Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , Mr PERSON , is an NORP national who was born in DATE . He was represented before the ORG by PERSON J.P. GPE , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr P. Clerides , Attorney - General of GPE .

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

The applicant arrived in GPE on DATE as a visitor .

On DATE the applicant applied to the office of the ORG High Commissioner for Refugees in GPE ( “ ORG ” ) for asylum .

On DATE he was granted a temporary residence permit pending the examination of his asylum application . The permit was valid from CARDINAL DATE to DATE and was continuously renewed until DATE on the basis of the ORG ’s instructions . He was , however , permitted to stay in GPE even after DATE since his asylum application had not yet been decided .

On DATE his application was dismissed . The ORG concluded that the applicant did not have “ a well - founded fear of persecution ” on the grounds laid down in LAW relating to LAW ( DATE ) .

On DATE the applicant appealed against that decision .

His appeal was dismissed on DATE . The ORG considered that the reasons put forward by the applicant in his appeal did not warrant a departure from the first decision . The grounds for reconsidering the application did not contain any new elements that could alter their decision and he was not therefore a person of concern to the ORG . His file was thereupon closed , no further review being possible . The ORG informed ORG of their decision .

In the meantime , on DATE , the applicant applied for the renewal of his residence permit .

By a letter dated DATE the immigration authorities informed the applicant that he had to leave GPE within DATE from receipt of the letter .

On DATE the applicant submitted a new asylum application to ORG ( see “ Relevant domestic law and practice ” below ) . On DATE ORG decided to dismiss the application on the ground that the applicant did not fulfil the requirements of LAW of DATE , namely , he had not shown “ a well - founded fear of persecution for reasons of race , religion , nationality , membership of a particular group or political opinion or a well - founded fear of serious and unjustified harm for other reasons ” . However , the authorities were not able to serve the applicant with the letter of dismissal as he could not be found at the address he had given them . As a result , further steps in the applicant ’s file were discontinued .

On DATE , at TIME , the applicant was stopped for a police check while driving his car in GPE . The applicant , who had committed certain traffic offences , had no papers on him proving his identity . He was therefore taken to the police station where it was ascertained that he had been staying in GPE illegally .

On DATE the applicant was arrested and taken to ORG .

On DATE detention and deportation orders were issued by the Director of ORG under section CARDINAL(CARDINAL)(k ) of the Aliens and Immigration PERSON ( PERSON . CARDINAL as amended ) on the ground that the applicant was a prohibited immigrant . The applicant was served with a letter informing him of these orders . However , he refused to sign the letter .

By a letter dated DATE , the Director of ORG informed ORG that the applicant did not have a return ticket and that his passport had not been found . Furthermore , by a letter dated DATE , the Director informed ORG that the applicant had been taken to ORG but had refused to give the necessary information allowing the ORG to issue travel documents . The Director requested ORG to contact ORG for the purpose of ensuring the prompt issuance of the required travel documents .

The applicant submitted that the authorities had taken him to ORG upon his arrest for the purpose of issuing him with travel documents and had unlawfully informed that ORG about his asylum application .

According to the documents submitted by the Government , on DATE the applicant was taken by CARDINAL police officers to ORG for an interview for the purpose of securing travel documents . The applicant , however , refused to give the information required and the ORG could not as a result issue travel documents .

In the meantime , by a letter dated DATE the applicant ’s lawyer informed the authorities that his client ’s asylum application was still pending and requested the applicant ’s release .

On DATE ORG informed the applicant ’s lawyer that the examination of the applicant ’s file had been discontinued since the applicant , without good reason , had not informed the authorities , as required , that he had changed address and had not notified them of his new one . Therefore they had been unable to serve the letter concerning his application .

On DATE the applicant lodged an appeal with ORG decision . This was dismissed on DATE .

On DATE the applicant brought a recourse before ORG ( first - instance revisional jurisdiction ) under LAW challenging the decision of ORG to close his asylum file .

This was dismissed on DATE as in the meantime the applicant had lodged his appeal with ORG see above ) and then a recourse against the dismissal of that appeal ( no . CARDINAL/CARDINAL ; see below ) . ORG added that , in any event , the applicant ’s recourse was out of time and that it was completely unsubstantiated .

On DATE the applicant brought a recourse before ORG ( first - instance revisional jurisdiction ) under LAW challenging the decision of ORG . He also challenged the lawfulness of the detention and deportation orders issued against him pursuant to that decision .

On DATE ORG dismissed the recourse . First it upheld ORG decision to close the applicant ’s file . It observed that it had been for the applicant to inform ORG of any change of address and not for the authority to try to find him for the purpose of serving any relevant documents . Second , the court noted that it could not examine the lawfulness of the detention and deportation orders of DATE ( see below ) as the recourse had only been filed against ORG which was not the authority that had issued the orders .

The applicant did not appeal .

On DATE the applicant had also brought a recourse before ORG ( first - instance revisional jurisdiction ) under LAW challenging the detention and deportation orders of DATE . He claimed , inter alia , that the orders had been issued unlawfully and contrary to the LAW and LAW as the right facts had not been taken into account . He further maintained that if deported to GPE he would be tortured and killed due to his past involvement in student meetings condemning ORG for human rights violations .

In his affidavit the applicant stated that he had been a student in GPE at ORG in the city of ORG . In DATE he had participated in a meeting held by students , concerning human rights violations , which the authorities had violently dissolved . Many students had been arrested and some had disappeared . The applicant had been injured but had managed to get away and had gone into hiding in GPE since the secret police were looking for him . Subsequently the applicant had learned that he had been dismissed from GPE . The applicant also claimed that he had been on the NORP authorities’ “ stop list ” but had managed , after secretly bribing an official , to have his name taken off and get a passport .

Finally , in his affidavit , the applicant stated that since ORG did not allow NORP nationals to apply for asylum , he was in even more danger , the NORP authorities now being aware , after being informed by the immigration authorities , that he was in GPE . This was disputed by the respondents . In his affidavit CARDINAL of the officers stated , on behalf of the respondents , that the police had not mentioned anything about the applicant ’s asylum application to the personnel of ORG .

On DATE the applicant filed an application seeking an interim order to suspend the decision taken concerning his detention and deportation .

On DATE the Director of ORG suspended the execution of the deportation order pending the examination of the above application .

On DATE ORG dismissed the application for an interim order . As the execution of the deportation order had already been suspended , the court focused on the applicant ’s request concerning his detention . In this connection , the court found that the applicant had not established “ manifest illegality ” in his detention or shown that it had caused him irreparable damage . It therefore held that his application had been unsubstantiated . It also observed that the applicant had not shown that his allegation that the authorities had informed ORG about his asylum application was connected with the lawfulness of the orders that had already been issued by that time .

On DATE ORG upheld the applicant ’s recourse and annulled the detention and deportation orders . It held that these orders had been issued on the basis of an inadequate inquiry and misconception about the facts . In this respect , the court noted , amongst other things , that the applicant had not received the letter from the asylum authorities rejecting his application and that the authorities had not conducted an effective investigation in this connection . It further observed that the applicant was refusing to cooperate with the authorities for the issuance of travel documents .

The applicant was released on DATE .

Following ORG judgment of DATE the applicant , on DATE , brought civil proceedings against the Attorney - General before ORG of GPE , claiming damages in respect of unlawful arrest and detention from DATE until DATE .

These proceedings are still pending .

In the meantime , on DATE , the applicant filed a habeas corpus application before ORG ( first instance ) . This was dismissed on DATE . The court held that it did not have jurisdiction to examine the lawfulness of the detention and deportation orders ; as decided by the court in numerous cases , this could only be examined in the context of an administrative recourse brought under LAW and not a habeas corpus application . The court noted that such a recourse was actually pending and that the judgment had been reserved ( namely , recourse DATE , see above ) . In these circumstances the court held that the application constituted an abuse of judicial procedure . Further , the court observed that the continuing detention of the applicant was due to the fact that there was a pending recourse against the deportation order and that he did not have the necessary travel documents .

The applicant did not appeal against this judgment .

On DATE , following the dismissal of the applicant ’s appeal by ORG , the Director of ORG issued new detention and deportation orders against the applicant under section CARDINAL(CARDINAL)(k ) of the Aliens and Immigration PERSON , on the ground that he was a prohibited immigrant .

The applicant was arrested on DATE while at ORG . The applicant has submitted that he had gone there in order to collect his new residence permit .

On an unspecified date the applicant filed a habeas corpus application before ORG ( first instance ) . The applicant claimed , inter alia , that his protracted detention without deportation was unlawful , arbitrary and contrary to his fundamental human rights . He relied on ORG judgment in the case of PERSON ( habeas corpus application CARDINAL/CARDINAL , judgment of DATE ) .

The application was dismissed on DATE . ORG held that it did not have jurisdiction to examine the lawfulness of the detention and deportation orders against him : these could only be examined in the context of an administrative recourse and not a habeas corpus application . The applicant would have the right to apply for a habeas corpus order in the event of his being successful in such a recourse but not released .

As to the length of the applicant ’s detention , the court found that on the basis of the evidence before it the delay in the applicant ’s deportation was solely due to the applicant himself , as he was deliberately refusing to cooperate with the authorities of his own country for the issuance of travel documents . Although the applicant had been taken to ORG he refused to apply for travel documents without giving any explanation in this regard . Noting that in her affidavit to the court the Director of ORG had suggested that the applicant ’s aim was that without travel documents his detention would be extended and at one point he would be released , ORG found that the respondents were doing everything possible to execute the applicant ’s deportation and did not bear any responsibility for the delay . It therefore concluded that it could not be said that the applicant ’s length of detention had exceeded what was reasonable .

On DATE the applicant complained to the police that he had been ill - treated by police officers .

According to the relevant police report dated DATE the applicant was arrested on DATE . On arrival at the central prisons , the applicant managed to run away and climb onto a metallic water - tower in the prison courtyard . The police officers succeeded in immobilising him on the tower ’s ladder and , eventually , the applicant climbed down .

On DATE the applicant was taken to GPE police station where he was visited by his lawyer . In the presence of the officer in charge he showed his lawyer some scratches he had on his body and informed him that these had been inflicted on him at the immigration department and at FAC at FAC .

The applicant was immediately taken to the first aid unit of ORG of GPE where he was examined by a doctor , a forensic surgeon and , further , a private doctor who had been sent by the applicant ’s lawyer . According to the reports of the first CARDINAL doctors , the applicant had some scratches on the chest and back , weals on the right arm and a scratch on the left arm , weals on the chest and in the area in front of the neck and also swelling in the right part of the cheek - bone area .

On DATE the police took statements from the applicant and some of the police officers who had been involved .

Following an ill - treatment complaint by the applicant , through his lawyer , to the Attorney - General , the ORG and the Chief of Police , an investigation was carried out by the police .

In their report of CARDINAL DATE the police concluded that the applicant ’s complaint was unfounded and suggested that the file be closed .

In the meantime , on DATE , the applicant was transferred to the GPE detention facilities in GPE .

On DATE the file was transmitted to the Attorney - General , who instructed the police to close it .

The file was returned to the police and was closed .

In a letter dated DATE the ORG informed the applicant that she had been informed by the police that on the instructions of the Attorney - General the police had carried out the investigation . This had concluded that the applicant ’s allegations had been unsubstantiated and as a result the Attorney - General had closed the file . Consequently , the ORG observed that she did not have the competence to intervene .

On DATE the applicant was transferred to FAC .

On TIME the police authorities of GPE carried out the transfer of certain detained aliens to various detention facilities in other districts .

On DATE , at TIME , police officers went to FAC in order to transfer the applicant to the detention facilities in GPE . At the time , the applicant had been on hunger strike from DATE .

In a statement given to the police on DATE the applicant claimed that he had been sleeping on a table in “ an open space used by all the prisoners ” when a group of police “ commandos ” had woken him up and asked him to follow them as they were going to take him to another detention centre . The applicant refused to be transferred and resisted . They then took him to an office and asked him to sign a document which was in NORP . When he refused , CARDINAL of the officers attacked him and then the officers handcuffed him by using force and put him in a police car .

The applicant was transferred to the GPE detention facilities .

In his statement he alleged that when he arrived at the detention centre he spoke to another prisoner who told him that no force had been used against him as he had consented to his transfer . He also complained about his transfer and the force used against him by the police .

At TIME the applicant was taken to the first - aid unit of ORG where he was examined by a doctor . According to the entry in the hospital record the applicant had complained to the doctor who examined him for blows . The doctor noted that the applicant had superficial scratches on the “ upper limbs and shoulder blade ” .

The applicant gave his statement to the police TIME and TIME DATE .

On DATE the applicant filed a complaint with ORG against the Police ( “ IAIACAP ” ) concerning the use of force by the officers in carrying out his transfer ( complaint CARDINAL ) .

The Vice - President of the ORG took over the investigation .

The applicant gave a supplementary statement to the police on DATE . In this the applicant stated that on DATE he had been attacked by CARDINAL immigration and police officers because he wanted to stay in GPE and continue his hunger strike and had therefore resisted his transfer to GPE . He stated that the officers had insisted that he go with them and as he resisted they had resorted to violence and thus managed to transfer him to GPE .

On DATE the Vice - President of the ORG visited the applicant in LOC and took a statement from him .

In this statement the applicant stated that on DATE , at TIME while he was sleeping in his “ room ” , QUANTITY police “ commandos ” had entered and asked him to get out of the “ room ” . They took him downstairs to the common office on the ground floor where there were another QUANTITY police officers and CARDINAL “ commandos ” . He was the only detainee in that office . They showed him a letter in NORP and asked him to sign it . When he refused CARDINAL of the officers grabbed him by the hair and hit his head on a table . The officer then threw him to the ground and with CARDINAL persons started beating him on the back with their knees . While he was on the ground they handcuffed his hands behind his back . They pulled him up but then threw him down onto the ground again . They then put him into a police van and transferred him to GPE . He complained there to the officer in charge and was then taken to hospital . The applicant also noted that he had asked to be taken back to hospital on DATE . The entry of CARDINAL DATE in the hospital record reports weakness caused by a hunger strike .

While detained in GPE the applicant complained DATE about his detention there and threatened to harm himself if he was not transferred .

He was eventually transferred back to ORG on DATE .

Following the appointment of the Vice - President of ORG to a ORG post , on DATE the ORG appointed CARDINAL criminal investigators and an observer member . DATE and CARDINAL DATE statements were taken from the CARDINAL police officers who were in charge of guarding and transferring the applicant and from the police officer in charge at FAC . Upon conclusion of the investigation , the investigators submitted their report to the ORG on CARDINAL DATE . A report was then also prepared by the member who acted as an observer .

The following account was given to the investigators by CARDINAL police officers who had been responsible for guarding the applicant and transferring him to GPE :

On DATE , at TIME , police officers went to ORG in order to carry out the applicant ’s transfer to GPE . The applicant refused to be moved and would not get out of his bed . The officers lifted him out of his bed and took him from the first floor , where his cell was , to the ground floor . The applicant resisted and was violent . The officers tried to handcuff him but he was resisting , kicking and pushing the officers away . In the end they managed to handcuff him but he refused to go to the police car and fell onto the ground in resistance . The police officers pulled him and took him to the car . At TIME the officers put the applicant inside a police van and transferred him to FAC .

The applicant refused to take his personal belongings with him .

The officer who was in charge at the GPE detention centre mentioned in his statement that , upon receiving the applicant at the centre and after removing the applicant ’s clothes , in a special room , in order to carry out a body search , he found minor scratches on the applicant ’s hands and shoulder blade which he recorded on the centre ’s personal detainee sheet . When he asked the applicant how these scratches had been caused , the applicant replied that they had been caused by the police officers in FAC when he resisted his transfer to GPE . He did not complain at the time .

In their report the investigators concluded that from the evidence given the applicant ’s claims had been unfounded . In particular :

( a ) According to the medical report the applicant had superficial scratches on the “ upper limbs and shoulder blade ” . If the police officers had , as the applicant claimed , thrown the applicant onto the ground and then kicked him in the back while he was handcuffed , and then lifted him up and thrown him down again , he would have had more serious injuries .

( b ) A number of police officers had taken part in the transfer of detainees to other districts under the supervision of the Deputy Director of the Police of GPE . It could not reasonably be maintained that certain police officers would single out the applicant to attack and beat him during such an operation

( c ) According to the evidence , the applicant persistently refused to cooperate with the police . In his statement to the police he admitted that the officers had used force in order to carry out his transfer . It appears therefore that the minor injuries were caused when the officers tried to handcuff him and carry out his transfer .

Furthermore , the investigation carried out by the police authorities themselves did not find anything to reproach in the conduct of the officers involved .

The investigators therefore concluded that the force used by the officers had been necessary in the circumstances to achieve the applicant ’s secure transfer and suggested that the case be closed .

The observer member examined the facts and findings of the investigators as set out in their report . In her report she agreed with the conclusions and suggestions . She noted that despite delays in the initial stage of the investigation , the criminal investigators , following their appointment , had speedily concluded the investigation .

By CARDINAL letters dated DATE the ORG informed the applicant ’s lawyer and the Attorney - General respectively about the conclusions of the investigation .

On DATE the applicant filed a complaint through his sister with the Ombudsman concerning his continuing detention .

In CARDINAL letters to the Minister of the ORG , dated DATE , DATE and DATE , the ORG addressed the question of the extended length of detention of aliens in detention facilities on the basis of detention and deportation orders issued under LAW ( PERSON . CARDINAL , as amended ) , in response to a number of complaints received on the matter , including the CARDINAL from the applicant . In sum the ORG expressed , inter alia , the opinion that the period of detention of a person for the purposes of deportation should be limited by law .

On DATE the applicant was transferred to the GPE detention facilities .

On DATE the Minister of the ORG offered to revoke the deportation and detention orders and allow the applicant to remain in GPE DATE during which he would be entitled to seek employment and work in the Republic , provided he consented and cooperated with ORG for the issuance of a passport valid for a minimum of DATE . The applicant would be released upon delivery of his passport to the Director of ORG . The applicant was given the Minister ’s assurance that during this period he would not be deported or detained for deportation , unless he breached the conditions of his residence / employment permit . Furthermore , at the end of this period the possibility of a further extension of his leave to remain would be considered .

The applicant did not accept this offer .

In DATE the authorities decided to revoke the deportation and detention orders and release the applicant , allowing him to stay and work for DATE in the Republic with the possibility of subsequently renewing his permit , without requiring the issuance of a passport . The applicant was informed by a letter dated DATE from the Permanent Secretary of the Minister of the ORG about the Minister ’s order for his immediate release and the relevant conditions .

According to the Government , the applicant was consequently released .

The entry , residence and expulsion of aliens are regulated by the ORG and Immigration PERSON of DATE ( PERSON . CARDINAL , as amended ) .

Under section DATE ) of the above PERSON a person is not permitted to enter the Republic if he or she is a “ prohibited immigrant ” . This category includes any person who enters or resides in the country contrary to any prohibition , condition , restriction or limitation contained in the PERSON or in any permit granted under the PERSON ( section CARDINAL(CARDINAL)(k ) and any alien who does not have in his possession an immigration permit granted by the Director of ORG in accordance with the relevant regulations . A “ prohibited immigrant ” can be ordered to leave the LOC under LAW of the same PERSON .

The Director of ORG has the power under the PERSON to order the deportation and , in the meantime , the detention , of any alien who is a “ prohibited immigrant ” under the PERSON ( section CARDINAL ) .

PERSON and detention orders can be challenged before ORG by way of administrative recourse under LAW . This provision provides as follows :

“ ORG shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision , an act or omission of any organ , authority or person , exercising any executive or administrative authority is contrary to any of the provisions of this LAW or of any law or is made in excess or in abuse of powers vested in such organ or authority or person . ”

Such recourse must be made within DATE of the date when the decision or act was published or , if not published and in the case of an omission , when it came to the knowledge of the person making the recourse ( LAW ) . Upon such a recourse , ORG may ( a ) confirm , either in whole or in part , such decision or act or omission ; or ( b ) declare , either in whole or in part , such decision or act to be null and void and of no effect whatsoever , or ( c ) declare that such omission , either in whole or in part , ought not to have been made and that whatever has been omitted should have been performed ( LAW ) .

Article CARDINAL ( CARDINAL ) provides for compensation as follows :

“ Any person aggrieved by any decision or act declared to be void under paragraph CARDINAL of this LAW or by any omission declared thereunder that it ought not to have been made shall be entitled , if his claim is not met to his satisfaction by the organ , authority or person concerned , to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant ” .

ORG has held in a number of cases that the lawfulness of deportation and detention orders can only be examined in the context of a recourse brought under LAW and not in the context of a habeas corpus application ( see , among many authorities , ORG no . DATE concerning the application of PERSON for Habeas Corpus , judgment of DATE full bench ; PERSON , application CARDINAL , judgment of DATE ; and PERSON , application CARDINAL , judgment of DATE ) .

A detainee can , however , challenge the lawfulness of his / her protracted detention for the purpose of deportation through a habeas corpus application . In such an application , ORG will not examine the lawfulness of the decisions ordering deportation and detention but whether the detention which was initially lawful subsequently became unlawful by exceeding a reasonably permissible length . In deciding whether the detention has been excessively long the specific facts of the case will be taken into account ( PERSON , application CARDINAL/CARDINAL , judgment of DATE ) . In the case of PERSON , ORG held that detention under LAW ( CARDINAL ) of the LAW for the purpose of deportation could not possibly be unlimited but was restricted to a reasonable period , taking into account all the circumstances of the deportation execution process . If deportation was not completed within a reasonable time , the grounds for detention would cease to exist .

Res judicata obtains from successive habeas corpus applications which are based on the same facts without new intervening factors . This also applies to questions that could have been raised in the first habeas corpus claim but were not ( Refaat Barquwi , application CARDINAL , judgment of DATE ) .

ORG assumed responsibility for assessing asylum claims from DATE through the establishment of an ORG within ORG of ORG . Prior to that , the ORG dealt with such claims . Asylum seekers can appeal against the decision of ORG to ORG , which was established by LAW ( Law CARDINAL ( I ) of DATE , as amended ) .

The decision of ORG can be challenged before ORG by way of administrative recourse under LAW ( see above ) .

Part II of the LAW contains provisions safeguarding fundamental human rights and liberties . LAW protects the right to liberty and security . It reads as follows , in so far as relevant :


Violation of P1-1;No violation of Art. 6-1 with regard to witnesses;No violation of Art. 6-1 with regard to reasons for decision;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

The first applicant is the widow of the late Mr PERSON ( “ Mr GPE ” ) , who died on DATE . The other applicants are his children and all the applicants are beneficiaries of his estate .

At the time of his death Mr Jokela possessed , inter alia , the following properties in the centre of GPE municipality : PERSON , PERSON I CARDINAL:CARDINAL , PERSON I CARDINAL:CARDINAL and PERSON CARDINAL:CARDINAL . The size of the properties came CARDINAL ha in total . Mr PERSON had purchased CARDINAL of the land for CARDINAL markkas ( FIM ) in DATE . A regional master plan ( seutukaava , regionplan ) of DATE had designated part of the land for roadworks . That designation had been maintained in a municipal building plan ( rakennuskaava , byggnadsplan ) of DATE , whereas construction mainly for industrial purposes had been allowed on the remaining part of the properties .

In DATE the GPE ORG requested the partial expropriation of Mr GPE 's properties with a view to constructing an overpass pursuant to a road plan confirmed in DATE . The overall area to be expropriated covered CARDINAL of the properties in question ( CARDINAL ha ) . The request was referred to a panel composed of a ORG - appointed land surveyor ( “ the expert ” ) and CARDINAL lay members chosen by the expert from a list drawn up by the municipality ( “ the trustees ” ) .

In DATE ORG took over those parts of the properties which were to be expropriated . In DATE Mr GPE sold other parts of the properties PERSON and PERSON CARDINAL:CARDINAL for FIM CARDINAL per square metre to a well - established service - station company intending to construct a new service station to replace the CARDINAL situated on adjacent land subject to expropriation .

After reaching an agreement with ORG in DATE Mr GPE received FIM CARDINAL in compensation for the removal of the buildings , equipment and vegetation from the expropriated land . The removal took place DATE . The agreement did not concern the compensation to be paid for the land itself and the inconvenience suffered . On these points Mr GPE and , following his death , the applicants disagreed with ORG .

The matter was then referred to the expert and the trustees who , on DATE , fixed the market value ( käypä arvo , gängse pris ) of the land at ORG CARDINAL.CARDINAL per square metre . They apparently arrived at this amount disregarding CARDINAL voluntary sales of land in the vicinity , as they considered that the sellers – Mr GPE and the municipality DATE had been “ in a dominant position ” at the time and thus able to dictate the price . Instead , the expert and trustees took into account the prices paid for land within a wider area . The applicants were awarded about FIM CARDINAL in compensation for the land and some additional compensation for the inconvenience suffered .

The applicants and ORG appealed to ORG ( maaoikeus , jorddomstolen ) of ORG which , on DATE , held an oral hearing also attended by the expert . The applicants , represented by counsel , argued that the market value of the expropriated land was between ORG and FIM CARDINAL per square metre . In support of their contention , they submitted various pieces of documentary evidence indicating a current value ranging between ORG and ORG CARDINAL per square metre . The evidence included , inter alia :

( CARDINAL ) an offer of DATE in which the GPE municipality had stated its interest in purchasing CARDINAL ha of the land for ORG CARDINAL,CARDINAL ( i.e. FIM CARDINAL per square metre ) ;

( CARDINAL ) a decision of ORG ( perintöverolautakunta , arvsskattenämnden ) of CARDINAL DATE in which the current value of the applicants ' properties had been estimated at ORG CARDINAL ( i.e. FIM QUANTITY – see paragraph CARDINAL below ) ;

( CARDINAL ) a DATE estimate by the same expert of the value of adjacent land which had been expropriated , for the purpose of carrying out the same roadworks , setting the price at ORG CARDINAL per square metre ( for land used for a service station ) and ORG CARDINAL per square metre ( for an uncultivated field between CARDINAL roads ) ;

( CARDINAL ) an offer of DATE in which the GPE municipality had proposed to lease certain land in the vicinity for PERCENT of its market value estimated at ORG CARDINAL per square metre .

The applicants disputed the view of the expert and the trustees that Mr GPE and the municipality had been able to dictate the prices of the CARDINAL pieces of land previously sold to the service - station company . The municipality had sold the land at a price of ORG CARDINAL per square metre , presumably below the market level in view of the importance attached to maintaining a service station in the vicinity . Even though Mr Jokela had sold his land at a price exceeding FIM CARDINAL per square metre , that had apparently not been considered excessive by the service - station company which otherwise could have asserted its right to redeem that land .

In its own appeal ORG had argued that the compensation to be awarded to the applicants should be lowered to ORG CARDINAL per square metre . Its representative did not comment either in writing or at ORG hearing on the above evidence adduced by the applicants .

In their written submissions to ORG the applicants further stated their readiness to examine the executive secretary of GPE municipality ( V. ) as a witness in respect of the contents of the municipality 's above - mentioned offer of DATE , “ should ORG deem [ such an examination ] necessary ” .

At the hearing the applicants allegedly also requested that the building inspector of the municipality ( S. ) be examined as a witness in respect of the status of their land from the point of view of planning . Contrary to the expert and the trustees , PERSON was allegedly of the opinion that the properties had been reserved for industrial purposes already set out in the regional master plan . According to the applicants , their request that S. be heard was not recorded in ORG TIME . The Government , referring to TIME , noted that the applicants ' representative had merely referred to having been in contact with PERSON before the hearing . Following the hearing ORG inspected the area in question .

In a judgment of CARDINAL DATE ORG granted the applicants some ORG CARDINAL,CARDINAL additional compensation for inconvenience and costs but dismissed the remainder of their appeal . It noted that in the regional master plan of DATE the expropriated land had been designated for roadworks . This designation had been maintained in the municipal building plan adopted in DATE . ORG therefore agreed with the assessment of the expert and the trustees as to the market value of the land . It noted , inter alia , the fact that the construction of the overpass had improved the road links connecting those parts of the applicants ' properties which had not been expropriated . ORG expressly ignored the DATE purchases of adjacent land for the purpose of constructing a service station near the overpass . As in fact only CARDINAL plot of land could be sold for such a purpose , the seller had had a monopoly and the price of this land had not evolved freely .

ORG judgment did not mention the written evidence adduced by the applicants , nor the fact that they had sought to examine witnesses .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicants leave to appeal .

NORP In GPE inheritance tax is calculated on the basis of the market value of a property at the time of the death PERCENT ( the so - called “ safe - assessment margin ” – see paragraph CARDINAL below ) . At the time of Mr GPE 's death , those parts of his properties which were subject to expropriation were still considered part of his possessions . In the inventory of the estate conducted by a member of the Bar and his assistant in DATE , the total value of the CARDINAL properties was estimated at FIM CARDINAL,CARDINAL .

On DATE ORG fixed the inheritance tax to be imposed on PERSON , PERSON and ORG in respect of , inter alia , the CARDINAL properties . Their market value was assessed at a total of ORG ( i.e. about FIM CARDINAL per square metre ) . No reasons were given by ORG .

The applicants appealed , arguing that the market value of the properties should be reduced to ORG CARDINAL,CARDINAL at most . On DATE the GPE and ORG ( lääninoikeus , länsrätten ) declined to examine the first applicant 's appeal ( as no inheritance tax had been imposed on her ) and dismissed the other applicants ' appeal in so far as it pertained to the market value of the properties . It noted , in particular , that the size of the properties came to a total of QUANTITY . m ( CARDINAL ha ) , a third of which had been purchased by the deceased for FIM CARDINAL,CARDINAL in DATE . Even in the light of the elements adduced by the appellants , the market value of the properties had not been assessed too high . The court relied on sections CARDINAL and CARDINAL of the Inheritance and LAW ( perintö- ja lahjaverolaki , lag om skatt på gåva och arv DATE ) .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) refused the applicants leave to appeal .

In GPE the expropriation of real property for public use must be compensated according to its market value , that value being determined in the light of the general price level and the use to which the property was being put at the relevant time .

By section CARDINALa of LAW ( laki yleisistä teistä , lag om allmänna vägar CARDINAL ) the compensation for expropriation must be determined in accordance with the criteria laid down in ORG ( laki kiinteän omaisuuden ja erityisten oikeuksien lunastuksesta , lag om inlösen av fast egendom och särskilda rättigheter CARDINAL DATE “ LAW ” ) . Section CARDINAL(CARDINAL ) of LAW provides that full compensation within the meaning of LAW is due for any expropriation , although such compensation may be adjusted according to the benefit to the remaining property which the road construction may produce .

Under section CARDINAL(CARDINAL ) of LAW full compensation , corresponding to the market value , must be determined for the expropriated property . The time of the property transfer is decisive for the determination of this value . If the market value does not reflect the real loss sustained by the owner of the property or any related right , the assessment must be based on returns from the property or investments in it . If the purpose for which the expropriation is carried out has significantly increased or decreased the value of the property , the compensation due must be determined without taking this into account ( section CARDINAL ) . In practice , the market value is adjusted to take account of developments other than temporary price fluctuations , up to the end of the expropriation procedure .

Section CARDINAL of the Inheritance and LAW provides that the assessment of inheritance tax must be based on the value of the property at the time of the death . The value of the property must be assessed in accordance with the provisions applicable to the taxation of income and capital gains ( sections DATE ) . Under the DATE LAW ( varallisuusverolaki , förmögenhetsskattelag DATE ) the assessment must be based on the market price of the property . In practice , the market value for the purpose of setting inheritance tax is the price which would most probably be paid for the particular property at the relevant location . The market price thus arrived at is normally reduced by PERCENT so as to avoid any overvaluation of the property at the time of the death .

At the relevant time the competent Tax Commissioner ( verojohtaja , skattedirektören ) was under a duty to ensure , inter alia , that the value of the property subject to inheritance tax had been correctly assessed in the estate inventory ( section CARDINAL of the Inheritance and LAW ) . The tax was to be imposed by ORG after careful consideration of the information pertaining to the property , including commonly known facts such as the prevailing price levels in the municipality , and changes in the value of such property in general ( section CARDINAL as interpreted in practice ) . In DATE the inheritance tax boards were abolished and the imposition of this tax was assigned to the ordinary tax authorities ( Law no . CARDINAL ) .

Under section CARDINAL of LAW ( jakolaki , lag om skifte CARDINAL/CARDINAL ) , as in force at the relevant time , proceedings before the land courts were governed by the provisions applicable to the general courts , unless otherwise stated . In accordance with LAW ( oikeudenkäymiskaari , rättegångsbalken ) a land court could therefore decide not to admit evidence which was deemed to be irrelevant or had been proposed in order to prove an already established fact or where the evidence could be obtained in a significantly less cumbersome or cheaper manner ( LAW , section CARDINAL ) .


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

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

The applicant has CARDINAL daughters , C and A , born in DATE and DATE respectively . Since their birth they cohabited with their mother . The applicant and the children ’s mother have never lived together and their relationship ended permanently in DATE .

In the period DATE the children and their mother received support and therapy several times from the social authorities .

In DATE C was voluntarily placed at a childcare centre due to the mother ’s mental problems and medical drug abuse . Having commenced psychotherapy , the mother found herself also incapable of taking care of A. Thus , on DATE A moved in with the applicant .

Shortly thereafter , on DATE A was taken into immediate care on a provisional basis by decision of ORG ( stadsdelsnämnden TuveSäve i GPE ) pursuant to the section CARDINAL of the Act with Special Provisions on ORG ( ORG med särskilda bestämmelser om vård av unga , TIME , hereinafter “ the DATE LAW ) due to inter alia suspicion of incest and physical abuse , as alleged by C to the staff at the child care centre , where she was placed .

It appears that A was fetched by the social authorities from her school . She was temporarily placed at an institution specialising in child psychiatry .

The decision about immediate care on a provisional basis was confirmed by ORG ( Länsrätten i Göteborgs- och PERSON ) on DATE .

On DATE ORG revoked its decision as the applicant and A ’s mother had agreed that A should remain temporarily at the children ’s institution . An investigation was carried out concerning ORG allegation which resulted in a decision not to pursue the case , taken it appears , shortly thereafter .

On DATE ORG decided to take A into immediate care on a provisional basis pursuant to section CARDINAL of LAW .

The decision was confirmed by ORG on DATE .

On DATE , by request of ORG , ORG pronounced judgment ordering that A be taken into public care pursuant to sections CARDINAL and CARDINAL of the DATE Act . Before the court the applicant , A ’s mother and CARDINAL witnesses were heard , including CARDINAL psychiatrists . In addition a psychiatric statement on A was submitted . It was not in dispute that ORG ’s mother could not provide the care needed .

In its judgment the court held :

“ A is a child with special needs . According to the psychiatric statement A is mentally unhealthy , she has already been damaged and she is in need of care . ORG has claimed that it is likely that the need for care is caused by the applicant having beaten A. The court finds that this can not be considered established with the certainty needed . However , it is a fact that A suffered great lack of care while living with her mother . Having shared custody , both parents are responsible therefore . Both parents consider that A can live with [ the applicant ] and that consequently , intervention [ under DATE LAW ] is not needed . However , it follows from the psychiatric statement that the applicant and A ’s mother remained passive in spite of serious warning signals concerning A , including inter alia A ’s statement expressed during DATE that she did not wish to live any longer . The parents have not taken any measures at all as regards A ’s unhealthy state of mind . In addition to this passivity , the applicant appears to lack understanding for A ’s need for security , stimulation and care . CARDINAL example thereof is [ the applicant ’s ] reaction at this hearing to all the information gathered on A ’s need for care , provided by ORG statements and witnesses . In [ the applicant ’s ] opinion A ’s main problems are caused by the public care she has been subjected to . Thus , he insists that only he should assess whether A needs special care and only after she has been placed with him . This statement and the information otherwise submitted before the court support the impression that A , deprived of proper care , obviously risks severe damage to her health and development , not only [ in relation to ] her mother but also if placed with her father . Since [ the applicant ] and A ’s mother can not consent to the current care plan and have not shown that the needed care can be provided in some other way , A must be taken into care pursuant to LAW . ”

On appeal , the judgment was upheld on DATE by ORG ( ORG ) after an oral hearing where the applicant was heard as well as several witnesses .

Leave to appeal was refused by ORG ( Regeringsrätten ) on DATE .

On DATE A , who until then had been placed in a children ’s home , was placed with foster parents . The applicant maintained access to A CARDINAL times per week . In the meantime the applicant requested that the care order be revoked . ORG refused this on DATE .

The applicant appealed to ORG , claiming that the care order be revoked or in the alternative that A be transferred back to the children ’s home until a foster family closer to his home in GPE could be found . Before the court one of the psychiatrists heard before ORG was re - heard and an additional witness on the applicant ’s behalf was heard . A ’s counsel recommended that the care order be maintained . By judgment of CARDINAL NORP DATE ORG found against the applicant stating inter alia :

“ [ the applicant ] maintains that the conditions for public care according to LAW are not fulfilled . Moreover , he finds no reasons to take any special measures or make any changes as regards PERSON On the one hand he accepts that A may be a child with special needs ; on the other hand he maintains that it is up to him to assess whether A needs any supportive measures and only after she has been placed with him . As a result of this inflexibility on the part of the applicant the situation is virtually unchanged since the [ the court ’s judgment of CARDINAL DATE ] . Indeed , as the statement from the children ’s home shows , A appears to feel better . According to [ the applicant ] the reason for this is that A is no longer under the influence of her mother and that she regularly sees him and his family . [ According to the court ] another explanation could be the beneficial influence of the children ’s home . No matter how one assesses it , the case offers no indication that care pursuant to LAW is no longer needed . The care , which concerns a child with special needs , has lasted for only a short period . The damage inflicted on A has already been proven . In conclusion , the court finds that the care order can not yet be revoked .

As to the placement of A , no objections as such have been submitted regarding the foster family . The foster family is considered qualified . The question remains whether the placement of A at a home situated [ QUANTITY ] from the city Alingsås contravenes the principle of proximity , which entails that the child should be placed at a home which is not too far from the child ’s home - environment . Taking into consideration that there are good public connections between GPE and ORG and that [ the applicant ] is always fetched from and brought to the railwaystation by the foster family , the court finds that the placement of A is not in breach of the principle of proximity . No other reasons have been submitted in favour of returning A to the children ’s home . ”

On appeal , on DATE the judgment was confirmed by ORG , which held an oral hearing and heard the applicant , A ’s mother and CARDINAL witnesses . It referred to ORG reasoning and added insofar as relevant the following :

“ A ’s mental damage has not been healed to such an extent that care according to LAW is no longer needed . As regards [ the applicant ] there is no indication that he has gained any better insight as to A ’s needs or that his circumstances have changed to such an extent that he is capable of taking care of A with the certainty needed , more particularly when her special needs are taken into consideration . “

Leave to appeal was refused by ORG on DATE .

On DATE ORG ordered the determination of the care pursuant to section CARDINAL of the CARDINAL Act .

Normally , measures taken by the social authorities as regards children shall be based on an agreement with the young person concerned and his or her custodian . Such measures are governed by the provisions of LAW ( Socialtjänstlagen , CARDINAL ) .

However , if the custodian or the young person - if he or she is DATE does not consent to the necessary care , compulsory public care may be ordered under LAW ( section LAW ) . Care is to be provided , inter alia , if there is a clear risk of impairment of the health or development of a person DATE due to ill - treatment , improper exploitation , lack of care or any other condition in the home ( section CARDINAL ) .

ORG may decide to take a child into care immediately on a provisional basis if later court proceedings concerning compulsory care can not be awaited on account of the risk to the child ’s health or development or of the risk that the continuing examination will be obstructed ( section CARDINAL ) . Such a decision shall be submitted to ORG for approval ( section CARDINAL ) .

An order committing a child to care on a permanent basis is issued by ORG on application by ORG . The application shall include a description of the circumstances concerning the child , measures previously taken and the care that ORG intends to arrange ( section CARDINAL ) .

Once public care has been ordered , it is executed by ORG , which decides on the details of the care . In particular , the board shall decide on how the care is to be arranged and where the child is to live ( section CARDINAL ) . The council shall ensure that the child ’s need of contact with parents and other custodians is met to the utmost possible extent . The council may decide on how this access is to be arranged ( section CARDINAL ) .

When public care is no longer necessary , the ORG shall order the termination of the care ( section CARDINAL ) .

Decisions taken by ORG as to , inter alia , the continuation of the care and the GPE access may be appealed against to ORG ( section CARDINAL ) . The court ’s decisions and judgments may be appealed against to ORG and ORG ( section CARDINAL of LAW ( Förvaltningsprocesslagen , CARDINAL:CARDINAL ) ) .


Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - finding of a violation sufficient

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

On DATE the applicant company purchased goods from another company ( “ the supplier ” ) .

Both companies were registered under LAW DATE ( “ the VAT Act ” ) and the transaction constituted a taxable supply under the said Act .

NORP The total cost of the received supply was MONEY ( ORG ) ( MONEY ( ORG ) ) , of which ORG CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) was the value of the goods and ORG CARDINAL ( EUR CARDINAL ) was value - added tax ( “ VAT ” ) .

The supplier issued invoice no . CARDINAL/CARDINAL.CARDINAL.CARDINAL to the applicant company , which the latter paid in full , including the VAT of ORG CARDINAL ( EUR CARDINAL ) .

The applicant company recorded the purchase in its accounting records for DATE and filed its ORG return for that period by DATE .

The supplier , on the other hand , did not record the sale in its accounting records for DATE , but for DATE , and reported it in its GPE return for the latter period , which it filed on DATE .

On an unspecified date the tax authorities conducted a VAT audit of the applicant company covering the period from DATE . In the course of the inspection a cross - check of the supplier was conducted in order to ascertain whether it had properly reported and recorded the supply in its accounting records . As a result , the above reporting discrepancy was discovered ( see paragraphs CARDINAL above ) .

On DATE the “ ORG of ORG issued the applicant company with a tax assessment . It refused the applicant company the right to deduct the ORG it had paid to its supplier ( “ the input NORP ” ) , amounting to ORG CARDINAL ( EUR CARDINAL ) , because the supplier had entered the supply in its accounting records for DATE and had reported it for that period rather than for DATE . ORG therefore considered that no VAT had been “ charged ” on the supply in the DATE tax period , that the applicant company could not therefore deduct the amount it had paid to its supplier as GPE and , furthermore , that it was liable to pay the VAT on the received supply a second time . Accordingly , it ordered the applicant company to pay the ORG in the amount of ORG CARDINAL ( EUR CARDINAL ) into the ORG budget , together with interest of ORG CARDINAL ( EUR CARDINAL ) for the period from DATE to DATE .

NORP The applicant company appealed against the tax assessment on DATE .

In a decision of CARDINAL DATE ORG dismissed the applicant company ’s appeal and upheld the tax assessment in its entirety . It recognised that the applicant company had fully complied with its VAT reporting obligations in respect of the received supply , but found that the supplier had failed to enter its invoice in its own accounting records on the date it had been issued , DATE , and had not reported its ORG - taxable supply for DATE as it should have done . It therefore concluded that no VAT had been “ charged ” on the supply in question and that the applicant company was accordingly not entitled to deduct the input ORG , in spite of the fact that the supplier had subsequently reported the supply for DATE .

The applicant company appealed against the decision of ORG on DATE , arguing that it could not be denied the right to deduct the input ORG solely because of its supplier ’s belated compliance with its LOC reporting obligations . The applicant company also claimed that the supplier ’s right to deduct the VAT it had paid to its own supplier had been recognised by its tax office , while the applicant company was being denied that right . In its submissions the applicant company relied , inter alia , on LAW No . CARDINAL to the Convention .

In a judgment of CARDINAL DATE ORG dismissed the applicant company ’s appeal and upheld the decisions of the tax directorates . It stated as follows :

“ The ORG finds that the ... objection of the [ applicant company ] is ... unsubstantiated . In particular , [ the applicant company objected that ] it had been the compliant party , while the supplier had not complied with its obligations . The right to ... [ deduct the input VAT ] arises for the recipient of a [ taxable ] supply only if the supplier has fulfilled the conditions under section CARDINAL in conjunction with section CARDINAL of LAW . The LAW does not differentiate between the parties to a supply transaction as regards compliance ; the court can not therefore introduce such an element into this judgment . ”

On DATE the applicant company appealed to ORG .

In a final judgment of DATE ORG concurred with the findings and conclusions of the tax authorities and stated the following :

“ ... In this case the non - compliance of the supplier impacts unfavourably on the recipient ... , because the right to recover the [ input ORG ] does not arise for [ the latter ] and it does not matter that the recipient of the [ taxable ] supply [ acted ] in good faith and [ was ] compliant ... , as this is irrelevant for the [ purposes of ] taxation . ... There [ is ] also [ no ] ... violation of ... LAW , because the refusal to recognise the claimant ’s right to [ deduct the input ORG ] under LAW ( CARDINAL ) of LAW did not violate its property rights , due [ to the fact that ] the recognition of its substantive right [ to deduct ] under LAW of LAW is conditional on the actions of its supplier and [ the latter ’s ] discharge [ of its obligations ] vis - à - vis [ the ORG ] budget . ... ”

LAW came into force on DATE . Although at the time GPE was not a member of ORG ( ORG ) , domestic NORP legislation in many respects followed the provisions of ORG CARDINAL/CARDINAL/EEC of CARDINAL DATE on the harmonisation of the laws of the Member GPE relating to turnover taxes , known as the Sixth ORG , which at the time was the principal basis for the system of valueadded tax in the GPE .

NORP In general , GPE was charged on the price due for a supply of goods or services plus certain costs , taxes and charges not including the ORG itself . Most domestic supplies of goods and services , as well as imports , were subject to the standard rate of PERCENT VAT .

VAT was generally reported and paid DATE . LOC returns had to be filed and DATE ORG payments made by DATE of DATE .

At the relevant time , any person ( legal or natural , resident or nonresident ) who had a taxable turnover exceeding BGN CARDINAL ( EUR CARDINAL ) during any preceding DATE period was obliged to register for GPE purposes ( section CARDINAL ) . Voluntary and optional registration was also possible in certain cases .

On DATE , when GPE became a member of the GPE , LAW was replaced by a new act of the same name .

At the relevant time the input VAT – the so - called “ tax credit ” under domestic legislation – was the amount of tax which a ORG person had been charged under LAW for receipt of a taxable supply of goods or services , or for imported goods , in a given tax period , which the person in question had the right to deduct ( section CARDINAL ) .

During the relevant period and in the context of the present case , where the ORG incurred on supplies exceeded the LOC charged on sales in a given tax period , the excess GPE was first carried forward for DATE to offset any VAT debt due in DATE , as well as other liabilities to the ORG ( sections CARDINAL and CARDINAL ) . If at the end of the DATE period the excess ORG , or part thereof , had still not been recovered , the balance was refunded within a further DATE ( section CARDINAL ) . This period could be extended if the tax authorities initiated a tax audit ( section CARDINAL § CARDINAL ) .

At the relevant time , section CARDINAL of LAW provided that the recipient of a supply could deduct the input GPE when the following conditions were fulfilled :

( a ) the recipient of the supply on which ORG had been charged was a GPE - registered person ;

( b ) the ORG had been charged by the supplier , who was a ORG person , at the latest on the date of issuance of the ORG invoice ;

( c ) LOC was chargeable on the supply in question ;

( d ) the goods or services received were used , were being used or would be used for GPE - taxable supplies ; and ,

( e ) the recipient was in possession of a ORG invoice which met the statutory requirements .

Further to the above , in respect of item ( b ) , ORG was considered during the relevant period to have been charged when the supplier :

( CARDINAL ) issued an invoice which indicated the VAT ;

( CARDINAL ) recorded the issuance of the invoice in its sales register ;

( CARDINAL ) entered the LOC charged in its accounting records as a liability to the ORG budget ; and

( CARDINAL ) declared the ORG charged in its GPE return filed with the tax authorities ( section CARDINAL § CARDINAL ) .

At the relevant time , GPE was not a member of ORG . Accordingly , the acquis communautaire was not directly applicable or transposed into domestic legislation . However , as noted above , its domestic GPE legislation in many respects followed the provisions of the Sixth VAT Directive ( see paragraph CARDINAL above ) .

Consequently , it is worth mentioning in the context of the present case the following CARDINAL judgments of ORG of ORG ) , which examine the entitlement of the recipient of a supply to reimbursement of the VAT charged on such a supply in cases of suspected “ carousel fraud ” . This type of fraud , a kind of GPE missing trader intra - Community fraud , occurs when goods are imported GPE - free from other Member GPE , are then re - sold through a series of companies at GPE - inclusive prices and subsequently re - exported to another Member State with the original importer disappearing without paying over to the tax authorities the VAT paid by its customers .

In its judgment of DATE in joined cases PERSON , PERSON and C-CARDINAL/CARDINAL , ORG ( C-CARDINAL/CARDINAL ) , ORG ( C-CARDINAL/CARDINAL ) and ORG ( C-CARDINAL/CARDINAL ) v Commissioners of ORG : reference for a preliminary ruling from ORG ) , ORG , ORG Reports ( ECR ) DATE , page I-CARDINAL , the ORG concluded as follows :

“ Transactions such as those at issue in the main proceedings , which are not themselves vitiated by value added tax fraud , constitute supplies of goods or services effected by a taxable person acting as such and an economic activity within the meaning of Articles CARDINAL ( CARDINAL ) , CARDINAL and CARDINAL ( CARDINAL ) of Sixth Council Directive CARDINAL/CARDINAL/EEC of CARDINAL DATE on the harmonisation of the laws of the Member GPE relating to turnover taxes – Common system of value added tax : uniform basis of assessment , as amended by ORG DATE , where they fulfil the objective criteria on which the definitions of those terms are based , regardless of the intention of a trader other than the taxable person concerned involved in the same chain of supply and/or the possible fraudulent nature of another transaction in the chain , prior or subsequent to the transaction carried out by that taxable person , of which that taxable person had no knowledge and no means of knowledge . The right to deduct input value added tax of a taxable person who carries out such transactions can not be affected by the fact that in the chain of supply of which those transactions form part another prior or subsequent transaction is vitiated by value added tax fraud , without that taxable person knowing or having any means of knowing . ”

In a similar judgment of DATE in joined Cases C-CARDINAL/CARDINAL and C-CARDINAL/CARDINAL , PERSON ORG ( C-CARDINAL/CARDINAL ) and NORP State v GPE ( C-CARDINAL/CARDINAL ) ( ECR DATE , page I-CARDINAL ) , the LOC went on to state the following .

“ Where a recipient of a supply of goods is a taxable person who did not and could not know that the transaction concerned was connected with a fraud committed by the seller , LAW CARDINAL/CARDINAL/EEC of CARDINAL DATE on the harmonisation of the laws of the Member GPE relating to turnover taxes – Common system of value added tax : uniform basis of assessment , as amended by ORG DATE , must be interpreted as meaning that it precludes a rule of national law under which the fact that the contract of sale is void – by reason of a civil law provision which renders that contract incurably void as contrary to public policy for unlawful basis of the contract attributable to the seller DATE causes that taxable person to lose the right to deduct the value added tax he has paid . It is irrelevant in this respect whether the fact that the contract is void is due to fraudulent evasion of value added tax or to other fraud .

By contrast , where it is ascertained , having regard to objective factors , that the supply is to a taxable person who knew or should have known that , by his purchase , he was participating in a transaction connected with fraudulent evasion of value added tax , it is for the national court to refuse that taxable person entitlement to the right to deduct . ”


The applicant is a NORP national who was born on DATE and who lives in GPE . He is represented before the ORG by Mr PERSON , ORG . ORG ( “ the Government ” ) are represented by their Agent , PERSON , ORG .

The applicant was widowed on DATE . There were CARDINAL children of the marriage , born on DATE , DATE and DATE .

On DATE the applicant applied for widows’ benefits . He was finally refused by ORG on DATE .

The applicant is a NORP national who was born on DATE and who lives in GPE . He is represented before the ORG by PERSON , ORG solicitors , GPE . The Government are again represented by PERSON .

The applicant was widowed on DATE . There was CARDINAL child of the marriage , born on DATE .

On DATE the applicant made an application for survivors’ benefits . He was informed by a letter dated CARDINAL DATE that his claim had been refused .

The applicant is a NORP national who was born on DATE and who lives in GPE . He is not represented before the ORG . The Government are again represented by PERSON .

On DATE the applicant claimed widows’ benefits . His claim was disallowed on DATE . The applicant appealed and his appeal was refused on DATE .

The applicant is a NORP national who was born on DATE and who lives in GPE . He is represented before ORG RDW , solicitors practising in GPE . The Government are again represented by PERSON .

The applicant was widowed on DATE . There were CARDINAL children of the marriage , born on DATE and CARDINAL DATE .

Shortly after his wife ’s death , PERSON made a telephone enquiry to ORG about survivors’ benefits , but was informed that such benefits were not available for men . On DATE he made a formal application for survivors’ benefits . He was informed on DATE that his claim had been refused .

The applicant was widowed on DATE . In DATE he claimed ORG from his local ORG . He was informed by a decision dated DATE that there was no entitlement to Widowed Parents Allowance because he was no longer in receipt of child benefit , and by a decision dated DATE that his claim for ORG had been refused because his spouse had died before DATE , the date of the introduction of Bereavement Benefit .

The applicant was widowed on DATE . There were CARDINAL children of the marriage , born on DATE and DATE .

After his wife ’s death , the applicant enquired about survivors’ benefits , and he was informed on DATE that he was not entitled because he was a man . The applicant appealed and his appeal was finally refused on DATE .

After his wife ’s death , the applicant enquired about survivors’ benefits , and he was informed that he was not entitled because he was a man . He made a formal application on DATE which was refused on DATE .

The applicant was widowed on DATE . He made an application for survivors’ benefits on DATE , which was refused on DATE . At the time of his application to ORG he was not in receipt of child benefit .

The applicant was widowed on CARDINAL DATE . His youngest child was born on DATE .

DATE after his wife ’s death the applicant claimed widows’ benefits and was refused . He made a second , formal application on DATE which was finally refused on DATE .

The applicant is a NORP national who was born on DATE and who lives in GPE . He is represented before the ORG by Mr PERSON , GPE and ORG . ORG are again represented by Mr C. Whomersley .

The applicant was widowed on DATE . There were CARDINAL children of the family , born on DATE and DATE .

DATE after his wife ’s death , and again in DATE , the applicant enquired about survivors’ benefits and was told that such benefits were not available to men . He made a formal application on DATE which was finally refused on DATE .

The applicant is a NORP national who was born on DATE and who lives in GPE . He is represented before the ORG by Mr PERSON , ORG , GPE . The Government are again represented by Mr C. Whomersley .

The applicant was widowed on DATE . There were CARDINAL children of the family , born on DATE and CARDINAL DATE .

Shortly after his wife ’s death the applicant enquired about survivors’ benefits and was told that such benefits were not available to men . He made a formal application on DATE which was finally refused on DATE .

The domestic law relevant to these applications is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV .


No violation of Art. 3;No violation of Art. 9;No violation of P1-2;Violation of Art. 13+P1-2;Violation of Art. 13+9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

ORG The CARDINAL applicants are GPE ’s Witnesses . PERSON and PERSON are the parents of GPE , who was born in DATE and is currently a pupil in DATE of ORG secondary education at a school in GPE , GPE .

According to them , pacifism is a fundamental tenet of their religion and forbids any conduct or practice associated with war or violence , even indirectly . It is for this reason that ORG Witnesses refuse to carry out their military service or to take part in any events with military overtones .

ORG On DATE Mr and PERSON submitted a written declaration in order that their daughter PERSON , who was then CARDINAL and in DATE of secondary education at a school in GPE , should be exempted from attending school religious - education lessons , NORP Mass and any other event that was contrary to her religious beliefs , including national - DATE celebrations and public processions .

GPE was exempted from attendance at religious - education lessons and LOC

In DATE , however , she , in common with the other pupils at her school , was asked to take part in the celebration of the National Day on DATE , when the outbreak of war between GPE and NORP GPE on DATE is commemorated with school and military parades .

On this occasion school parades take place in nearly all towns and villages . In the capital there is no military parade on DATE , and in LOC the school parade is held on a different day from the military parade . The school and military parades are only held simultaneously in a small number of municipalities .

GPE informed the headmaster that her religious beliefs forbade her joining in the commemoration of a war by taking part , in front of the civil , ORG and military authorities , in a school parade that would follow an official GPE and would be held on DATE as a military parade .

According to the applicants , the school authorities refused to accept her statement . In the ORG ’s opinion , it was imprecise and muddled and did not make clear the religious beliefs in question . At all events , her request to be excused attendance was refused but she nevertheless did not take part in the school ’s parade .

ORG On DATE the headmaster of the school punished her for her failure to attend with DATE suspension from school . That decision was taken in accordance with ORG no . CCARDINAL/CARDINAL/CARDINAL of DATE issued by ORG ( see paragraph CARDINAL below ) .

ORG LAW contains the following provisions :

" CARDINAL . The dominant religion in GPE is that of ORG . ORG , which recognises as its head Our Lord PERSON , is indissolubly united , doctrinally , with FAC of GPE and with any other ORG in communion with it [ omodoxi ] , immutably observing , like the other Churches , the holy apostolic and synodical canons and the holy traditions . It is autocephalous and is administered by ORG , composed of all the bishops in office , and by the standing ORG , which is an emanation of it constituted as laid down in GPE and in accordance with the provisions of LAW of DATE and LAW DATE .

The ecclesiastical regime in certain regions of the ORG shall not be deemed contrary to the provisions of the foregoing paragraph .

The text of ORG is unalterable . No official translation into any other form of language may be made without the prior consent of the autocephalous ORG and ORG at GPE . "

" CARDINAL . Freedom of conscience in religious matters is inviolable . The enjoyment of personal and political rights shall not depend on an individual ’s religious beliefs .

There shall be freedom to practise any known religion ; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law . The performance of rites of worship must not prejudice public order or public morals . Proselytism is prohibited .

The ministers of all known religions shall be subject to the same supervision by the ORG and to the same obligations to it as those of the dominant religion .

No one may be exempted from discharging his obligations to the ORG or refuse to comply with the law by reason of his religious convictions .

No oath may be required other than under a law which also determines the form of it . "

ORG A royal decree of DATE entitled " Proclamation of the Independence of the Greek Church " described ORG as " autocephalous " . GPE ’s successive Constitutions have referred to the ORG as being " dominant " . According to NORP conceptions , ORG represents de jure and de facto the religion of the ORG itself , a good number of whose administrative and educational functions ( marriage and family law , compulsory religious instruction , oaths sworn by members of the Government , etc . ) it moreover carries out . Its role in public life is reflected by , among other things , the presence of the Minister of ORG and ORG at the sessions of the ORG hierarchy at which the Archbishop of GPE is elected and by the participation of the ORG authorities in all official ORG events ; the President of the Republic takes his oath of office according to NORP ritual ( Article CARDINAL para . CARDINAL of the LAW ) ; and the official calendar follows that of ORG .

Circular no . ORG DATE issued by ORG and ORG provides :

" Schoolchildren who are GPE ’s Witnesses shall be exempted from attending religious - education lessons , school prayers and GPE

In order for a schoolchild to benefit from this exemption , both parents ( or , in the case of divorced parents , the parent in whom parental authority has been vested by court order , or the person having custody of the child ) shall lodge a written declaration to the effect that they and their child ( or the child of whom they have custody ) are ORG .

No schoolchild shall be exempted from taking part in other school activities , such as national events . "

ORG The relevant Articles of Presidential Decree no . CARDINAL of CARDINAL DATE and DATE are the following :

" CARDINAL . The behaviour of pupils inside and outside the school shall constitute their conduct , irrespective of the manner – by act or by omission DATE in which they express it .

Pupils shall be required to conduct themselves suitably , that is to say in accordance with the rules governing school life and the moral principles governing the social context in which they live , and any act or omission in contravention of the rules and principles in question shall be dealt with according to the procedures provided in the educational system and may , if necessary , give rise to the disciplinary measures provided in this decree . "

The disciplinary measures laid down in LAW are , in increasing order of severity , a warning , a reprimand , exclusion from lessons for TIME , suspension from school for DATE and transfer to another school .

" Suspended pupils may remain at school during teaching TIME and take part in various activities , under the responsibility of the headmaster . "

Article CARDINAL of the LAW provides :

" Any person , or persons acting jointly , shall be entitled , subject to compliance with the laws of the ORG , to submit written petitions to the authorities . The latter shall be required to act as quickly as possible in accordance with the provisions in force and to give the petitioner a reasoned written reply in accordance with the statutory provisions . "

LAW no . ORG provides :

" Once the authorities have received the petition [ provided for in LAW ] , they must reply in writing and give the petitioner all necessary explanations , within the time deemed absolutely necessary , which shall not exceed DATE from service of the petition . "

ORG Article CARDINAL of the LAW is worded as follows :

" The following shall in principle lie within the jurisdiction of ORG :

( a ) the setting aside , on application , of enforceable acts of the administrative authorities for misuse of authority or error of law .

According to the settled case - law of ORG , " decisions of school authorities to impose on pupils the penalties provided in LAW no . CARDINAL/CARDINAL are intended to maintain the necessary discipline within schools and contribute to their smooth running ; they are internal measures which can not be enforced through the courts , and no application lies to have them set aside by the courts " ( judgments nos . CARDINAL/CARDINAL , DATE and DATE ) . Only transfer to another school has been held to be enforceable and amenable to being quashed by ORG ( judgment no . DATE ) .

Section CARDINAL of the Introductory Law to the Civil Code provides :

" The ORG shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority , except where the unlawful act or omission is intended to serve the public interest . The person responsible shall be jointly and severally liable , without prejudice to the special provisions on ministerial responsibility . "

This section establishes the concept of a special prejudicial act in public law , creating State liability in tort . This liability results from unlawful acts or omissions . The acts concerned may be not only legal acts but also physical acts by the administrative authorities , including acts which are not in principle enforceable through the courts ( PERSON , Interpretation of the Civil Code , section CARDINAL of the Introductory Law to LAW , no . CARDINAL ; ORG , Contract , ORG , volume CARDINAL , Tort , DATE , para . CARDINAL B CARDINAL ; PERSON , ORG , CARDINALrd edition , para . CARDINAL ; ORG judgment no . CARDINAL , PERSON , DATE , p. CARDINAL ; ORG judgment no . CARDINAL/CARDINAL , PERSON , DATE , p. CARDINAL ) .

The admissibility of an action for damages is subject to CARDINAL condition , namely the unlawfulness of the act or omission .

LAW ( " Personal rights " ) provides :

" Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement . Where the personal rights infringed are those of a deceased person , the right to bring proceedings shall be vested in his spouse , descendants , ascendants , brothers , sisters and testamentary beneficiaries . In addition , claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded . "


Art. 8 inapplicable;Art. 14 inapplicable

C. Russo;Feyyaz Gölcüklü;John Freeland;R. Pekkanen

Mr PERSON , who was born in DATE and lives in GPE ( GPE province ) , is physically disabled .

In DATE he went on holiday to the seaside resort of LOC degli LOC , near to the town of PERSON ( GPE ) with a friend , who is also physically disabled . There he discovered that the bathing establishments were not equipped with the facilities needed to enable disabled people to gain access to the beach and the sea ( particularly special access ramps and specially equipped lavatories and washrooms ) , in breach of NORP legislation , which required a clause obliging private beaches to facilitate the access of disabled people to be added to the relevant concession contracts and made provision for compliance to be enforced by the competent local authorities . According to ORG , the compulsory clause was , however , only added to concession contracts signed after the adoption of the provisions concerned .

The applicant asserts that he was for a time able to gain access in his vehicle to certain public beaches without facilities , but was later prevented from doing so because a barrier had been erected across the entrance by order of the GPE harbour - master .

On DATE the applicant sent a letter to the mayor of PERSON asking him to take the necessary measures to remedy the shortcomings noted DATE . No reply was received .

NORP In DATE Mr PERSON returned to LOC degli ORG , where he found that none of the measures requested had been implemented , although they were mandatory . He was therefore obliged to ask the local coastal authority for permission to drive his vehicle onto a public beach without facilities . He also wrote to various local bodies , receiving the following replies : the president of the cooperative which ran the resort ’s private beaches informed him that the concession contracts did not stipulate any obligation to install the facilities requested ; the local coastal authority replied that it had to receive an official request before it could authorise the construction of special access ramps on the beaches ; the mayor asserted that it was the private beaches’ responsibility to install the facilities in question , but nevertheless gave the applicant permission to drive onto a public beach in his vehicle .

In an undated memorandum the coastal authority gave him permission to drive onto a public beach without facilities in his vehicle for a limited period expiring on DATE .

On DATE the applicant decided to lodge a complaint with the carabinieri against the Minister for Merchant Shipping , the GPE harbour - master and the mayor and deputy mayor of PERSON . He alleged that , by failing to take any steps whatsoever to oblige the private beaches to install the facilities for disabled people prescribed by law on pain of cancellation of their licences , these authorities had committed the offence of omitting to perform an official duty ( omissione d’atti d’ufficio ) , as defined in LAW .

On DATE he asked the PERSON public prosecutor ’s office to inform him where matters stood in the case .

On DATE the public prosecutor ’s office submitted that the proceedings should be discontinued .

In an order of CARDINAL DATE the judge responsible for preliminary investigations ( giudice per le indagini preliminari ) attached to LOC ordered the discontinuation of the proceedings on the ground that , having completed his inquiry , he had not found any evidence that the offence defined in LAW had been committed , given that the beaches’ concession contracts all contained a clause which obliged bathing establishments to make the beaches accessible to disabled people and to install CARDINAL changing cubicle and one lavatory for their use .

On DATE Mr PERSON once again wrote to the LOC public prosecutor ’s office seeking information about the state of the proceedings .

On DATE he was informed by telephone that the proceedings relating to his complaint had been discontinued .

According to information supplied by the applicant and not contradicted by the Government , although some of the private beaches in LOC degli ORG have subsequently installed changing cubicles and lavatories for disabled people , in DATE none of them had yet built a ramp designed to permit disabled people to gain access to the beach and the sea . On DATE ORG informed the registry of ORG , on DATE , of the resort ’s new improvements plan , under which compliance with the law on bathing establishments had to be achieved by DATE at the latest .

Law no . CARDINAL of CARDINAL DATE contains provisions intended to guarantee disabled people effective access to private buildings and establishments and the removal of architectural obstructions ( barriere architettoniche ) . section CARDINAL ) laid down in particular that within DATE of its entry into force the Minister of Public Works had to publish in the form of a decree the technical specifications to be used for the construction of private buildings and low - rent housing . The law also gives mayors certain duties , including an obligation to ensure that work to adapt facilities for use by disabled people is carried out at their request . In particular , FAC provides that , after receiving a request from a disabled person , a mayor must calculate what sum the ORG requires to do the work and inform the GPE accordingly . The Region then ascertains its own needs and requests the necessary funds from ORG . This money is paid out from the ad hoc fund set up pursuant to section CARDINAL of the PERSON .

On DATE , pursuant to section CARDINAL ) of the PERSON , ORG adopted a decree ( no . CARDINAL ) requiring all future contracts awarding concessions to private beaches to include a clause obliging the beaches to install CARDINAL changing cubicle and one lavatory specially designed for the use of disabled people and in addition to construct a special ramp enabling them to gain access to the beach and the sea .

On DATE ORG drew the attention of all harbour - masters to these provisions .

NORP Moreover , section CARDINAL ) of PERSON no . CARDINAL of CARDINAL DATE makes the grant of a concession in respect of public land , and its renewal , subject to implementation of the above measures by the establishments concerned . In addition , Law no . CARDINAL of CARDINAL DATE lays down equivalent provisions regarding the removal of architectural obstructions from public buildings and buildings open to the public .

Lastly section CARDINAL(CARDINAL ) of PERSON no . CARDINAL of DATE requires the competent administrative authorities to send the Prime Minister an DATE report on the measures to assist disabled people for which they bear responsibility .

In DATE no report for the purposes of section CARDINAL(CARDINAL ) of PERSON no . CARDINAL of DATE was submitted by ORG , which had replaced ORG in DATE , and the report submitted by ORG merely stated that in DATE none of the work for which it bore responsibility had been carried out because the relevant procedures had not yet been laid down .

Recommendation No . R ( CARDINAL ) CARDINAL of ORG , of CARDINAL DATE , on a coherent policy for people with disabilities , defines a handicap as

“ a social disadvantage , for a given individual , resulting from an impairment or a disability , that limits or prevents the fulfilment of a role that is normal ( depending on age , sex , and social and cultural factors ) for that individual ” .

The recommendation urges member ORG to “ guarantee the right of people with disabilities to an independent life and full integration into society , and recognise society ’s duty to make this possible ” so as to ensure “ equality of opportunity ” for people with disabilities . The public authorities should aim , inter alia , to enable people with disabilities “ to have as much mobility as possible , and access to buildings and means of transport ” and “ to play a full role in society and take part in economic , social , leisure , recreational and cultural activities ” .

As regards leisure time and cultural activities in particular , Recommendation No . R ( CARDINAL ) CARDINAL states :

“ All leisure , cultural and holiday activities should be made accessible to people with disabilities ;

Structural , technical , physical and attitudinal obstacles which limit the enjoyment of the above activities should be removed . In particular , access to cinemas , theatres , museums , art galleries , tourist venues and holiday centres should be improved …

Cultural and leisure venues should be planned and equipped so that they are accessible and can be enjoyed by people with disabilities . ”

The recommendation also states : “ The exercise of basic legal rights of people with disabilities should be protected , including being free from discrimination . ”

Recommendation CARDINAL ( DATE ) , adopted by ORG of ORG DATE , on rehabilitation policies for the disabled , emphasises : “ ORG has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives . ” In furtherance of that aim , it calls on the governments and agencies concerned “ to strive for and encourage genuine active participation by disabled people … in the community and society ” and , to that end , “ to guarantee ease of access to buildings ” .

The revised NORP Social Charter , adopted by ORG on DATE and opened for signature on DATE , provides in its LAW , entitled “ Right of persons with disabilities to independence , social integration and participation in the life of the community ” :

“ With a view to ensuring to persons with disabilities , irrespective of age and the nature and origin of their disabilities , the effective exercise of the right to independence , social integration and participation in the life of the community , the Parties undertake , in particular :

to promote their full social integration and participation in the life of the community , in particular through measures , including technical aids , aiming to overcome barriers to communication and mobility and enabling access to transport , housing , cultural activities and leisure . ”