CASE OF VASTBERGA TAXI AKTIEBOLAG AND VULIC v. SWEDEN

Violation of Art. 6-1 in respect of access to court;Violation of Art. 6-1 in respect of length of proceedings;No violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The first applicant , ORG , a taxi company , was dissolved due to a lack of assets on DATE . The second applicant , PERSON , was the director of the first applicant . At the time when the tax liability in dispute in the present case arose , he owned PERCENT of its shares . Later , he acquired all the shares of the company .

In DATE , as part of a large - scale investigation into taxicab operators , ORG ( skattemyndigheten ) of GPE carried out a tax audit concerning the first applicant 's taxi business . Having previously submitted its tax returns for DATE , the first applicant was asked to submit supplementary information on several occasions , starting on DATE . Having discovered in the course of the audit certain irregularities in the tax returns , ORG informed the first applicant on DATE that it intended to revise upwards the figure given in the tax returns for the turnover of the taxi business and impose additional taxes and tax surcharges on the company . The first applicant was invited to submit further comments , which it did .

Having regard to the findings of the audit and the first applicant 's observations , ORG – by a decision of DATE revised upwards the turnover of the company 's business by MONEY ( SEK ) . After deductions for undeclared salary and petrol costs , ORG assessments resulted in an increase in the deficit of the first applicant 's business . However , by decisions of CARDINAL and DATE , the taxation bases for calculating value - added tax ( mervärdesskatt ) and employer 's contributions ( arbetsgivaravgifter ) were raised upwards in correspondence with the turnover and , as a consequence , the first applicant 's liability to value - added tax and employer 's contributions were increased by ORG and CARDINAL , respectively . Moreover , as the information supplied by the first applicant in its tax returns was found to be incorrect and its liability to value - added tax and employer 's contributions had been increased under a discretionary assessment procedure , ORG ordered it to pay tax surcharges ( skattetillägg , avgiftstillägg ) amounting to PERCENT of the increased tax liability . The additional taxes levied on the first applicant , including interest and surcharges , totalled SEK CARDINAL , of which SEK CARDINAL,CARDINAL were surcharges . It appears that the whole of the amount was payable in DATE .

On DATE ORG presented a report , according to which it intended to raise upwards the second applicant 's taxable income and impose a tax surcharge , as a consequence of the assessments concerning the first applicant . The second applicant was invited to submit comments , which he did .

By a decision of DATE ORG increased the second applicant 's liability to income tax by SEK CARDINAL,CARDINAL . Like the first applicant , and for the same reasons , he was ordered to pay tax surcharges . The additional tax levied on the second applicant , including interest and surcharges , totalled FAC , of which SEK CARDINAL,CARDINAL were surcharges . The whole of the amount was payable on DATE .

Claiming that the information relied upon by ORG to calculate the turnover of the first applicant 's business was inaccurate , both applicants challenged ORG decisions , the first applicant on DATE in a request for the ORG 's reconsideration and the second applicant on DATE in an appeal against the relevant decision . The applicants also requested that the execution of the amounts assessed be stayed . The requests were prompted by the fact that neither an appeal to a court nor a request for reconsideration by ORG had in itself any suspensive effect on the obligation to pay the taxes and surcharges due as a result of the impugned decisions .

By decisions of CARDINAL DATE and CARDINAL DATE ORG rejected the applicants ' requests for stays of execution , stating that the prerequisites laid down in section CARDINAL of LAW ( Uppbördslagen , DATE ) had not been fulfilled .

By judgments of CARDINAL DATE and DATE , following appeals by the applicants , ORG ( länsrätten ) of GPE quashed ORG decisions and referred the cases back to the ORG . Having found that the formal prerequisites for granting stays of execution under LAW , subsection CARDINAL ( CARDINAL ) of LAW had been fulfilled , the court went on to state :

“ However , the granting of a stay of execution under this particular provision is conditional on security being provided , if , for some reason , it can be assumed that the amount in respect of which a stay of execution has been sought will not be duly paid . As ORG did not rule on the compliance with that condition , ORG finds that the decision[s ] should be quashed and the NORP ] referred back to ORG , which must examine the question whether security is required . ”

On DATE and DATE , respectively , ORG again rejected the applicants ' requests for stays of execution . ORG found that the applicants ' ability to pay was open to doubt , that stays of execution could not therefore be granted unless security was provided and that , although given the opportunity to do so , the applicants had failed to provide security . Accordingly , their requests could not be granted .

The applicants appealed against those decisions to ORG , claiming that they should be exempted from the obligation to provide security and granted stays of execution . Both claims rested on the contention that it would be unreasonable and amount to a violation of LAW for enforcement proceedings to be instituted against the applicants without their cases having first been determined " in due course " .

By judgments of CARDINAL DATE , subscribing to the reasons given by ORG , ORG upheld the impugned decisions .

The applicants , who did not furnish security , lodged a notice of appeal . On DATE ORG ( kammarrätten ) in GPE refused them leave to appeal against ORG judgments . They did not appeal to ORG ( Regeringsrätten ) .

Meanwhile , each of the debts being outstanding and no stays of execution having been granted , the applicants were registered as being in arrears with the taxes and tax surcharges imposed as a result of ORG decisions . Enforcement proceedings were therefore instituted against both applicants .

On DATE ORG ( kronofogde - myndigheten ) of GPE , representing the ORG , filed a petition with ORG ( tingsrätten ) of GPE , requesting that the first applicant be declared bankrupt . According to a statement submitted by the ORG , as of DATE the first applicant 's tax liability relating to the assessment DATE amounted to SEK CARDINAL,CARDINAL , including penalties for late payment ( dröjsmålsavgifter ) that had accrued since DATE on which payment could have been made . That amount included SEK CARDINAL,CARDINAL , plus PERCENT in penalties for late payment , in tax surcharges . The first applicant also had a smaller tax liability relating to DATE . The ORG noted that an investigation had revealed that the first applicant owned no property that could be seized in order to cover the debts in question .

ORG held a hearing in the case on DATE . Although duly summoned , however , no representative of the first applicant appeared before the court . Instead , written observations previously submitted on its behalf were read out . According to TIME of the hearing , the first applicant alleged in those observations that LAW had been breached in that it had been denied a fair hearing .

By a decision of DATE ORG declared the first applicant bankrupt . In so doing it noted that the alleged breach of LAW did not affect the ORG 's standing to petition for bankruptcy , that the first applicant was under an obligation to pay the debts and that it had to be considered insolvent as it had been found to have no distrainable assets .

The first applicant appealed to ORG ( PERSON hovrätt ) , claiming , inter alia , that ORG decision amounted to a violation of LAW in that the enforcement proceedings had been allowed to continue irrespective of the fact that ORG decisions regarding its liability to taxes and tax surcharges had not yet been reviewed by a court .

The first applicant 's appeal was dismissed by ORG on DATE . Leave to appeal against the appellate court 's decision was refused by ORG ( ORG domstolen ) on DATE .

On DATE the bankruptcy proceedings were terminated owing to a lack of assets .

On DATE and DATE ORG seized the second applicant 's savings in CARDINAL banks , amounting to a total of SEK CARDINAL,CARDINAL , in partial defrayment of his tax liability .

The second applicant appealed to ORG , requesting that the seizure be quashed . The appeal was dismissed by the court on DATE . He made no further appeals , considering that they would have no prospects of success .

Following ORG decision of CARDINAL DATE to seize part of the second applicant 's DATE income , some minor amounts were recovered . By a decision of CARDINAL DATE this seizure was discontinued . As of QUANTITY DATE the second applicant 's tax liability relating to the assessment DATE amounted to SEK CARDINAL,CARDINAL , including penalties for late payment . Of the original debt of SEK CARDINAL,CARDINAL , SEK CARDINAL remained unpaid . In accordance with section CARDINAL of LAW ( NORP om preskription av skattefordringar ORG . , CARDINAL:CARDINAL ) , the whole debt became statute - barred on DATE , at DATE following DATE it became due .

On DATE ORG reported the second applicant to ORG ( åklagarmyndigheten ) in GPE for suspected tax crimes based on the information obtained during the tax audit and the statements made in the applicants ' tax returns . On DATE the second applicant was indicted for a bookkeeping offence . A hearing was held by FAC on DATE . During the course of the hearing , the public prosecutor withdrew the charges and ORG consequently struck the case out of its list .

As mentioned above , on DATE , the first applicant requested ORG to reconsider its decisions on taxes and tax surcharges . On DATE the ORG decided not to change its decision of CARDINAL DATE concerning the assessment of the turnover of the company 's business . Subsequently , the first applicant sent comments and questions to ORG , which replied to the questions on CARDINAL DATE . On DATE the first applicant lodged formal notices of appeal against ORG decisions . It also submitted comments and questions to ORG , which , by a letter of DATE , stated that it stood by its decisions . The first applicant presented further observations on DATE . By decisions of CARDINAL and DATE ORG refused to change the impugned decisions . Consequently , the matters were automatically referred to ORG for determination .

By a decision of CARDINAL DATE ORG dismissed the first applicant 's appeals . The ORG considered that , as it had been dissolved on DATE , the company lacked legal capacity ( rättskapacitet ) to act as a party . Accordingly , the appeals could not be examined .

On DATE ORG upheld ORG decision . On DATE the first applicant appealed to ORG . By a decision of DATE the latter court granted leave to appeal . Thus , the matter is presently pending before ORG .

At the same time as his appeal of DATE , the second applicant submitted comments and questions to ORG , which replied on DATE . DATE he sent a letter to the ORG . By a letter of DATE the ORG stated that it stood by its previous decision . The second applicant presented further comments on DATE . On DATE ORG refused to change the impugned decision . Consequently , the matter was automatically referred to ORG for determination .

By a judgment of CARDINAL DATE ORG upheld ORG decision of DATE . It considered that the information on which the impugned decisions were based was reliable and showed that the applicant 's income and the tax in question could not be assessed in accordance with the statements made in his tax returns . Thus , ORG had had good reason to make discretionary tax assessments based on the information obtained during the audit . Furthermore , the amount levied on the applicant could not be considered too high . ORG also considered that there had been sufficient reasons to impose the tax surcharge in question and that no legal basis for remitting it had been shown .

On DATE ORG upheld ORG judgment . During the course of the proceedings before the appellate court the second applicant was on CARDINAL occasion granted a DATE extension of a time - limit for the submission of observations . On DATE he appealed to ORG . Following another extension of a similar time - limit , he completed his appeal on DATE . By a decision of CARDINAL DATE ORG refused him leave to appeal .

The rules on taxes and tax surcharges relevant to the present case were primarily laid down in LAW ( Taxeringslagen , CARDINAL:CARDINAL ) , the CARDINAL ORG ( NORP om mervärdeskatt , ORG , replaced by PERSON , CARDINAL ) and ORG from Employers Act ( NORP om uppbörd av socialavgifter PERSON arbetsgivare , CARDINAL:CARDINAL ) . Issues concerning taxation and the imposition of tax surcharges were regulated in a very similar manner in the various acts . In the following section , therefore , reference is made only to the provisions of LAW . LAW and parts of ORG DATE were replaced by LAW ( Skattebetalningslagen , DATE ) as from DATE . As no essential changes have been made by either the enactment of LAW or amendments to LAW , the following account describes both the present system and the one applicable at the material time .

Income tax , value - added tax and employer 's contributions are all determined by county tax authorities , to which taxpayers are obliged to submit information relevant to the assessment of taxes . For the purpose of securing timely , sufficient and correct information , there are provisions stipulating that , under certain circumstances , the tax authorities may impose penalties on the taxpayer in the form of tax surcharges .

These surcharges were introduced into NORP legislation in DATE . The new provisions entered into force on DATE at the same time as a new act on tax offences . According to the preparatory documents ( Government Bill CARDINAL ) , the main purpose of the reform was to create a more effective and fairer system of penalties than the old CARDINAL , which was based entirely on criminal penalties determined by the ordinary courts following police investigation and prosecution . Unlike penalties for tax offences , the new surcharges were to be determined solely on objective grounds , and , accordingly , without regard to any form of criminal intent or negligence on the part of the taxpayer . It was thought that the old system did not function satisfactorily , since a large number of tax returns contained incorrect information whereas relatively few people were charged with tax offences . Now that the new system has been introduced only serious tax offences are prosecuted .

A tax surcharge is 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 ( chapter CARDINAL , section CARDINAL of LAW ) or if , following a discretionary assessment , the tax authority decides not to rely on the tax return ( chapter CARDINAL , LAW ) . 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 . However , incorrect claims are not penalised ; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof , no surcharge is imposed . The burden of proving that the information is incorrect lies with the tax authority . A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the tax authority can not base its tax assessment on it or if he or she has not filed a tax return despite having been reminded of the obligation to do so ( chapter CARDINAL , section CARDINAL ) . In the latter case the decision to impose a tax surcharge will be revoked if the taxpayer files a tax return within a certain time - limit . The surcharge amounts to PERCENT of either the income tax which ORG would have failed to levy if it had accepted the incorrect information or the income tax levied under the discretionary assessment . The corresponding provisions on value - added tax and employer 's contributions stipulate that the surcharge comes to PERCENT of the supplementary tax levied on the taxpayer . In certain circumstances , the rates applied are PERCENT or PERCENT , respectively , for the various types of tax .

Notwithstanding the fact that the taxpayer has furnished incorrect information , no tax surcharge will be imposed in certain situations , for example when the tax authority has corrected obvious miscalculations or written errors by the taxpayer , when the information has been corrected or could have been corrected with the aid of certain documents that should have been available to the tax authorities , such as a certificate of income from the employer , or when the taxpayer has corrected the information voluntarily ( chapter CARDINAL , section CARDINAL ) .

NORP Moreover , in certain circumstances , a tax surcharge will be remitted . Thus , taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age , illness , lack of experience or comparable circumstances . The surcharge should also be remitted when the failure appears excusable by reason of the nature of the information in question or other special circumstances , or when it would be manifestly unreasonable to impose a surcharge ( chapter CARDINAL , section CARDINAL ) . The phrase “ the nature of the information ” primarily covers situations where a taxpayer has had to assess an objectively complicated tax question . According to the preparatory documents ( Government PERSON , p. CARDINAL ) , the expression “ manifestly unreasonable ” refers to situations in which the imposition of a tax surcharge would be disproportionate to the fault attributable to the taxpayer or would be unacceptable for other reasons . If the facts of the case so require , the tax authorities must have regard to the provisions on remission , even in the absence of a specific claim to that effect by the taxpayer ( chapter CARDINAL , section CARDINAL ) . In principle , however , it is up to the taxpayer to show due cause for the remission of a surcharge .

If dissatisfied with a decision concerning taxes and tax surcharges , the taxpayer may , before DATE after DATE , request the tax authority to reconsider its decision ( chapter CARDINAL , sections TIME ) . A decision concerning surcharges may also be reviewed at the taxpayer 's request after the expiry of this time - limit , if the decision on the underlying tax issue has not yet become final ( chapter CARDINAL , section CARDINAL ) . The tax authority may also , on its own motion , decide to review its own earlier decision . A review to the taxpayer 's disadvantage must be made before DATE following the assessment year unless the taxpayer , inter alia , has submitted incorrect information during the course of the tax proceedings or has failed to file a tax return or to furnish required information , in which case the time - limit normally expires at DATE after DATE ( chapter CARDINAL , sections CARDINAL and CARDINAL - CARDINAL ) .

The tax authority 's decision may also be appealed against to a county administrative court . As with requests for reconsideration , an appeal has to be lodged before DATE after DATE ( chapter CARDINAL , sections CARDINAL and CARDINAL ) , unless it concerns a tax surcharge based on a tax decision that has not yet become final ( chapter DATE , section CARDINAL ) . Following the appeal , the tax authority must reconsider its decision as soon as possible and , if it decides to vary the decision in accordance with the taxpayer 's request , the appeal will become void ( chapter DATE , section CARDINAL ) . If the decision is not thus amended , the appeal is referred to the county administrative court . If special reasons exist , an appeal may be forwarded by the tax authority to the county administrative court without reconsidering the assessment ( chapter DATE , section CARDINAL ) . Further appeals lie to an administrative court of appeal and , subject to compliance with the conditions for obtaining leave to appeal , ORG .

A tax surcharge is connected to the tax in respect of which it has been imposed in that a successful objection to the underlying tax has an automatic effect on the tax surcharge , which is reduced correspondingly ( chapter CARDINAL , section CARDINAL ) . The tax surcharge may , however , be challenged separately , if grounds for reduction or remission exist ( see above ) .

If the proceedings before a county administrative court or an administrative court of appeal concern a tax surcharge , the appellant has the right to an oral hearing ( chapter CARDINAL , section CARDINAL ) .

At the material time , the collection of taxes and tax surcharges was regulated by LAW , ORG DATE and ORG from Employers Act . The provisions of these Acts relevant to the present case were very similar and , for this reason , only the provisions of LAW are set out below . Since DATE tax collection has been regulated by LAW which contains essentially the same rules as LAW .

A request for reconsideration or an appeal against a decision concerning taxes and tax surcharges has no suspensive effect on the taxpayer 's obligation to pay the amounts in question ( section CARDINAL of LAW and chapter CARDINAL , LAW ) .

However , the tax authority may grant a stay of execution in respect of taxes and surcharges provided that CARDINAL of the following CARDINAL conditions is met : ( CARDINAL ) if it may be assumed that the amount imposed on the taxpayer will be reduced or remitted , ( CARDINAL ) if the outcome of the case is uncertain , or ( CARDINAL ) if payment of the amount in question would result in considerable damage for the taxpayer or would otherwise appear unjust ( section DATE , subsection CARDINAL of LAW ) . According to the preparatory documents , the second condition will be satisfied not only when an outcome favourable to the taxpayer is just as likely as an unfavourable one , but also in cases when it is more probable than not that the proceedings will result in the taxpayer 's claims being rejected . However , a stay will not to be granted if the request for reconsideration or the appeal has little prospect of success ( Government PERSON , p. CARDINAL ) . An example of a situation where “ considerable damage ” might result is the forced sale of the taxpayer 's real estate or business or other property of great importance to his financial situation and livelihood ( ibid . , pp . CARDINAL ) .

NORP If , in cases where the second or third condition just referred to is applicable , it may be assumed DATE due to the taxpayer 's situation or other circumstances DATE that the amount for which a stay of execution is requested will not be duly paid , the request can not be granted unless the taxpayer provides a bank guarantee or other security for the amount due . Even in these cases , however , a stay may be granted without security if the relevant amount is relatively insignificant or if there are other special reasons ( section DATE , subsection CARDINAL ) .

The application of section DATE of LAW was examined by ORG in a judgment of DATE ( case no . DATE , published in PERSON ( RÅ ) DATE ref . CARDINAL ) . In that case , ORG ( PERSON ) and ORG had found that the applicant company DATE which had appealed against ORG decision to impose on it certain energy taxes and interest in the total amount of MONEY CARDINAL,CARDINAL,CARDINAL – could not be granted a stay of execution . ORG noted , however , that there was some uncertainty as regards the main issue in the case – whether the income in question was at all taxable – and that the tax levied constituted a considerable sum . For these reasons , it found that it would be unreasonable to demand payment of the amount before a court had determined the applicant company 's tax liability . Noting that security in principle had to be provided by the company , ORG nevertheless took account of the fact that ORG was expected to determine the tax - liability issue within a short time and that special reasons therefore existed for not requiring security . Accordingly , the applicant company was granted a stay of execution without security until DATE after ORG judgment .

A taxpayer may request the tax authority to reconsider its decision concerning the stay - of - execution issue and may appeal against its decision to a county administrative court . The procedure is essentially identical to that followed in regard to requests for reconsideration and appeals concerning the main tax issues ( sections CARDINAL , CARDINAL and CARDINAL of LAW ; see paragraphs DATE above ) . Further appeals to an administrative court of appeal and ORG are subject to leave to appeal being granted ( section CARDINAL ) .

The enforcement offices are under an obligation to levy execution on a debtor upon request , even if the tax authority 's decision concerning tax and tax surcharges is not final ( chapter CARDINAL , section CARDINAL and chapter CARDINAL , section CARDINAL of LAW ( ORG ) in conjunction with sections CARDINAL and CARDINAL of LAW ; the latter provisions have been replaced by similar provisions in LAW ) . If the debtor does not have enough distrainable property , the enforcement office may request a district court to declare him or her bankrupt . The debtor will normally be considered insolvent if it is discovered during attempts to levy distress in DATE preceding the presentation of the bankruptcy petition that his or her assets are insufficient to pay the debt in full ( chapter CARDINAL , section CARDINAL of LAW ( PERSON , CARDINAL:CARDINAL ) ) . If the bankrupt 's estate is not sufficient to defray all the existing and expected bankruptcy expenses and other liabilities that the bankrupt has incurred , the bankruptcy proceedings will be terminated ( chapter CARDINAL , section CARDINAL of LAW ) .

ORG If a bankruptcy petition is based on a tax debt determined by a decision that is not yet final , the court examining the petition is required to make an independent assessment of the alleged debt , having regard to the evidence adduced in the bankruptcy proceedings . The court accordingly has to make a prediction about the outcome of the pending tax assessment proceedings ( judgment of ORG of DATE , case no . ORG CARDINAL ) .

ORG If a limited liability company has been declared bankrupt and the bankruptcy proceedings are terminated without any remaining assets , the company is dissolved ( chapter CARDINAL , section CARDINAL of LAW ( ORG , DATE ) ) . Under established NORP case - law , the general rule is that a company thus dissolved has no legal capacity and may not therefore act as a party to legal proceedings . Some exceptions to the rule have been made . As stated by ORG in a judgment of DATE ( case no . DATE , RÅ DATE ref . CARDINAL ) , exceptions have been allowed in cases where it has been considered that special reasons relating to the interests of the company or the opposite party called for a dispute to be examined by a court after the dissolution of the company . As an example of such special reasons , the court mentioned the possibility that a company 's claims in tax proceedings would be accepted and lead to repayment of taxes and , as a consequence , a further distribution to the bankruptcy creditors . In the case before the court , the company in question was found to have no justified interest of its own in the continuation of the relevant tax proceedings as the successful outcome of those proceedings would not lead to any assets being returned to the company or the bankruptcy estate . However , the ORG had sued the former company directors in civil proceedings , claiming that they were jointly responsible for the tax debt in dispute in the company 's case . Finding that it was uncertain whether the directors could have the underlying tax issue examined in the civil proceedings , the court considered that they had a justified interest in having the tax issue determined in the tax proceedings . As a consequence , the dissolved company was given the right to act as a party to those proceedings .

As taxes and tax surcharges are payable even if the tax authority 's decision is not final , the decision may be varied or quashed after the relevant amounts have been paid . If so , the amount overpaid is refunded with interest ( chapter DATE , section CARDINAL and chapter CARDINAL , sections CARDINAL and CARDINAL of LAW ) . If distress has been levied on the taxpayer 's property or he or she has been declared bankrupt on account of the tax debt , the distress warrant or bankruptcy decision will be set aside on appeal . Should the warrant or decision have become final , the taxpayer may , upon request , have the case reopened and the warrant or decision quashed ( chapter LAW ( Rättegångsbalken ) ) . Any property that has been distrained upon will , if possible , then be restored to the taxpayer ( chapter CARDINAL , section CARDINAL of LAW ) . The same applies to property forming part of a bankrupt 's estate to the extent that it is not required for the payment of the bankruptcy expenses and other liabilities ( chapter CARDINAL , section CARDINAL of LAW ) . If the taxpayer 's property has been sold and the amount obtained from the sale has been used to pay off the alleged tax debt , the taxpayer will receive financial compensation . In addition , it is open to the taxpayer to bring an action for damages against the ORG for the financial loss caused by the distress or the bankruptcy ( chapter CARDINAL , section CARDINAL of LAW ( ORG , CARDINAL:CARDINAL ) ) , on the ground that the authorities or the courts have acted wrongfully or negligently .

Criminal proceedings may be brought against a taxpayer who has furnished incorrect information to a tax authority or who , with the object of evading tax , has failed to file a tax return or similar document . If the taxpayer has acted with intent and his actions have resulted in his being charged too little tax , he will be convicted of tax fraud . The possible sentence ranges from a fine for petty offences to imprisonment for a maximum of DATE for cases of aggravated tax fraud ( sections CARDINAL to CARDINAL of LAW ( Skattebrottslagen , CARDINAL:CARDINAL ) ) . If the taxpayer is considered to have been grossly negligent in submitting incorrect information , he may be convicted of making a negligent misrepresentation to the tax authorities ( vårdslös skatteuppgift ) ( section CARDINAL ) . A criminal charge under LAW is brought in accordance with the rules governing criminal proceedings in general which means , inter alia , that there can only be a criminal conviction on prosecution and trial by the courts of general jurisdiction .

Under NORP law , the fact that a tax surcharge has already been imposed on the same grounds as those forming the basis of the criminal charge is no bar to criminal proceedings . Moreover , a decision to impose a surcharge has no binding force or any other effect that might prejudice the determination of the criminal charge . However , it was the intention of the legislature that the trial court would be aware when considering the criminal charge that a surcharge had been imposed ( Government PERSON , pp . FAC and CARDINAL ) .

In a judgment delivered on DATE ORG considered whether a person could be convicted for a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings ( case no . B CARDINAL - CARDINAL , published in Nytt juridiskt arkiv ( ORG ) DATE , p. CARDINAL ) . Having noted that , under NORP law , a surcharge is not considered a criminal penalty and thus 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 ORG 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 , did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied .

On DATE ORG delivered CARDINAL judgments in which it examined the applicability of LAW to the tax surcharges imposed under the NORP tax system . In CARDINAL of the judgments ( case no . DATE , RÅ DATE ref . CARDINAL ) , noting the criteria established by ORG for determining whether an offence qualified as “ criminal ” , ORG gave an extensive opinion on the application of these criteria to the surcharges in question . It stated , inter alia , the following :

“ The NORP legislature has described the tax surcharge as an administrative sanction akin to a penalty ... . The rules on oral hearings in chapter CARDINAL , section CARDINAL of LAW should be seen as a manifestation of the desire to bring taxation procedure into line with the legal safeguards laid down in LAW . Also , according to case - law ( RÅ DATE ref . CARDINAL ) , the rules on voting in chapter CARDINAL of LAW [ in the criminal - procedure part of the LAW ] are applicable in cases concerning surcharges under LAW ( CARDINAL:CARDINAL ) . The tax surcharge appears to have been considered a predominantly criminal sanction in other contexts as well . For example , it was stated in the preparatory documents to the legislation establishing the rule prohibiting ex post facto laws in LAW , section CARDINAL , subsection CARDINAL of ORG [ Regeringsformen ] DATE which covers penalties , other criminal sanctions and other special legal effects of a criminal offence – that the proposed rule also applied to administrative sanctions akin to penalties such as tax surcharges , charges for the late payment of taxes and late - payment fees under various tax laws . ... However , under NORP law , there is no requirement of intent or negligence on the part of the taxpayer for the imposition of a tax surcharge . Also , the surcharge , to a certain extent , has the character of a conditional fine [ vitesfunktion ] and can be remitted on purely objective grounds . Moreover , it can not be converted into a prison sentence . Therefore , it has been considered that the surcharge is not to be classified as a penalty under the NORP legal system but rather as an administrative tax sanction . Accordingly , its classification as such under the NORP legal system does not constitute sufficient reason for regarding it as a criminal sanction within the meaning of the Convention .

With respect to the other CARDINAL criteria applied by ORG in this connection – that is , the nature of the offence and the nature and degree of severity of the sanction – the following should be taken into account . The NORP rules on tax surcharges are general and concern all taxpayers . The purpose of the system of administrative sanctions is to exert pressure on taxpayers , by means of a considerable financial sanction , to observe the obligations prescribed by the laws on taxes and charges . It should also be noted that the NORP tax surcharge , in its present form , replaced earlier procedures of a purely criminal nature . As regards the characteristics that have been established by ORG as referring to the nature and degree of severity of the sanction , it should be borne in mind that a surcharge is levied in proportion to the tax avoided by the provision of incorrect information . This means that surcharges may in principle come to very large amounts without any upper limit .

In ORG opinion , the last - mentioned aspect strongly indicates that Article CARDINAL is to be regarded as applicable to the NORP tax surcharge . In a recently delivered judgment , ORG also stated , in the light of ORG case - law , that “ there are weighty arguments for regarding LAW as being applicable also to NORP proceedings concerning tax surcharges ” [ ORG judgment of CARDINAL DATE , see paragraph CARDINAL above ] . CARDINAL consideration that might still cause some doubt is that the NORP surcharge differs from the NORP one with regard to CARDINAL of the CARDINAL factors to which ORG attached importance in its final assessment in the GPE case [ GPE v. GPE judgment of DATE , Series A no . CARDINAL ] : it can not be converted into a prison sentence . Furthermore , contrary to the NORP rules , the NORP rules on surcharges lack a subjective element in the real sense ... .

However , the fact that the NORP tax surcharge can not be converted into a prison sentence is not , in ORG opinion , a strong argument against finding Article CARDINAL to be applicable . There is no doubt that a fine imposed under criminal law falls under LAW , irrespective of whether or not it can be converted into a prison sentence . Moreover , the judgment in the GPE case must be taken to indicate that financial sanctions other than a fine may also fall under Article CARDINAL , at least if they are of some significance . Furthermore , following ORG judgments in the cases of PERSON ... and PERSON [ Lauko and PERSON v. GPE judgments of DATE , Reports of Judgments and Decisions CARDINAL-VI , pp . CARDINAL and DATE , respectively ] , both of which concerned fines imposed in respect of minor offences , it must now be regarded as established that the imposition of a prison sentence is not a prerequisite for an act to be viewed as a criminal offence within the meaning of the ORG . Nor , in the circumstances , can an independent or even significant meaning be attached to the lack of subjective elements ( instead , there is reason to make a separate assessment as to the compatibility of strict liability with the presumption of innocence ... ) .

In view of the foregoing ORG finds , having regard to all the circumstances , that the NORP tax surcharge is to be regarded as falling under LAW . ... ”

ORG went on to examine the compatibility of the tax surcharges with the presumption of innocence under LAW . It gave the following opinion :

“ It is probable that , in determining whether strict criminal liability is compatible with the Convention , ORG will apply essentially the same test as it did in the PERSON case [ ORG v. GPE judgment of DATE , Series A no . CARDINAL ] with respect to liability established on the basis of presumptions . This means that liability must not arise entirely automatically on proof of the objective elements . Instead , in order for there to be no conflict with the presumption of innocence , the individual must have the possibility of some form of defence based on subjective circumstances .

As has been mentioned above , a tax surcharge is imposed by means of an administrative procedure without any requirement of intent or negligence . An appeal against a decision concerning a surcharge lies to an administrative court . If intent or gross negligence is established , liability under criminal law may be imputed following trial and conviction by a court of general jurisdiction .

Taxation in GPE is largely based on information given by the individual and certification by him or her of information received from other sources . The purpose of the tax surcharge is to emphasise , inter alia , that the individual is required to be meticulous in fulfilling the duty of filing a tax return and the related obligation to submit information . In principle , carelessness is not acceptable . Furthermore , the taxpayer must normally have an understanding of what information is of relevance to the examination of a claim in order to avoid the risk of incorrect information being considered to have been given and a surcharge imposed . In other words , the taxpayer is required to have a certain knowledge of the tax rules .

Inaccuracies and failures of the kind that may cause the imposition of a tax surcharge occur in a very large number of cases . The requirements of foreseeability and uniformity in the imposition of surcharges have therefore been regarded as calling for surcharges to be levied in accordance with relatively simple and standardised rules . However , the rules and regulations must also meet demands for a reasonably nuanced assessment ... and provide guarantees of legal certainty . Therefore , a surcharge is not imposed automatically when incorrect information is submitted . Firstly , certain types of inaccuracies are excluded and , secondly , authorities and courts must consider whether there are grounds for remitting the surcharge , even if no specific claim to that effect has been made .

The following may be stated with particular reference to the grounds for remitting surcharges . The requirements of understanding and meticulousness must be proportionate to the taxpayer 's ability and capacity to comprehend the tax rules and apply them to the existing situation . The rules on remission are aimed at preventing the imposition of a tax surcharge as a result of , for example , excusable ignorance or a misunderstanding as to the content of a tax rule . They are also supposed to prevent a surcharge from being imposed when other excusable mistakes are made in discharging the duty to file a tax return . The rules on remission are , moreover , drafted in such a way as to allow the authorities and courts a certain latitude in assessing questions of remission , having regard to the subjective position of the taxpayer . Indeed , the grounds for remission – in conjunction with the rules providing , on objective grounds , for surcharges not to be imposed or to be set aside in particular circumstances – may in certain cases allow of considerations that lead to greater exemption from surcharges than would be the case if the imposition of surcharges were conditional on the taxpayer having acted intentionally or negligently . Although the grounds for remission are not entirely comparable to the conditions for accountability which the subjective elements represent in criminal law , they must , when taken together with the cases in which surcharges are excluded on purely objective grounds , be considered as affording the taxpayer , where appropriate , sufficient scope for avoiding the imposition of surcharges to prevent a conflict with the presumption of innocence as set out in LAW arising . In general , however , this requires that the courts , in applying the rules on surcharges , should indeed make a nuanced and not too restrictive assessment in each individual case as to whether there are grounds for setting aside or remitting the tax surcharge . ”

ORG also considered that the NORP tax surcharge complied with the general requirement under LAW to be proportionate . It held that a system of sanctions against breaches of the obligation to submit tax returns and information to the tax authorities served an important public interest . Moreover , it noted , inter alia , that the requirement of proportionality was reflected in the rules on surcharges as , under chapter CARDINAL , section CARDINAL of LAW , surcharges were to be remitted in cases where they would be “ manifestly unreasonable ” ( see paragraph CARDINAL above ) .

In the other judgment delivered on DATE ( case no . DATE ) ORG was called upon to examine whether the enforcement of a tax surcharge prior to a court examination of a taxpayer 's liability to pay the surcharge in question conflicted with the presumption of innocence under LAW . It made the following assessment :

“ The Article stipulates that the presumption of innocence shall be observed until guilt has been proved according to law . It does not follow from the wording of the LAW that a criminal sanction that has been imposed can not be enforced before the decision has become final . There are , furthermore , examples both in GPE and in other NORP countries of regular criminal sanctions being enforceable notwithstanding the fact that the decision has not become final ... .

Moreover , there is nothing in the case - law of ORG to support the view that LAW prevents the enforcement of decisions concerning criminal sanctions that have not become final . In this connection , it should be pointed out that ORG expressly accepted the immediate enforcement of tax surcharges in the case of GPE v. GPE [ application no . CARDINAL , decision of CARDINAL DATE , unpublished ] .

The conclusion of ORG is that LAW does not prevent enforcement on the ground that a decision concerning tax surcharges has not become final .

It remains to be determined whether the enforcement of an administrative authority 's decision on surcharges requires the matter to have been examined by a court .

It follows from LAW that everyone charged with a criminal offence has a right to have his or her case determined by a court . However , the rules in LAW are not considered to preclude the examination by an administrative authority of issues falling under LAW , provided that the individual may subsequently bring the matter before a court that fully affords the legal safeguards laid down in the LAW ... .

In ORG opinion , it is unclear to what extent the presumption of innocence should be taken to require that a decision by an administrative authority concerning a criminal sanction against which an appeal has been made should not be enforced before a court has examined the appeal . It appears that the question has not been determined by ORG . However , it seems reasonable to assume that enforcement may not take place if it would make it impossible for the original legal position to be restored in the event that the subsequent judicial examination resulted in the authority 's decision being varied .

As far as tax surcharges are concerned , a taxpayer may appeal to a court against an administrative authority 's decision to impose such a surcharge . If the taxpayer 's appeal is successful , any amount that has been paid will be refunded with interest . It is also possible for the taxpayer to request a stay of execution in connection with the appeal . It is unlikely that any enforcement measures will be taken pending the court 's examination of the application for a stay ( cf . Government PERSON , p. CARDINAL ) . Under the rules applicable in the instant case , a stay may be granted if it can be assumed that the amount imposed on the taxpayer will be reduced or that he will be relieved of the obligation to pay the amount , if the outcome of the case is uncertain or if payment of the amount imposed would result in considerable damage for the taxpayer or otherwise appears unjust . In certain cases , a stay can be granted only on condition that security is provided ( section DATE , subsections CARDINAL and CARDINAL of LAW ; there are now largely corresponding rules in ... LAW ) .

The rules on stays of execution provide the taxpayer with the opportunity to have a preliminary examination by a court of the final outcome of the case concerning tax surcharges . If the taxpayer refrains from using this option or if the court , following an examination , finds that it can not be assumed that the taxpayer 's appeal on the merits will be successful , or even that the outcome is uncertain and that , moreover , there is no reason to expect considerable damage to result from payment of the surcharge , it can not , in the view of ORG , be contradictory to LAW to require immediate enforcement . ”


No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in the town of GPE in LOC .

On DATE the prosecutor ’s office of LOC began an investigation into the applicant ’s dealings , as it suspected him of using his position as the president of a non - governmental organisation for personal gain . It was alleged , in particular , that he had used a grant of MONEY ( ORG ) to purchase computer equipment which he had kept at his home or , in the alternative , unlawfully given to a local law office .

On DATE the prosecutor charged the applicant and issued an arrest warrant when he failed to attend the prosecutor ’s office to countersign the charge sheet .

On DATE a supervising prosecutor of the LOC quashed the decision to charge the applicant and cancelled the warrant . She found that the investigation was incomplete because pertinent facts had not been sufficiently examined .

NORP On DATE FAC put the applicant ’s name on the federal list of wanted persons .

On DATE the applicant was charged again .

On DATE a senior investigator from ORG of the NORP Regional Police dropped the charges against the applicant because there was no evidence that a criminal offence had been committed . On DATE that decision was notified to the applicant ’s lawyer .

At TIME on DATE the applicant was detained in FAC in GPE on the basis of the arrest warrant issued on DATE because his name was still on the federal list of wanted persons .

The applicant remained at the police station for TIME , until TIME on DATE . He was interrogated , searched and allegedly verbally abused by police officers . He was released only after ORG had confirmed , by a faxed letter , that the arrest warrant had been cancelled .

The officer in command at the police station refused to issue the applicant with a document confirming that he had been detained for TIME .

At TIME on DATE the applicant was detained in GPE on the basis of the same arrest warrant . He was handcuffed and escorted to the “ FAC of LOC of GPE .

According to the applicant , he was verbally abused by QUANTITY police officers , one of whom also hit him in the chest . His requests for permission to make a phone call and to meet the officer in charge were ignored .

The applicant was not released until TIME on DATE , after confirmation had been received that the warrant had been cancelled . According to the applicant , during the entire period he spent in detention he received no water or food and was given no access to toilet facilities .

On DATE the applicant complained to the Head of ORG and ORG . On DATE the applicant complained to ORG that he had been unlawfully detained and that the district prosecutor had failed to respond to his complaints . On DATE he complained to ORG about his unlawful detention in DATE .

On DATE a deputy director of ORG of the GPE Police informed the applicant that his detention on DATE was considered lawful as he had been on the federal list of wanted persons . Since the applicant had not had any documents on him to show that the charges had been dropped , the police officers “ had taken all appropriate measures to confirm or refute [ his ] statement about the unlawfulness of [ his ] detention ” .

On DATE a deputy director of ORG of the GPE Police confirmed to the applicant that he had been detained because his name was on the federal list of wanted persons . He maintained that the GPE police officers had acted lawfully and that on both occasions responsibility for his detention lay with the NORP Regional Police as they had failed to update the database of wanted persons in time .

On DATE the director of ORG of ORG advised the applicant that ORG was responsible for placing people ’s names on , and removing them from , the wanted ORG list .

On DATE a deputy prosecutor of the Izmaylovskiy District of GPE wrote to the applicant to say that the blame for his detention lay with the NORP Regional police officers who had failed to remove his name from the wanted ORG list . He added that ORG had acted lawfully on the basis of the information available .

On DATE a deputy prosecutor of the LOC informed the applicant that his name had been deleted from the wanted ORG list on DATE and that notice thereof had been sent to the central database of ORG on DATE . However , an investigator , PERSON , had failed to notify ORG that the arrest warrant had been cancelled on DATE , and it was that which had led to the applicant ’s detention in GPE and PERSON and the violations of his constitutional rights . The deputy prosecutor said that he had requested the director of ORG of the NORP Regional Police to examine the matter and to discipline those responsible for the violations of the applicant ’s rights .

On DATE a deputy director of ORG of ORG wrote to inform the applicant that disciplinary proceedings were pending against the investigator who had failed to notify those concerned in time that the arrest warrant had been cancelled .

On DATE an acting prosecutor of the LOC informed the applicant that PERSON had been reprimanded for unspecified violations of the rules of criminal procedure .

After the application had been communicated to the respondent Government , the Ostankinskiy Interdistrict Prosecutor ’s Office carried out an inquiry into the applicant ’s complaints of DATE . On DATE it issued a decision not to initiate criminal proceedings in connection with his allegations of ill - treatment because there was no evidence of criminal conduct by any of the police officers . On DATE the ORG quashed that decision and ordered a further inquiry .

According to the ORG , further to a recommendation ( представление ) issued on DATE by ORG , ORG of ORG reinforced the procedures for ensuring that the federal list of wanted persons was regularly updated .

In DATE the applicant sued ORG , ORG and ORG . He claimed compensation for pecuniary and non - pecuniary damage in connection with the unlawful criminal proceedings and arrest .

On DATE ORG of GPE requested the “ NORP ” police station to provide the papers relating to the applicant ’s detention on DATE , including the records of his arrest and body search and an extract from the custody record . It does not appear that the requested documents were provided .

On DATE the ORG delivered judgment . It found that the criminal proceedings against the applicant had been unlawful because they were ultimately discontinued for lack of evidence of a criminal offence . Having regard to the fact that “ [ the applicant ] had given an undertaking not to leave the town and had not actually been taken into custody ” , ORG awarded him MONEY ( ORG , CARDINAL ( ORG ) ) in compensation for non - pecuniary damage . It further awarded him ORG for legal costs incurred in the criminal proceedings and FAC for costs in the civil proceedings . The total amount came to ORG ( approximately LAW ) . The remainder of the applicant ’s claims were dismissed .

CARDINAL

On DATE ORG upheld the judgment of DATE . It held that the applicant had not advanced any new arguments other than those that had been already examined by ORG .

On DATE the applicant applied to ORG for a writ of execution . Having received no reply , he wrote to the president of the court and to ORG on DATE , CARDINAL DATE and DATE to complain about the delay .

On DATE the President of ORG replied to the applicant , advising him that the writ had been sent to the court bailiffs on DATE for enforcement .

On DATE the applicant received a writ of execution for RUR CARDINAL . On CARDINAL and DATE he complained to the Presidents of ORG and ORG that the amount in the writ was less than the award in the judgment .

On DATE the applicant requested the President of ORG to rectify the error in the writ . He repeated his request on DATE , but to no avail , and so on DATE sent a complaint to ORG .

On DATE the applicant sent the writ of execution for RUR CARDINAL,CARDINAL to the court bailiffs .

By a letter of DATE , the President of ORG confirmed that the writ had been sent to the court bailiffs on DATE .

On DATE the bailiffs’ service of ORG no . CARDINAL of GPE returned the writ for ORG CARDINAL,CARDINAL to the applicant , advising him to submit it directly to ORG .

Having received no response to his requests for rectification of the amount stated in the writ , the applicant renewed his request to ORG to that effect on DATE and returned the writ containing the error .

On DATE , DATE and DATE and DATE the applicant wrote to the President of ORG , ORG and ORG to complain about ORG persistent refusal to rectify the writ .

On DATE the applicant received by post a writ of execution for ORG CARDINAL,CARDINAL.CARDINAL dated DATE . On DATE he submitted it to ORG for execution .

In a letter of DATE , ORG claimed that on DATE a corrected writ of execution had been sent to the court bailiffs’ service .

By a letter of CARDINAL May CARDINAL , ORG informed the applicant that the bailiffs’ service had searched its records since DATE and had no trace of receiving a writ of execution for RUR CARDINAL,CARDINAL.CARDINAL .

On DATE the applicant requested ORG to adjust the award in the judgment of DATE in line with inflation . On DATE the court granted his claim in part , awarding him ORG CARDINAL,CARDINAL on account of inflation and RUR CARDINAL,CARDINAL in legal costs .

DATE . On DATE ORG returned the writ to the applicant , saying that it was defective .

On DATE ORG issued a new writ and submitted it directly to ORG . In his letter to the applicant , the court president acknowledged that the previously issued writs had not conformed to the law on enforcement proceedings .

At the date of the last communication from the applicant of CARDINAL DATE , the judgment of DATE , as supplemented by the judgment of CARDINAL DATE , had not yet been enforced .

LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .

Under LAW ( in force until DATE ) , a decision ordering placement in custody could be taken by a prosecutor or a court ( Articles CARDINAL , CARDINAL and DATE ) .

The NORP Civil Code provides for strict liability ( ответственность независимо от вины ) of the ORG treasury for damage incurred through being unlawfully held in custody ( Article CARDINAL § CARDINAL ) .

The relevant extract from the CARDINALnd ORG of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) ( ORG ( CARDINAL ) CARDINAL ) reads as follows :

“ DATE . Custody by the police is in principle of relatively short duration ... However , certain elementary material requirements should be met .

All police cells should be of a reasonable size for the number of persons they are used to accommodate , and have adequate lighting ( i.e. sufficient to read by , sleeping periods excluded ) and ventilation ; preferably , cells should enjoy natural light . Further , cells should be equipped with a means of rest ( e.g. a fixed chair or bench ) , and persons obliged to stay TIME in custody should be provided with a clean mattress and blankets .

Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions , and be offered adequate washing facilities . They should be given food at appropriate times , including CARDINAL full meal ( i.e. something more substantial than a sandwich ) DATE .

The issue of what is a reasonable size for a police cell ( or any other type of detainee / prisoner accommodation ) is a difficult question . Many factors have to be taken into account when making such an assessment . However , ORG delegations felt the need for a rough guideline in this area . The following criterion ( seen as a desirable level rather than a minimum standard ) is currently being used when assessing police cells intended for single occupancy for stays in excess of TIME : in the order of QUANTITY , QUANTITY or more between walls , QUANTITY between floor and ceiling . ”

The ORG reiterated the above conclusions in DATE ORG ( ORG ( DATE ) CARDINAL , § MONEY ) .

The part of the ORG to ORG on the visit to GPE carried out by the ORG from DATE ( ORG ( DATE ) CARDINAL ) read , in so far as it concerned the conditions of detention in administrative - detention cells located within police stations , as follows :

“ CARDINAL . Similar to the situation observed during previous visits , none of the district commands ( RUVD ) and local divisions of ORG visited were equipped with facilities suitable for TIME stays ; despite that , the delegation found evidence that persons were occasionally held TIME at such establishments ... The cells seen by the delegation were totally unacceptable for extended periods of custody : dark , poorly ventilated , dirty and usually devoid of any equipment except a bench . Persons held TIME were not provided with mattresses or blankets . Further , there was no provision for supplying detainees with food and drinking water , and access to a toilet was problematic .

The ORG reiterates the recommendation made in its report on the DATE visit ( cf . paragraph CARDINAL of document ORG ( DATE ) CARDINAL ) that material conditions in , and the use of , cells for administrative detention at district commands and local divisions of ORG be brought into conformity with ORG CARDINAL/CARDINAL on the general conditions and regulations of detention in administrative detention cells . Cells which do not correspond to the requirements of that Order should be withdrawn from service .

Further , the ORG reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for TIME . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant lodged a claim under LAW no . CARDINAL/CARDINAL Coll . ( PERSON o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku – “ LAW ” ) for the restitution of an ownership interest of CARDINAL in an undivided plot of agricultural land which had belonged to her family before it was taken away during the communist regime .

On DATE the applicant and the agricultural cooperative that was using the plot concluded a restitution agreement ( dohoda o vydaní ) concerning the modalities of the ownership interest transfer to her .

On DATE ORG ( ORG úrad , odbor pozemkový , poľnohospodárstva a lesného hospodárstva ) approved the restitution agreement in accordance with LAW .

On DATE ORG informed the applicant that a third person ( ORG ) had filed an appeal with ORG ( PERSON pôdohospodárstva ) against the approval of DATE . ORG was an heir of a person to whom the plot was assigned ( prídelový vlastník – “ the assigned owner ” ) by the ORG after it had been taken away from the applicant ’s family . In her appeal , she claimed ownership of the plot . On DATE the applicant submitted her observations in reply to the appeal .

On DATE ORG died .

On DATE the Ministry annulled the approval of ORG of DATE .

On DATE ORG ordered the accelerated consolidation of the plot in accordance with LAW no . QUANTITY . ( PERSON o pozemkových úpravách , usporiadaní pozemkového vlastníctva , pozemkových úradoch , pozemkovom fonde a o pozemkových spoločenstvách – “ LAW ” ) . Pursuant to LAW of the LAW , the accelerated land consolidation was ordered for an interim period , namely until the completion of the ongoing general land consolidation proceedings in the area concerned or , alternatively , until the co - operative was dissolved without a legal successor ; whichever would occur earlier .

On DATE the applicant requested that ORG should deal with her case expeditiously .

On DATE the cooperative rescinded the restitution agreement of DATE .

On DATE ORG requested ORG ’s heir , ORG , to submit a decision on her estate .

On DATE , on a motion of the cooperative , ORG asked ORG to submit to him the casefile concerning the applicant ’s case . In his decision of DATE , the ORG found that there had been undue delays in the proceedings in that ORG had failed to rule on the restitution agreement within the prescribed timelimit and that since DATE it had failed to take any procedural steps . The Prosecutor instructed ORG to deal with the case without undue delays .

NORP In its decision of CARDINAL DATE ORG withheld its approval of the restitution agreement of DATE .

On DATE the applicant petitioned for a judicial review of this decision . On DATE she supplemented her petition .

On DATE a notary public determined ORG ’s estate .

On DATE ORG ( PERSON súd ) upheld the decision of ORG DATE . As a result , under LAW CARDINAL/CARDINAL , it became incumbent upon ORG to determine ex officio the applicant ’s restitution claim .

NORP The applicant requested ORG repeatedly , inter alia by letters of DATE , CARDINAL May , CARDINAL DATE and DATE , to determine her restitution case expeditiously .

On DATE ORG ordered preparatory measures to be taken with a view to opening land consolidation proceedings under LAW in respect of the plot in issue .

On DATE ORG opened the land consolidation proceedings . It noted that “ heirs of the assigned owners had submitted competing ownership claims to the plot ” and that the rival claims had to be determined before it could be decided whether any part of the plot was to be restored to the applicant and , if so , which part . The applicant and another party to the proceedings filed appeals with ORG ( PERSON úrad ) .

On DATE ORG decided to stay the proceedings on the applicant ’s restitution claim pending the outcome of the consolidation proceedings opened on DATE .

On DATE ORG asked the parties to the consolidation proceedings for their observations on the appeals filed by the applicant and by the other party .

In its decision of DATE , ORG found factual inaccuracies and inconsistencies in the reasoning of ORG decision of DATE to open the consolidation proceedings in respect of the plot . It quashed this decision and sent the casefile back to ORG for reconsideration . The decision of DATE to stay the restitution proceedings was not affected by this decision .

On DATE the applicant lodged a complaint with the Head of ORG ( ORG okresného úradu ) about the delays in her restitution proceedings . She demanded that the proceedings be resumed and her claim considered on the merits . On DATE the Head of ORG informed the applicant that ORG would determine the applicant ’s claim following the determination of the preliminary question in the consolidation proceedings , i.e. the competing ownership claims filed by the third parties .

On DATE the applicant requested that ORG inform her about the state of her restitution proceedings .

On DATE ORG informed the applicant that the restitution proceedings were still stayed pending the determination of the preliminary question that was being dealt with in the consolidation proceedings .

On DATE ORG held a hearing on the applicant ’s restitution claim .

On DATE ORG allowed the applicant ’s restitution claim . It noted that the allocation of the plot to the assigned owners had occurred prior to the formal confiscation of the ownership interest she was claiming . It concluded therefore that the allocation did not constitute an obstacle to the restitution of this share to the applicant . This decision became final on DATE .

The applicant ’s title to the CARDINAL ownership interest in the plot has not yet been recorded in ORG ( kataster nehnuteľností ) .

To date , no new decision to open the land consolidation proceedings has been taken .


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

In DATE the GPE expropriated land ( plot nos . FAC and DATE ) belonging to the applicant in GPE . A committee of experts assessed the value of the land and the relevant amount was paid to the applicant when the expropriation took place .

On DATE the applicant filed CARDINAL separate actions for additional compensation with ORG .

In respect of plot no . DATE , the first - instance court , on DATE , awarded the applicant additional compensation of CARDINAL NORP liras ( TRL ) ( MONEY ( ORG ) ) , plus interest at the statutory rate , applicable at the date of the court ’s decision , running from DATE . On DATE ORG upheld the judgment of the first - instance court . On DATE the GPE ’s request for a rectification of the decision was dismissed by ORG . This latter decision was served on the applicant on DATE .

In respect of plot no . CARDINAL , the first - instance court , on DATE , awarded the applicant additional compensation of GPE CARDINAL ( approximately EUR CARDINAL ) , plus interest at the statutory rate , applicable at the date of the court ’s decision , running from DATE . On DATE ORG upheld the judgment of the firstinstance court . On DATE the ORG ’s request for a rectification of the decision was dismissed by ORG . This latter decision was served on the applicant on DATE .

In the meantime , on DATE the Municipality paid the applicant , in total , FAC ( approximately FAC ) covering additional compensation , interest , costs and expenses .

The relevant domestic law and practice are outlined in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , § § CARDINAL - CARDINAL ) , and PERSON v. GPE judgment of DATE ( Reports CARDINAL-IV , § § CARDINAL - CARDINAL ) .


Remainder inadmissible (Article 35-1 - Effective domestic remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and died on DATE . On CARDINAL DATE the applicant ’s son and heir , Mr PERSON , informed the ORG that he wished to pursue the application originally introduced by his father .

Through CARDINAL civil actions for determination of ownership lodged with NORP courts against the ORG , local municipalities and third persons , the applicant sought to recover property seized by GPE after the Second World War . At that time , the applicant , an DATE child , had allegedly been the owner of the property . During the confiscation his interests had allegedly not been protected by any representative despite the requirements of the law applicable at the time .

According to the ORG , the total value of the property claimed by the applicant was estimated by the police at MONEY NORP korunas ( MONEY ) .

On DATE ORG ( okresní soud ) dismissed the applicant ’s action against the ORG , represented by ORG , to determine ownership of certain real estate , finding that the property had been duly confiscated in DATE pursuant to Presidential Decree No . CARDINAL/CARDINAL . A large volume of archive documents was taken as evidence during the proceedings .

The applicant appealed , asserting , inter alia , that ORG had omitted to take certain evidence .

On DATE the PERSON Regional Court ( krajský soud ) upheld the judgment of the court of first instance .

On DATE Section no . CARDINAL of ORG ( PERSON ) , which is responsible for restitution matters , rent cases and litigations concerning recognition of foreign decisions , dismissed as inadmissible the applicant ’s appeal on points of law ( dovolání ) . It found that it had not been conclusively established that the applicant ’s property had been duly confiscated , but that in any case the property had been transferred to the ORG , which had used it since then . Applying its previous case - law , the court held that a property taken by a ORG before DATE could not be claimed in civil proceedings but only under the restitution laws .

On DATE ORG ( PERSON ) dismissed the applicant ’s constitutional appeal whereby it was contended that he had not had a fair trial and had been discriminated against . The court relied on its stance , enshrined particularly in its opinion no . PERSON . ÚS - st . CARDINAL , according to which a civil action for determination of ownership could not be used to circumvent the restitution legislation , and consequently found that the detailed arguments challenging the merits of the decisions were irrelevant .

On CARDINAL DATE ORG dismissed the applicant ’s nullity action ( žaloba pro zmatečnost ) asserting bias on the part of ORG judge who had dealt with the civil proceedings . Referring to decision no . II . ÚS CARDINAL of ORG of DATE , it held that the activities of certain politicians in creating a negative atmosphere around the applicant ’s actions had been unacceptable in a system based on the rule of law . Similarly , it held that the obligation imposed on courts by ORG to report to it on the applicant ’s proceedings had been incompatible with the principle of separation of powers between the judicial and executive branches of government . Nevertheless , it did not find that these activities had compromised the impartiality of the particular judge at ORG challenged by the applicant .

At the relevant time various members of the ORG and ORG made public statements commenting on the proceedings instituted by the applicant . The media reported , inter alia , on the following statements .

The DATE newspaper ORG published an article on DATE entitled “ Dostál [ the Minister of Culture ] wants to convene a meeting regarding restitutions ” about the reaction of politicians to a court decision upholding CARDINAL of the applicant ’s claims . The article quoted Mr PERSON , then an LOC and vice - president of the second largest party in the ORG , as saying :

“ I do not know how we as legislators can do anything about the absolutely insane rulings of judges that suggest that they are independent , but in this instance independent of common sense . Questioning the seizure of property of persons who were demonstrably NORP simply on the basis of completely formal administrative details , such as that a document from DATE lacks a stamp or that the stamp is square instead of round , gives rise to misgivings about the train of thought of the judge involved . ”

On DATE the DATE newspaper GPE published an interview with the Minister of Culture , PERSON , in which he said , inter alia :

“ I oppose attempts to return property to active NORP or their children , as happened in the case of PERSON . ”

On DATE the website novinky.cz published comments by several politicians regarding another of the applicant ’s cases where a court had ruled in his favour . Mr PERSON opined as follows :

“ I can not understand what mental processes members of our judicial system could have gone through to reach such conclusions . ”

On DATE PERSON published another interview with the Minister of Culture , in which he disagreed with the courts’ decisions upholding CARDINAL of the applicant ’s claims :

“ [ I]f other judges decide similarly , then they will have to bear full responsibility for the fact that the ORG will be obliged to surrender property acquired under the [ Presidential ] Decrees . ”

The minister also mentioned a meeting of politicians and lawyers regarding protection of the Presidential Decrees .

NORP Several politicians , including the President and the Prime Minister , convened a series of meetings between themselves and lawyers on the issue of civil proceedings for the restitution of property acquired before DATE in civil proceedings , like those brought by the applicant . According to media reports , the meetings resulted in several options for avoiding such decisions by courts , including requesting ORG to unify the divergent case - law , issuing new and perfect confiscation orders , adding an amendment to LAW to prohibit actions for the determination of ownership of property acquired by the ORG before DATE , or amending LAW to the same effect .

On DATE PERSON reported on a hearing before ORG in the proceedings that are the subject of the present application . The hearing was also attended by the vice - governor of LOC ( místohejtman PERSON ) and a member of the governing party who said : “ I am not here as a politician , but as the son of parents that NORP deported to a camp . DATE a counsel defends a descendant of the NORP . I will do anything within my power so that these people do not achieve what they want ” .

On DATE the DATE newspaper PERSON published an interview with a Member of ORG and a member of ORG who said that the applicant had no right to restitution of any property . When asked whether the resolution of these questions should not be left to independent courts she replied that in her view they had not influenced the courts but that some court decisions had been wrong and that the courts were so independent as to be independent of laws .

On DATE ORG sent letters to the presidents of regional courts asking them to provide it with information on a DATE basis on the developments in the proceedings brought by the applicant . It reasoned that it was requesting the information because of heightened interest of the media in these proceedings .

PERSON , like the other regional courts , complied with this request and regularly forwarded to the Ministry information on the applicant ’s proceedings within its region , including reports from ORG drawn up by the judge dealing with the actions brought by the applicant . The reports included information about the proceedings which are the subject matter of this application , in which , at that time , appellate proceedings were pending .

NORP The reports from all the regional courts where proceedings brought by the applicant were being conducted included procedural steps taken in the proceedings , the names of the defendants , the subject matter of the proceedings and the name of the judges dealing with the cases .

On DATE the Ministry informed ORG that it no longer wished to receive the information on a DATE basis , but only once DATE .

On DATE the Ministry informed the regional courts that it was no longer necessary to provide this information .

In DATE , by order of a deputy of the Police President , the police set up a special investigative team code - named “ Property ” for the purpose of carrying out tasks relating to the examination of a suspicion of unlawful surrender of GPE property to natural or legal persons . The team ’s activities consisted of a comprehensive examination of the suspicion that such criminal acts ( which in their view could lead to pecuniary loss amounting to CARDINAL of NORP crowns ) had been committed .

On DATE the police started investigating the applicant and his counsel on suspicion of fraud . The police contended that the investigation was justified by the applicant ’s attempts to fraudulently claim in civil proceedings assets confiscated in DATE under the Presidential Decrees as enemy property . They suspected that in the course of the civil proceedings the applicant had intentionally withheld relevant facts in order to support his action .

On an unspecified date in the course of the investigation , the police sent requests to ORG and the competent department of ORG for the purpose of quantifying the total value of the property claimed by the applicant and obtaining the applicant ’s submissions and decisions of the court in his case . Both authorities complied with the requests .

On DATE the GPE - východ ORG , at the request of the police , ordered the production of the records of CARDINAL phone lines belonging to the applicant ’s counsel from DATE to DATE . According to the Government , only information on the telecommunications activity , namely , the times of calls , the numbers of incoming and outgoing calls , and approximate mobile phone locations was produced ; the content of the telephone conversations was neither recorded nor intercepted .

In a letter of CARDINAL DATE the Deputy Director of ORG ( PERSON pro zahraniční styky a informace ) , a NORP intelligence service , in reply to a request for cooperation , informed the police unit in charge of the investigation about the system of administration of church registers in GPE and ways of accessing them in order to locate the applicant ’s birth certificate . Having found that access to the registers was restricted , the Deputy Director considered and rejected the possibility of using secret agents to acquire the documents in question and advised the police unit on how the ORG should proceed in the civil proceedings against the applicant , recommending that they manoeuvre the applicant into a situation where he would himself be obliged to establish his NORP citizenship .

On DATE the police suspended the investigation , stating that in civil proceedings the applicant was not obliged by LAW to disclose all relevant facts , but only those supporting his claims . They also stated that the applicant ’s counsel had not breached his duty under LAW to assert all important facts , because he was not obliged to assert facts favouring the opposing party . Thus , according to that decision , the applicant could not be regarded as having intentionally withheld certain information in a fraudulent attempt to recover the property by misleading the courts .

It appears from the decision that during their investigation the police tracked down enquiries the applicant ’s counsel had made with a number of archives and state institutions in order to find documents relevant for the civil proceedings . When questioning employees of those institutions , the police also noted the areas of interest of the applicant ’s counsel and the documents to which he had had access and had studied . The decision further shows that the investigation enabled the police to make a qualified assessment of the evidence which the applicant might use as the plaintiff in the civil proceedings against the ORG .

On DATE the applicant and his counsel found out by chance that they had been under police investigation . Neither of them had ever been questioned during the investigation .

On DATE the applicant ’s counsel lodged a constitutional appeal with ORG . Invoking the right to confidentiality of communications with his client , he challenged the production of the records of his telephone communications as contrary to his right to respect for the confidentiality of telephone communications under LAW . He requested that the order of the GPE - východ ORG of DATE be quashed , the police case file disclosed and the records destroyed .

On DATE ORG allowed the appeal and quashed the order as unlawful , ordering the police to destroy all the records of the telephone communications . The court found :

“ ... the ORG has the standing of defendant in a set of civil proceedings initiated by a client of the complainant [ that is , the applicant ] . It litigates with the claimant on an equal footing in such proceedings . To defend its interests there , it is equipped with staff and finances from the ORG budget . If criminal proceedings are brought simultaneously with these [ civil ] proceedings ... despite the fact that a reasonable suspicion of a crime , which is CARDINAL of the legal requirements for the initiation of any criminal proceedings , does not exist , there is a logical presumption that the ORG may at least attempt to improve its legal position in the civil proceedings by acquiring information through the prosecuting authorities and its other security agencies , or even attempt to deter the other litigant . Such conduct by the ORG is absolutely unacceptable in a NORP society and deserves to be condemned ... Although the criminal proceedings were finally rightfully suspended in the instant case , it remains alarming for the democratic development of the country that the suspension took place only after massive , and probably extremely expensive and entirely superfluous , criminal proceedings which should have never been initiated .

... the police decision to suspend the investigation was based on a purely legal conclusion that could have been arrived at without evidence consisting of CARDINAL pages ... including materials procured by means of legal assistance provided by third countries and information supplied by the intelligence service ... The police ... and the supervising prosecutor ... could have arrived at the same conclusion at the outset [ of the investigation ] . ”

The relevant domestic law and practice regarding confiscation of property under the Presidential Decrees and its restitution are set out in the ORG ’s decision PERSON GPE DATE . ) , no . CARDINAL , CARDINAL DATE .

Article CARDINAL § CARDINAL stipulates that in order to achieve the aim of proceedings , parties are obliged , inter alia , to assert all facts relevant to the case .

Article PERSON provides for the principle of proceedings concentration ; it stipulates that parties to proceedings must disclose all material facts and specify evidence prior to the court of first instance pronouncing its decision in the case , because facts and evidence claimed after that time can only constitute a reason for lodging an appeal under the conditions exhaustively listed in Article CARDINALa ( for example , in the case of defects in the proceedings , in order to undermine the credibility of evidence forming a ground for the ruling of the court of first instance , or if the facts to be proved occurred only after the first - instance decision ) .

Section CARDINAL(CARDINAL ) provides that ORG represents the ORG , inter alia , in proceedings before courts . LAW ) provides that the ORG is supervised by ORG .

In DATE Parliament adopted Act no . CARDINAL/CARDINAL amending this law . Under the newly added section CARDINALa the ORG may represent a municipality responding in civil proceedings to an action that seeks to determine the ownership of real estate , and/or its appurtenances , acquired from the ORG , or to an action for such real estate to be vacated . Such legal services are provided free of charge . According to section DATE the ORG may intervene on behalf of and in the name of the ORG and alongside a municipality in such civil proceedings if the ORG has a legal interest in the outcome of the proceedings .

The Explanatory report to Act no . CARDINAL/CARDINAL stated that it was in the ORG ’s interest that the assets of municipalities were not diminished . It noted that municipalities often faced complicated judicial proceedings , for example under the Presidential Decrees , but that they did not have the necessary expert capacity to conduct such proceedings . Consequently , using the services of the ORG would be the only way for many municipalities to defend their property acquired from the ORG .

Article CARDINAL provides that at the stage prior to the initiation of a criminal prosecution the police are obliged , on the basis of their own findings , criminal complaints , or suggestions from other persons and authorities which may lead to the conclusion that there exists suspicion that a criminal offence has been committed , to carry out all the necessary examinations and take the required measures to detect the facts that indicate the commission of a criminal offence and to find the offender ; they are also obliged to take the necessary measures to prevent criminal activities .

Section CARDINAL(CARDINAL)(a ) stipulates that a constitutional appeal may be submitted : a ) under LAW § l ( d ) of the LAW by a natural or legal person if he or she alleges that his or her fundamental rights and basic freedoms guaranteed in the constitutional order have been infringed as the result of a final decision in proceedings to which he or she was a party , or of a measure or some other encroachment by a public authority .

Under section CARDINAL(CARDINAL ) a constitutional appeal must be lodged within DATE of the date on which a final decision on a last remedy is served on an applicant . If the law does not provide for any legal remedy , the timelimit is triggered by the date on which the applicant learns about an infringement . In such a case , a constitutional appeal may not be lodged DATE from DATE when the infringement occurred .

Section CARDINAL stipulates that the task of the ORG administration of courts , carried out by ORG , is to create conditions for the proper conduct of justice , especially in terms of personnel , organisational , economic , financial and educational affairs , and to supervise , in the manner and within the limits set by this law , the tasks entrusted to the courts in order to ensure that they are carried out properly . The ORG administration of courts can not interfere with the independence of the courts .

Under section CARDINAL(CARDINAL ) ORG monitors and evaluates the conduct of proceedings by and decisions of high , regional and district courts solely in terms of the principles of the dignity of judicial conduct and ethics and whether the proceedings have suffered from unnecessary delays .

The plenary of ORG found that the restitution laws could not be circumvented by civil actions for determination of ownership . Nor could the protection of ownership rights extinguished before DATE be triggered unless the restitution laws provided for redress in that respect .

In this decision ORG dismissed the applicant ’s constitutional appeal contesting the dismissal of his objection of bias in respect of a judge who had heard one of his civil actions . In his appeal the applicant alleged a violation of the right to a fair trial as a result of political pressure reflected , inter alia , by amendments to legislation , such as Act no . GPE , the revisiting of case - law by the domestic courts , public statements by politicians to the applicant ’s detriment , and the reporting duties imposed on courts by ORG .

“ ORG has already held in several decisions on constitutional appeals by the same applicant ( for example ... ) that the activities of some politicians referred to by the applicant , be they verbal expressions to the media or other , aimed at creating a negative atmosphere around the legal actions of the applicant , or constituting direct attempts to interfere in these proceedings , were unacceptable in a system based on the rule of law .

This is even more valid for the activities of ORG that ORG has had an opportunity to acquaint itself with from documents presented by the applicant ... The documents show that ORG imposed on the ordinary courts an obligation to provide information to such an extent that it was incompatible with the principle of separation of powers between the judicial and executive branches of government ( from the documents adduced it does not appear that ORG pursued the aim of securing the proper administration of justice , especially in the personal , organisational , economic , financial and educational domains , or that it was motivated by efforts to prevent or eliminate delays in the proceedings or to ensure that these were conducted in a dignified manner and in accordance with judicial ethics – see section CARDINAL in conjunction with section CARDINAL of the Act on Courts and Judges ) . ”

Nevertheless , it held that these activities alone could not cast doubts on the impartiality of individual judges . It found that the applicant had failed to substantiate his allegation that the particular judge whose partiality he challenged had not been impartial .

ORG dismissed as manifestly ill - founded a constitutional appeal by the applicant arising from another set of civil proceedings for determination of ownership , referring only to its Opinion no . Pl . ÚS – st . CARDINAL . It did not consider in detail the arguments of the applicant , which concerned the criminal investigation against him and his counsel , stating that , in view of the ORG , that would have been superfluous .


CASE OF LAUKKANEN AND MANNINEN v. FINLAND

The applicants were born in DATE and DATE respectively and live in Riihimäki and PERSON , respectively .

The applicants were charged before ORG ( käräjäoikeus , tingsrätt ) of PERSON ; the first applicant with unauthorised use of a motor vehicle and driving without a licence and the second applicant with unauthorised use of a motor vehicle , among other offences . The applicants were represented before ORG by legal counsel .

At the hearing before ORG , on DATE , the public prosecutor called an eyewitness , ORG , a police officer . He had recognised the applicants and had seen them enter a car that was later reported stolen . When the witness gave evidence it appeared that there might have been other police officers in the area . The witness refused to answer some questions about his whereabouts when observing the applicants and also declined to confirm whether there had been other officers in the area , since he had been assigned to another operation not related to the applicants’ actions . The witness testified that he had recognised the applicants since he had met them before during pre - trial investigations . He had seen the first applicant enter the car by opening the door from the driver ’s side . The second applicant had arrived DATE and had entered the car , and the car had left . The witness had seen its registration plate and remembered that it had contained the same digit CARDINAL times .

The applicants denied the charges against them , explaining they did not know anything about the incident they were accused of . They also stated to ORG that they wished to be informed of the identity of the police officers witness ORG had mentioned in order to be able to call them as witnesses .

ORG convicted the applicants on DATE of unauthorised use of a motor vehicle , among other offences , and sentenced the first applicant to CARDINAL days’ and the second applicant to CARDINAL months’ imprisonment . In so far as the judgment concerned the offences referred to above , the court based itself on the testimony of the eyewitness . There was no other evidence .

The applicants appealed to ORG ( hovioikeus , hovrätt ) of PERSON , arguing that they should not have been convicted on the basis of the testimony of CARDINAL eyewitness , since it would have been possible to hear the police officers who had been in the area at the same time . The applicants demanded a chance to hear those police officers as witnesses , requesting an oral hearing to be held before ORG or that the case be referred back to ORG for a re - hearing . They stressed that the names of those police officers had not been known until the public prosecutor gave his answer to the applicants’ appeal to ORG . After the hearing at ORG the public prosecutor had established that the QUANTITY police officers had been in the area but had not observed the incident .

NORP The public prosecutor submitted his observations on the applicants’ appeal to ORG on DATE . In his observations he revealed the identity of the proposed witnesses in question . He objected to the hearing of those witnesses and to the ORG request to refer the case back to ORG . He stated that he had , on DATE , discussed the case with both officers who had told him that they had seen the applicants in the area but had not made any observations concerning the unauthorised use of the vehicle . The public prosecutor stated that the applicants had been able to question witness ORG , whereas the CARDINAL other officers could not be considered as witnesses who would give evidence on the applicants’ behalf within the meaning of LAW ( d ) of the LAW .

The applicants were provided with an opportunity to submit written comments on the prosecutor ’s observations . The first applicant asserted , inter alia , that he must be afforded a right to obtain answers from ORG to the questions he had put to him , and a right to hear the above - mentioned CARDINAL police officers as witnesses . The second applicant argued that the public prosecutor ’s statement about his conversations with the police officers in question was not comparable to their being heard as witnesses before a court . He noted that the applicants could have had other questions put to them than those put by the prosecutor .

On DATE ORG upheld ORG judgment , rejecting the applicants’ request for an oral hearing and the request to refer the case back to ORG . It found , in accordance with LAW ( LAW , section DATE , subsection CARDINAL ) , that the applicants had failed to state what they intended to prove by the witness evidence proposed . It also recalled , according to LAW , section CARDINAL ) , that a court must not allow irrelevant evidence to be presented . ORG also rejected the request to hear PERSON again as , in its view , additional questions would not bring any further clarification to the case .

On DATE , ORG refused the applicants leave to appeal .

According to LAW , Section CARDINAL(CARDINAL ) , of LAW ( oikeudenkäymiskaari , rättegångsbalken ) as in force at the relevant time , in his appeal to a ORG an appellant must identify the evidence to be relied on and the facts to be proved by that evidence . According to LAW , LAW , of that same LAW , a court must not allow irrelevant evidence to be presented .

According to LAW , LAW , of LAW , the parties must obtain the necessary evidence . A court may also , when considered necessary , decide to obtain evidence on its own initiative .

According to LAW of LAW ( poliisilaki , polislagen ) , a member of the police force , when heard as a witness or otherwise , is not under an obligation to disclose “ tactical or technical matters ” which are covered by secrecy .

According to the reservation made by GPE in accordance with LAW , as in force at the relevant time , GPE could not guarantee a right to an oral hearing in so far as the NORP laws at the time of the events at issue did not provide such a right . This applied , inter alia , to proceedings before ORG in accordance with LAW .