of debate in French or Monegasque society or of examination in the impugned publication, and, lastly, [that] the article contained multiple digressions on the circumstances in which Ms C. and Prince Albert met and about their relationship, the Prince’s reactions to the news of the pregnancy and his subsequent attitude towards the child; in the light of these findings and considerations, the court of appeal correctly noted the lack of any topical news item or any debate on a matter of general interest which justified its being reported at the time of the impugned publication on the grounds of legitimate imparting of information to the public; moreover, the publication of photographs of a person to illustrate subsequent content which amounted to an invasion of his privacy necessarily infringes his right to control of one’s own image.”

The interview with Ms C. and the disputed photographs were also published in the German weekly magazine Bunte of 4 May 2005.

Having brought urgent proceedings against this magazine in order to prevent any further publication, the Prince’s case was dismissed on 19 July 2005 by a judgment of the Freiburg Regional Court (Landgericht), upheld on 18 November 2005 by the Karlsruhe Court of Appeal (Oberlandesgericht).

The German courts placed the public’s right to information over the Prince’s interests in protection of his private life, having regard to his status as sovereign of a European principality. They described him as an “undeniable figure of contemporary society” and considered that the issue of a male descendent was of decisive importance in a constitutional hereditary monarchy, given that a change to the rule prohibiting a child born out of wedlock from claiming the Monegasque throne could not be ruled out in the future.

They considered that it was for the child’s mother, and not for the Prince, who had not recognised him, to decide whether the disclosure of the child’s existence fell within the protected private sphere. However, the Karlsruhe Court of Appeal ordered that a photograph showing the Prince in Ms C.’s company was not to be published.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Kristina Pardalos;Paul Mahoney;Pauliine Koskelo

On 28 July 2006 the Vlora Commission recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 640,000 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law. The Commission stated that the land had changed its destination from agricultural land to construction land. A handwritten note signed by the chairman of the Commission states that the decision became final on 2 October 2006. On 18 February 2013, following the applicants’ request for information about whether their property was still occupied, the Ministry of Defence affirmed that the plot was occupied by the army.

To date, no compensation has been paid.