Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant, Mr Peter Harvey, is a British national, who was born in 1959 and lives in Mansfield. He was represented before the Court by Ms K. Lea, a lawyer practising in Nottingham.

The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Macmillan, of the Foreign and Commonwealth Office.

At the relevant time, the applicant was a schoolteacher with around twenty years of teaching experience. In December 2008 he was diagnosed with depression and granted sick leave from work. He returned to work in April 2009.

On 8 July 2009, following provocative behaviour from several pupils in his class, he assaulted a pupil with a dumbbell. The pupil sustained a serious head injury requiring hospital treatment. It was also alleged that during the incident the applicant had kicked a female pupil and thrown the dumbbell at another pupil. The applicant was arrested and remanded into custody.

He was subsequently charged with attempted murder and grievous bodily harm with intent under section 18 of the Offences against the Person Act 1861. He pleaded guilty to grievous bodily harm (without specific intent) under section 20 of the 1861 Act. On 29 April 2010 he was found not guilty of attempted murder and of grievous bodily harm with intent following a jury trial in the Crown Court. At the sentencing hearing on 24 May 2010, the judge sentenced the applicant to two years’ community service, taking into account the time spent in pre-trial detention.

The judge referred to significant mitigation in the case, including the applicant’s depressive illness, difficult personal and family circumstances at the relevant time and his previously unblemished record of teaching over nearly twenty years. The judge declined to make a disqualification order against the applicant precluding him from working with children, on the basis that he was satisfied that the applicant was unlikely to commit any further offence against a child, largely because as a teacher he was subject to a professional code of practice and disciplinary arrangements and he had recognised that his career teaching children was over.

On 27 May 2010, following disciplinary proceedings, the applicant was dismissed from his post for gross misconduct.

On 16 July 2010 the local authority referred the matter to the Independent Safeguarding Authority (“ISA”), a body established by the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”), to consider whether to bar the applicant from working with children or vulnerable adults. Meanwhile, the applicant commenced voluntary work at a small local charity, run by the Church, providing support to homeless persons.

By a letter dated 17 November 2010, the ISA informed the applicant that it had received the referral and was minded to bar him from working with children and vulnerable adults in light of his conviction. He was therefore invited to make written representations as to why he should not be barred. He submitted written representations through his solicitors on 7 January 2011 and disputed that he represented a threat to children when operating in a supervised environment, or a threat to vulnerable adults in any circumstances.

By letter dated 10 February 2011 the ISA notified the applicant of its decision to include the applicant’s name in both the Children’s Barred List and Adults’ Barred List. It referred to his conviction and considered that he had engaged in conduct which had endangered a child and which constituted “relevant conduct”, within the meaning of the 2006 Act, justifying inclusion in the barred lists.

As regards the risk to vulnerable adults, the letter stated:

“We also remain of the view that you may harm a vulnerable adult and it is appropriate to include you on the Adults’ Barred List. This is because vulnerable adults with learning difficulties or mental health issues could exhibit similarly challenging behavioural traits as children in certain situations. There are insufficient reassurances that should you engage in ‘regulated activity’ in a vulnerable adult setting, you would not pose a similar significant risk to those in your care.”

The accompanying “Barring Decision Process” document, prepared by an ISA case worker, reviewed the applicant’s conduct and the risk he posed. The document explained that the applicant was considered to pose a significant risk to children if placed in a similar situation in the future. As regards vulnerable adults, the document stated:

“It would not be unreasonable to surmise that vulnerable adults, particularly those with learning difficulties or mental health issues, could exhibit similar challenging behavioural traits in certain situations. Because of this there are real concerns that [the applicant] might react in a similar manner as he did at [school], if he was placed in a difficult position with vulnerable adults. While there is no evidence to indicate that he has worked in a paid or voluntary capacity with vulnerable adults in the past, he might in the future and his risk is such at the present time that he would pose a risk of harm if he was allowed to do so. [The applicant’s] harmful behaviour clearly constitutes risk of harm and a minded to bar decision is proportionate on the Adults’ Barred List.”

As to whether it was appropriate to bar the applicant from working with children or vulnerable adults, the document concluded that it was. In particular, as regards the bar on working with vulnerable adults, the document stated:

“There is no evidence to indicate that [the applicant] has worked in paid or voluntary capacity with vulnerable adults in the past. However, consideration needs to be given to whether it would be appropriate for him to work in regulated activity within a vulnerable adults setting in the future. It is important to consider if [the applicant] was to obtain employment with vulnerable adults with learning difficulties or mental health issues, they could exhibit similar challenging behavioural traits as children in certain situations. There is a potential, significant risk that if he was placed in a similarly difficult situation in a vulnerable setting he could react in a similar manner with potential fatal consequences. Therefore it is deemed appropriate to include [the applicant’s] name on the Adults’ Barred List.”

The applicant subsequently ceased his voluntary work with the homeless charity, having received legal advice that the work was potentially contrary to the ISA barring decision.

The applicant appealed the decision to include him in the Adults’ Barred List to the Upper Tribunal. He did not appeal the decision to include him in the Children’s Barred List. He argued that the ISA had wrongly found that he had kicked a female pupil and that the decision to bar him from working with vulnerable adults was disproportionate and thereby in breach of Article 8 of the Convention. He obtained a report from a consultant psychiatrist, Dr M., to assist the tribunal to assess his level of risk. The report confirmed that the applicant’s diagnosis was one of a recurrent depressive disorder and that as a result of depression and considerable work stress he had assaulted his pupil in 2009. It noted that, since that time and with medical assistance, his situation had significantly improved.

Following receipt of the psychiatric report, the parties requested that the proceedings be stayed in order to allow the ISA to review its decision. A stay was granted.

By letter dated 11 November 2011 the ISA confirmed its decision to include the applicant’s name on the Adults’ Barred List but retracted its finding of fact that the applicant had kicked a female pupil in light of further inquiries into that incident. The ISA review letter noted that Dr M.’s report showed that, since the incident, the applicant had taken significant steps to address his long-term issues with depression through psychiatric support, psychotherapy and support from his general practitioner. However, while acknowledging the significant progress that he had made, the letter emphasised that a relatively short period of time had elapsed since this marked improvement. Although Dr M.’s report was compelling, it was also apparent from the report that he believed that “some basic safeguards would seem prudent” to mitigate against future risk. The ISA concluded that Dr M.’s report served to strengthen its view that there continued to be an unacceptable risk, noting that the report proposed a risk assessment for any post for which the applicant wished to apply and recorded the applicant’s recognition of the fact that he should not work alone. The ISA noted that it had no scope to impose a “partial bar” or any type of restriction on the applicant which would allow the recommendations made by Dr M. to be incorporated into any future employment and, accordingly, it had to balance the level and nature of the risk identified against the impact on the applicant of continued inclusion on the Adults’ Barred List.

On 20 March 2012 the Upper Tribunal quashed the ISA decision to include the applicant’s name in the Adults’ Barred List. It commented that the ISA caseworker had not specifically addressed proportionality in the context of the decision-making process. The tribunal considered the correct approach to its review of the ISA decision was that set out in its previous judgment in SB, at that time pending before the Court of Appeal (see further “Relevant domestic law and practice”, below), namely that it should examine the evidence and allocate weight to it, and decide whether the balance had been struck in the right place. It noted that the ISA had not had the opportunity of hearing the applicant give evidence whereas the tribunal, with two experienced, specialist members, had heard his evidence and tested it in some detail. It considered that the ISA had “fundamentally misconstrued” Dr M.’s report since the tribunal failed to see how that report could have strengthened ISA’s view that there continued to be an unacceptable risk. It was of the view that Dr M.’s suggestion that there be a basic risk assessment before the applicant was engaged in work with vulnerable adults was a very sensible one and one which, the tribunal understood, would in any event be carried out by the Church in respect of the homelessness project in which the applicant was interested.

The tribunal therefore directed the ISA to remove the applicant’s name from the Adults’ Barred List. It also directed that:

“...there is to be no publication of the any matter likely to lead members of the public directly or indirectly to identify any person, including the Appellant, who has been involved in the circumstances giving rise to this Appeal”.

The ISA appealed to the Court of Appeal on four grounds, namely: (i) that the Upper Tribunal had erred in law in its approach to proportionality by failing to give appropriate weight to the ISA decision; (ii) that the ISA decision was not, as a matter of law, disproportionate; (iii) that the Upper Tribunal had failed to take into account the nature of the risk posed by the applicant; and (iv) that the Upper Tribunal had erred in placing reliance on safeguards in place at the applicant’s proposed place of work and had failed to take into account the risk that would be posed if the applicant worked with vulnerable adults in other environments.

The Court of Appeal subsequently handed down judgment in SB, overturning the judgment of the Upper Tribunal in that case and clarifying the correct approach to be taken when reviewing an ISA decision (see “Relevant domestic law and practice”, below).

The functions of the ISA were transferred to the Disclosure and Barring Service in December 2012 and the appeal continued in the latter’s name.

In his skeleton argument of 1 February 2013, the applicant invited the Court of Appeal to uphold the decision of the Upper Tribunal that the decision to include him in the Adults’ Barred List was disproportionate and thus unlawful. He argued, in particular, that proportionality had always to involve the striking of a fair balance between the rights of the individual and the interests of the community, inherent in the whole of the Convention; that where the individual had not been interviewed by the primary decision-maker, the appellate authority was much better placed to investigate the facts and test the evidence; that it was for the court before which the issue was raised to decide whether Convention rights had been breached and that this court was not merely to concern itself with whether the primary decision-maker took the relevant rights into account; and that the court had to treat with appropriate respect the views of those who had the primary responsibility to make the judgments in question, especially where they had addressed their minds to the relevant issues.

On 13 March 2013 the Court of Appeal quashed the decision of the Upper Tribunal and reinstated the ISA decision. Lord Justice Treacy, delivering the lead judgment (with which the other two members of the Court of Appeal agreed), considered that the process through which the ISA had worked in coming to its judgment that the applicant should be included on the Adults’ Barred List was a “thorough and careful” one. That view had then been reviewed in the light of Dr M.’s evidence, and the confirmed conclusion had “appropriately recognised the force of Dr M.’s evidence in relation to the improvement in [the applicant’s] condition, but went on, after due consideration of the whole picture, to conclude that it did not provide a reason for reversing the decision, and if anything strengthened it”. The judge continued:

“39. I have found in the documentation relating to the ISA’s decision-making the clearest evidence of careful thought and reasoning. I therefore find the Upper Tribunal’s view that the ISA had not given any detailed thought to its decision and that it had failed to carry out a balancing exercise to be very surprising. It seems to me to be clearly wrong.

Very considerable reliance was placed by the Upper Tribunal on Dr M.’s report and the ISA is criticised for having "misconstrued the evidence of Dr M.". Insofar as the Upper Tribunal placed additional reliance on the fact that it had heard oral evidence from Mr Harvey, I accept the submission of [the applicant’s lawyer] that in reality this does no more than confirm the evidence already before the tribunal from Dr M. to the effect that Mr Harvey had improved and was currently well motivated to avoid a repetition of his conduct. However, it seems to me that the Upper Tribunal’s reliance on Dr M.’s evidence, together with its dismissal of the ISA’s approach to it, was misconceived.”

He also found that the Upper Tribunal was wrong to treat the ISA’s view of the safeguards mentioned by Dr M. as strengthening its case. He noted that the safeguards mentioned related to a man whose condition had improved, but only in the context of a person suffering from a recurrent depressive disorder and whose improvement was over a relatively short time span. These considerations, which weighed with the ISA, appeared to have been ignored by the Upper Tribunal, which had also concluded that the safeguards “will be in place”, thus rendering an absolute bar disproportionate. However, the judge noted, there was no guarantee whatsoever that the safeguards which Dr M. thought prudent and which would exist under the aegis of the work which the applicant envisaged would necessarily apply in other employments or other situations. The judge considered that the Upper Tribunal’s assertion that those safeguards would be in place could not safely be made, nor could the safeguards be implemented as conditions attaching to any future work with vulnerable adults.

The judge saw “considerable force” in the ISA’s argument that the Upper Tribunal had not taken the approach to proportionality mandated by the Court of Appeal in SB, which required it to accord weight to the judgment of the ISA. The judge therefore concluded:

“47. The effect of the Tribunal’s decision was wrongly to characterise the ISA’s decision as an error of law. There was, in my judgment, no such error made by the ISA whose valid decision was wrongly quashed.”

In these circumstances, the Court of Appeal considered that it was not appropriate to remit the case to the Upper Tribunal and instead ordered that the decision of the ISA be restored.

The Court of Appeal also observed:

“17. There have been amendments to the 2006 Act pursuant to the Protection of Freedoms Act 2012 since the Upper Tribunal decision. However, none of those amendments impacts upon this appeal or the question of the correctness of the Upper Tribunal’s decision.

A recent change which will have an impact for the Respondent is that, whereas previously ISA’s decision would not be subject to review for a period of ten years, the position has now been altered so that a review may take place at any time if new information emerges, or there has been a change of circumstances, or it becomes apparent that ISA has made an error. See Section 18A of the Safeguarding Vulnerable Groups Act 2006 as inserted by the Protection of Freedoms Act 2012”.

The applicant sought permission to appeal from the Supreme Court. He argued, inter alia, that the 2006 scheme was unlawful in failing to provide for a full-merits review on appeal. If there was no requirement for a fullmerits review on appeal, then at the very least the Upper Tribunal had to be permitted to carry out a robust proportionality exercise. In his submission, if the narrow remit afforded by the Court of Appeal to the Upper Tribunal in his case were left undisturbed, this would mean that the barring scheme was incompatible with Articles 6 and 8 of the Convention. He further argued that the scheme was unlawful in that it did not allow the Disclosure and Barring Service to implement a partial bar on working with vulnerable adults (the “all-or-nothing” ground). The absolute bar that it was obliged to impose was disproportionate and in breach of Article 8. The Disclosure and Barring Service therefore had to be empowered to impose a partial bar so that in appropriate cases individuals could only be excluded from positions where they would pose a significant risk to the relevant vulnerable group. If no such power could be read into the 2006 Act then a declaration of incompatibility under section 4 of the Human Rights Act 1998 (see “Relevant domestic law and practice”, below) should be made.

On 6 June 2013 the Supreme Court refused permission to appeal. It stated that the application did not raise a point of law of general public importance and that the “all-or-nothing” ground did raise a point of law of general public importance but that it was too late to raise it at this stage.

Section 1 of the 2006 Act and its Schedule 1 created the ISA, to consist of a chairman and members appointed by the Secretary of State who appeared to him to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults. Appointment was for a term not exceeding five years and a member could be removed by the Secretary of State on various specified grounds, including that he was unable or unfit to carry out his functions.

Section 2 of the Act requires the ISA to keep two lists of individuals deemed unsuitable to work with children and vulnerable adults respectively. Section 3 provides that a person whose name has been included on one of the barred lists is precluded from taking part in “regulated activity” with the relevant group. Section 5 and Schedule 4 define “regulated activity”. The definition of “regulated activity” was amended by the Protection of Freedoms Act 2012 to focus on work which involves close and unsupervised contact with vulnerable groups, thus reducing its scope. Section 7 makes it an offence for a person included in the barred lists to engage in “regulated activity”.

The criteria for inclusion in the barred lists are set out in Schedule 3. Under paragraph 3 of Schedule 3, the Disclosure and Barring Service (formerly the ISA) is obliged to include a person in the Children’s Barred List if satisfied, following consideration of representations by the affected person, that he has engaged in “relevant conduct” and that it is appropriate to include him in the list. “Relevant conduct” is defined in paragraph 4 as including conduct that endangered a child.

Paragraph 11 of Schedule 3 provides that the Disclosure and Barring Service (formerly the ISA) is obliged to include a person in the Adults’ Barred List if satisfied, following consideration of representations, that he has engaged in conduct which fell within paragraph 11(4) and that it is appropriate to include him in the list. Paragraph 11(4) provides as follows:

“A person falls within this sub-paragraph if he may—

(a) harm a vulnerable adult,

(b) cause a vulnerable adult to be harmed,

(c) put a vulnerable adult at risk of harm,

(d) attempt to harm a vulnerable adult, or

(e) incite another to harm a vulnerable adult.”

Section 4(1) of the 2006 Act provides for a right of appeal to the Upper Tribunal against a decision to include a person in the barred lists. For the purposes of determining appeals, the Upper Tribunal sits with a constitution of one legally-qualified judge and two specialist, non-legal members.

Section 4(2) of the Act stipulates that an appeal can only be made on the grounds that the ISA has made a mistake on a point of law or in a finding of fact on which the decision was based. In section 4(3), the decision whether it was appropriate for a person to be included in a barred list is stated to be neither a question of law nor of fact.

Paragraphs 18 and 18A of Schedule 3 to the Act allowed a person included in a barred list to apply to the Disclosure and Barring Service (formerly the ISA) for a review of his inclusion. At the time the applicant was placed on the Adults’ Barred List, a review could only proceed after the end of the “minimum barring period”, which in the applicant’s case was a ten-year period, and with the permission of the Disclosure and Barring Service.

However, following amendments introduced by the Protection of Freedoms Act 2012, a review may now take place at any time and a person’s name is to be removed from the list if the Disclosure and Barring Service is satisfied that, in the light of information which it did not have at the time of inclusion in the list, any change of circumstances or any error by ISA, it is not appropriate for the person to be included in the list.

In R (Royal College of Nursing) v. Secretary of State for the Home Department [2010] EWHC 2761 (Admin), the claimants argued that the scheme established by the 2006 Act did not permit an oral hearing and thus did not comply with Article 6 of the Convention; and did not give individuals placed on a barred list the opportunity for a full merits review on appeal, contrary to Article 6. Mr Justice Wyn Williams, sitting in the High Court, said:

“103. In light of the fact that the Upper Tribunal can put right any errors of law and any material errors of fact and, further, can do so at an oral hearing if that is necessary for the fair and just disposition of the appeal I have reached the conclusion that the absence of a right to an oral hearing before the [ISA] and the absence of a full merits based appeal to the Upper Tribunal does not infringe Article 6 EHCR. To repeat, an oral hearing before the [ISA] is permissible under the statutory scheme and there is no reason to suppose that in an appropriate case the [ISA] would not hold such a hearing ... Indeed, a failure or refusal to conduct an oral hearing in circumstances which would allow of an argument that the failure or refusal was unreasonable or irrational would itself raise the prospect of an appeal to the Upper Tribunal on a point of law. Further, any other error of law and relevant errors of fact made by the [ISA] can be put right on an appeal which, itself, may be conducted by way of oral hearing in an appropriate case.

I am more troubled by the absence of a full merits based appeal but I am persuaded that its absence does not render the scheme as a whole in breach of Article 6 for the following reasons. First, the [ISA] is a body which is independent of the executive agencies which will have referred individuals for inclusion/possible inclusion upon the barred lists. It is an expert body consisting of a board of individuals appointed under regulations governing public appointments and a team of highly-trained case workers. Paragraph 1(2)(b) of Schedule 1 to the 2006 Act specifies that the chairman and members ‘must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults’. The [ISA] is in the best position to make a reasoned judgment as to when it is appropriate to include an individual’s name on a barred list or remove an individual from the barred list. In the absence of an error of law or fact it is difficult to envisage a situation in which an appeal against the judgment of the [ISA] would have any realistic prospect of success. Second, if the [ISA] reached a decision that it was appropriate for an individual to be included in a barred list or appropriate to refuse to remove an individual from a barred list yet that conclusion was unreasonable or irrational that would constitute an error of law. I do not read section 4(3) of the Act as precluding a challenge to the ultimate decision on grounds that a decision to include an individual upon a barred list or to refuse to remove him from a list was unreasonable or irrational or ... disproportionate. In my judgment all that section 4(3) precludes is an appeal against the ultimate decision when that decision is not flawed by any error of law or fact.”

The Upper Tribunal considered the R (Royal College of Nursing) judgment in SB v. ISA [2011] UKUT 404 (AAC). It referred to counsel’s submission that the weight the ISA attached to a particular feature was not a matter which the tribunal could redetermine but rather went to “appropriateness”, expressly excluded by section 4(3) of the 2006 Act, and said:

“40. We are not able to agree with this submission. We are mindful that we must read section 4(3) in a way that is compatible with the Human Rights Act 1998, and the approach adopted by Wyn Williams J, in our view, is the correct way to proceed. If a decision taken by ISA to place a person on a list, or not to remove him from the list, is disproportionate to the facts as presented to the [ISA], then there is an error of law, and the Tribunal on appeal is entitled, indeed obliged, to direct ISA to remove the person from the list, or remit the matter to ISA for a new decision.

The only way in which a Tribunal can form a view as to whether a decision of the [ISA] is disproportionate is to engage in ‘a weighing of evidence exercise’, not so as to ascertain whether the decision is or is not appropriate (that is a matter solely for the [ISA]) but so as to ascertain whether it is disproportionate and therefore out with the lawful decision making exercise of the [ISA]. It is therefore the totality of the evidence that the Tribunal must concern itself with. In considering the totality of the evidence, it is in our view necessary to look carefully at individual aspects to that evidence and to form a view whether the conclusion that the [ISA] has placed on the totality of the evidence is disproportionate.

... On an appeal, the Tribunal is entitled to examine the evidence and to allocate weight to it and to decide whether the balance has been struck in the right place.”

The Upper Tribunal’s judgment in SB was subsequently overturned on appeal. Delivering the lead judgment for the Court of Appeal on 18 July 2012 ([2012] EWCA Civ 977), Lord Justice Maurice Kay explained:

“21. ... The [ISA] assessment was a fair representation of the many indications and counter indications and specific mention was made of the numerous references and the fact that SB had voluntarily sought counselling.

This brings me to two particular points. First, there is the fact that, unlike the ISA, the [Upper Tribunal] saw and heard SB giving evidence. However, it cannot be suggested that it was unlawful for the ISA not to do so. It had had at its disposal a wealth of material, not least the material upon which the criminal conviction had been founded and which had informed the sentencing process. The objective facts were not in dispute. Secondly, Mr Ian Wise QC, on behalf of the Royal College of Nursing, emphasises the fact that the [Upper Tribunal] is not a non-specialist court reviewing the decision of a specialist decision-maker, which would necessitate the according of considerable weight to the original decision. It is itself a specialist tribunal. Whilst there is truth in this submission, it has its limitations for the following reasons: (1) unlike its predecessor, the Care Standards Tribunal, it is statutorily disabled from revisiting the appropriateness of an individual being included in a Barred List, simpliciter; and (2) whereas the [Upper Tribunal] judge is flanked by non-legal members who themselves come from a variety of relevant professions, they are or may be less specialised than the ISA decision-makers who, by paragraph 1(2) of schedule 1 to the 2006 Act ‘must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults’. I intend no disrespect to the judicial or non-legal members of the [Upper Tribunal] in the present or any other case when I say that, by necessary statutory qualification, the ISA is particularly equipped to make safeguarding decisions of this kind, whereas the [Upper Tribunal] is designed not to consider the appropriateness of listing but more to adjudicate upon mistakes on points of law or findings of fact (section 4(3)).

For all these reasons I consider that the complaint that the [Upper Tribunal] did not accord ‘appropriate weight’ to the decision of the ISA is justified.”


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement)

Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life;Positive obligations)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant was born in 1970 in Rafah, Gaza. He currently lives in Kyiv.

Between 1977 and 1993 the applicant lived mainly in Rafah. He claimed to have been involved in the activities of Fatah, the Palestinian political organisation.

In 1993 the applicant went to Ukraine to study. The same year he entered Kyiv Polytechnic University. In 1999 the applicant finished his studies at the University and obtained a master’s degree in biomedical electronics. In 2001 the applicant enrolled in a postgraduate course at the same University. In 2003 he withdrew from the course as he had no money to pursue his studies. The applicant claims that since 2003 he has been working as a freelance translator/interpreter for the Embassy of Libya in Kyiv and for various private companies (the applicant speaks fluent Arabic, English and Russian, and understands Ukrainian).

In 1998 the applicant married a Ukrainian national. In 2007 they divorced. In 2011 the applicant married another Ukrainian national; their marriage lasted for less than two months. In March 2013 the applicant entered into a relationship with another Ukrainian national. In January 2014 they married and currently live together as a family.

The applicant visited Gaza twice in 2000. According to the applicant, one of the visits was due to his father’s death. Since December 2000 the applicant has remained in Ukraine without leaving its territory.

In 2001 the applicant was issued with a registration card by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”). The card bears the name “Hicham Ahmad Sadiddin Hmeid”. The applicant attributes the difference in the spelling of his name to varying transliterations of Arabic names. Similar cards were issued to the applicant’s mother and sister, who currently reside in Rafah.

Prior to November 2009 the applicant was staying in Ukraine on the basis of passports of limited duration, issued by the Palestinian Authority, and temporary residence permits, which were regularly extended by the Ukrainian police. In 2008-09 an extension of the applicant’s residence permit was requested by the Embassy of Palestine and granted by the Ukrainian authorities, as at the time access to the Palestinian territories was problematic.

In 2003 the applicant started preparing documents to apply for a permanent residence permit on the basis of his marriage to a Ukrainian national. He could not complete his application because his then brother-in-law was opposed to the applicant being registered as resident in the flat in which the applicant, his then wife and brother-in-law resided at the time.

On 9 March 2010 the applicant applied to the migration unit within the Golosiyivkyy District Police Department in Kyiv for an extension of his residence permit. The police noted that the applicant’s residence permit had expired in November 2009 and that since then the applicant had been in Ukraine in violation of migration regulations.

On 10 March 2010, at the request of the police, the Golosiyivskyy District Court in Kyiv, relying on Article 203 § 1 of the Code on Administrative Offences, ordered the applicant to pay a fine for violating migration regulations.

The applicant’s identification documents were kept by the Golosiyivkyy District Police Department pending the outcome of the applicant’s request for an extension of his residence permit.

According to the applicant, about a week later his residence permit was extended until 15 September 2011. The Government contested that submission, stating that no extension had been granted.

In the meantime, on 11 March 2010 the applicant was stopped by officers of the Solomyanskyy District Police Department in Kyiv for an identity check. As he had no identification documents, the applicant was arrested and taken to the police station. The applicant stated that his explanation that his documents were being kept at another police department had not been taken into account. On 12 March 2010 the applicant was taken to the Solomyanskyy District Court in Kyiv, which, having examined the material submitted by the police, fined the applicant for failure to carry identification and foreigner’s registration documents.

On 28 April 2010 the applicant was stopped by officers of the Desnyanskyy District Police Department in Kyiv for an identity check. Having noted that the applicant was living in a flat in Kyiv without a rent contract or official registration, the officers asked the Desnyanskyy District Court in Kyiv to fine the applicant. By a decision of 28 April 2010, the court ordered the applicant to pay a fine for violating migration regulations.

The applicant did not appeal against the court decisions convicting him of administrative offences, as he had no legal representation and took the view that those decisions would not have any consequences for his stay in Ukraine.

On 16 September 2011 the applicant went to the migration unit of the Chief Police Department in Kyiv to apply for an extension of his residence permit. On the way he was stopped by officers of the migration unit of the Solomyanskyy Police Department in Kyiv, who informed the applicant that there had been an order deporting him from Ukraine. The officers seized the documents the applicant had with him for his application for an extension of his residence permit, including his passport and marriage certificate. The documents have not been returned to the applicant. The applicant claimed that for that reason he could not provide a copy of his most recent residence permit.

Subsequently the applicant contacted a lawyer, who helped him to obtain copies of the decisions concerning his expulsion and to lodge an appeal against them (see paragraph 28 below).

On 17 March 2010 the Solomyanskyy District Police Department in Kyiv issued a decision stating that the applicant should be removed from Ukraine for violation of migration regulations and banning him from entry to the country until 12 March 2015 under section 32 of the Legal Status of Foreigners and Stateless Persons Act 1994 (see paragraphs 64-67 below). In the decision, it was noted that the applicant had come to Ukraine in 2005 for a private visit; that after the expiry of his residence permit he had remained in Ukraine illegally; that he had not requested an extension of his residence permit; that he had no relatives in Ukraine; that he had no work permit; that he had earned his life working at a market in Kyiv; and that he was “known to the police”.

According to the Government, the applicant was informed of the decision of 17 March 2010 on the same day and asked for a court hearing on his expulsion case (see paragraph 27 below) in his absence. In support, they provided copies of written statements allegedly signed by the applicant and by a translator.

The applicant claimed that he had not been informed of that decision and that the written statements in that regard had been forged by the police. The applicant also argued that he had not been aware that subsequently, in May 2010, the police had initiated court proceedings for him to be forcibly removed from Ukraine.

In their written submissions made in the course of those proceedings, the police reiterated the findings in the decision of 17 March 2010 and requested the Kyiv Administrative Court to order the applicant’s immediate forcible removal and his placement in a facility for temporary detention of foreigners and stateless persons for the period necessary to prepare the removal. In the latter regard, the police argued that there were reasons to believe that the applicant would try to remain illegally in Ukraine.

On 18 May 2010 the Kyiv Administrative Court heard the case in the absence of the parties, having noted that the applicant had submitted a written statement that he did not wish to be present and that he agreed with the expulsion decision, and also that the police were not able to attend the hearing because of their high workload. The court relied on the findings in the decision of 17 March 2010 and allowed the claims of the police. In its decision, the court noted that its ruling was to be enforced immediately and that it could be appealed against within ten days under Articles 185-187 of the Code of Administrative Justice. If no appeal was lodged against the decision it would enter into force after the expiry of the ten-day period.

According to the applicant, he was informed of the decision of 18 May 2010 on 25 November 2011. On 29 November 2011 a lawyer submitted an appeal on the applicant’s behalf, together with a request for renewal of the ten-day time-limit, to the Kyiv Administrative Court for further transfer to the Kyiv Administrative Court of Appeal.

In the appeal, the applicant argued that he had been studying in Ukraine between 1993 and 1999. In December 2000 he had returned from Palestine to Ukraine fearing persecution by the Israeli authorities. Without providing any further details, the applicant stated that he had been arrested and tortured by the Israeli authorities with the aim of obtaining his confession of cooperation with Hamas. The applicant further noted that he was married to a Ukrainian national, that he had been officially allowed to stay in Ukraine until 16 September 2011, and that on that day the police had seized his identification documents and ordered him to leave Ukraine. The applicant also expressed the wish to apply for asylum once the Migration Service started accepting asylum applications according to the new regulations (see paragraphs 75-79 below).

The applicant complained that the first-instance court had failed to examine all the facts pertinent to the case and to hear him. According to the appeal, the applicant had not been informed of the decision of 17 March 2010 and had not asked the court to hear the case in his absence.

He also argued that the first-instance court had not checked whether it was safe for the applicant to return to Palestine and had not been informed of the circumstances essential for the outcome of his case. In particular, the applicant argued that the Ukrainian police had withheld the information that he had a valid residence permit and that he had used to be married to a Ukrainian national. The applicant complained that the expulsion decision of 17 March 2010 had been taken in violation of Articles 2, 3 and 5 of the Convention, given the human rights situation in Palestine, and in violation of the domestic procedure.

On 14 November 2012 the Kyiv Administrative Court of Appeal heard the case in the absence of the parties. It is unknown whether the applicant or his lawyer intended to take part in the hearing and, if so, whether they informed the Court of Appeal accordingly.

The appeal was rejected as unsubstantiated. In particular, the Court of Appeal relied fully on the findings of the first-instance court and noted that “the claimant, having been removed from Ukraine, had crossed the Ukrainian border despite the existing entry ban”. The decision entered into force immediately.

On 6 December 2012 the applicant lodged with the Higher Administrative Court a cassation appeal challenging the factual and legal findings of the lower courts. The applicant also complained that his expulsion from Ukraine would be contrary to Article 8 of the Convention given his personal and family ties with that country.

On 3 October 2013 the Higher Administrative Court overturned the lower courts’ decisions on the ground that they had failed to examine whether there were grounds preventing the applicant’s expulsion under Ukrainian law. The Higher Administrative Court also noted that the lower courts had not given due consideration to the applicant’s private and family life interests in Ukraine. The case was thus sent for re-examination to the first-instance court.

After another round of examination by the courts at the first and appeal levels of jurisdiction resulting in a decision ordering the applicant’s forcible removal from Ukraine, in February 2014 the case was sent back to the start again by the Higher Administrative Court, for the same reasons as in its decision of 3 October 2013.

On 29 October 2014 the Desnyanskyy District Court, to which the case was eventually remitted, refused the application for the applicant’s forcible expulsion.

The court held that the applicant’s forcible removal from Ukraine would be in violation of his right to respect of family life as guaranteed by Article 8 of the Convention, having regard in particular to the fact that the applicant was married to a Ukrainian national. It also found that, in the event of his removal to Palestine, the applicant’s life and security would be endangered, given the armed conflict on that territory, which would entail a violation of Ukraine’s commitments under Articles 3 and 5 of the Convention. The court took the view that the applicant had grounds to be given the status of refugee or of a person in need of complementary protection. The court also noted that, by operation of the statutory one-year time-limit (see paragraph 58 below), the applicant could no longer be considered as having committed the administrative offences of which he had been convicted in 2010 (see paragraphs 15, 18 and 19 above).

That decision was not appealed against and became final.

On 25 January 2012 the applicant lodged an asylum application with the State Migration Service. According to the applicant, in his application he stated that he feared persecution by Hamas if returned to Gaza, as he had been a member of Fatah.

According to the applicant, during the assessment of his asylum case migration officers questioned him on two occasions. They asked formal questions not related to the substance of his allegations.

On 1 August 2012 the applicant received a written notice dated 21 June 2012 that his asylum application had been refused by a decision of the State Migration Service of 17 May 2012 and that he could challenge it before the courts. No copy of the decision was given to the applicant.

On 3 August 2012 the applicant challenged the refusal of his asylum application before the Kyiv Administrative Court. In particular, the applicant argued that he had not been informed of the reasons for that decision, and that this prevented him from effectively appealing against it. The applicant also argued that the examination of his application had not been thorough and objective, as his questioning had been formalistic and no additional information had been sought concerning the general situation in Palestine or the applicant’s personal circumstances from other State authorities, such as the State Security Service, or from the applicant himself, to check the reliability of his submissions. The applicant stated that he had not been given access to the evidence in the inquiry. He maintained his allegation that he was at risk of persecution by Hamas, and also argued that if returned to Gaza, as a male Palestinian he ran a real risk of ill-treatment by the Israeli authorities, even though he did not support Hamas. In that regard, he referred to the reports of Amnesty International and Human Rights Watch concerning the human rights situation in Palestine in 2012. The applicant also contended that the Migration Service had disregarded that, as a Palestinian refugee registered with UNRWA and outside its field of operation he was entitled to the same protection in Ukraine as refugees under the United Nations Convention Relating to the Status of Refugees of 1951.

On 20 September 2012 the court rejected the applicant’s case, finding that the Migration Service had examined the matter thoroughly and fully and that the applicant’s arguments were unsubstantiated. In particular, the court noted that the material relating to the applicant’s asylum proceedings demonstrated that he did not run an individual and real risk of persecution by the Palestinian authorities, as Hamas and Fatah had entered into negotiations concerning a transitional government for Palestinian territories; he had not been subjected to such persecution at any time; the applicant had not provided any evidence that he would not be able to avail himself of the protection of his country of origin; he had travelled freely to and from Palestine; all his family lived there; and he did not face criminal prosecution there. The court also noted that the applicant had left his country of origin voluntarily for economic and personal reasons; he had had his residence permit in Ukraine repeatedly extended for personal reasons; and he had requested asylum only after he had not been able to legalise his further stay in Ukraine. Relying on the latter ground, the court found that the applicant had missed the time-limit for lodging an asylum application pursuant to Article 5 of the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011. On the whole, the court found that it had been for the applicant to provide documents or persuasive arguments demonstrating that he had run a real and personal risk of persecution, which he had failed to do.

On 25 October 2012 the applicant lodged an appeal with the Kyiv Administrative Court of Appeal. In particular, he stated that his allegations of risk of persecution by Hamas and by the Israeli authorities were, inter alia, supported by the fact that his passport had been issued by the Palestinian Authority associated with Fatah, by his registration card issued by the UNRWA, and by various international reports, which neither the Migration Service nor the court of first instance had sought to obtain or examine. According to the applicant, the court’s review of his case had not been full or thorough, thus falling short of the requirements of the Refugees and Persons in Need of Complementary or Temporary Protection Act of 2011, as interpreted by the Plenary Higher Administrative Court (see paragraphs 80-86 below).

On 4 December 2012 the Court of Appeal rejected the applicant’s appeal, having agreed with the first-instance court in that the applicant had failed to substantiate his asylum application as required by the national law and pertinent international documents, including the European Union Council Directive of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status and the Guidelines on procedures and criteria for determining refugee status under the 1951 Geneva Convention, issued by the UNHCR in 2011.

The applicant appealed in cassation, stating that the lower courts had not fully examined the material pertinent to his case, which had resulted in a wrong dismissal of his asylum request, in violation of Articles 3, 8 and 13 of the Convention. As to Article 8, the applicant noted that he had studied in Ukraine between 1993 and 1999, that since 2000 he was permanently resident on its territory, and that he was married to a Ukrainian national.

On 7 February 2013 the Higher Administrative Court rejected the applicant’s cassation appeal, having found no elements demonstrating that the lower courts had erred in the application of substantive or procedural law or that review of the evidence in the case was required.

In November 2014 the applicant lodged a new asylum application with the State Migration Service.

On 24 December 2014 the Kyiv Department of the State Migration Service refused to examine the application, finding that it was wholly unsubstantiated.

On 20 July 2015 the Kyiv Administrative Court overturned that decision, having found that the State Migration Service had failed to thoroughly examine the matter. The court in particular found that, although the arguments on which the applicant’s new application for asylum had been based were the same as in the applicant’s initial application, the new application needed to be reconsidered in the light of the decision of the Desnyanskyy District Court of 29 October 2014 and on the basis of the new Act on the Legal Status of Foreigners and Stateless Persons, which had entered into force on 25 December 2011. It therefore ordered the State Migration Service to reconsider the applicant’s new asylum application.

The reconsideration of the applicant’s new asylum application is currently pending. According to the Government, by operation of section 1 of the Refugees and Persons in Need of Complementary or Temporary Protection Act (see paragraph 79 below), this gives the applicant a lawful ground to stay in Ukraine for the duration of the said reconsideration.

As he could not obtain asylum in Ukraine and in order to use all possible opportunities to legalise his stay in Ukraine in order to evade expulsion, in 2014 the applicant applied for leave to immigrate, principally relying on the fact that he was married to a Ukrainian citizen. The Migration Service refused to examine his application as there were inconsistences in the spelling of his name in the applicant’s asylum seeker’s certificate and in his passport and marriage certificate. The applicant’s requests for the relevant changes to be made in the documents were allegedly ignored by the authorities.

The applicant further claimed that an official from the Migration Service told him that he would have to leave Ukraine and to apply for leave to immigrate from abroad in order to obtain leave to enter Ukraine lawfully.

According to the applicant, he could not leave Ukraine as he had nowhere to go. In Palestine his life and health would be endangered and he had not maintained close links with the place where he lived before he had moved to Ukraine. In his view, he could not apply for leave to immigrate into Ukraine, as he could not be considered as staying on its territory “on lawful grounds”, which was required by the Immigration Act (see paragraph 74 below). According to the Government, the applicant could not apply for leave to immigrate while his asylum application was being examined. Furthermore, pursuant to Article 4 § 3 (1) of the Immigration Act leave to immigrate could be granted to an alien who had been married to a Ukrainian citizen for over two years (see paragraph 74 below). At the time, the applicant’s marriage had lasted for less than two years. Thus, no leave to immigrate could be granted to him on that ground.

The parties did not inform the Court of any further developments in that regard.


Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Mrs Hanna Riikka Alasippola, is a Finnish national, who was born in 1972 and lives in Leppävesi. She was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The applicant was subject to a tax inspection during the years 2003 and 2004 due to an unexplained increase in her income. The tax inspection report was completed on 4 June 2004. At the same time the applicant’s husband was also subject to a tax inspection. He has lodged a separate application with the Court (no. 49509/12 Robert Alasippola v. Finland).

On 9 September 2004 the tax authorities imposed additional taxes and tax surcharges (veronkorotus, skatteförhöjning) on the applicant for the tax years 1999, 2000, 2001 and 2002. The amount of evaded taxes between 1999 and 2001 totalled approximately 55,290 euros. The amount of tax surcharges varied between 700 and 1,850 euros.

On an unspecified date the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden), requesting it to quash the decisions of 9 September 2004. Also the Tax Ombudsman (veroasiamies, skatteombudet) sought rectification in respect of the tax year 2001, requesting that the taxable income be increased.

On 17 September 2004 the Tax Rectification Committee reduced the amount of additional taxes as well as tax surcharges in respect of the tax year 2000.

On an unspecified date the Tax Rectification Committee accepted the Tax Ombudsman’s application and increased the taxable income for the tax year 2001. However, on 26 June 2006 the Hämeenlinna Administrative Court (hallinto-oikeus, förvaltningsdomstolen) quashed that decision.

On 11 December 2006 the Tax Rectification Committee rejected the applicant’s applications in respect of the tax years 1999, 2000, 2001 and 2002.

By letter dated 23 February 2007 the applicant appealed to the Hämeenlinna Administrative Court, requesting that the additional taxes and tax surcharges be quashed or at least reduced.

On 2 May 2008 the Hämeenlinna Administrative Court accepted the applicant’s appeal in respect of the tax year 2002 and quashed the additional tax and the tax surcharges in that respect. The remainder of the applicant’s appeal was rejected. This decision became final on 2 July 2008 as the applicant did not appeal against it.

On 27 March 2009 the public prosecutor brought charges against the applicant on one count of aiding and abetting aggravated dishonesty by a debtor (törkeä velallisen epärehellisyys, grovt oredlighet som gäldenär) and on two counts of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri), all concerning the tax years 1999 to 2002. According to the charges, the applicant was accused of aiding and abetting aggravated dishonesty by a debtor as she had received unexplained income from her husband between 1999 and 2002. She was accused of aggravated tax fraud, inter alia, as she had given false information to the tax authorities and tax had therefore been incompletely levied between 1999 and 2001. The amount of evaded taxes had been 57,252 euros. The taxation authorities joined the charges and presented a compensation claim totalling exactly the amount of avoided taxes.

On 26 February 2010 the Keski-Suomi District Court (käräjäoikeus, tingsrätten) convicted the applicant of aiding and abetting aggravated dishonesty by a debtor and imposed a 9-month suspended sentence. The charges of aggravated tax fraud were dismissed, as well as the tax authorities’ compensation claim.

By letter dated 6 April 2010 the applicant appealed to the Vaasa Appeal Court (hovioikeus, hovrätten), requesting that the District Court’s judgment be quashed and the charge on aiding and abetting aggravated dishonesty by a debtor be rejected or dismissed without examining the merits. She referred to the ne bis in idem principle and to the Court’s caselaw in that respect.

On 31 October 2011 the Vaasa Appeal Court, after having held an oral hearing, upheld the District Court’s judgment. The court found that the mere fact that the same issues had been assessed in the administrative proceedings did not necessary prevent the examination of the charges pressed. In the administrative proceedings, the unexplained increase in the applicant’s wealth had been considered to be income, thus that case concerned only taxes. The criminal proceedings, however, concerned the fact that the applicant had received income from her husband to the detriment of his creditors. As the proceedings did not concern the same matter, there was no impediment to the examination of the charges.

By letter dated 22 December 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. She emphasised that the income received from her husband was exactly the same income for which additional taxes and tax surcharges had been imposed. All the imposed additional taxes and tax surcharges had been paid.

On 31 January 2012 the Supreme Court refused the applicant leave to appeal but granted the applicant’s husband leave to appeal.

Section 57, subsection 1, of the Tax Assessment Procedure Act (laki verotusmenettelystä, lagen om beskattningsförfarande, Act no. 1558/1995, as amended by Act no. 1079/2005) provides that if a person has failed to make the required tax returns or has given incomplete, misleading or false information to the tax authorities and tax has therefore been incompletely or partially levied, the taxpayer shall be ordered to pay unpaid taxes together with additional tax and a tax surcharge.

According to Chapter 29, sections 1 and 2, of the Penal Code (rikoslaki, strafflagen, as amended by Acts no. 1228/1997 and no. 769/1990), a person who (1) gives a tax authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently and thereby causes or attempts to cause a tax not to be assessed, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years.

According to Chapter 39, sections 1 and 1a, of the Penal Code (as amended by Acts no. 61/2003 and no. 317/1994), a debtor who (1) destroys his or her property, (2) gives away or otherwise surrenders his or her property without acceptable reason, (3) transfers his or her property abroad in order to place it beyond the reach of his or her creditors or (4) increases his or her liabilities without basis and thus causes his or her insolvency or essentially worsens his or her state of insolvency, shall be sentenced for dishonesty by a debtor to a fine or to imprisonment for at most two years. If by the dishonesty by a debtor (1) considerable benefit is sought, (2) considerable or particularly substantial damage is caused to the creditors, or (3) the offence is committed in a particularly methodical manner and the dishonesty by a debtor is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated dishonesty by a debtor to imprisonment for at least four months and at most four years.

The Supreme Court has taken a stand on the ne bis in idem principle in its precedent case KKO 2010:46 which concerned tax surcharges and aggravated tax fraud. In that case it found, inter alia, that even though a final judgment in a taxation case, in which tax surcharges had been imposed, prevented criminal charges being brought about the same matter, such preventive effect could not be applied to pending cases (lis pendens) crossing from administrative proceedings to criminal proceedings or vice versa. However, in July 2013 the Supreme Court reversed its line of interpretation, finding that charges for tax fraud could no longer be brought if there was already a decision to order or not to order tax surcharges in the same matter (KKO 2013:59).

The Act on Tax Surcharges and Customs Duty Surcharges Imposed by a Separate Decision (laki erillisellä päätöksellä määrättävästä veron- tai tullinkorotuksesta, lagen om skatteförhöjning och tullhöjning som påförs genom ett särskilt beslut, Act no. 781/2013) entered into force on 1 December 2013. According to the Act, the tax authorities can, when making a tax decision, assess whether to impose a tax surcharge or to report the matter to the police. The tax authorities can decide not to impose a tax surcharge. If they have not reported the matter to the police, a tax surcharge can be imposed by a separate decision by the end of the calendar year following the actual tax decision. If the tax authorities have imposed tax surcharges, they can no longer report the same matter to the police unless, after imposing the tax surcharges, they have received evidence of new or recently revealed facts. If the tax authorities have reported the matter to the police, tax surcharges can, as a rule, no longer be imposed. The purpose of the Act is thus to ensure that a tax or a customs duty matter is processed, and possibly punished, in only one set of proceedings. The Act does not, however, contain any transitional provisions extending its scope retroactively.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. Some applicants also raised complaints under Article 13 of the Convention.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1957 and lives in Vrdnik, Serbia.

On 19 November 1991 the Sisak Police Department (Policijska uprava Sisak) lodged a criminal complaint against the applicant alleging that he had participated in a group of members of the Serb paramilitary forces who, in September 1991, had shot twenty-seven prisoners of war in Petrinja, killing twenty-two and severely injuring five of them. The police noted in their report that the applicant could not be apprehended because he lived in an area of Croatia which was, at the time, outside the country’s effective control.

On 8 January 1992 an investigating judge of the Sisak County Court (Županijski sud u Sisku) opened an investigation in respect of the applicant, his brother, D. Sanader, and two others, M.D. and S.D., in connection with a suspicion that they had committed war crimes against the prisoners of war. As all the suspects were at large, the judge ordered their pre-trial detention and issued arrest warrants.

During the investigation the investigating judge questioned a number of witnesses. Several of them testified about the applicant’s brother’s involvement in the killings and his position as commander of the paramilitary group. They also named M.D. as a direct perpetrator of the killings. One of the witnesses, D.P., testified that after the killings he had heard people saying that “Sanader’s group” had committed the crime and he had later seen the applicant with that group. Another witness, M.Ž., who had survived the shootings, testified that after the event he had been shown the applicant’s photo and it had appeared to him that the applicant had also been there and had personally killed three people. Another survivor of the shooting, I.B., testified that after the crime one of the newspapers in Croatia had published photos of the applicant and his brother. He had recognised the applicant’s brother as one of the participants in the shooting but he had not recognised the applicant as having been at the scene.

On 25 November 1992 the Sisak County State Attorney’s Office (Županijsko državno odvjetništvo u Sisku) indicted the applicant, D.Sa., M.D. and S.D. in the Sisak County Court on charges of war crimes against prisoners of war.

On the same day the Sisak County State Attorney’s Office asked the Sisak County Court to try the applicant and the other accused, who lived on the occupied territory of Croatia, in absentia, as they were not available to the Croatian authorities, and requested that warrants for their arrest be issued.

On 15 December 1992 a three-judge panel of the Sisak County Court ordered the applicant’s detention pending trial and issued an arrest warrant.

It also granted the request for the applicant’s trial in absentia on 30 December 1992. The relevant part of the decision reads:

“On 25 November 1992 D. Sanader and others were indicted in this court on a reasonable suspicion that they had committed the offence [specified] under Article 144 of the Criminal Code. The State Attorney further requested that they be tried in absentia.

The request is granted.

The accused are at large and a detention and arrest warrant have been issued, as noted in the police report.

Since the accused have been indicted for a crime against humanity and international law – a war crime against prisoners of war under Article 144 of the Criminal Code, and given that they are at large, [this court] considers that highly justified reasons for their trial in absentia exist.”

On 5 January 1993 the President of the Sisak County Court appointed the applicant and the other accused a legal-aid lawyer, E.F.

At a hearing on 21 January 1993 the trial court heard eight witnesses, including M.Ž. and I.B. (see paragraph 9 above). They all confirmed the statements they had made to the investigating judge. The Deputy State Attorney and the applicant’s legal-aid lawyer asked no questions and made no objections to their statements. The parties also agreed that the written records of statements by thirteen other witnesses, including D.P. (see paragraph 9 above), be admitted in evidence without those witnesses having been questioned at the trial. In his closing statement, the applicant’s legal-aid lawyer stated:

“The defence notes that the pre-trial and trial procedure has been thorough and invites the court to assess all the evidence adduced, in particular each witness statement taken alone and in conjunction with other statements, and, based on that assessment, to deliver a decision in accordance with the law.”

On the same day the applicant was convicted as charged and sentenced to twenty years’ imprisonment. The trial court considered that the witness statements provided sufficient evidence for conviction and noted that the legal-aid lawyer had made no objections to those statements.

The applicant’s legal-aid lawyer lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) on 26 February 1993 arguing that the first-instance judgment was not sufficiently reasoned.

On 24 May 1995 the Supreme Court allowed the appeal, quashed the first-instance judgment and remitted the case for retrial on the grounds that the first-instance judgment lacked sufficient reasoning

In the resumed proceedings, three hearings, scheduled for 7 and 8 November 1995 and 2 July 1996 were adjourned, because the defence lawyer could not be summoned. A further hearing scheduled for 11 September 1996 was adjourned owing to the absence of one of the members of the trial panel. During this period the trial court also obtained a number of autopsy reports concerning the victims of the crime at issue.

At a hearing held on 3 March 1999 the trial court, with the approval of the parties, read out the evidence from the case file and concluded the hearing. The legal-aid lawyer reiterated his previous closing statement (see paragraph 15 above).

On the same day the trial court found the applicant guilty and sentenced him to twenty years’ imprisonment. It based its judgment on the witness statements and the autopsy reports concerning the victims of the crime.

On 30 April 1999 the legal-aid lawyer lodged an appeal with the Supreme Court arguing that the first-instance judgment lacked sufficient reasoning.

On 2 August 2000 one of the accused, S.D., was apprehended and brought before the investigating judge, who informed him of the proceedings and ordered his pre-trial detention.

On 6 September 2000 the Supreme Court upheld the first-instance judgment of the Sisak County Court in the part which concerned the applicant, D. Sanader and M.D., and quashed it and ordered a retrial in respect of S.D., on the grounds that the latter had been apprehended and that therefore he had the right to a fresh trial in his presence.

On 16 January 2004, after the applicant’s conviction had become final, a sentence-execution judge of the Sisak County Court issued an arrest warrant for the applicant’s arrest and imprisonment.

Meanwhile, the applicant learned through a lawyer in Croatia about his criminal conviction in the Sisak County Court.

On 9 November 2009 the applicant asked the Sisak County Court to reopen the proceedings on the grounds that he had learned about the judgment of 3 March 1999 only in December 2008 and that he had not committed the crime at issue. He argued that the witnesses had just mentioned his name and that the only witness statement directly implicating him in the crime, that of M.Ž., had not been properly interpreted in the judgment. He stressed that he would be prepared to take part in a witness confrontation with any of those who had testified against him or counter any evidence against him. He also asked that a number of witnesses be heard on his behalf, and that the possibility of trying him before a war crimes tribunal in Belgrade be considered. Together with his request the applicant submitted certified statements by six people excluding the possibility of his involvement in the crime on the grounds that at the relevant time he had not been in Petrinja.

Based on the information provided by the applicant, and given that the witnesses at issue lived in Serbia, the Sisak County Court asked the Serbian authorities to question them. During their questioning the witnesses reiterated their statements excluding the possibility that the applicant had been in Petrinja at the time of the events.

After receiving the witness statements from the Serbian authorities in July 2010, the Sisak County Court forwarded the case file to the Sisak County State Attorney’s Office for their observations on the applicant’s request for a retrial.

On 24 August 2010 the Sisak County State Attorney’s Office submitted their observations on the applicant’s request for a retrial which, in the relevant part, read:

“Given that the trial proceedings in the case at issue were fair and given that the first and second-instance courts gave sufficient reasons for their judgments, we consider that the request for a retrial in the absence of the second accused Mile Sanader should not be granted because none of the witnesses ... confirmed the arguments from the request for retrial ...”

On 30 August 2010 a three-judge panel of the Sisak County Court dismissed the applicant’s request on the grounds that he had failed to show that there were any new facts which could alter his conviction. The relevant part of this decision reads:

“... this panel of the Sisak County Court considers that Mile Sanader’s request for a retrial does not contain any new facts or evidence which could, in themselves or in conjunction with the previously adduced evidence, lead to his acquittal or his conviction under more lenient law.

All the witnesses stated that they had known Mile Sanader from the period before the war. Although they all, and in particular witnesses M.Žil. and V.V., attempted to exclude the possibility of the convict’s presence in the area where the killings of the Croatian soldiers took place in September 1991, this panel considers that these statements are not sufficiently credible or precise to completely exclude the possibility of the convict’s participation in the massacre.

In the proceedings before the Sisak County Court Mile Sanader was found guilty of the offence under Article 122 of the Criminal Code and the Supreme Court upheld that judgment. Based on the comprehensively and correctly established facts [the trial court] found beyond reasonable doubt that the massacre of the Croatian soldiers had been committed by the so-called ‘Sanader group’ and that the leader of that group had been the convict’s brother, D. Sanader.

Witness M.T., who had been a soldier in the paramilitary group, testified that the third convict, M.D., had told him that he had killed the prisoners at the request of D. Sanader, while witness M.Ž., one of the survivors of the shooting, testified that he had recognised D. Sanader as the perpetrator of the crime from a photo and Mile Sanader as having killed three prisoners while they had been lying face down on the ground with their hands on their heads.

Against this background, the panel considers that the second convict, Mile Sanader, has not managed to cast doubt on the facts established during the trial which led to his conviction for the offence under Article 122 of the Criminal Code and his sentencing to twenty years’ imprisonment.”

The applicant lodged an appeal with the Supreme Court on 8 September 2010, arguing that the relevant domestic law required an automatic reopening of proceedings where an accused had been tried in absentia and then sought a fresh hearing, a fact to which the Sisak County Court had given no consideration. He also argued that the evidence suggested that he was not guilty of the offences he had been convicted of.

On 19 January 2011 the Supreme Court dismissed the applicant’s request on the grounds that he could not rely on the provision granting automatic reopening of the proceedings since he lived in Serbia and was not available to the Croatian judicial authorities. It examined, therefore, whether any new facts warranted the reopening of the proceedings and found that no such facts existed. Accordingly, the applicant’s request was dismissed.

The applicant lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 5 December 2011, arguing that he had not been able to obtain a retrial and that during the proceedings conducted in his absence he had not been effectively represented.

On 23 February 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the constitutional complaint concerned the proceedings for the reopening of the criminal proceedings and not any criminal charge against the applicant.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty);No violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1978 and is currently detained in the centre for persons in preventive detention on the premises of Straubing Prison (hereinafter “the Straubing Prison preventive detention centre”).

On 29 October 1999 the Regensburg Regional Court convicted the applicant of murder and, applying the criminal law relating to young offenders, sentenced him to ten years’ imprisonment. It found that in June 1997 the applicant, then aged nineteen, had strangled a woman who had been jogging on a forest path, had partly undressed the dead or dying victim and had then masturbated. The court found that the applicant had acted with full criminal responsibility.

From 17 July 2008 onwards, after he had served his full prison sentence, the applicant was remanded in provisional preventive detention under Article 275a § 5 of the Code of Criminal Procedure (see paragraph 41 below).

On 22 June 2009 the Regensburg Regional Court, with Judge P. sitting on the bench, ordered the applicant’s retrospective preventive detention under Article 7 § 2 no. 1 of the Juvenile Courts Act, read in conjunction with Article 105 § 1 of the Juvenile Courts Act (see paragraphs 38-39 below). The court, having regard to the reports made by a criminological expert (Bo.) and a psychiatric expert (Ba.), found that the applicant was still harbouring violent sexual fantasies and that there was a high risk that he would again commit serious sexual offences, including murder for sexual gratification, if released. On 9 March 2010 the Federal Court of Justice dismissed the applicant’s appeal on points of law.

On 4 May 2011 the Federal Constitutional Court, in a leading judgment, allowed the applicant’s constitutional complaint. It quashed the Regional Court’s judgment of 22 June 2009 and the Federal Court of Justice’s judgment of 9 March 2010 and remitted the case to the Regional Court. It further found that the order for the applicant’s provisional preventive detention – which had become devoid of purpose once the order for the applicant’s retrospective preventive detention in the main proceedings had become final – to be unconstitutional (file no. 2 BvR 2333/08 and no. 2 BvR 1152/10). The Federal Constitutional Court found that the impugned judgments and decisions had violated the applicant’s right to liberty and the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law (see paragraph 43 below).

On 5 May 2011 the applicant requested the Regensburg Regional Court to order his immediate release. He claimed that following the Federal Constitutional Court’s judgment of 4 May 2011, which had quashed the judgment ordering his retrospective preventive detention, there was no longer any legal basis for his detention.

On 6 May 2011 the Regensburg Regional Court, allowing the Public Prosecutor’s request of 5 May 2011, again ordered the applicant’s provisional preventive detention under Articles 7 § 4 and 105 § 1 of the Juvenile Courts Act, read in conjunction with Article 275a § 5, first sentence, of the Code of Criminal Procedure (see paragraphs 39 and 41 below). The court found that the applicant’s provisional preventive detention was necessary because there were weighty grounds for expecting that his retrospective preventive detention would be ordered under Article 7 § 2 no. 1 of the Juvenile Courts Act, read in the light of the judgment of the Federal Constitutional Court of 4 May 2011.

By submissions dated 27 June 2011, received by the Regional Court on 29 June 2011, the applicant lodged an appeal against the Regional Court’s decision, for which he submitted further statements of grounds on 15, 19, 22, 25 and 26 July 2011. He claimed, in particular, that his provisional preventive detention was unlawful.

On 4 July 2011 the Regensburg Regional Court refused to amend its decision of 6 May 2011.

On 16 August 2011 the Nuremberg Court of Appeal dismissed the applicant’s appeal as ill-founded. It had regard to (i) a request lodged by the Nuremberg General Public Prosecutor on 20 July 2011 requesting that the applicant’s appeal be dismissed, (ii) the findings of fact made by the Regensburg Regional Court in its judgment of 22 June 2009, (iii) the findings of two medical experts in the proceedings leading to the judgment of 22 June 2009, (iv) the findings of two other experts in previous proceedings regarding the applicant’s mental condition and the level of danger that he posed, and (v) the new restrictive standards set by the Federal Constitutional Court in its judgment of 4 May 2011.

On 29 August 2011 the Nuremberg Court of Appeal dismissed the applicant’s complaint regarding a breach of his right to be heard and his objection to the decision of 16 August 2011. The decision was served on the applicant’s counsel on 6 September 2011.

On 7 September 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Regensburg Regional Court dated 6 May 2011, as confirmed by the Nuremberg Court of Appeal. He further requested that the execution of these decisions be stayed by way of an interim measure until the Federal Constitutional Court delivered its decision. The applicant claimed, in particular, that his right to a speedy decision, enshrined in his constitutional right to liberty, had not been respected in the proceedings concerning the review of his provisional preventive detention.

On 18 October 2011 the Federal Constitutional Court communicated the applicant’s constitutional complaint to the regional Government of Bavaria, to the President of the Federal Court of Justice and to the General Public Prosecutor at the latter court.

On 25 October 2011 the Federal Constitutional Court, in a reasoned decision, refused to stay the order for the applicant’s provisional preventive detention by way of an interim measure.

By submissions dated 1 January 2012 the applicant replied to the submissions of the regional Government of Bavaria, of the President of the Federal Court of Justice and of the General Public Prosecutor at the latter court dated 28, 24 and 25 November 2011 respectively.

On 22 May 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1952/11). The decision was served on the applicant’s counsel on 30 May 2012.

In the resumed proceedings before the Regensburg Regional Court following the remittal of the case to it, the applicant lodged a motion for bias against Judge P. The latter had been a member of the bench of the Regensburg Regional Court, which had ordered the applicant’s retrospective preventive detention on 22 June 2009 (see paragraph 8 above). The applicant claimed that Judge P. had remarked to the applicant’s female defence counsel on 22 June 2009, immediately after the delivery of the Regional Court’s judgment ordering the applicant’s retrospective preventive detention, in reference to the applicant: “Be careful that after he is released, you don’t find him standing in front of your door waiting to thank you.” He claimed that the remark had been made in the course of a discussion between the judges and the applicant’s two lawyers in camera concerning the applicant’s possible transfer to a psychiatric hospital following the Regional Court’s judgment.

In a comment of 13 December 2011 on the applicant’s motion for bias, Judge P. explained that he remembered having a discussion about the applicant’s possible transfer to a psychiatric hospital at a later stage, after the delivery of the judgment. However, given the amount of time that had elapsed, he neither recalled the exact context in which he had allegedly made the impugned remark nor the precise contents of the discussion.

On 2 January 2012 the Regensburg Regional Court dismissed the motions for bias lodged by the applicant. The court considered in particular that, even assuming that the applicant had established to the satisfaction of the court that Judge P. had made the remark in question, there were no objectively justified doubts as to P.’s impartiality as a result thereof. Even assuming that the applicant could reasonably consider the sense of the words “thank you” in the above context as meaning that the applicant could commit a violent offence, it had to be noted that the Regional Court, including Judge P., had just established that the applicant still suffered from fantasies of sexual violence and that there was at that time a high risk that he would again commit serious offences against the life and sexual self-determination of others. Assuming that Judge P. had indeed made the remark in question, his “advice” had therefore constituted in substance nothing more than the application of the Regional Court’s said findings to a particular case. The remark had further been made within the context of a confidential exchange between the participants in the proceedings in the absence of the applicant. Judge P. could have expected that the applicant’s female counsel would interpret his remark in the above-mentioned manner within that context.

Furthermore, Judge P.’s remark had reflected his view as it had been on the day of the Regional Court’s judgment of 22 June 2009. It did not suggest in any way that Judge P. had not been ready to take an impartial decision in the present proceedings, some two years after the impugned remark and following the conclusion of a new main hearing. The fact that Judge P. had previously dealt with the applicant’s case did not in itself render him biased.

On 3 August 2012 the Regensburg Regional Court, having held hearings over twenty-four days, again ordered the applicant’s retrospective preventive detention.

The Regional Court found, in particular, that, as required by Articles 7 § 2 no. 1 and 105 § 1 of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011, a comprehensive assessment of the applicant, his offence and, in addition, his development during the execution of the sentence relating to young offenders revealed that there was a high risk that the applicant, owing to specific circumstances relating to his person or his conduct, could commit the most serious crimes of violence and sexual offences, similar to the one he had been found guilty of, if released.

The Regional Court further found that the applicant suffered from a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act (see paragraph 43 below). Having regard to the case-law of the Federal Court of Justice and the Federal Constitutional Court, it considered that, whereas a mere “accentuation of the personality” was not sufficient to constitute a mental disorder within the meaning of the said Act, such disorder did not have to be so serious as to exclude or diminish the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see paragraph 43 below). Given that the sexual sadism the applicant suffered from was of a serious nature and had substantially affected the applicant’s development since his adolescence, it amounted to a mental disorder within the meaning of the Therapy Detention Act.

The Regional Court based its view on the reports of two external psychiatric experts, K. and F., whom it had consulted. Having regard to the findings of these experts, as well as to the findings of several experts who had previously examined the applicant since his arrest following his offence, the Regional Court was satisfied that the applicant has had violent sexual fantasies involving the strangulation of women since the age of seventeen. He was suffering from a sexual preference disorder, namely sexual sadism, as described by the relevant tool for the classification of diseases, the International Statistical Classification of Diseases and Related Health Problems in its current version (ICD-10); this disorder had caused and been manifested in his brutal offence and still persisted. The therapy the applicant had undergone until 2007, in particular social therapy, had not been successful. Even though he appeared ready, in principle, to participate in further therapy, he was not currently undergoing any.

In an appeal on points of law against the Regional Court’s judgment of 3 August 2012, the applicant complained of the unlawfulness of his retrospective preventive detention and of the fact that the judgment had been determined with the participation of a biased judge, P.

On 5 March 2013 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded.

On 11 April 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the retrospective order for his preventive detention had not complied with the prohibition on retrospective penalties under the Constitution and Article 7 § 1 of the Convention, with the right to liberty and the protection of legitimate expectations in a State governed by the rule of law, or with Article 5 § 1 of the Convention. He further argued that his constitutional right to a tribunal established by law had been violated because Judge P. had been biased against him.

On 5 December 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 813/13).

On 7 May 2011, following the order for the applicant’s provisional preventive detention, the applicant was transferred from the wing for persons in preventive detention in Straubing Prison to a wing for persons in detention on remand. As a consequence, the applicant lost the privileges reserved for persons in preventive detention. In particular, there was no longer the possibility to undergo therapy. On 13 September 2011 he was transferred back to and again detained in the wing for persons in preventive detention in Straubing Prison until 20 June 2013.

Since 20 June 2013 the applicant has been detained in the newly built Straubing Prison preventive detention centre. In that institution, which can house up to 84 detainees, one psychiatrist, seven psychologists, one general practitioner, seven social workers, one lawyer, one teacher, one prison inspector, four nurses, forty-four members of general prison staff and four members of the administrative staff are in charge of the detainees. Inmates can stay outside their cells, which these days measure 15 square metres, between 6 a.m. and 11.30 p.m. The applicant has refused any offers of therapy at that centre, in particular, one-to-one or group social therapy, participation in an intensive treatment programme for sex offenders, or therapy administered by an external psychiatrist.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention.