Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicants either owned businesses at Voronezh municipal market and rented the market pitches for their businesses, or worked as vendors for these businesses.

It appears that in August 2007 the title to the plot of land on which the market was located was transferred from the town to a municipal enterprise and then to a private company, which intended to demolish the market and build a shopping centre. It appears that in 2008 and 2009 court proceedings were ongoing between the prosecutor’s office and the municipal enterprise in relation to the land in question.

Disagreeing with this course of action, which would adversely affect their businesses and employment, the applicants and some other people (several dozen in total) decided to remain on the market premises permanently, doing “night shifts”.

According to the applicants, on an unspecified date and in a specified manner, the entrepreneurs notified the town administration of their intention to “constantly do night shifts at the market until the matters relating to the legality of the land’s transfer and the demolition of the market [were] settled”. They started their “night shifts” on an unspecified date.

On 6 August 2009 the police told the entrepreneurs who had gathered at the market to leave the premises. Some refused to comply in the absence of any court order, and argued that, under their rent contracts, they had a right to remain at the market.

On 7 August 2009 some of the applicants (Mr Annenkov, Mr Khripunov, Mr Khavantsev, Mr Finskiy, Ms Suprunova, Ms Zakharova and Ms Guseva) were arrested (see also paragraphs 41-51 below).

These applicants were accused of an offence under Article 19.3 of the Federal Code of Administrative Offences (“the CAO”), which punished disobeying or resisting the lawful order of a public official (see paragraph 61 below). The applicants, who were assisted by counsel before the trial court, pleaded not guilty and denied that they had disobeyed or resisted any specific lawful orders from the police, or that they had otherwise breached the public order or endangered public safety.

By a judgment of 7 August 2009 a justice of peace convicted Mr Finskiy of the offence and sentenced him to five days’ administrative detention. The court held as follows:

“[The defendant] violated the procedure for organising and managing a gathering (собрание); he disobeyed a lawful order issued by police officers in relation to their duties to ensure public order and safety, he also obstructed their exercise of the above duties ...

[The defendant’s] guilt is confirmed by the following documents: the record of the administrative offence, a complaint and written statements issued by the market director, written reports by police officers, and statements from witnesses ...”

On the same day Mr Khripunov was sentenced to five days’ detention. The court held as follows:

“[The defendant] violated the procedure for organising and managing a gathering; he disobeyed a lawful order issued by police officers in relation to their duties to ensure public order and safety, he also obstructed their exercise of the above duties ...

N., a witness, made the following statement before this court, ‘on 7 August 2009 a group of entrepreneurs were doing night shifts to prevent the demolition of the market building. Suddenly, police officers arrived and started to grab people and take them to the police station. [The defendant] was also grabbed by the police; he did not show any resistance during this procedure ...’

The court adopts a critical stance in relation to the testimony of this witness, who is the [defendant’s] acquaintance and colleague, because this testimony is refuted by the bulk of the other evidence, namely the officers’ written reports made in their official capacity ...”

A judgment, apparently in similar terms, was issued in respect of Mr Khavantsev, who was sentenced to ten days’ detention.

As required under the CAO, the applicants started to serve their sentences of administrative detention immediately following the trial judgments in their cases.

At the same time, the applicants appealed to the Sovetskiy District Court of Voronezh (hereafter “the District Court”). Mr Khripunov argued that the trial court had not made a proper assessment of the testimonies of eyewitnesses. He and Mr Finskiy argued, inter alia, that they had taken part in a “gathering”, and the Public Events Act did not require that prior notice be given to the competent public authority for this type of public event (see paragraph 66 below). Moreover, in breach of the Act, no written requirement to cease any unlawful conduct had been issued to them or the other entrepreneurs, and the penalty of administrative detention had been disproportionate.

Mr Finskiy argued before the appeal court that he had been present on the market premises in the early morning of 7 August 2009, because he had been performing a “duty”. Having heard some noise, he had gone out of the building and had seen other entrepreneurs being arrested; he had started to film the events on his camera but had then been ordered to delete the video and had been arrested.

The appeal court examined a written statement from M., the new executive director of the market. He had arrived at the marketplace, but could not get into the office building because a number of entrepreneurs were blocking the entrance by holding hands or linking their arms. Following a request by him for assistance, the police had ordered the entrepreneurs to stop their activity. The entrepreneurs, including Mr Finskiy, had not complied with that order.

The appeal court also examined written statements from B., Ma. and L., who provided testimony in the following terms. While passing through the marketplace on the morning of 7 August 2009, they had seen a group of some fifty people. These people had been shouting slogans and calling for people in the town and regional administrations to be dismissed, as well as calling for the violation of public order. The police had told them to stop, but they had not complied with that order. Thereafter, the police had repeated the warning to the most active participant. After he had failed to comply, he had been taken to a police car, while grabbing the officers’ uniforms and trying to run away.

Officers S., Y. and F. submitted written reports in the following terms. On 6 August 2009, noting the blocking of the entrance to the office building, they had ordered the people present to disperse. The same thing had happened on 7 August 2009. Approaching one of the most active participants, Mr Finskiy, they had ordered him to stop. After he had refused, they had taken him to the police station.

The appeal court heard Ms D., who stated that Mr Finskiy had been trying to film the ongoing events when the police had taken him away; he had not shown any resistance.

On 13 August 2009 the District Court upheld the judgment in respect of Mr Finskiy, stating as follows:

“The court has no reason to doubt the testimonies of police officers and L., B. and Ma., because they were not previously acquainted with the defendant or other entrepreneurs, and have no reason to give false testimony against him ... The court dismisses the argument that L., B. and Ma. could not be eyewitnesses since the market was surrounded by a wall. Their testimonies indicate that they effectively passed through the marketplace ... The court dismisses the argument that the police acted unlawfully in relation to the entrepreneurs’ presence at a gathering requiring no prior authorisation. As the material in the file and testimonies indicate, the police acted lawfully with the aim of ensuring public order and public safety, because the entrepreneurs were blocking access to the market for employees and had not reacted to lawful orders from the police to stop these actions ... The court adopts a critical attitude in respect of the testimony of D., who tried to help her colleague avoid responsibility for the offence, because this testimony is refuted by the other evidence ...”

By a decision of 13 August 2009, in respect of Mr Khripunov, the District Court held:

“P., a witness, stated before the appeal court ‘on 7 August 2009 ... people in plain clothes and the police arrived at the market and, following orders from the chief officer of the Sovetskiy police station, started to arrest entrepreneurs without explaining the reasons for such arrests. [The defendant] was also arrested, while showing no resistance or disobedience to any specific orders ...’

The fact that [the defendant] committed the offence is confirmed by:

– the record of the administrative offence stating ‘after his violation of the procedure for organising and managing public events, while being arrested, he disobeyed the lawful order of a police officer, grabbed his uniform and tried to escape ...’;

– written statements from [three passers-by] who, while passing through the market area, saw some fifty people chanting slogans and calling for the dismissal of the mayor and the governor and for violations of the public order. Despite the police’s order to stop what they were doing, the entrepreneurs refused; thereafter the police approached [the defendant], who appeared particularly active, and again ordered him to stop what he was doing, but he did not respond to this order. While being placed in the police car, he resisted, and threated the officers with violence and prosecution;

– [the officers’ written statements in similar terms]: ... Having approached one of the most active men (subsequently identified as the defendant), they warned him against committing offences, but he did not react and refused [to stop]; Finskiy [sic] was thus arrested and taken to the police station.

The court dismisses the defence’s argument that [the defendant] lawfully participated in a gathering requiring no prior authorisation, because the police’s actions were lawful and aimed to secure public order and public safety, since the entrepreneurs were blocking the market employees’ access to the building ... The court adopts a critical attitude in respect of the testimony of P., who is the defendant’s colleague and wants to help him, because this testimony is refuted by the bulk of the other evidence.”

An appeal decision in similar terms was issued in respect of Mr Khavantsev.

Thereafter, learning in late September 2009 that the court decisions in respect of certain other participants in the same events had been quashed on appeal in September 2009 (see paragraph 27 below), on 8 October 2009 Mr Finskiy, Mr Khavantsev and Mr Khripunov lodged applications under Article 30.12 of the CAO for review of the final judgments in respect of them. On 20 November 2009 the Deputy President of the Voronezh Regional Court upheld the lower courts’ decisions. In respect of each defendant, the reviewing judge stated as follows:

“I dismiss the defence’s argument that the lower courts’ judges omitted to specify the type of public event in which the defendant had participated, the relevant regulations on such public events, and the specific details concerning the police’s orders to the defendant. It was established by the justice of the peace that the impugned event was a ‘gathering’ ...”

By judgments of 7 August 2009 the female defendants in the proceedings and Mr Annenkov were fined.

On 2, 8 and 10 September 2009 the District Court set aside the judgments in respect of the female defendants and Mr Annenkov.

As regards Mr Annenkov, the appeal court held as follows:

“Neither the record of the administrative offence nor the judgment contains references to specific circumstances or actions relating to the corpus delicti of the imputed offence (disobeying the lawful order of a police officer). In particular, neither of the two documents specifies what order was given to the defendant which was then not complied with. Moreover, the judgment does not indicate that the defendant did disobey a lawful order issued by a police officer.”

In respect of Ms Guseva, the appeal court held as follows:

“It is indicated in the record of the administrative offence that the defendant violated the procedure relating to the organisation and management of demonstrations, meetings and gatherings, and that during her arrest she disobeyed the lawful order of a police officer in relation to his work to ensure public order. The record does not specify what type of public event was being held, which above-mentioned procedure was violated, or what orders relating to maintaining public order during a public event were not complied with by the defendant.”

In respect of Ms Suprunova, the appeal court held as follows:

“The record of the administrative offence indicates that on 7 August 2009 the defendant violated the procedure relating to the organisation and management of demonstrations, meetings and gatherings, [and that] during her arrest she resisted the lawful order of a police officer and grabbed his uniform and tried to escape ... The record does not indicate what type of public event was being held, which applicable procedure the defendant allegedly violated, what orders relating to maintaining public order during such an event were issued to the defendant by the police, or which of those orders was not complied with.”

In respect of Ms Zakharova, the appeal court held as follows:

“Neither the record of the administrative offence nor the first-instance judgment refers to specific facts and actions forming part of the offence imputed to the defendant, namely disobeying the lawful order of a police officer ... or the specific order given to her which she failed to comply with. Moreover, it does not follow that what the defendant disobeyed was a lawful order given by a police officer. The record does not specify what the defendant’s violation of the procedure concerning the organisation and management of demonstrations, meetings and gatherings was, or what type of event was being held.”

The appeal court ordered the return of the case files to the relevant justice of the peace. Thereafter, the justice of the peace returned the files to the police station, apparently for the documents to be amended or the administrative-offence records to be redrafted. The files were not resubmitted for a retrial.

At 5.30 a.m. on 10 August 2009 the police arrested some twenty people at the market, including certain applicants such as Mr Buzov, Ms Garkavets, Ms Zuravleva, Ms Khavantseva and Ms Suprunova.

On 10 August 2009 a justice of the peace examined a case against Mr Buzov. The court heard Ms Khr., who stated that a group of people had impeded security guards as they tried to re-establish access to the market building. The police had then arrived and had taken some people to the police station.

It appears that during the hearing the applicant, who was assisted by counsel, first sought to have some other witnesses and police officers examined in open court. However, according to the Government, he then withdrew his application.

By a judgment of 10 August 2009 Mr Buzov was convicted of an offence under Article 19.3 of the CAO and was sentenced to ten days’ administrative detention. The justice of the peace found as follows:

“[The defendant] disobeyed the police officers and did not comply with lawful orders to stop violating public order ...

The defendant’s guilt is confirmed by: the administrative-offence record, the police officers’ reports and the written testimonies of witnesses ...”

According to the Government, Mr Buzov did not serve his sentence, as he was taken to the cardiology unit of a local hospital on the evening of 10 August 2009.

Mr Buzov appealed to the District Court, which held a hearing on 13 August 2009. It heard his lawyer and Ms Yef., who stated that she had seen the applicant making a video recording while he was surrounded by security guards who had torn his clothes. Colleagues had managed to “get him of the security guards’ grasp”, then the police had arrived and had started to push certain entrepreneurs aside. One of the security guards “had given an order to arrest [Mr Buzov]”. Mr Buzov had not disobeyed any orders and had not resisted arrest (see also paragraph 50 below).

By a decision of 13 August 2009 the appeal court upheld the judgment of 10 August 2009 in respect of the applicant.

Learning in late September 2009 that the court decisions in respect of certain other participants in the events on 10 August 2009 (and 7 August 2009) had been quashed on appeal (see paragraphs 27-28 above and paragraphs 38-39 below), the applicant and his counsel, Ms Gnezdilova, thought that they had a reasonable prospect of success in seeking a further review of the court decisions of 10 and 13 August 2009. In early October 2009 they lodged an application for review of those court decisions. They argued, inter alia, that: the lower courts had not specified what specific order the applicant had disobeyed or whether such an order was lawful under Russian law; the courts had not heard any officers or eyewitnesses who had witnessed the impugned reprehensible conduct on the part of the applicant; and the courts had not specified any particular actions on his part which constituted a breach of public order.

On 20 November 2009 the Deputy President of the Voronezh Regional Court upheld the lower courts’ decisions. The judge held as follows:

“[The applicant] was part of the group of people who impeded market officials as they tried to gain access to their office building. The guards from a private security company intervened and a fight ensued between them and some participants. These participants did not respond to orders from police officers. The officers required [the applicant], who was one of the most active participants, to cease his unlawful conduct, but he did not respond to this order. Thereafter, he was taken to the police station.”

On 10 August 2009 a justice of the peace sentenced several female defendants to a fine. However, on 8 September 2009 the District Court heard appeals from them and set aside the judgments against them.

In respect of Ms Zhuravleva, it held as follows:

“Article 28.2 of the CAO requires that a record of an administrative offence must describe, among other things, the factual elements relating to the offence and the circumstances in which it was committed. The record concerning the defendant specifies that ... she disobeyed the police officers, did not respond to their lawful requests to stop unlawfully violating the public order, and grabbed the officers’ uniforms while being escorted to the police vehicle, trying to push them away and run away.

The record of the administrative offence does not specify which requests relating to public order were addressed to the defendant and were not complied with, or which actions of the applicant such requests related to. The deficiencies of the record make it impossible to establish the defendant’s liability for an administrative offence, and the record must be returned to the [police].”

In respect of Ms Khavantseva and Ms Garkavets, the appeal court held as follows:

“Neither the record of the administrative offence nor the justice of the peace’s judgment specifies how the defendant violated public order, or which specific order was given by the police in this connection but not complied with by her.”

It appears that the files were then returned to the police for the documents to be amended. The files were not resubmitted to the relevant justice of the peace for a retrial.

On 10 August 2009 Mr Annenkov’s wife (Ms Shatalova, also an applicant in the present case) lodged a criminal complaint with the Sovetskiy Investigations Unit.

Ms Shatalova alleged that Officer Ku., a senior officer at the Sovetskiy police station, had subjected her elderly husband to ill-treatment on 7 August 2009. She sought the institution of criminal proceedings against this officer. She stated as follows: at her request, her husband had arrived at the market in the early morning of 7 August 2009, where she had been doing “night shifts” with others, in order to bring her some warm clothes; Officer Ku. had struck a blow to his chest, causing the man to fall to the ground and sustain a head injury as he hit his head against the corner of a table.

Mr Annenkov was examined on 7 August 2009 by a neurosurgeon, a traumatology specialist and a therapist, who concluded that he had a contused wound on his head measuring 6 cm by 0.3 cm by 0.5 cm, some swelling on his upper right arm, and some other injuries (this part of the certificate is not legible). In her submissions before the Court the applicant’s lawyer alleged that Mr Annenkov had sustained a rib fracture. She maintained this assertion following communication of the case to the Government; the latter did not comment on this matter.

Unspecified officials carried out an inquiry between 10 and 18 August 2009, looking into whether any police officers had committed the offence of abuse of power (defined at the time as “actions manifestly outside the scope of official duties, causing a significant violation of one’s rights or legitimate interests”), an offence under Article 286 of the Criminal Code.

Three other applicants (Ms Guseva, Ms Suprunova and Ms Zakharova) also sought medical assistance on 8 August 2009. Ms Suprunova was diagnosed with concussion and soft-tissue bruises on her head and right arm. Ms Zakharova was diagnosed with soft-tissue bruises on her head and right shoulder. Ms Guseva was examined by a forensic expert, who concluded that she had bruises on the front upper part of her right arm (measuring 2.5 cm by 2 cm, and 2.4 cm by 1.9 cm) and a smaller one on the inner part of her right arm, abrasions on her right and left hip measuring 9 cm by 8.5 cm and 8 cm by 7.5 cm respectively, and abrasions on her right and left ankle joints measuring 6 cm by 3 cm and 2 cm by 1.3 cm respectively.

It appears that on an unspecified date Ms Suprunova, Ms Zakharova and Ms Guseva were heard in the context of the pre-investigation inquiry regarding Mr Annenkov.

Ms Zakharova stated that she had arrived at the market early on the morning of 7 August 2009 and had seen a police officer dragging Ms Guseva. She had protested to Officer Ku., who had then pushed her. She had fallen to the ground, hitting her shoulder and the back of her head against wooden objects on the ground.

Ms Suprunova stated that Officer Ku. had ordered “Take this one” and had started to pull her hair and hands, but other entrepreneurs had tried to shield her.

Ms Guseva stated that she had tried to shield Ms Suprunova from Officer Ku., who was pulling her hair. Officer Ku. and Officer Kh. had pushed Ms Guseva against a wall, causing her to fall to the ground and lose consciousness. She had then been dragged along the ground by her hands, and had been kicked in the back by one of the officers as she was placed in the police car.

Ms Yef., the applicants’ colleague, made a written statement that in the early morning of 7 August 2009 some thirty people had been at the market. Upon being alerted to the arrival of the police, she had gone out and seen some sixteen police officers, including Officer Ku., a senior officer, who was giving orders and indicating that the officers should “Take this one” or something similar. She had seen an officer twisting Ms Suprunova’s arms and Ms Guseva being dragged along the ground. Then she had seen Mr Annenkov ask Officer Ku. “What are you doing?”, and Officer Ku. had suddenly hit him in the chest, causing Mr Annenkov to fall to the ground and hit against the top of a table. Mr Annenkov had fainted. Officer Ku. had then kicked him on the leg and ordered “Take this one”.

Officer Ku. made the following written statement during the inquiry:

“On 6 August 2009 the police station received information that in the early morning of 7 August a group of three hundred people might take violent action in order to take possession of the market. At 5.45 a.m. some thirty officers under my supervision arrived at the market to prevent disorder and unlawful actions. We saw some twenty people outside the building who were holding a meeting, chanting slogans and shouting about the regional prosecutor and the governor. The entrepreneurs had previously been issued with warnings against unlawful actions on their part. Suddenly, some five women started to shout and call for help, grabbing our uniforms. We arrested some thirteen people, including the most active perpetrators; all of them resisted during the arrest ... We did use physical force against some people, namely sambo fighting techniques such as twisting hands behind backs. None of the officers, including myself, inflicted any blows ...”

On 19 August 2009 an investigator issued a decision refusing to institute criminal proceedings, referring to the statements of several officers, including Officer Ku., and the testimonies of Mr Annenkov, Ms Shatalova, Ms Zakharova and Ms Suprunova.

It appears that the refusal of 19 August 2009 was then overruled for unspecified reasons and the inquiry was resumed. Written statements were obtained from some other participants in the gathering. Officer Kh. was also heard and he confirmed Officer Ku.’s earlier statement.

On 7 September 2009 the investigator issued a new refusal to institute criminal proceedings against Officer Ku., Officer Kh. or other officers. Having summarised the above testimonies, he concluded as follows:

“No sufficient and objective data could be gathered during the inquiry to show that any police officers had committed any criminal offence ... The grievances presented in the complaints are refuted by the testimonies from the officers ... Injuries could have been sustained during the arrest procedure owing to the resistance displayed to the police officers (such resistance later being confirmed by the prosecution for the administrative offences). Furthermore, in view of the important and irremediable inconsistencies in various testimonies, there is no possibility of drawing a truthful conclusion regarding the commission of a criminal offence by Ku., Kh. or others ...”

For unspecified reasons, a new refusal to prosecute was issued on 1 October 2009. It was then overruled on 7 October 2009 by the deputy director of the District Investigations Department. He indicated that it was necessary to: assess the available court decisions regarding administrative offences concerning the events on 7 August 2009; identify and interview people who had been kept with the arrested people at the police station; identify and interview all police officers who had been present at the station and had compiled administrative-offence files against the arrested entrepreneurs; and identify and interview all the officers who had been on duty on that date and had been present at the market.

Four applicants (Mr Annenkov, Ms Suprunova, Ms Guseva and Ms Zakharova) sought judicial review in respect of the refusal dated 1 October 2009. They learnt at a hearing on 19 October 2009 that the refusal had already been overruled. The case was therefore discontinued.

A new refusal was issued on 9 November 2009.

On 22 December 2009 the Regional Investigations Department set aside the refusal of 9 November 2009 because it contained an insufficient assessment of the factual circumstances, no plausible explanation for the applicants’ injuries, and no assessment of the legality of the police’s actions.

Being unaware of the above decision, one of the applicants sought judicial review of the refusal to prosecute dated 9 November 2009. On 9 November 2010 the District Court discontinued the proceedings because the supervising authority had overruled the impugned refusal decision.

According to the Government, a new refusal to prosecute was issued on 19 June 2012. It was overruled on 5 October 2012 by the district prosecutor’s office. Thereafter, a criminal case was opened under Article 286 of the Criminal Code. Apparently, Mr Annenkov and Ms Suprunova at least were interviewed again by an investigator. Mr Annenkov also had a formal confrontation procedure with an unspecified witness who had allegedly seen the applicant stumble and fall to the ground by himself on 7 August 2009.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1965 and lives in Budapest.

On 14 April 2010 the applicant notified the police that he planned to organise a demonstration from 2 to 7 p.m. on 17 April 2010 in front of the Venyige Street prison in Budapest, in order to draw attention to the “situation of political prisoners”. Venyige Street is a broad cul-de-sac with a service lane.

On 16 April 2010 the head of the Budapest Police Department banned the demonstration on the grounds that traffic could not be diverted to alternative routes (section 8(1) of the Assembly Act). In the decision, he referred to Article 21 of the International Covenant on Civil and Political Rights, Article 11 of the Convention and Decision no. 55/2001.AB of the Constitutional Court.

On 19 April 2010, within the statutory time-limit, the applicant sought a judicial review of the decision.

On 22 April 2010 the Budapest Regional Court dismissed the applicant’s case. It noted that in assessing whether or not traffic could be diverted to other routes, the authority had reckoned on the participation of some 200 demonstrators, as per the applicant’s notification, and that – after having obtained the opinion of a traffic expert – it had established that lawful parking and traffic circulation in the neighbourhood would become impossible should the event take place. The court agreed with the police’s decision in that although the right to assembly was a constitutional fundamental right, it was not absolute and must not give rise to a violation of the fundamental rights of others, and could therefore be restricted. The court was satisfied that the decision had been lawful as the police had adequately established the facts, complied with the procedural rules and applied clear assessment criteria, and the assessment of the evidence had been logical.


CASE OF ALPEYEVA AND DZHALAGONIYA v. RUSSIA

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;(Art. 35-3-a) Ratione materiae;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom

The first applicant is a Russian national who was born in 1951 and lives in Volzhskiy, in the Volgograd Region.

At the relevant time she was a Soviet national and lived in Kyrgyzstan.

In 1994 the first applicant applied to the Russian embassy in Bishkek for Russian citizenship.

In March 1994 she was granted Russian citizenship and the Russian embassy in Bishkek put a stamp in her Soviet passport to this effect.

Thereafter the first applicant moved to Russia.

On 14 July 2001 she obtained a new Russian “internal passport” (a citizen’s identity document for use inside Russia).

In 2006 the first applicant applied to the Federal Migration Service (FMS) for an “international passport” required for foreign travel.

On 11 April 2006 an official from the FMS seized her Russian passport, which was later destroyed. The FMS referred to a report of 26 January 2006 on a check carried out by the agencies of the interior, according to which the first applicant had never properly acquired Russian citizenship and therefore had no right to be in possession of a Russian passport. The report stated, in particular, that whereas the first applicant had been issued with a Russian passport on 14 July 2001, she was not registered in the database of the Ministry of Foreign Affairs as a person who had acquired Russian citizenship. Furthermore, according to a letter of 18 October 2015 from the Russian embassy in Kyrgyzstan, it had no records on her obtaining Russian citizenship either. Accordingly, she had been issued with a Russian passport erroneously in 2001.

The first applicant complained to the prosecuting authorities.

On 15 June 2006 the Volzhskiy prosecutor’s office rejected the complaint.

In a response of 27 October 2006 the Volgograd Region prosecutor’s office stated that the FMS was not competent to seize passports, something which only the agencies of the interior could do; that the first applicant’s passport had been seized in breach of the law; and that the prosecutor’s office recommended that the FMS rectify the situation.

On 20 March 2007 the FMS issued report no. 37 to the effect that the first applicant had never properly acquired Russian citizenship, and that a Russian passport had been issued to her unlawfully.

The first applicant appealed to a court against the findings of the report of 26 January 2006.

On 28 May 2007 the Volzhskiy Town Court found in favour of the first applicant and held that the check which had been carried out by the agencies of the interior had been unlawful.

The decision was subsequently quashed by means of supervisory review and the case was remitted for fresh examination.

On 28 February 2008 the Volzhskiy Town Court again held that the check had been unlawful.

However, the FMS did not set aside the decision to seize the first applicant’s passport, and a new passport was not issued to her either.

The first applicant again instituted court proceedings, this time for a finding that the seizure of her passport had been unlawful.

On 4 April 2008 the Volzhskiy Town Court dismissed the first applicant’s complaint. It accepted the FMS’s arguments that she had never acquired Russian citizenship, although it also found that the FMS officials’ actions of 11 April 2006 had been procedurally incorrect, as the FMS did not have competence to seize passports.

On 3 July 2008 the Volgograd Regional Court upheld the decision on appeal.

A request by the first applicant for supervisory review was dismissed on 30 January 2009.

The first applicant then instituted another set of court proceedings against the FMS concerning its inaction in relation to issuing her with an identity document. She also contested the FMS report no. 37 of 20 March 2007.

On 25 March 2009 the Volzhskiy Town Court dismissed the complaint.

On 7 August 2009 the Volgograd Regional Court upheld the decision on appeal.

The first applicant reapplied for Russian citizenship.

On 14 April 2009 she was granted Russian citizenship under a simplified procedure on the basis of a FMS decision of 16 March 2009 to this effect.

On 27 March 2010 the first applicant was issued with a Russian passport.

The second applicant was born in 1965 and lives in Kostroma.

According to the second applicant, between 1987 and 2010 he lived in the Rostov Region. Initially, he had a Soviet Union passport issued on 21 December 1981 by the Chkhorozkuskiy Department of the Interior of the Republic of Georgia.

On 23 December 1998, in accordance with the procedure then in force, the second applicant was issued with an insert for his passport (вкладыш) specifying that he was a citizen of the Russian Federation.

On 19 February 2002 the Passport and Visa Directorate of Police Office no. 1 of Taganrog, in the Rostov Region, issued the second applicant with a Russian passport.

In 2010 the second applicant moved to Kostroma.

On 18 January 2010 the second applicant applied to the FMS of the Centralniy District of Kostroma to register his place of residence.

According to the Government, owing to doubts as to whether the second applicant had been issued with a Russian passport in accordance with the established procedure, the FMS of the Centralniy District of Kostroma sent a request to the FMS of the Rostov Region.

On 30 June 2010 the FMS of the Rostov Region issued a certificate which reads, in so far as relevant:

“On 19 February 2002 [the second applicant] was issued with [a Russian passport] following the exchange of [his passport] issued on 21 December 1981 by the Chkhorozkuskiy Department of the Interior of the Republic of Georgia.

In section 8 of the application for issue (exchange) of [the second applicant’s] passport it is noted ‘RF citizen according to section 13(1)’.

According to the information [available to the FMS of the Rostov Region], [the second applicant] has not been registered at the address [in Taganrog] since 17 February 2010, as he has moved to Kostroma.

In the database of [the Ministry of Foreign Affairs], available to the FMS of the Rostov Region, there is no information as to whether [the second applicant] has obtained Russian citizenship.

A copy of [the second applicant’s] passport issued on 21 December 1981 by the Chkhorozkuskiy Department of the Interior of the Republic of Georgia contains a [glued] insert issued by the Department of the Interior of the Leninskiy District of Rostov-on-Don on 21 December [year illegible] to the effect that [the second applicant] is a citizen of the Russian Federation in accordance with section 13(1) of the Russian Citizenship Act of 28 November 1991.

On 29 January 2010 ... a request was sent to [the FMS of the Rostov Region] to confirm that [the second applicant] had Russian citizenship.

According [to the information received], the issue of the above insert to [the second applicant] and its lawfulness or otherwise is [not] [section illegible] confirmed ...

The decision to issue [the second applicant] with [a Russian] passport was made ... by [V.], former head of the Passport and Visa Directorate of Police Office no. 1 of Taganrog, in the Rostov Region, who on 26 April 2004 was ... dismissed from service because she had reached retirement age.

It appears to be impossible to question [V.] concerning the circumstances of the issue of the Russian passport [to the second applicant], since she is absent from her place of residence.

Accordingly, [V.] ... issued [the second applicant] with a Russian passport in the absence of documents confirming that he was a Russian citizen, and without checking the documents presented for the issue (exchange) of the passport, in breach [of the rules] then in force.

The above circumstances allow the supposition that [V.] might have had an interest in issuing [the second applicant] with a Russian passport in breach of the established rules, which constitutes an offence punishable under Article 286 of the Criminal Code. Furthermore, it may be conjectured that [the second applicant] presented a passport [issued in 1981] which contained wrong information to the effect that he had Russian citizenship.

On the basis of the foregoing, [it is proposed] ... to consider that [the second applicant’s passport] was issued in breach of the established rules ...”

On 22 July 2010, when the second applicant turned 45, in accordance with the applicable procedure, he applied to the FMS to exchange his passport.

The second applicant received a verbal refusal to issue him with a new passport. According to the official who notified him of the refusal, the second applicant had failed to prove that he had had a permanent place of residence in Russia on 6 February 1992 (see paragraph 57 below), and he had only had a registered place of residence in Russia since February 2002.

On 28 July 2010 the second applicant provided the Kostroma Region FMS with a written explanation to the effect that between 1989 and 2002 his place of residence had been registered in Rostov-on-Don, although he had actually been living with his partner, M., in the Krasnodar Region.

On 13 August 2010 the Residential Registration Department of the Leninskiy District of Rostov-on-Don provided the second applicant with a certificate confirming that he was not registered in the Leninskiy District and there was no information about him in the archives either.

On 23 September 2010 the Krasnodar Region FMS informed the Kostroma Region FMS that its archives contained no information about the second applicant, and that it appeared to be impossible to question M. because she was absent from her place of residence.

On 27 September 2010 the Kostroma Region FMS issued a decision to the effect that the second applicant was not a Russian citizen. With reference to the certificate of 30 June 2010 issued by the FMS of the Rostov Region, the decision stated, in particular, that according to the enquiries carried out, the second applicant’s Russian passport had been issued in breach of the applicable rules. It further stated that it had proved impossible to obtain documentary evidence that the second applicant had been living in Russia on 6 February 1992, and the stamp in his passport only confirmed that he had been registered as resident in the Rostov Region from 15 February 2002 to 17 February 2010. The decision also noted that the database of the Ministry of Foreign Affairs contained no information as to whether the second applicant had obtained Russian citizenship. Accordingly, the enquiries made had obtained no evidence that the second applicant had acquired Russian citizenship or that he had been living in Russia on 6 February 1992.

The second applicant appealed to the Sverdlovskiy District Court of Kostroma against the refusal to exchange his passport.

At a hearing on 20 October 2010 a representative from the FMS of the Centralniy District of Kostroma stated, in particular:

“On the basis of the written instructions from the FMS that there should be an urgent check on all passports previously issued to individuals not born in the territory of the Russian Federation, we sent a request for information to the FMS of the Rostov Region. The FMS of the Rostov Region sent a certificate confirming that the [second applicant’s] passport should be considered as having been issued in breach of the applicable rules. I sent a report stating that it was necessary to obtain corroboration that [the second applicant] either had or did not have Russian citizenship. The head of the FMS ... issued a decision to the effect that [the second applicant] was not a Russian citizen. [The second applicant] was invited to familiarise himself with that decision. [I]t was suggested that he apply for a residence permit and subsequently Russian citizenship, under a simplified procedure.

In 2004 the FMS issued instructions for checks to be carried out only in respect of individuals who had applied to exchange their passports. [The second applicant] applied [to exchange his passport], and I discovered that he had not been born in the territory of the Russian Federation, and sent the request. [His] passport was not seized: the FMS did not issue instructions to this effect, so that people would not be left without [an identity] document.”

On 21 October 2010 the Sverdlovskiy District Court of Kostroma upheld the decision of the FMS. It noted that, as a result of a check carried out pursuant to sections 51 and 52 of the 2002 Regulation on the Examination of Issues Related to Citizenship of the Russian Federation, the FMS had found that the second applicant had been issued with a Russian passport in breach of the applicable rules, and was not entitled to Russian citizenship. In particular, it had not been confirmed that he had been living in Russia on 6 February 1992. This justified the refusal to exchange his passport. The court also noted that the reports of the checks carried out by the FMS had not been appealed against or set aside in accordance with the established procedure, and that they were not the subject of the court’s examination in those proceedings.

The court further dismissed the second applicant’s argument that the fact that he had been using the previously issued Russian passport for eight years constituted a valid reason to exchange the passport. The court likewise dismissed his argument that he had not violated any laws or regulations in 2002, when he had been issued with the Russian passport. The court found that his passport was invalid regardless.

The second applicant appealed.

On 6 December 2010 the Kostroma Regional Court upheld the decision. The appeal court noted, in particular, that the certificate issued by the Rostov Region FMS on 30 June 2010 showed that a Russian passport had been issued to the second applicant on the basis of a certificate of 23 December 1998 issued by the Department of the Interior of the Leninskiy District of Rostov-on-Don confirming that he was a Russian citizen in accordance with section 13(1) of the 1991 Law on Citizenship of the Russian Federation. However, the legal validity of that certificate had not been confirmed. It further noted that, according to the results of the enquiries carried out in the places indicated by the applicant as his places of residence in Russia between 1989 and 2002, no confirmation of his registration and residence as of 6 February 1992 had been received with respect to any of the addresses indicated.

The appeal court also noted that the second applicant’s argument that he had not been informed about the report issued following the check carried out by the FMS, and that therefore he could not have appealed against it, had not affected the lower court’s conclusions.

On 25 March 2013, following the entry into force of Law no. 182FZ on Amendments to the Russian Citizenship Act of 12 November 2012, the second applicant applied for Russian citizenship.

On 23 April 2013 the FMS of the Kostroma Region decided to grant the second applicant Russian citizenship.

On 30 April 2013 the second applicant received a Russian passport.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;General principles of international law)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1974 and lives in Vác.

The applicant was employed at a State-owned company from 1 January 2010 until 19 February 2013. Part of his severance payment was taxed at a 98% rate in the amount of 19,349,120 Hungarian forints (HUF) (approximately 64,500 euros (EUR)).


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicant is a privately owned company which was established in 1989 and registered in Belgrade.

On 9 September 2003 the applicant and Beranka AD, a sociallyowned company, concluded a guarantee agreement. To secure the payment of obligations under this agreement, the applicant and Beranka AD concluded Annex No. 1 on the fiduciary transfer of the latter’s property to the applicant (Anex br. 1 Ugovora o fiducijarnom prenosu prava svojine). In this Annex, the property offered as collateral was: (a) property no. 6 – storehouse (magacin); (b) property no. 29 – power plant (energana); (c) property no. 30 – boiler-room (kotlovnica); (d) property no. 9 – laboratory (laboratorija); and (e) property PM2 – paper machines (papir mašine).

On 31 October 2003 the fiduciary transfer of Beranka AD’s property to the applicant was registered by the Real Estate Office in Berane (Direkcija za nekretnine, Područna jedinica Berane).

On 8 April 2004 the Commercial Court in Bijelo Polje (Privredni sud u Bijelom Polju) opened insolvency proceedings in respect of Beranka AD.

On 5 June 2004 the applicant reported its claim in these proceedings.

On 17 September 2004 the Commercial Court refused to recognise this claim.

Following the decision of 17 September 2004, on 11 October 2004 the insolvency administrator for Beranka AD (stečajni upravnik) lodged a request with the Real Estate Office in Berane seeking that the registration of the fiduciary transfer of property to the applicant be erased. On the same day the Real Estate Office Registry accepted this request.

On 5 November 2004 the applicant lodged an appeal with the Real Estate Department in Berane (Uprava za nekretnine Područna jedinica Berane). On 26 November 2004 the Real Estate Department amended the said decision.

On 13 April 2005 the Real Estate Department in Podgorica (Uprava za nekrentine u Podgorici) quashed both decisions on appeal and remitted the case for reconsideration.

On 1 June 2005 the Real Estate Department in Berane re-registered the fiduciary transfer on properties nos. 6 and 9, as well as on PM2, but refused to re-register the fiduciary transfer on properties nos. 29 and 30.

On 22 November 2005 the Real Estate Department in Podgorica upheld this decision.

The applicant appealed to the Administrative Court. On 6 February 2007 the Administrative Court quashed the decision of the Real Estate Department in Podgorica and remitted case to the Real Estate Department in Berane. It would appear that the case is still pending before that body.

On 11 April 2007 the Administrative Court issued an enforcement decision ordering the registration of the applicant’s fiduciary rights in respect of all properties.

Following the Commercial Court’s decision of 17 September 2004 (see paragraph 10 above), the applicant lodged an objection. The hearings concerning the objection were held on 11 August 2004, 31 May 2005 and 17 April 2006. On 24 August 2006 the Commercial Court dismissed the applicant’s objection.

On 17 January 2007 the Real Estate Department in Berane again erased the fiduciary transfer of Beranka AD’s property from the public register. On 24 February 2007 the applicant lodged an appeal against this decision.

On 3 September 2007 the Ministry of Finance upheld the decision of the Real Estate Department to erase the applicant’s fiduciary rights.

On 8 July 2008, upon an appeal by the applicant, the Administrative Court quashed the decision of the Ministry and remitted the case to the Real Estate Department in Berane for reconsideration.

On 2 October 2008 the Real Estate Department in Berane ordered the removal of the applicant’s rights on Beranka AD’s property from the public register.

On 9 April 2009 the Ministry of Finance quashed the decision of 2 October 2008 and remitted case to the first instance.

On 8 April 2010 the Real Estate Department in Berane stayed the proceedings, because it needed some documents which were in the file of a case pending before the Commercial Court. This decision was quashed by decision of the Ministry of Finance and the matter was remitted to the first instance.

On 26 October 2011 the Real Estate Department adopted a decision allowing the deletion of the applicant’s rights from the public register. The same authority confirmed that decision on 2 November 2011.

On 16 November 2011 the applicant filed an objection with the Ministry of Finance.

On 9 July 2012 the applicant also lodged an appeal with the Administrative Court. On 30 November 2012 the Administrative Court rendered a decision in the applicant’s favour and ordered the Ministry of Finance to reconsider on the applicant’s prior objection.

On 14 June 2013 the Ministry of Finance remitted the case to the first instance. The proceedings are still pending before the Real Estate Department in Berane.


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

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

The applicants were born in 1976 and 1978 respectively and are detained in Vilnius Correctional Facility and Kybartai Correctional Facility.

The first applicant was detained in Šiauliai Remand Prison from 11 January 2011 to 3 November 2011. The documents submitted to the Court show that he was held in four different remand prison cells: nos. 9, 104, 29 and 37.

In 2012 the applicant instituted proceedings for damages. He argued that the conditions in which he had been held in Šiauliai Remand Prison had been degrading: cell no. 9 had not been renovated, had had almost no natural light and the artificial light provided in the evening had been very poor; the ventilation had been insufficient and the cell was cold; cell no. 104, although renovated, lacked sufficient ventilation and was cold, and there was almost no natural light; cell no. 29 had insufficient light and ventilation; cell no. 37 was dirty, the electrical system was damaged and thus dangerous, the sanitary facilities were not separated from the cell, the cell lacked light, ventilation and the temperature was too low. The applicant also submitted a document from the Šiauliai Health Care Centre from 19 April 2012, which noted violations of hygiene norms in the remand prison’s cells.

On 21 December 2012 the Šiauliai Regional Administrative Court held that the applicant’s right to adequate conditions of detention had been breached but dismissed his claim for compensation. The court held that the applicant had not complained about his conditions of detention while in prison and had only lodged his complaint a year after leaving it. Moreover, it was up to the applicant to prove that he had sustained damage. The court held that there was no information to show that the remand prison had purposely interfered with his right to dignity or treated him inhumanely, that he had not suffered a great enough negative impact from the hygiene violations, and that there were no grounds to award him compensation.

The applicant appealed but on 17 July 2013 the Supreme Administrative Court upheld the first-instance decision. The court observed that the document from the Šiauliai Health Care Centre (see paragraph 6 above) had been issued five months after the applicant had left the remand prison and it was not able to determine the negative impact of the unsanitary conditions on the applicant on the basis of such evidence alone.

The second applicant was detained in Šiauliai Remand Prison from 15 December 2009 to 8 February 2012. The documents submitted to the Court show that he was held in several different cells: nos. 101, 95, 54, 14 and 49.

On 27 December 2011 the applicant instituted proceedings for damages and on 9 January 2012 he submitted a detailed complaint. He argued that the conditions in which he had been held in Šiauliai Remand Prison had been degrading: the cells were damp and dirty, there was insufficient light and ventilation, and the walls had not been painted. As a result, his health had deteriorated: his sight had worsened and he had pain in his joints and his back.

On 28 December 2012 the Šiauliai Regional Administrative Court held that the applicant’s right to adequate conditions of detention had been breached but dismissed his claim for compensation. The court found that the Šiauliai Health Care Centre had examined cell no. 101 on 7 January 2011, while the applicant had been detained there from 5 January 2011 to 3 February 2011 and from 14 February 2011 to 28 April 2011. The cell had been dirty, the toilet doors broken, and there was mould on the walls and ceiling. The health centre also examined cell no. 101 on 27 April 2011 and established that there was no longer any mould and the temperature was satisfactory, but the lighting was still insufficient. The court thus held that the applicant had proven that the conditions in cell no. 101 had been unsanitary. However, the court noted that the applicant had not proven the existence of unsanitary conditions in the other cells. The court further noted that the inmates were responsible for keeping the cells clean, but that the remand prison had not proven that it had provided the applicant with cleaning materials for at least six months. As regards the applicant’s health, the court observed that he had been prescribed several drugs for spinal osteochondrosis, but that there was no relation between his illness and the unsanitary conditions in cell no. 101. The court also noted that during the hearing the applicant had claimed that all the cells had been overcrowded but he had failed to mention this in his written complaint. The court thus held that the case concerned sanitary conditions and not overcrowding.

The applicant appealed and on 11 June 2013 the Supreme Administrative Court found that the court of first instance had acted unreasonably in dismissing his compensation claim, and awarded him with 300 Lithuanian litai (LTL, approximately 87 euros (EUR)) for non-pecuniary damage.


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

The applicant, Mr Ioan Tomoiagă, is a Romanian national, who was born in 1963 and lives in Pecica. He was represented before the Court by Mr A. Fanu Moca, a lawyer practising in Timişoara.

The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs.

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

The applicant was placed in pre-trial detention on 26 March 2010 in the Arad Police detention facilities. On 19 July 2010 he was convicted of corruption committed in the exercise of his duty as a police officer and sentenced to three years’ imprisonment by the Arad County Court.

Between 26 March and 20 April 2010 the applicant was detained in the Arad Police detention facilities in a cell measuring 12 sq m together with two other prisoners. The window was very small and could not be opened from the inside. Access to the toilets was allowed twice per day. The mattress on his bed was worn out and the food was of very poor quality.

On 20 April 2010 the applicant was transferred to Arad Prison where he remained until 13 January 2011. He shared a cell measuring 16 sq m with four other prisoners and the food was of very poor quality and served in unhygienic conditions. The applicant also alleged that he had been transported to court hearings before the Arad County Court in old vans, in overcrowded and overheated conditions.

In the Arad Police detention facilities the applicant shared a cell measuring 12 sq m with two other prisoners who were also in pre-trial detention. The cell had two windows each measuring 86 cm by 55 cm which could be opened from the outside at the prisoners’ request or by the prisoners themselves by pushing the windows towards the exterior. The sanitary facilities and toilets were accessible twice per day for the morning and evening routine. In addition, access to the toilets was granted whenever necessary, upon request, between 6 a.m. and 10 p.m. For the rest of the time a night pot was available in the cell. The prisoners had the right to a sixty-minute daily walk.

In Arad Prison the applicant was detained in a cell measuring 15.37 sq m. For certain periods of time he shared the cell with one, two or three other prisoners. The cell had a hallway, a separate bathroom with toilet and shower and a sleeping area. In terms of furniture, the cell contained five beds and bedside tables, a table for eating, chairs, shelves and a wardrobe. The prison had central heating; the temperature in the cells during the winter ranged from 20 to 22oC. The applicant had the right to three hours’ walk a day and, during his stay in Arad Prison, he participated in two educational activities and two sports activities (such as football during the month of October 2011). The applicant had been transported to and from the courts in accordance with the relevant legal provisions.

The Government emphasised that the applicant had never complained before the prison authorities about his conditions of detention or transportation.

Excerpts from the relevant parts of the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”), as well as of the European Prison Rules adopted by the Committee of Ministers on 11 January 2006, are quoted in Iacov Stanciu v. Romania (no. 35972/05, §§ 121-24, 24 July 2012).


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

The applicant was born in 1975 and lives in the Cēsis District (Latvia).

On 16 June 1997 the applicant gave birth in the Cēsis District Central Hospital (a municipal enterprise, hereinafter “the Cēsis hospital”). Caesarean section was used, with the applicant’s consent, because uterine rupture had occurred during labour.

In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant’s consent.

On 4 February 2005, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation.

On 19 February 2004 the director of the Cēsis hospital wrote to the Inspectorate of Quality Control for Medical Care and Fitness for Work (hereinafter “the MADEKKI”), requesting it to “evaluate the treatment received by [the applicant] during childbirth in accordance with the legislation in force in 1997”. The MADEKKI initiated an administrative procedure on the following day. The administrative inquiry concerned the applicant’s health care and in particular the gynaecological and childbirth assistance she had been provided from 1996 to 2003. In the process of that inquiry the MADEKKI requested and received medical files from three different medical institutions, containing detailed information about the applicant’s health over that period.

In April 2004 M.Z., a MADEKKI staff member, telephoned the applicant and informed her of the on-going inquiry. M.Z. invited the applicant to comment on the case, which she declined to do, referring the MADEKKI to her legal representative, Ms Olsena, instead. During the conversation M.Z. allegedly admonished the applicant for wanting to sue the hospital for damages, and told her that she herself was to blame for her sterilisation.

On 7 May 2004 Ms Olsena asked the MADEKKI for information on the legal grounds for, and the factual circumstances of, the inquiry.

On 14 May 2004 the MADEKKI issued a report concerning the medical treatment given to the applicant during childbirth in 1997. The report contained medical details about the applicant of a particularly private and sensitive character. It concluded that no laws had been violated during the applicant’s antenatal care or during childbirth. A summary of the findings of the report was sent to the director of the Cēsis hospital on 21 May 2004.

On 18 May 2004 the MADEKKI answered Ms Olsena’s questions concerning the administrative inquiry, setting out its opinion on the legal basis for it and providing information on the steps that had been taken in the course of the inquiry.

The applicant’s representative lodged a claim with the Administrative District Court, alleging that the MADEKKI had initiated the inquiry unlawfully, since in essence its purpose had been to help the Cēsis hospital to gather evidence for the impending litigation, which was outside the MADEKKI’s remit. It was also alleged that the MADEKKI had acted unlawfully in requesting and receiving information about the applicant’s health, as it had violated the applicant’s right to respect for her private life. That right had been further violated when the MADEKKI unlawfully transferred the applicant’s data to the Cēsis hospital. Lastly, the court was requested to annul an administrative act – the MADEKKI’s report – since its findings were erroneous. Compensation in the amount of 500 Latvian lati was requested in respect of non-pecuniary damage.

On 12 May 2005 the Administrative District Court adopted a judgment by which it terminated the proceedings with regard to the request to annul the MADEKKI report, as in the court’s opinion the report did not create any specific rights or obligations for the applicant and thus could not be considered an administrative act, and dismissed the remainder of the application as ill-founded.

Counsel for the applicant appealed and on 16 June 2006 the Administrative Regional Court adopted a judgment by which it upheld in full the first-instance court’s judgment and endorsed that court’s reasoning, essentially equating the activities of the MADEKKI with the provision of health care, which, according to domestic law, was a legitimate reason for gathering personal data.

On 8 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law lodged by the applicant, in which reference was made, inter alia, to Article 8 of the Convention and to the cases of Z v. Finland (25 February 1997, Reports of Judgments and Decisions 1997I) and M.S. v. Sweden (27 August 1997, Reports of Judgments and Decisions 1997IV).

The Senate agreed with the lower courts that the MADEKKI report could not be considered an administrative act. It further considered that this report was not an action of a public authority (faktiskā rīcība) and thus was not amenable to review in administrative courts.

It thus remained for the Senate to address the applicant’s claims that the MADEKKI’s actions in preparing the report had been unlawful. In this regard the Senate considered that the Medical Treatment Law gave the MADEKKI the right to examine the quality of medical care provided in medical institutions not only upon receiving a corresponding complaint from a patient but also when a request for such examination had been submitted by a medical institution, which had an obligation to protect the interests of the society so that, should any irregularities be found by the MADEKKI, they might be eliminated and their recurrence with respect to other patients avoided in the future.

The Senate agreed with the applicant that the processing of sensitive data concerning her constituted an interference with her rights guaranteed by, inter alia, Article 8 of the Convention. The Senate then went on to summarise the findings of the Strasbourg Court in the two cases invoked by the applicant, emphasising in particular that the Convention left to the States a wide margin of appreciation in balancing the confidentiality of medical data and the necessity to preserve patients’ confidence in the medical profession and in the health services in general.

The Senate further held that both the Medical Treatment Law and the Personal Data Protection Law contained exceptions that permitted the MADEKKI to collect and process the otherwise confidential medical data. The former listed such exceptions explicitly (see paragraph 30 below), while the latter allowed processing of medical data for the purposes of medical treatment or the provision or administration of heath care services (see paragraph 28 below) or if processing of personal data was necessary for a system administrator to carry out his legal duties (see paragraph 29 below). The Senate continued as follows: “according to [the law] the MADEKKI has a duty to control the quality of medical care. In order to carry out such control, the MADEKKI requires information about the patient and his care”.

The Senate concluded as follows:

“Taking into account the aforementioned, the [Senate] finds that restrictions to a person’s private life connected to gathering and processing of sensitive personal data are provided for by law. When regulating this question, the legislator has already assessed the aim and proportionality of such restrictions, as well as has provided for safeguards against unjustified disclosure of the above-mentioned data. Consequently [the applicant’s] argument that the Regional Court ought to have assessed the aim and proportionality of the restriction is unfounded.

Additionally the [Senate] considers that the Regional Court has correctly interpreted and applied the above-mentioned legal provisions and has come to the correct conclusion that the MADEKKI, in order to carry out the control of the quality of medical care, which it is competent to do, had a right to receive and process [the applicant’s] sensitive data without asking for her consent and that the MADEKKI has acted within its sphere of competence and in accordance with the provisions of the law concerning the processing of sensitive personal data. The MADEKKI used the information it had collected about [the applicant] in order to carry out its functions, namely, to control the quality of the medical care provided to [the applicant], while to the Cēsis hospital it only handed over its conclusions concerning the legality of the doctors’ actions, which did not contain [the applicant’s] sensitive data.”

For these reasons the Senate decided to uphold the lower courts’ decisions.

Section 10 of the Medical Treatment Law (Ārstniecības likums) at the relevant time provided that the MADEKKI was the institution responsible for monitoring the quality of medical care provided in medical institutions.

The MADEKKI’s work at the relevant time was governed in more detail by its statute (nolikums), which had been approved by the Cabinet of Ministers. The statute provided that the MADEKKI was a government institution, whose main functions were to inspect and monitor the professional quality of health care in medical institutions irrespective of their ownership status (paragraph 1). Paragraph 3 of the statute listed the principal functions of the MADEKKI, such as to examine complaints in order to protect the rights of patients (paragraph 3.3), to oversee and issue reports concerning the professional quality of medical care in the event of complaints (paragraph 3.4), to issue reports on the quality of medical care in medical institutions (paragraph 3.6) and the like.

According to its statute the MADEKKI had a right to carry out scheduled (“plānveida”) checks on the quality of medical care as well as to carry out the required checks in response to complaints and requests (paragraph 4.1). Paragraph 4.2 authorised the MADEKKI “to request from private individuals and officials documents and information concerning questions within its field of competence”. If the MADEKKI found that laws had been broken in the course of providing health care, it was authorised to apply administrative fines and issue warnings, as well as to give appropriate recommendations to doctors and administrators of medical institutions.

Lastly, section 72 of the MADEKKI statute provided that its staff had to maintain confidentiality with regard to any information obtained in the performance of their professional duties.

The Personal Data Protection Law (Fizisko personu datu aizsardzības likums) provides, in section 11, that the processing (which is defined as any activities with personal data, including collecting, registering, using, and so on) of sensitive personal data (including information about a person’s health) is permitted only after having received written consent from the data subject. Without such consent personal data may be processed only in a limited number of situations, including “if ... necessary for the purposes of medical treatment [or] the provision or administration of heath care services” (section 11(5)).

Section 7 of the Personal Data Protection Law provided more generally that processing of personal data was allowed only if that law did not provide otherwise and if at least one of the other conditions was present. One of the additional conditions was that the processing of the data was necessary for a system administrator to carry out his legal duties (section 7(3)). A “system administrator” for the purposes of this Law was “a natural or legal person who determines the aims of a data processing system and the means of processing [of the data]”.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev

The applicant, Mr Yiannakis Papaioannou, is a Cypriot national, who was born in 1967 and lives in Frenaros. He was represented before the Court by Mr A. S. Angelides, a lawyer practising in Nicosia.

The Physical Education Teachers’ Appointment List is used to fill vacancies for physical education teachers in the Cypriot public education system. The procedure for inclusion on the list is defined by section 28B of the Public Educational Service Law of 1969 (“the Law of 1969”) and is as follows.

The list is published every February. Those wishing to be included on the list must submit applications by the end of December of the previous year. The Educational Service Committee (“the Committee”) then examines the applications and ranks the candidates on the list.

A candidate’s position on the list is determined with reference to various criteria. For first-time candidates, their position is determined first, by the year they obtained their degree and then by other criteria which are set out in section 28B(3) of the Law such as their class of degree, whether they undertook military service, whether they have obtained any additional post-graduate qualifications and so on. For candidates who were already included on the list in previous years, their position on the new list is determined first, by the year they were first included on the list and, thereafter, by the other criteria set out in section 28B(3).

The applicant is a holder of a degree in Physical Education. He finished his studies in 1992, having previously deferred those studies in order to complete twenty-six months’ compulsory military service. The same year, he applied for inclusion on the list. His request was accepted by the Committee and he was included in the list for the year 1992. While it appears he did not apply for inclusion on the list every year thereafter, in 2008 he applied for inclusion in the 2009 list.

The Committee published its 2009 list on 27 February 2009. The applicant was placed 174th. He then filed a recourse before a single judge of the Supreme Court (revisional jurisdiction) seeking the annulment of the Committee’s decision to place him 174th. He submitted that section 28B of the Law of 1969 was unconstitutional. According to the applicant, by determining ranking on the list by reference to the year an applicant first applied to be on the list, section 28B created indirect discrimination against male candidates. This was because, unlike their female counterparts, male candidates had to complete twenty-six months’ military service prior to applying for registration. The effect of this was to provide a two-year head start in the rankings to women.

The Supreme Court at first instance upheld the applicant’s recourse and annulled the Committee’s decision.

The Government, on behalf of the Committee, appealed to the Supreme Court (revisional appeal jurisdiction) inter alia on the grounds that the court did not have jurisdiction to entertain the recourse. This was because, in the Government’s submission, the applicant had failed to prove that he was challenging an executory administrative act since he had failed to establish an appropriate comparison between his position and the position of other candidates on the list. Thus, according to the Government, the judgment of the Supreme Court at first instance was based on entirely hypothetical facts. The Government submitted that this was an issue which went to the core of the proceedings.

The applicant argued that the matter raised by the Government on appeal had not been raised in the first instance proceedings. In any case the applicant submitted that the Government’s submissions were groundless and should be rejected.

On 12 September 2011 the Supreme Court allowed the Government’s appeal. The court found that the applicant’s challenge to the Committee’s decision to rank him 174th on the list was not a valid recourse against an executory administrative act. This was because, by its nature, the Committee’s ranking decision was an act of comparison between candidates: it did not merely affect the position of one person on the list. The court could not annul the applicant’s position on the list without automatically affecting the position of other candidates. In his recourse the applicant should have set out the reasons why he considered the Committee’s decision was wrong and should have done so by a direct comparison with those candidates to whom the better rankings had been given. This would have given the other candidates an opportunity to set out their arguments or objections before the court and be heard, as required by the rules of natural justice. The fault in question went to the core of the recourse and could not be remedied.

For this reason, the Supreme Court did not examine the applicant’s complaints that the Law was unconstitutional and discriminatory; a decision on the admissibility of the recourse preceded such substantive issues.

Article 28 of the Constitution prohibits discrimination providing that:

“1. All persons are equal before the law, the administration and justice, and are entitled to equal protection thereof and treatment thereby.

Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution.

Article 146 of the Constitution states that the Supreme Court has exclusive jurisdiction to:

“(1)...decide on a recourse filed against a decision... of an authority... exercising executive or administrative functions when such a decision is contrary to the constitution or the law or is made in excess or abuse of the powers vested in such body, authority or person.

(2) Such a recourse may be made by a person whose existing legitimate interest ... is adversely and directly affected by such decision, act or omission.

Article 8 of the above Law (“the 2002 Law”) where relevant provides:

“(1) Men and women enjoy equal treatment, prohibiting any discrimination on the ground of gender –

(a) In access to employment or to a job opening, permanent or temporary...;

(b) in the definition and implementation of the terms and conditions of employment, including the qualifications and other terms and conditions and placement criteria...”

According to case law of the Supreme Court, only “executory administrative acts” can be the subject of a recourse to the Supreme Court under Article 146 of the Constitution (Republic of Cyprus v. Andrea Chrysostomou and another [1999] 3 A.A.D. 391). An executory administrative act is one which, inter alia, grant rights to individuals and creates obligations for the administration (see Ioanna Demetriou v. the Republic [1991] 4 A.A.D. 3029; and Fedias Stefanides and others v. Municipality of Engomi [1994] 3 A.A.D. 49).

Issues as to the admissibility of a recourse to the Supreme Court may be considered by the court of its own motion even if these are not raised by the parties (see Protopapas v. Republic [1967] 3 A.A.D. 411).

It is well-established that, where there is a dispute between various candidates on a list or where, for example, there is a selection process amongst a number of candidates for a particular post, a candidate wishing to challenge the validity of the administrative body’s preference for one candidate over another, ought not merely to challenge his position on the list or his non-selection, as the case may be, but instead should challenge the position of other people by indicating which candidates in his opinion lacked in qualifications or were unjustifiably favoured in comparison to him. All the other candidates whose positions are affected should be given the opportunity as interested parties to set out their case and objections before the court. Since the administrative authority’s decision affects a number of candidates, it means that the entirety of the decision should be challenged as that is what constitutes the executory administrative act. The part of the decision affecting solely the applicant cannot be considered an autonomous executory act, as that is only one link in the entire chain of considerations which the administrative body makes in order to form the final decision (see, among other authorities, Republic of Cyprus v. Andrea Chrysostomou and another [1999] 3 A.A.D. 391; Georgios Koukkoulis v. Minister of Defence, no. 1224/2008, judgment of 11 October 2010, unreported; Costas Neophytou and Ioannis Ioannou v. Ministry of Defence [2007] 4 A.A.D. 602; Nayias Petousi v. Committee of State Scholarships and others, no. 1309/99, judgment of 27 November 2000, unreported).


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

Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra

The applicant was born in 1959 and lives in Vardenis. She worked as a judge at Gegharkunik Regional Court.

On 17 February 2004 the Minister of Justice filed a motion with the Council of Justice seeking to have the applicant dismissed from her post under Section 30 (8) of the Law on the Status of a Judge. The motion stated that the applicant had been severely reprimanded on three occasions, namely in 1997, 2000 and 2001, for various gross violations of the rules of criminal procedure and another set of disciplinary proceedings had been instituted against her on the same grounds in December 2003.

On 2 March 2004 the Council of Justice examined the motion and decided to form a three-member commission to examine the factual basis of the motion and to report back to the Council.

On 27 April 2004 the Council of Justice adopted a conclusion recommending to the President of Armenia that the applicant be dismissed.

On 30 April 2004 the President of Armenia issued a decree dismissing the applicant from her post.

On 15 March 2005 the applicant lodged a claim with the Kentron and Nork-Marash District Court of Yerevan, seeking to annul the President’s Decree of 30 April 2004 as unlawful. She argued that her dismissal from work had been in violation of a number of provisions of domestic law and various European instruments relating to the status of a judge. In particular, the motion for dismissal filed by the Minister of Justice on 17 February 2004 had been based upon matters which had been the subject of earlier disciplinary proceedings and in respect of which penalties had already been imposed. The motion did not contain any reasoning and was not accompanied by any supporting documentation and was, therefore, unsubstantiated. She further argued that judicial decisions were not supposed to be subject to a review other than by way of an appeal procedure prescribed by law. Thus, the commission of gross violations of the law (the alleged grounds for her dismissal) could only have been found by a higher court (which had not happened in her case) and not by non-judicial bodies and officials, such as the Council of Justice or the Minister of Justice. Finally, she claimed that the question of her dismissal had been examined by the Council of Justice in her absence, in violation of the relevant rules.

On 26 May 2005 the Kentron and Nork-Marash District Court of Yerevan decided under Article 109 of the Code of Civil Procedure to terminate the proceedings on the ground that the applicant’s claim was not subject to examination by the courts of general jurisdiction. In doing so, the District Court referred, inter alia, to Article 100 (1) of the Constitution, Article 15 § 2 of the Civil Code and Article 160 § 1 of the Code of Civil Procedure (the CCP).

On 7 June 2005 the applicant lodged an appeal.

On 13 July 2005 the Civil Court of Appeal examined and dismissed the applicant’s claim as unsubstantiated.

On 5 August 2005 the applicant lodged an appeal on points of law.

On 23 September 2005 the Court of Cassation quashed the judgment of the Court of Appeal and decided to terminate the proceedings on the same grounds as the District Court.

On 16 November 2006, in proceedings unrelated to this case, the Constitutional Court found the second paragraph of Article 160 § 1 of the CCP to be unconstitutional.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);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 other complaints under the provisions of the Convention.


No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Conviction;Criminal offence)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1952 and lives in Helsinki.

The tax inspector conducted a tax inspection in three different companies in 2006 and 2007.

On 26 March 2007, concerning the first company, the tax authorities considered that the applicant had received, in 2004, 175,433.07 euros (EUR) and in 2005, EUR 10,351.79 as disguised dividends. They imposed on the applicant an additional tax and tax surcharges (veronkorotus, skatteförhöjning), amounting to EUR 8,100 in respect of the tax year 2004 and to EUR 510 in respect of the tax year 2005.

On 2 May 2007 the tax authorities found in respect of the second company that the applicant had received in 2004 EUR 78,690 as disguised dividends and imposed EUR 3,900 as tax surcharges. Moreover, the applicant had received in 2005 EUR 86,936 as disguised dividends and EUR 4,300 were imposed as tax surcharges.

On 11 November 2007 the tax authorities considered that the applicant had received, in respect of the third company, EUR 227,994 as disguised dividends in 2005 for which a tax surcharge of EUR 11,000 was made.

The applicant apparently did not seek rectification of any of these decisions. Nor were there any appeal proceedings pending. The time-limits for seeking rectification and lodging an appeal ran until 31 December 2010 and 31 December 2011 respectively.

On 3 April 2008 the public prosecutor brought charges against the applicant on, inter alia, four counts of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) and one count of tax fraud (veropetos, skattebedrägeri) concerning the tax years 2004 and 2005. According to the last count, the applicant was accused of aggravated tax fraud as he had under-declared his income. The undeclared income amounted to EUR 240,953 for the tax year 2004 and EUR 318,676 for the tax year 2005. Consequently, the tax imposed in 2004 had been EUR 108,851 too low and in 2005 EUR 117,036 too low. The tax imposed on the applicant had thus been in total EUR 225,887 too low.

On 27 June 2008 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged and imposed a prison sentence of 2 years and 7 months. He was ordered to pay the taxation authority EUR 225,887 plus interest in respect of the last count.

By letter dated 18 August 2008 the applicant appealed to the Appeal Court (hovioikeus, hovrätten), requesting that the charges be dismissed or at least, as far as aggravated tax fraud was concerned, that he be convicted of tax fraud. He also requested that the sentence be mitigated.

On 12 February 2010 the Helsinki Appeal Court upheld the District Court judgment.

By letter dated 8 April 2010 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen) requesting, inter alia, that as concerned the last count of aggravated tax fraud, the charges be dismissed without examining the merits and that the compensation for damages be rejected. He claimed that in this respect the ne bis in idem principle had been violated as tax surcharges had already been imposed for the same acts. That count concerned at the earliest the tax year 2004, in respect of which the time-limit for an appeal in the taxation proceedings was still running until 30 December 2010, meaning that those proceedings had not yet been finalised. An effective use of the ne bis in idem principle would require a lis pendens effect preventing the pressing of charges if an administrative tax surcharge matter was still pending. Otherwise two separate sets of proceedings concerning the same facts could be pending. Moreover, applicants would be treated unequally if the possibility of pressing charges depended on the finality of the taxation proceedings.

On 23 April 2010 the applicant was granted leave to appeal as far as the last count was concerned.

On 29 June 2010 the Supreme Court upheld the Appeal Court judgment. It found, after a detailed analysis of Article 4 of Protocol No. 7 to the Convention and the Court’s case-law, that it was clear since the Jussila judgment that the imposition of a tax surcharge rendered the case criminal and that the ne bis in idem principle applied to such a case even though, under the domestic law, it fell within the domain of administrative law. Both the taxation and the criminal proceedings concerned the same facts, namely the failure to declare the same income. For the ne bis in idem principle it was relevant whether the proceedings had become final. The principle did not prohibit a situation in which two sets of proceedings concerning the same matter were pending at the same time. There was thus no lis pendens effect attached to this principle. Even if this lack of lis pendens effect was problematic in the sense that it might result in unequal treatment of applicants due to the fact that the point of time when taxation decisions became final varied, its acceptance might create even more profound problems. As the taxation decisions in the present case concerned the tax years 2004 and 2005, the time-limits for seeking rectification ran until 31 December 2010 and 31 December 2011 respectively. The charges had been pressed on 3 April 2008. The taxation proceedings had thus not become final before the criminal proceedings started. Therefore, there were no impediments to examining the charge concerning aggravated tax fraud. This judgment became a published leading case KKO:2010:46.


Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice)

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

The applicant was born in 1962 and lives in Karjaa.

In 2004 and 2005 the applicant’s two companies were subject to a tax inspection. The tax inspection was concluded with a final report on 20 December 2005.

On 25 August and 12 September 2006 the tax authorities imposed on the applicant additional taxes as well as tax surcharges (veronkorotus, skatteförhöjning) for the tax years 2000 to 2003 as he had, inter alia, received disguised dividends from the companies. The amount of tax surcharges varied between 240 and 5,000 euros (EUR).

By letter dated 16 September 2008 the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden), requesting it to quash the decisions of 25 August and 12 September 2006 concerning the tax years 2002 to 2003.

By letter dated 16 September 2008 the applicant lodged a material appeal (perustevalitus, grundbesvär) with the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) in respect of the tax years 2000 and 2001.

On 24 February 2010 the Tax Rectification Committee rejected the applicant’s applications for rectification concerning the tax years 2002 and 2003.

By letter dated 12 April 2010 the applicant appealed against the rectification decisions of 24 February 2010 to the Helsinki Administrative Court, requesting that the taxation decisions concerning the tax years 2002 and 2003 be quashed and the tax surcharges be withdrawn. He referred to the ne bis in idem principle and claimed that the taxation decisions violated that principle.

On 5 April 2011 the Helsinki Administrative Court cancelled some of the tax surcharges in respect of tax years 2001 to 2003 and quashed the relevant tax decisions. For the rest, it rejected the applicant’s appeals. The court found that there was no impediment to imposing taxes on disguised dividends even if there was already a final criminal judgment in this respect, because imposing taxes on disguised dividends was not considered criminal. There could thus be no question of double jeopardy in this respect. The taxation decisions for the tax years 2002 and 2003 were thus upheld. As far as the tax surcharges and the right to impose additional taxes were concerned, the court found that the tax surcharges and the charges on tax fraud concerned the same matter. The tax surcharges thus related to acts in respect of which the applicant had already been convicted or acquitted. As both matters were pending simultaneously and not consecutively, there was no impediment to continuing the taxation proceedings. Even if the criminal proceedings became final while the taxation proceedings were still pending, this did not prevent the continuation of the taxation proceedings. There was thus no reason to change the tax surcharges as far as the corresponding criminal charges had been dismissed, namely, in respect of the disguised dividends received during the tax years 2002 and 2003. As far as the proceedings led to both criminal conviction and imposition of tax surcharges, the situation was contrary to Article 4 of Protocol No. 7 to the Convention and the tax surcharges were therefore cancelled in respect of tax years 2001 to 2003. The decision was not unanimous.

By letter dated 13 June 2011, the applicant appealed against the Administrative Court decision to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court. He argued that his acquittal prevented the further examination of the same matter in taxation proceedings.

On 23 January 2013 the Supreme Administrative Court refused the applicant leave to appeal but granted the Tax Ombudsman (veroasiamies, skatteombudet) leave to appeal. It quashed the Administrative Court’s decision regarding cancellation of the tax surcharges and upheld the lower court’s decisions. The court found that it had, in its decision of 20 April 2011, examined the scope of the ne bis in idem principle and the Court’s case-law in this respect. In the present case the charges and the tax surcharges concerned essentially the same matter. However, the ne bis in idem principle was applicable only when the first set of proceedings had become final before the second set of proceedings started. In the present case the proceedings had been simultaneous. Tax surcharges could thus be imposed on the applicant even if the criminal proceedings against him had already become final. The Administrative Court’s decision thus needed to be quashed.

On 25 April 2007 the public prosecutor brought charges against the applicant, inter alia, for aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning the tax years 2001 to 2003. According to the charges, the applicant was accused of aggravated tax fraud as he had avoided taxes. The tax authorities joined the charges and presented a compensation claim totalling EUR 150,508.52 plus interest, which was the amount of avoided taxes.

On 20 March 2008 the Raasepori District Court (käräjäoikeus, tingsrätten) convicted the applicant of aggravated tax fraud, and sentenced him to a suspended prison sentence of 7 months. He was ordered to pay the tax authorities EUR 89,113.80 plus interest in compensation for the avoided taxes. The court found that the applicant had avoided taxes during the tax years 2001 to 2003 but dismissed the charges as far as they concerned the disguised dividends, for lack of proof.

By letter dated 14 August 2009 the applicant appealed to the Turku Appeal Court (hovioikeus, hovrätten), requesting that the charges of aggravated tax fraud be dismissed as tax surcharges had already been imposed in the matter.

On 15 April 2009 the Turku Appeal Court upheld the District Court judgment. It found that possible tax surcharges imposed on the applicant did not prevent him from being convicted of tax fraud and sentenced.

On an unspecified date the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court.

On an unspecified date, the Supreme Court granted the applicant leave to appeal.

On 19 November 2010 the Supreme Court upheld the Appeal Court judgment. It found that the charges of aggravated tax fraud undisputedly concerned the same failure to declare income for which tax surcharges had been imposed for the tax years 2001 to 2003. The court found that the fact that taxation proceedings became final while criminal proceedings were still pending did not prevent the examination of the charges being continued. In the present case, the charges had been brought before the time-limit for lodging an application for rectification had run out. The tax surcharges in respect of the tax years 2001 to 2003 were thus all still pending before the Administrative Court. As the charges had been brought while the taxation proceedings had not yet become final, there was no impediment to examining the charges of aggravated tax fraud. This judgment was published (KKO 2010:82).