CASE OF ALIYEVA AND ALIYEV v. AZERBAIJAN

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

Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicants were born in DATE and DATE respectively and live in GPE .

NORP The applicants’ son , E.A. , was born in DATE and was an NORP national . He had his own business in GPE and lived in GPE at the time of the events .

At TIME on DATE E.A. was stabbed with a knife outside a cafe in GPE , GPE . He died as a result of the stabbing .

On DATE the FAC instituted criminal proceedings in connection with E.A. ’s death .

On DATE an investigator from ORG decided to charge PERSON , an NORP national working at the NORP embassy in GPE at the time of the events , on suspicion of E.A. ’s murder .

It appears that on DATE was arrested by the NORP law - enforcement authorities and on DATE was remanded in custody . During the investigation , PERSON denied that he had murdered PERSON , but refused to testify in connection with his stabbing .

On DATE a forensic expert established that the stab wound to E.A. ’s body had been caused by a knife with a blade QUANTITY long and QUANTITY wide .

On DATE ORG ordered G.A. ’s release from custody on account of serious illness . On an unspecified date he left GPE for GPE .

It transpires that in the course of the investigation , the NORP authorities also considered the possible involvement of another person in E.A. ’s murder . In this connection , they requested the NORP authorities to question PERSON , a major general of the NORP army who had been on an educational mission to GPE at the time of the events .

On DATE the NORP prosecution authorities questioned PERSON as a witness in connection with E.A. ’s stabbing . According to the record of questioning of the same date , PERSON denied any involvement . He stated that he knew PERSON who was an employee of the NORP embassy in GPE and that he had met E.A. there , but had not known him very well . As regards his whereabouts on DATE , PERSON stated that he did not remember exactly where he had been DATE . He further stated that he had learned about E.A. ’s death from employees at the NORP embassy .

On DATE an investigator from ORG decided to transfer the criminal case to ORG of GPE for further investigation , relying on LAW of DATE ( “ the DATE Minsk Convention ” ) . The investigator substantiated the transfer by the fact that the CARDINAL NORP nationals ( PERSON ) who had been identified by witnesses as the people involved in E.A. ’s murder on DATE , were on NORP soil .

The relevant part of that decision reads as follows :

“ PERSON , who was questioned within the framework of the investigation , indicated that on DATE he had been with E.A. at FAC . When he had left the cafe , he had seen E.A. having an argument with CARDINAL NORP nationals he did not know . CARDINAL of the CARDINAL men had then stabbed E.A. in the thorax .

Subsequently , among the photographs submitted for identification , GPE recognised PERSON ’s photograph and identified him as the person who had stabbed E.A.

It was established that PERSON , born on DATE , married , an NORP national , who had no criminal record , a degree holder , a major general , a head of ORG , who resided in GPE ... was in GPE DATE and DATE on an educational mission at ORG of GPE .

Among other photographs submitted for his identification , PERSON also identified PERSON , indicating that he very much looked like the person who was with PERSON at the time of E.A. ’s murder .

Another eyewitness , ORG , who saw the events from a distance , clearly identified G.A ... during the identification procedure and indicated that [ he ] had been involved in the argument between the PERSON at FAC and on the street outside the cafe at the time of E.A. ’s murder ... ”

On DATE the Deputy Prosecutor General of GPE decided to return the criminal case to the NORP authorities . He substantiated his decision by alleging failure on the part of the NORP authorities to carry out the relevant investigative actions . In particular , he noted that the NORP authorities had not identified and questioned all possible witnesses to the crime , such as customers and employees of the cafe on DATE , nor had they tried to establish the whereabouts of PERSON on DATE . He further noted that there were contradictions between the evidence given by eyewitnesses GPE and ORG in the investigation , and that the clothes PERSON had been wearing on DATE had not been examined by a forensic expert .

On DATE the investigator from ORG terminated criminal proceedings against PERSON and on DATE instituted criminal proceedings against PERSON , relying in particular on the evidence given by PERSON , who had insisted that PERSON was the person who had stabbed E.A. on DATE .

On DATE the investigator from ORG relying on ORG DATE and CARDINAL of the DATE Minsk Convention , decided to transfer the criminal case to ORG of GPE for further investigation in accordance with NORP law . He concluded that PERSON was the person who had stabbed E.A. on DATE . The relevant part of his decision reads as follows :

“ Among the photographs submitted for identification , PERSON clearly identified PERSON and indicated that [ he ] was the person who had stabbed E.A. Moreover , PERSON indicated ... that PERSON looked like the person who had been with PERSON at the time of the commission of the crime ; however , he could not confirm for definite that [ he ] had been there .

It was established that PERSON , born on DATE , married , an NORP national , who had no criminal record , a degree holder , a major general , a head of ORG , who resided in GPE ... was in GPE DATE and DATE on [ an educational ] mission at ORG of GPE .

In the course of the investigation , therefore , it was established that the NORP national E.A. was not murdered by PERSON , but by PERSON , an NORP national . ”

On DATE the criminal case was assigned to ORG of GPE and criminal proceedings were instituted in GPE .

Following the institution of the criminal proceedings in GPE on DATE , the applicants wrote on several occasions , in particular on DATE , on DATE , on DATE , on CARDINAL DATE and on DATE , to ORG asking for an effective investigation into their son ’s death . In particular , they alleged that although PERSON had murdered their son , he had not faced prosecution and had enjoyed de facto protection .

On DATE an investigator from ORG dismissed the criminal proceedings against PERSON , finding that there was insufficient evidence to prove that he had been involved in E.A. ’s murder . He also decided to continue the investigation in connection with the murder . The relevant part of his decision reads as follows :

“ Without clarifying the contradiction between the statements in the case file and carrying out the investigative steps necessary to establish which of them are true , and without identifying CARDINAL people other than E.A. and GPE who were at ORG identifying who murdered E.A. , and despite the fact that there was not any reliable evidence to prove that PERSON had murdered [ him ] , the investigator instituted unjustified and unlawful criminal proceedings against PERSON , concluding that [ he had ] murdered E.A.

In the course of the criminal investigation of the case carried out in ORG , no reliable evidence was obtained to prove that PERSON had murdered E.A.

For this reason , the criminal proceedings instituted under LAW of GPE against PERSON should be terminated , as [ he ] did not have anything to do with the commission of the crime , and the criminal investigation in connection with E.A. ’s murder should be completely , in detail and objectively continued in accordance with LAW and the perpetrator of the crime identified and prosecuted . ”

The applicants were not informed of this decision .

As the applicants were not informed of the investigator ’s decision of DATE , they continued to write to ORG asking for an effective investigation into the death of their son . In reply to their letters , the applicants received the replies from the prosecution authorities which were all worded in a similar fashion . In particular , by letters dated DATE , DATE , DATE , CARDINAL DATE and DATE , the prosecution authorities informed the applicants that the investigation would be carried out effectively and that they would be informed of its results . However , the prosecution authorities did not mention in their letters the existence of the investigator ’s decision of DATE .

On DATE the criminal case was assigned to ORG .

On DATE the investigator in charge of the case in GPE asked ORG Office for legal assistance , with a view to questioning witnesses and obtaining other evidence . Following this request , an NORP investigator was sent on a mission to GPE from DATE to DATE and from DATE to CARDINAL DATE .

By a letter of CARDINAL DATE ORG informed the applicants that in DATE and DATE an NORP investigator had been sent on a mission to GPE but it had not been possible to establish the whereabouts of the relevant witnesses or to question them . The relevant part of the letter reads as follows :

“ On DATE the investigator [ R.H. ] sent a request to ORG for legal assistance within the framework of the criminal case no . CARDINAL/CARDINAL in connection with the murder of E.A. and in DATE [ NORP ] was on a mission in GPE and participated in several investigative actions carried out by ORG .

However , as police officers of the GPE Shevchenko ORG failed to bring before the investigating authorities several witnesses whose statements were of particular importance to the investigation , it was not possible to question them and to carry out other investigative actions .

An operational request was sent to the relevant NORP authorities in order to take relevant steps for bringing the relevant witnesses before the investigating authorities by establishing their whereabouts .

As the investigative actions were carried out on the territory of another ORG and some witnesses were not timely identified , it was not possible to complete the investigation and for this reason the period of investigation was extended in accordance with LAW ... ”

In reply to their further letters addressed to the prosecution authorities about the progress of the investigation , the applicants received CARDINAL letters dated DATE and DATE from ORG . The content of these letters were almost identical to the letter of DATE .

By letters dated DATE and DATE respectively , ORG and Deputy Prosecutor General of GPE asked their NORP counterparts to establish the whereabouts of some witnesses and to question them in connection with E.A. ’s stabbing .

On an unspecified date in DATE the applicants asked the investigator to remove PERSON from office until the termination of the criminal proceedings .

On DATE the investigator dismissed the applicants’ request , holding that such a preventive measure could be applied only in respect of a suspect or an accused person , of which PERSON was neither . The relevant part of the decision reads as follows :

“ In accordance with Articles CARDINAL and CARDINAL of the Code of Criminal Procedure of GPE , the preventive measure of removal from office during the investigation may be applied only in respect of a suspect or an accused .

However , it appears from the case file that PERSON was neither arrested as a suspect , nor adopted a decision recognising him as an accused .

In these circumstances , there is no basis to apply the preventive measure of removal from office in respect of him ... ”

On DATE the applicants wrote to the Prosecutor General again , complaining of the ineffectiveness of the investigation and the investigating authorities’ failure to secure evidence concerning the incident . In this connection , they submitted that PERSON , who had been involved in the crime , had died in unclear circumstances .

By a letter of DATE ORG informed the applicants that the circumstances of ORG death were not unclear , as he had died of heart disease .

On DATE the applicants lodged an application with ORG , complaining of inactivity on the part of the investigating authorities and the ineffectiveness of the investigation . In particular , they alleged that the investigation of their son ’s murder had been unlawfully extended for DATE , and that despite PERSON having been identified as the perpetrator of the crime , he had not faced prosecution . They also argued that they had not been informed of the progress of the investigation .

At a hearing before ORG , the applicants and their representative reiterated their complaints , stating that they had not been informed of the procedural decisions taken during the investigation , and that the investigation had been extended , despite the perpetrator of the crime having been identified .

On DATE the court dismissed the application , considering that the investigating authorities had not acted unlawfully and that the relevant investigative steps had been taken by the prosecution authorities . The court held that prosecutors were entitled to extend investigations and that this kind of decision could not be challenged before the courts . The relevant part of the decision reads as follows :

“ Article CARDINAL of the same Code [ LAW ] provides that the time limit for conducting the investigation into an unsolved criminal case may be extended several times by ORG , until the case is solved in accordance with Articles CARDINAL and CARDINAL of LAW ...

As it transpires from the legislation the extension of the time limit for conducting the preliminary investigation is the right of the prosecutor supervising the investigation ...

Moreover , LAW lays down the procedure by which actions or decisions of the prosecuting authorities could be challenged before a court . This Article clearly establishes the extent of actions and decisions which could be challenged . This Article does not provide the possibility to challenge under the procedure of judicial review the investigating authorities’ decision to extend the time limit for conducting the investigation ... ”

The court further held that at that moment there was insufficient evidence to charge anyone with E.A. ’s murder . However , it also found that the applicants had not been duly informed by the prosecution authorities , who had failed to provide them with all the relevant decisions . The relevant part of the decision reads as follows :

“ It was established during the court investigation that several rights of the victim in this case were not fully secured by the investigating authority , that he was not informed in detail of the progress of the investigation , and that he was not provided with some of the decisions [ on the criminal case ] ...

In accordance with LAW , the victim , in circumstances and pursuant to the rules provided for in LAW , is entitled to be informed of the decisions taken by the investigating authorities which have affected his rights and lawful interests , and to obtain copies of these decisions at his request .

The court takes into account the facts that the investigator ORG admitted these violations during the court investigation , and that the victim was provided with copies of several important decisions on the criminal case during the examination of this complaint . ”

On DATE the applicants appealed against this decision , reiterating their previous complaints .

On DATE ORG dismissed their appeal and upheld ORG decision .

On DATE ORG refused to admit the applicants’ cassation appeal holding that ORG decision was final and not subject to appeal .

On DATE an investigator from ORG issued a decision suspending the criminal proceedings in connection with ORG death . The investigator substantiated the decision by the fact that although all possible investigative steps had been taken , it had not been possible to determine who had killed E.A. The relevant part of the decision reads as follows :

“ As it was not possible to determine the person ( persons ) who committed the crime despite the fact that at the time being all possible operational investigative measures were taken , it is appropriate to suspend the criminal proceedings . ”

On an unspecified date in DATE the applicants lodged a complaint with ORG asking the court to quash the investigator ’s decisions of DATE and DATE . The applicants noted that they had not been informed of the investigator ’s decision of DATE suspending the criminal proceedings in connection with their son ’s murder and they had learned about this decision only when the ORG submitted to the ORG a copy of the decision in question in their observations within the framework of the examination of their complaint by the ORG . The applicants also submitted that they were never provided with a copy of the investigator ’s decision of DATE .

On DATE ORG granted partially the applicants’ claim and quashed the investigator ’s decision of DATE suspending the criminal proceedings in connection with the murder of the ORG son . In this connection , the court held that the prosecution authorities failed to prove that they had informed the applicants of the decision of DATE . The court further found that the prosecution authorities’ failure to inform the applicants of the decision of DATE had been unlawful and had deprived the applicants of the exercise of their right to challenge the decision in question . Thus , it appears that the criminal proceedings are still pending , whereas the ORG has not been informed of any further developments .

As to the part of the applicants’ claim concerning the investigator ’s decision of DATE , ORG considered that this claim fell outside its jurisdiction and decided to transfer it for an examination to ORG . The court held in this respect that the decision of DATE was delivered by an investigator from ORG and therefore the decision in question could be challenged before a military court .

On DATE ORG dismissed the applicants’ claim considering it unjustified without further explanation .

On DATE ORG upheld ORG decision of DATE .


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

NORP The applicant , ORG , is a NORP national who was born in DATE and lives in GPE .

NORP The applicant was employed as an official at ORG until DATE , when she was discharged for health reasons . She was entitled to a service pension ( valstybinė pensija ) of CARDINAL NORP litai ( ORG ; MONEY ( ORG ) ) per month from the date she left her job .

According to NORP law , service pensions are not related to social insurance contributions but are paid from the ORG budget to individuals because of their merits or for service to the ORG ( see paragraphs CARDINAL below ) . State officials who are entitled to service pensions are also insured by the mandatory State social insurance scheme and are entitled to other types of welfare benefit , save in exceptional cases provided by law ( see paragraph CARDINAL below ) .

On DATE ORG enacted LAW ( PERSON išmokų perskaičiavimo ir mokėjimo laikinasis įstatymas ; hereinafter , “ the Provisional Law ” ) , which entered into force on DATE . According to the law ’s preamble , the ORG budget deficit had been constantly increasing because of the economic crisis of that time and measures were needed to stabilise it ( see paragraph CARDINAL below ) . LAW set down rules for recalculating various welfare benefits , such as retirement pensions , disability benefits , maternity and paternity benefits , sickness benefits , unemployment benefits and service pensions , among others ( see paragraph CARDINAL below ) .

An explanatory report appended to LAW stated that the economic crisis had led to numerous legal acts being amended in an attempt to stabilise the ORG budget deficit – civil ORG salaries had been reduced and there had been changes in tax law . However , further measures were considered necessary to address the crisis . The explanatory report referred to the work plan of the Government , which had set down the guidelines for addressing the economic slowdown in the face of the global financial crisis ( see paragraph CARDINAL below ) . It also referred to several ORG rulings adopted in DATE , which had held that individuals entitled to certain welfare benefits had a legitimate expectation that they would continue to receive them ; however , in the face of an exceptional situation , when the ORG was unable to acquire sufficient funds to continue the payment of welfare benefits , they could be temporarily reduced to the extent necessary to ensure the protection of constitutional values and the balance between the interests of individuals and those of society .

NORP In line with LAW , service pensions were reduced by PERCENT , depending on their size , but the final amount after the recalculation could not be below LTL CARDINAL ( approximately ORG CARDINAL ) DATE ( see paragraphs CARDINAL - CARDINAL below ) .

Article CARDINAL of the Provisional PERSON stated that the law would expire on DATE , but that provision was subsequently amended several times . The Provisional Law ceased to apply on DATE with regard to retirement pensions , disability benefits , maternity and paternity benefits , sickness benefits , and child benefit , but remained applicable with regard to service pensions until DATE .

Article QUANTITY CARDINAL of the Provisional PERSON instructed the Government to prepare the necessary legal acts to establish a compensation mechanism for reduced retirement pensions and benefits for lost working capacity . It did not make any mention of a compensation mechanism for the other benefits that had been reduced ( see paragraph CARDINAL below ) .

On DATE ORG found that LAW of LAW ( see paragraph CARDINAL above ) was not in compliance with the LAW in so far as it had not required a compensation mechanism for those service pensions which had been reduced significantly ( dideliu mastu ; see the relevant excerpts in paragraph CARDINAL below ) .

On DATE ORG issued a ruling which examined the compliance , inter alia , of LAW ( see paragraph CARDINAL above ) with LAW . It reiterated that the ORG was justified in introducing temporary reductions in various welfare benefits when faced with an economic crisis , as long as those reductions respected the constitutional principles of the rule of law and non - discrimination , among others . ORG concluded that LAW was in compliance with LAW because it had provided that service pensions could not be reduced by PERCENT , which could not be considered as “ significant ” . The absence of a compensation mechanism for service pensions reduced in line with LAW had therefore not breached LAW ( see the relevant excerpts in paragraph CARDINAL below ) . The ruling was published in ORG and entered into force on DATE .

On DATE ORG found that the different expiry dates for reductions in service pensions and other welfare benefits in LAW ( see paragraph CARDINAL above ) were compatible with the LAW in view of the “ different nature and character ” of service pensions compared with other benefits ( see the relevant excerpts in paragraph CARDINAL below ) .

In accordance with LAW ( see paragraphs CARDINAL above and CARDINAL below ) , the applicant ’s service pension was reduced on DATE by PERCENT to LTL CARDINAL ( approximately EUR CARDINAL ) per month .

On DATE the applicant brought a claim against the ORG . She requested that her service pension be restored to its DATE level and that she be compensated for the period of reduced pension . The applicant also asked the court to seek a ruling from ORG as to whether various provisions of LAW were in compliance with LAW .

On DATE ORG adjourned the applicant ’s case on the grounds that several requests concerning the compliance of LAW were pending before ORG . The case was adjourned until the entry into force of ORG ruling of DATE ( see paragraphs CARDINAL above and CARDINAL below ) .

On DATE ORG dismissed the applicant ’s claim . It held that the applicant ’s service pension had been reduced in accordance with LAW , which ORG had found to be in compliance with LAW ( see paragraphs CARDINAL and CARDINAL above and QUANTITY below ) . There were therefore no grounds to restore her pension to its DATE level or compensate her for the period of reduction .

On DATE ORG dismissed an appeal by the applicant and upheld the findings of the first - instance court .

The relevant provisions of the LAW read :

“ Any law or other act that contradicts the LAW shall be invalid .

“ Property shall be inviolable .

The rights of ownership shall be protected by law .

Property may be taken only for the needs of society according to the procedure established by law and shall be justly compensated for . ”

“ All persons shall be equal before the law , courts , and other state institutions and officials .

Human rights may not be restricted ; no one may be granted any privileges on the grounds of gender , race , nationality , language , origin , social status , belief , convictions , or views . ”

“ The ORG shall guarantee its citizens the right to receive retirement and disability pensions , as well as social assistance in the event of unemployment , sickness , widowhood , loss of the breadwinner , and in other cases provided for by law . ”

“ A law ( or part thereof ) of GPE ... may not be applied from DATE of the official publication of the decision of ORG that the act in question ( or part thereof ) is in conflict with LAW .

The decisions of ORG on the issues assigned to its competence by LAW shall be final and not subject to appeal .

Articles CARDINAL and CARDINAL of ORG ( PERSON pensijų įstatymas ) list the categories of people who are entitled to service pensions , such as ORG officials , soldiers , judges , scientists , former deportees , resistance fighters , Olympic medalists , and others ; separate laws set out the specific regulations for each category ( see , for example , paragraph CARDINAL below ) . Article CARDINAL provides that service pensions are paid from the ORG budget . Article CARDINAL provides that a person who is entitled to several service pensions can only receive one , of his or her choice .

Article CARDINAL of the Law on the Service Pensions of Officials and Soldiers ( Karių ir pareigūnų valstybinių pensijų įstatymas ) lists the categories of ORG officials who are entitled to service pensions , such as ORG service officials , professional soldiers , prosecutors , ORG officials , customs and border officers , and others . LAW provides that officials become eligible for a service pension after serving for a certain length of time or after being discharged for health reasons related to their duties . LAW sets the rules for calculating the amount of service pension , linking it to length of service and the average salary received during that time .

LAW ( PERSON socialinio draudimo pensijų įstatymas ) provides that ORG officials are insured by the mandatory ORG social insurance scheme . Article CARDINAL § CARDINAL provides that individuals who are entitled to a ORG social insurance pension do not lose the right to receive service pensions or other benefits , save for exceptional cases provided by law .

The work plan of ORG , adopted in DATE , stated that CARDINAL of the main priorities of the Government was to prepare for the economic slowdown in the face of the serious global financial crisis . It set down guidelines for decreasing public spending , reforming tax law , balancing cash flows , and encouraging private businesses , among other things .

The preamble to LAW ( see paragraph CARDINAL above ) , provides :


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

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

The first and second applicants’ son was killed in a traffic accident on DATE in which the fourth applicant sustained serious injuries . The third applicant is the fourth applicant ’s mother .

The applicants joined the criminal proceedings concerning the accident as victims .

On DATE and DATE the applicants lodged a civil action within the criminal proceedings against the suspect , PERSON , claiming compensation for non - pecuniary damage and reimbursement of the legal costs incurred in the criminal proceedings .

On DATE the applicants , represented by lawyers of their own choice , concluded an out - of - court settlement with J. ( hereinafter “ out - of - court settlement agreement ” ) . They informed the prosecutor that they had agreed that the case would be settled ( kokkuleppemenetlus ) . J. informed the prosecutor that he had paid the compensation to the applicants as laid down in the out - of - court settlement agreement .

On DATE the applicants’ consent to the application of the settlement procedure was recorded in a report signed by the prosecutor and the ORG representatives . The report stated that the applicants had been informed of their rights under the settlement procedure and set out the consequences of applying the settlement procedure . In a section entitled “ Remarks ” , it was noted that the applicants had given up their claims in respect of non - pecuniary damage against J. ( as lodged on CARDINAL and DATE ) , but had not given up their claim for reimbursement of the legal costs incurred in the criminal proceedings . The report also stated that the victims had no right to withdraw their consent to the settlement procedure . At that time , the applicants had submitted neither an itemised list of legal costs nor any supporting documents .

On DATE PERSON gave his consent to the application of the settlement procedure . The prosecutor , PERSON and the latter ’s counsel signed a settlement agreement in which they agreed , inter alia , on the type and extent of the damage caused . The agreement stated that the victims had withdrawn the civil claims they had lodged within the criminal proceedings .

On DATE ORG committed J. for trial and scheduled a hearing for DATE . J. , his counsel and the prosecutor were summoned to appear at the court hearing . The applicants , however , were not summoned .

On DATE the applicants lodged a claim for legal costs in the amount of CARDINAL ( ORG ) and submitted supporting documents . ORG received their submission on DATE .

J. , his counsel and the prosecutor attended the hearing held before ORG as scheduled . According to the court record , the trial judge disclosed the applicants’ claim for reimbursement of their legal costs . J. asked the court not to examine the claim as it had been absorbed by the out - of - court settlement agreement . The applicants alleged that they had not been allowed to address the court notwithstanding their presence in the court building .

In a judgment of DATE , ORG convicted PERSON of violating traffic and driving regulations and sentenced him to a suspended prison term . It also withdrew ORG driving licence and ordered him to pay the ORG expenses consisting of compensation levies ( sundraha ) and the cost of expert assessments . It held that the victims had given up the civil claims they had lodged within the framework of the criminal proceedings . The judgment made no reference to the ORG claim for reimbursement of the legal costs incurred in the criminal proceedings .

The applicants lodged an appeal against that judgment . They complained that they had not been allowed to attend the court hearing of DATE and that the court had left their claim for reimbursement of the legal costs undecided .

On DATE ORG refused to examine the appeal . Relying on Articles CARDINAL and CARDINAL of LAW ( ORG ; ORG seadustik ) , the court found that the applicants had not been parties to the court proceedings and did not , therefore , have the right to appeal ( see paragraph CARDINAL below ) .

The applicants appealed against ORG decision , insisting that they had been parties to the proceedings and had the right to appeal .

At a public hearing on DATE ORG examined the appeal in the presence of J. and his counsel , the prosecutor and the applicants’ counsel . At the hearing , the prosecutor firstly noted that the applicants had not submitted any documents concerning their claim for legal costs , despite the fact that they had had DATE after the settlement to do so . According to the report of the hearing , the prosecutor later noted that those documents could have been submitted when the applicants had signed the report ( see paragraph CARDINAL above ) or DATE . The report stated that J. had wanted to submit the out - of - court settlement agreement to the judge in order to prove that it covered all the relevant damages . However , ORG had refused , considering that it did not concern the subject matter of the dispute before the court in those proceedings .

By a decision of DATE , ORG dismissed the applicants’ appeal and upheld ORG decision of DATE . It referred to Article CARDINAL of the ORG , under which the victim was not entitled to revoke his or her consent to the application of the settlement procedure , and to LAW , which provided that the victim did not have to be summoned to a court hearing in settlement proceedings ( see paragraphs CARDINAL and QUANTITY below ) . ORG concluded that the applicants , as victims , had not been parties to such court proceedings and that , accordingly , they had no right to appeal against ORG judgment .

Although ORG decision stated that it was final and not amenable to appeal , the applicants’ counsel nevertheless challenged it before ORG .

By a decision of CARDINAL DATE in case no . PERCENT CARDINAL - CARDINAL - CARDINAL ORG refused to examine the appeal on points of law because ORG decision had been final and not amenable to appeal . It nevertheless stated that according to the established case - law , in settlement proceedings the court should not limit itself to merely analysing the settlement reached . It must also verify whether there were still questions that should be addressed in the subsequent judgment , but which had not been included in the settlement agreement . The court noted that according to LAW ORG , the settlement agreement did not necessarily have to address matters dealing with the costs of criminal procedure or cover the extent of granting the civil claim or of compensating for the damage caused by the criminal offence . However , referring to LAW , DATE and CARDINAL of the ORG and LAW ( CARDINAL ) of the ORG , ORG considered that those matters should not be overlooked by the court concerned ( see paragraphs CARDINAL and CARDINAL below ) .


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

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

The NORP Government ( “ the Government ” ) were represented by their Agents , PERSON , PERSON and Mr. PERSON , ORG .

By a judgment of CARDINAL DATE ORG ( tingsrätt ) convicted the applicant of a tax offence ( skattebrott ) . He was given a suspended sentence and ordered to perform TIME of community service . ORG found that he had had temporary employment with a company in DATE and had failed to declare in his tax return the value of various goods that he had received as remuneration . The applicant did not dispute this , but claimed that he had not understood that the remuneration was liable to tax and that , thus , he had had no intention of evading taxes . He maintained that his conduct , in any event , could only be regarded as a tax misdemeanour ( skatteförseelse ) . The court considered , however , that the investigation clearly showed that he had been aware of his tax liability and that his conduct was to be designated as a tax offence . While the court was unable to exactly determine the applicant ’s undeclared income , it considered the material in the case to sufficiently support the prosecutor ’s claim that taxes could be charged in the amount of MONEY ( SEK ; MONEY ( ORG ) .

On DATE ORG ( PERSON hovrätt ) reclassified the offence as a tax misdemeanour and sentenced the applicant to DATE fines ( dagsböter ) of SEK CARDINAL,CARDINAL ( approximately ORG CARDINAL ) each . The appellate court found that , in distinguishing between a tax offence and a tax misdemeanour , all objective facts were to be considered , although the amount in question was of particular importance . According to domestic case - law , the line had been drawn at QUANTITY , and the court could not find beyond reasonable doubt that the total remuneration received by the applicant had exceeded that amount . Nor were there other circumstances that justified the classification of the offence as a tax offence .

The applicant did not appeal against ORG judgment , which consequently acquired legal force on DATE .

On DATE ORG ( Skatteverket ) made an enquiry to the applicant , indicating that it was considering a supplementary tax assessment involving tax surcharges . The applicant replied to this enquiry on DATE .

By a decision of CARDINAL DATE ORG reviewed the applicant ’s taxation for income received in DATE ( i.e. DATE ) and found that he had failed to account for income received from the company mentioned above . Having regard to the documentation in the case , including the judgments in the criminal case , the ORG found it reasonable to assume that the applicant had received a DATE income of SEK CARDINAL,CARDINAL during DATE , or in total SEK CARDINAL . After deductions for estimated costs for travels to and from work and increased living expenses of SEK CARDINAL,CARDINAL , the ORG revised upwards his income by SEK CARDINAL,CARDINAL . Furthermore , as the information supplied by the applicant in his tax return was found to be incorrect and the revision had had to be made under a discretionary assessment procedure , he was ordered to pay tax surcharges ( skattetillägg ) , amounting to PERCENT of the increased tax liability .

Following the applicant ’s appeal , ORG , on DATE , made an obligatory review of its decision and lowered the revised income . Instead of SEK CARDINAL,CARDINAL , the applicant ’s income was raised by SEK CARDINAL,CARDINAL . The tax surcharges were lowered correspondingly and thereafter amounted to SEK CARDINAL,CARDINAL ( approximately EUR CARDINAL,CARDINAL ) .

By a judgment of CARDINAL DATE ORG ( länsrätten ) in GPE of ORG agreed with ORG decision of DATE . However , the court had regard to the preparatory works ( prop . CARDINAL , p. CARDINAL ) to the provisions on exemption of tax surcharges ( in particular , LAW , section CARDINAL of LAW ; ORG , CARDINAL:CARDINAL ) , according to which , in determining the surcharges , it could be taken into account that the same reproachable act or omission had also led to the individual ’s conviction for a crime under LAW ( Skattebrottslagen , CARDINAL:CARDINAL ) , the reason being that the total penalty should not be unreasonably heavy . In view of the applicant ’s conviction and sentence , the court found reason to halve the tax surcharges in question .

On DATE ORG ( kammarrätten ) in GPE upheld ORG judgment .

ORG appealed to ORG ( Regeringsrätten ) which , on DATE , granted leave to appeal .

On DATE ORG quashed the lower courts’ judgments and upheld ORG review decision of DATE ( judgment published in PERSON årsbok ( RÅ ) DATE , ref . CARDINAL ) . In assessing whether there was a violation of the prohibition on double punishment under LAW No . CARDINAL to the LAW , the court referred to the fact that the relevant NORP provisions aimed at ensuring that the combined sanctions – criminal conviction and imposition of tax surcharges – were in reasonable proportion to the conduct for which the individual had been found liable . It further noted that the NORP legal system contained the special feature of separate general courts and administrative courts . In the court ’s opinion , LAW No . CARDINAL had to be interpreted in the light of such special features in the national legal systems . While acknowledging that ORG recent judgments in PERSON v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , judgment of DATE , ORG DATE ) and PERSON GPE ( no . CARDINAL/CARDINAL , judgment of DATE ) suggested a change in the GPE case - law , ORG noted that they did not relate to the NORP legal system and concluded that this system , allowing for both a conviction for a tax offence and an imposition of tax surcharges , was in conformity with the Convention . The court further found that an exemption from surcharges under LAW , section CARDINAL of LAW could only be granted if the individual had received a severe fine or prison sentence . As that was not considered to be the case with regard to the applicant and , thus , his total penalty was not unreasonable , there was no ground on which to reduce the surcharges fixed by ORG .

The rules on taxes and tax surcharges relevant to the present case were primarily laid down in , as far as income tax was concerned , LAW ( Taxeringslagen , CARDINAL:CARDINAL ) and , with respect to GPE , LAW ( Skattebetalningslagen , DATE ) . Both laws have since been replaced by LAW Skatteförfarandelagen ; CARDINAL ) .

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

A person who intentionally furnishes incorrect information to an authority or fails to file a tax return or other required information , thereby causing a risk that taxes will be withheld from the public treasury or wrongly credited or repaid to him or her , is criminally liable under sections CARDINAL of LAW ( Skattebrottslagen , CARDINAL:CARDINAL ) . The possible sentence ranges from a fine for a tax misdemeanour ( skatteförseelse ) to imprisonment for a maximum of DATE for an aggravated tax offence . Section CARDINAL provides that a person who is not considered to have furnished incorrect information with intent but to have been grossly negligent in doing so ( vårdslös skatteuppgift ) may be sentenced to a fine or a maximum of DATE in prison . The term “ incorrect information ” in LAW is considered to have the same meaning as in the above provisions on tax surcharges ( Government PERSON , p. CARDINAL ) .

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

On DATE , in its judgment concerning the present case , ORG examined the reverse situation , that is , where the question of imposition of tax surcharges arose after a criminal conviction for a tax offence . It concluded that the NORP legal system was in conformity with LAW ( see further paragraph CARDINAL above ) .

By a decision of CARDINAL DATE ORG examined the issue anew ( NJA DATE , p. CARDINAL ) . It found again , by a majority of CARDINAL votes to QUANTITY , that there was no reason generally to invalidate the NORP system with double proceedings by virtue of LAW No . CARDINAL . The court considered that , following PERSON v. GPE If the later proceedings concerned identical or essentially the same facts as the earlier proceedings , it was a matter of proceedings concerning the same offence . However , ORG noted that the GPE case - law left some room for several punishments for the same offence that could be decided by separate organs at different times and mentioned by way of example , inter alia , the conviction for a traffic offence and the resultant withdrawal of the offender ’s driving licence . ORG further found that the invalidation of a NORP system regulated by domestic law with reference to the LAW required that either the LAW itself or ORG jurisprudence provided clear support for that conclusion and considered that neither LAW No . CARDINAL nor the jurisprudence provided such support in the matter at hand .

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

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

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

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

In a further decision , taken on DATE ( NJA DATE , p. CARDINAL ) , ORG examined the question whether a former defendant could be granted a re - opening of criminal proceedings ( resning ) under LAW , section CARDINAL of the Code of Judicial Procedure ( Rättegångsbalken ) if he or she had been convicted of an offence under LAW in a manner incompatible with LAW , as interpreted by the decision of DATE . The court concluded that , on the basis of the Convention , in particular LAW , a NORP court may decide , in certain situations , that a case is to be re - opened notwithstanding the special conditions specified in LAW , section CARDINAL . The court also took the position that the incompatibility of NORP legislation regarding sanctions for tax - related offences with LAW No . CARDINAL had arisen by virtue of the PERSON judgment ( cited above ) , thus on DATE . ORG decision led to criminal proceedings being re - opened in respect of an individual ’s conviction for an offence under LAW . As a result , the possibility of being granted a re - opening of criminal proceedings applies retroactively to judgments having been delivered in criminal proceedings as from DATE .

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

By a plenary judgment of CARDINAL DATE ( HFD DATE ref . CARDINAL ) , ORG ( now ORG förvaltningsdomstolen ) reversed the position taken in its judgment of CARDINAL DATE and confirmed in a judgment of DATE ( RÅ DATE ref . CARDINAL ) . Agreeing with the conclusions drawn by ORG , ORG found that the same principles should apply when the order of the tax and criminal proceedings is different , that is , when the tax proceedings are commenced later . Accordingly , a criminal indictment constitutes a procedural hindrance against imposing tax surcharges based on the same submission of incorrect information .

In the case at hand , where the individual had been indicted in DATE and surcharges had been imposed by ORG in DATE , ORG concluded that the latter decision violated LAW . The appeal made against the appellate court ’s judgment on tax surcharges was accordingly granted and the surcharges set aside .

ORG has since examined several petitions for the re - opening of tax proceedings in which tax surcharges had been imposed . In a decision of DATE ( cases nos . CARDINAL - CARDINAL and DATE ) it rejected the petition , stating that the earlier criminal proceedings had not led to an indictment of the individual but to a decision by the prosecutor to discontinue the preliminary investigation and that , accordingly , no violation of the prohibition against double proceedings had occurred . In a judgment of DATE ( cases nos . CARDINAL - CARDINAL and CARDINAL - CARDINAL ) it granted a re - opening , noting that , pursuant to ORG decision of DATE , the applicant would have had a right of re - opening of the criminal proceedings if the tax surcharge decision had preceded the indictment and finding that the situation at hand , which was the reverse , should not be treated differently . ORG accordingly re - opened the tax proceedings and quashed the tax surcharges in question . The latter case had already been examined by ORG as part of the original tax proceedings in DATE prior to the recent developments in NORP case - law – and had then been considered not to involve a breach of LAW No . CARDINAL .

NORP In a judgment of DATE ( cases nos . DATE and MONEY ) ORG examined a different situation where tax surcharges had been imposed on a person by a decision of ORG in DATE , upheld by ORG in DATE . During the subsequent examination before ORG , the person in question was , in separate criminal proceedings , indicted for a tax offence but acquitted thereof by a judgment of ORG in DATE which soon afterwards acquired legal force . As a consequence , ORG , in DATE , quashed the surcharges that had been imposed . ORG agreed with this course of action , noting that the ORG had established in several judgments ( including PERSON v. GPE , no . CARDINAL , DATE ) that , in the event that CARDINAL of CARDINAL concurrent sets of proceedings becomes final , LAW No . CARDINAL required that the other set of proceedings be discontinued . ORG judgment was delivered in ordinary proceedings which had not involved any re - opening . Furthermore , all the decisions and judgments in the case were delivered after the PERSON judgment .

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

On DATE the NORP newspaper ORG , basing itself on information provided by ORG , reported that CARDINAL cases concerning tax offences had been examined . Out of CARDINAL individuals who were serving prison sentences , DATE had been released . Those who had not been released had been convicted also for other crimes than tax offences . A further number of persons who were about to start serving prison sentences did not have to do so . CARDINAL individuals who had already served their sentences had been asked whether they wished assistance in filing petitions for re - opening of proceedings and , so far , CARDINAL of them had accepted and CARDINAL cases had been re - opened . In some re - opened cases the convictions had been quashed in their entirety ; in others , involving several offences , the proceedings had to be repeated .

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

An action for damages can also be based on LAW ( ORG , CARDINAL:CARDINAL ) . Under LAW , LAW , compensation is awarded for damage caused by fault or negligence on the part of a public authority . Requests can be lodged with the Chancellor of ORG . If dissatisfied with the Chancellor ’s decision , the individual has the option of bringing an action for damages against the ORG in the general courts . He or she may also institute such proceedings directly without having made a request to the Chancellor .

In addition , ORG has developed case - law which provides that , in order to provide redress for victims of Convention violations , compensation may be awarded without direct support in NORP law . Based on this case - law , the Chancellor of ORG has awarded compensation in many cases following requests from individuals . The ORG has had regard to this development and has concluded that , following a ORG judgment of DATE ( ORG DATE N CARDINAL ) , there is an accessible and effective remedy of general applicability , capable of affording redress in respect of alleged violations of the Convention ( see , for example , PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE , and PERSON v. GPE ( dec . ) , no . CARDINAL , § CARDINAL , DATE , and DATE in regard to the domestic case - law developments – the latter decision , § § DATE ) .


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

The applicant was born in DATE and lives in GPE .

ORG approved the exchange of a municipal flat for a smaller flat owned and occupied by the applicant in DATE . However , the mayor of GPE did not issue the necessary order and did not sign a contract for the exchange , as provided in the applicable rules . The applicant brought judicial review proceedings challenging the mayor ’s tacit refusal to act . ORG quashed the mayor ’s tacit refusal in a judgment of DATE and instructed the mayor to issue an order for the exchange of the flats . That part of the judgment became final and enforceable on DATE .

By a decision of CARDINAL DATE ORG revoked its DATE decision approving the exchange of the CARDINAL properties . The applicant lodged a challenge against that CARDINAL DATE decision . In a final judgment of CARDINAL DATE ORG declared the ORG ’s decision of CARDINAL DATE null and void .

On DATE the mayor issued a decision explicitly refusing to issue an order for the exchange of the CARDINAL flats . Following an application by the applicant for judicial review , on DATE ORG declared that decision null and void as having been issued in breach of the judgment of ORG DATE . The court also instructed the mayor to issue an order for the conclusion of the exchange agreement .

The mayor ordered the flat exchange on DATE and the applicant signed a contract for the exchange on DATE .