CASE OF SAMPANI AND OTHERS v. GREECE - [English Translation] by European Roma Rights Centre "ERRC"

Remainder inadmissible;Violation of Article 14+P1-2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 of Protocol No. 1 - Right to education;Right to education-{general});Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award

Anatoly Kovler;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants , all of NORP origin , living , at the time of the facts , in GPE , near Aspropyrgos . CARDINAL applicants were school - aged children DATE and DATE . CARDINAL applicants were adults , parents or guardians of other applicants . The applicants belong to QUANTITY families . Some of them were applicants in the case which gave rise to the judgment PERSON and others v. GPE ( no . CARDINAL , DATE ) .

The applicants refer to the factual circumstances of that judgment for the period up to DATE and in particular to the following :

“ CARDINAL . On DATE , the third constituency of the LOC ORG sent a letter to the director of GPE periphery . She informed him that for the DATE , CARDINAL students of NORP origin had been enrolled in the CARDINALth primary school of Aspropyrgos . She stated that “ preparatory classes [ were ] provided for the ORG students , in order to assure their adaptation to the schooling environment , given the deficiencies from which they suffered and various other reasons making it impossible for them to integrate into ordinary classes . ” She added that “ despite the progress made by ORG students in the preparatory classes , all of these students are not yet fit to integrate into ordinary classes . ”

On DATE , prefabricated rooms of the CARDINALth primary school were set on fire by unknown people . It appears from the file that in DATE , the CARDINAL rooms were replaced but because of infrastructure problems , they were not operational . In DATE , a CARDINALth primary school was created in LOC , to which NORP children were transferred . The record shows that in DATE , this school was not yet operational , because of the infrastructure problems . The Government alleges that the establishment of the CARDINALth primary school in LOC was intended only to relieve congestion at the CARDINALth primary school . ”

By Decision No . CARDINAL/DCARDINAL/CARDINAL of DATE , published in ORG of DATE , the Ministers of Education and ORG created the CARDINALth primary school of Aspropyrgos , which was supposed to welcome PERSON and non - NORP students without distinction .

During the DATE , the ORG students were still educated in an annex of the main building of the CARDINALth school . During DATE vacation , the rooms of the annex building were damaged . On DATE , following a complaint lodged by the school principal , the police assured that she would approach the prosecutor .

According to the information provided by the CARDINALth primary school , at DATE , CARDINAL students were enrolled at the beginning of the school , CARDINAL had taken occasional courses , CARDINAL had finished DATE with many absences and , after a test , CARDINAL of them had been considered as having the age and level necessary to be integrated into ordinary classes .

On DATE , the mayor of LOC convened the directors of the primary schools and invited them to redraw the school map and the school district zones . They attributed the same recruiting area to the CARDINALth , CARDINALth and CARDINALth schools .

On DATE , a meeting took place at the CARDINALth school , organised by the ORG , between the direction of this school , the prefecture , the association of parents of ( non - ORG ) students and the ORG . The point was to convince the parents to renounce their opposition to the integration of ORG students in ordinary classes . However , an intervention by the mayor of Aspropyrgos did not permit this meeting to succeed nor was it possible to enrol the CARDINAL ORG students who had a sufficient level of education into ordinary classes .

On DATE , the ORG defined the area of recruitment for each of the CARDINAL schools in the region . The area of GPE , where the applicants resided , was attached to the CARDINALth school .

On DATE , following a report by the committee responsible for checking of the conformity of school buildings with the provisions in force , the prefect of LOC decided to use temporarily , for the LOC of the CARDINALth school , the prefabricated building next to the CARDINALth school , which had been used in DATE to host remedial classes .

These LOC of the CARDINALth school suffered damage again during DATE , where all the equipment was stolen .

On DATE , the director of the CARDINALth school reported in detail to the regional authorities of ORG the damages inflicted upon the building and concluded that it was not in a state to welcome students . He confirmed that the state of the facilities did not meet the basic needs of the school and imperilled the safety of the students and teaching staff .

NORP However , on DATE , on DATE of school , ORG families were informed that the CARDINALth school opened its doors , on the premises next to the CARDINALth school .

On DATE , a delegation of ORG against Racism and Intolerance ( ECRI ) of ORG visited , among others , the NORP community of GPE and to the CARDINALth school .

On DATE and DATE , the services of ORG invited the mayor of LOC and the prefect of LOC to authorise the merging of DATE schools , attracting attention to the fact that this case was supported by NORP institutions as a result of complaints lodged against GPE .

A letter sent on DATE to ORG by the mayor of LOC and the parents of non - Romani students reads as follows :

“ The creation of the CARDINALth primary school did not aim to ( ... ) segregate ORG students from other students in the district schools . It has , however , become an inevitable necessity because NORP living in tents have chosen to live a nomadic life , in dumps they have created themselves , without worrying about basic standards of hygiene , and indulging in illegal activities which have a negative impact on vulnerable social groups and , more generally , on the inhabitants of LOC . ( ... ) in spite of all this , [ the NORP children ] dare to demand to share the same classrooms as the other students of Aspropyrgos , a considerable percentage of whom are sensitive social groups or children of economic immigrants ( ... ) ”

On DATE , the prefect of GPE refused the demanded authorisation ( paragraph CARDINAL above ) on the grounds that he wished to avoid creating social , cultural and educational problems . He also noted that the CARDINALth school was closer to the homes of the ORG students than the CARDINALth .

On DATE , the Ombudsman of the Republic addressed the Prefect of LOC a letter urging him to reconsider his decision of DATE . He stated , inter alia , the following :

“ The CARDINALth school of LOC has a history of arson and vandalism which is not important to remember . However , we would like to draw your attention to the state of this school as described in the letter of DATE sent by the director of this school to the head of ORG of GPE , because this document was not submitted to you before you made your decision .

The sombre aspects of the facilities include , among other things : with respect to the school yard : the fence in some places can be dangerous for children . In addition , swings and basketball hoops are destroyed . Regarding toilets : there are currently no functioning toilets in the schools . These were all looted : faucets , light fixtures , cables , door handles , and a part of the door were stolen . With regard to classrooms : doors , windows , cables , electrical panels , lighting fixtures , benches and chairs were stolen . There is no longer any air - cooling or heating apparatus . Regarding the ORG room : everything that existed in this room was stolen .

In light of this , I consider that the facilities of the CARDINALth elementary school of LOC , as they present themselves DATE , are not able to cover even the basic needs of a school unit and endanger the safety of students and teachers . ”

The ORG stresses that , despite the fact that the recruitment zone of the CARDINALth school included the relevant school population , all the students enrolled for the DATE belonged to the NORP community , while the Presidential Decree no . CARDINAL/CARDINAL required that it was mandatory to transfer all students living in the recruitment zone from a school to the school in question and that the transfer should take place even in the absence of a request from the parents . The ORG acknowledged that the prefecture was not responsible for the non - application of the decree , but he urged the prefecture to take into consideration , in the exercise of its functions , the fact that the non - application of the decree had had the effect of turning the CARDINALth school into a “ ghetto school , ” given the fact that not a single non - NORP student from the region were enrolled there .

The ORG also pointed out that ORG was in favour of integrating ORG students into the mainstream education system and that a newsletter of DATE , titled “ Registration and Schooling of NORP ” recommended that in each class , the percentage of students from another culture did not exceed PERCENT .

NORP The ORG stated that there were problems of intolerance on the part of the non - NORP population and that the association of parents of non - NORP students had created problems in DATE . He admitted that the annex of the CARDINALth school , renamed the CARDINALth school , had been created under the pressure of incidents which had been caused by the parents of non - Romani students and which had led to the conviction of GPE in the judgment of ORG and others ( cited above ) . He pointed out that the continued refusal to authorise the merging of DATE and of the CARDINALth school constituted an unjustified discrimination against ORG students , as it prevented them from blending into the cultural environment of the region and was motivated solely by the prefect ’s concern to avoid new incidents , this time on the part of the parents of students of the CARDINALth school .

On DATE , the director of the CARDINALth school wrote to the mayor of LOC , inviting him to equip the PERSON camp with running water because , according to him , the absence of facilities had a negative effect on the health and safety of the children , and consequently on their ability to pursue their education . By a response of DATE , the Mayor rejected this on the grounds that the owners of the land on which the NORP were living were trying to obtain the expulsion of the latter and threatened him with prosecution if he accepted the request in question .

On DATE and DATE , the applicants address CARDINAL letters to the competent services of ORG and to the Minister himself , inviting them to allow NORP children to attend the CARDINALth school and to establish a program for them which would have been designed for the NORP Romani of Thrace and which would have proved effective . They received no answer .

On DATE , the director of the CARDINALth school informed the services of the Minister of Education that the school books were inappropriate for the PERSON whose maternal language was not NORP .

On DATE , the ORG wrote again to ORG . He informed him that the prefect , which had , on DATE , refused to authorise the merging of CARDINALth and CARDINALth schools , did not wish to revisit this decision . He stressed that the operation of this ghetto school for ORG students was contrary to the position of the ministry , which was unfavourable to schools “ exclusively reserved for Gypsy students . ” He availed himself of the letter of DATE from the Director of the CARDINALth school , according to which the state of the facilities would not have covered the basic needs of a school and would have jeopardised the safety of students and teaching staff . He added that the needs could not be met by the mayor of LOC , who openly declared on DATE , that the NORP children “ dare to demand to share the same classrooms as the other students of LOC ” . He pointed out that the mayor had ignored an invitation from the regional authorities of the ministry to “ do what is necessary for the immediate rehabilitation ” of the CARDINALth school . He drew attention to the fact that GPE was “ under control ” in executing the judgment of PERSON and others and that it had not made any progress so far in this regard .

On DATE , the applicants lodged a complaint against the CARDINALth and CARDINALth schools with respect to the duties of the office . The examination of the complaint was still pending as of the date of submission to the ORG , on DATE , of their observations in response to those of the Government .

The documents in the file show that DATE and DATE , the director of the CARDINALth school sent several letters to regional education authorities , the prefect and the mayor of LOC to alert them to the shortcomings which the school would have faced , including the school bus route , the construction of a playground , the installation of additional heating and toilets , the construction of CARDINAL additional classrooms , and the creation of a kindergarten and the abandonment of classes by some students from DATE .

According to the Government , the prefabricated building in which the CARDINALth school had been installed had CARDINAL classrooms , a teacher ’s office , CARDINAL toilets , CARDINAL shower rooms , a cafeteria , and a landscaped courtyard . CARDINAL classes had been created while the official capacity of the school would be CARDINAL classes . It appears from a document prepared by ORG on DATE and submitted by the Government that during the period of operation of the CARDINALth school ( DATE ) , CARDINAL students had obtained their diploma for finishing primary school .

DATE , the school would have had a fax machine , a photocopier , a computer and a library . There would have been CARDINAL teachers : CARDINAL teachers and a gymnastics teacher . The number of students enrolled at the material time ( DATE ) would have been CARDINAL . The school attendance of the students would have been irregular , the number of people present varying from CARDINAL to sixty per day because of the way of life of these GPE families , frequently traveling for seasonal work .

The fact that all students of the CARDINALth school were of NORP origin was due to the attitude of local society and not to the NORP state . ORG reportedly asked the school administration to proceed with the immediate registration of non - NORP children whose homes were in the school ’s recruitment zone , even in the absence of a request on the part of the parents concerned , but it would have been found out that these children were already enrolled in other schools , private or public .

On the basis of the official documents in the file , the applicants challenge several of the ORG ’s assertions , particularly those concerning the configuration and the size of the school as well as the number of classes in service . According to their version , the extension of the school to its current size took place in DATE , but its capacity was still insufficient for the CARDINAL students who would have been enrolled . By a letter of DATE , the director of the CARDINALth school had informed the competent authorities of ORG that CARDINAL novice teachers , without any experience , were assigned to the school . However , according to the applicants who refer to a ministerial decision of DATE , the school should have provided , in addition to the director , CARDINAL teachers for the DATE for the number of CARDINAL students provided by the ORG , which would be incorrect .

The absenteeism of ORG students would have been due to the location of the bus stop , far from the school , and to the impossibility for PERSON students to walk in the cold and rain without suitable clothing . In addition , they should have crossed the area where the racist incidents in DATE led to the creation of the prefabricated annex of the CARDINALth school reserved for ORG students .

According to the applicants , following the establishment of the school map , in DATE , the administration of the CARDINALth school should have provided the CARDINALth school the names of the students enrolled in the CARDINALth grade and who , according to the new demarcation were to be transferred to the CARDINALth school for the DATE . The applicants state that , if this transfer had taken place , the CARDINALth school would have had from the beginning of its operation , CARDINAL of non - Romani students and thus would have been an ordinary school . This would never have happened because the new school would have been designed to work only with ORG students .

According to the ORG , the applicants PERSON , PERSON , GPE PERSON , PERSON and PERSON had an education which was considered “ sufficient ” from the point of view of their participation in the courses .

The applicants PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON were said to have had an “ occasional ” schooling : they would have gone to class from time to time , so that their schooling would have been interrupted by long periods of absence .

The other child applicants , that is CARDINAL out of CARDINAL children , would not have been enrolled in school and would not have had the quality of students at the CARDINALth school .

On the intervention of ORG and of its executive director acting as the GPE representative , the CARDINALth school would have registered all the child applicants , except PERSON , PERSON , PERSON and PERSON . PERSON had completed her primary education in DATE in a school other than the CARDINALth LOC school . Among the students enrolled , CARDINAL reportedly dropped out of school during DATE . The schooling of the CARDINAL others would have been occasional .

In the first place , the applicants allege that the disclosure by the Government of the above elements concerning them personally constitutes a violation of the law No . CARDINAL/CARDINAL on the protection of personal data and of LAW .

In second place , they indicate that these elements are not reliable : the terms employed by the Government such as “ sufficient ” and “ occasional ” schooling , were vague , which indicated that the authorities of the CARDINALth school did not have a precise insight as to the education of the applicants but that they were based on impressions . Moreover , the information provided by the Government concerning some of the student applicants had contradicted those produced by the Government in the execution of the NORP and others v. GPE judgment ( cited above ) .

The relevant articles in this case of Legislative Decree No . DATE on the codification of the provisions of the laws on ORG read as follows :

Article CARDINAL

Acts which may be challenged

« CARDINAL . An action for annulment alleging abuse of authority or a violation of the law is admissible only against enforceable decisions of the administrative authorities and legal persons of public law which are not subject to appeal before any other jurisdiction .

NORP In cases where the law requires an authority to settle a particular question by enacting an enforceable act subject to the provisions of paragraph CARDINAL , the action for annulment is admissible even against the failure of that authority to enact such an act .

The authority is presumed to refuse to enact the act either when the special period of time fixed by the law expires or after the expiry of a period of DATE from the filing of the petition with the court which is required to issue an acknowledgment of receipt ( ... ) indicating DATE of the deposit . The action for annulment before the expiry of the aforementioned periods is inadmissible .

An action for annulment validly lodged against an implied refusal [ of the administration ] is also an appeal against the negative act which , if need be , is subsequently adopted by the administration ; however , this act my also be attacked separately . ”

Article CARDINAL

“ The grounds for an action for annulment are :

NORP the incompetence of the administrative authority issuing the administrative act ;

the defect of form ;

NORP excess of power ;

NORP misuse of powers , where the administrative act has all the elements of legality , but has a purpose other than that for which it was adopted . ”

In supervising the execution of the aforementioned NORP and others judgment , ORG adopted the ORG which closed the examination of the case in the following terms :

“ ORG , by virtue of Article CARDINAL , paragraph CARDINAL , of ORG , which provides that the ORG shall supervise the execution of the final judgments of ORG hereinafter referred to as “ the Convention ” and “ the ORG ” ) ;

With regard to the judgment delivered by ORG once final ;

Recalling that the violations of the ORG found by ORG in this case concern the non - enrolment of the applicants’ NORP children , then their schooling in special preparatory classes , as well as the lack of an effective remedy to obtain redress for this ( violation of LAW in conjunction with LAW No . CARDINAL and violation of LAW ) ( see details in GPE ) ;

Having invited the government of the respondent ORG to inform it of the measures which it has taken to comply with the judgment of the ORG in accordance with its obligation under LAW , paragraph CARDINAL , of the Convention ;

Having examined the information transmitted by the government in accordance with the Rules of the Committee for the application of LAW , paragraph CARDINAL of the Convention ;

Having satisfied itself that , within the prescribed time limit , the respondent ORG paid the applicant the just satisfaction provided in the judgment ( see details in the Annex ) ,

Recalling that the finding of a violation by the ORG requires , in addition to the payment of the just satisfaction awarded by the ORG in judgments , the adoption by the respondent ORG , if necessary :

– individual measures putting an end to the violations and erasing the consequences , if possible by restitutio in integrum ; and

– general measures to prevent similar violations ;

Recalling that the decisions of ORG under Article CARDINAL , paragraph CARDINAL of the Convention do not anticipate the ORG ’s examination of other cases currently pending before it ;

Declares , after having examined the measures taken by the respondent ORG ( see PERSON ) , that it has performed its function in virtue of LAW , paragraph CARDINAL of the Convention in the present case and

Decides to close the examination .

ORG to Resolution CM / ResDH(CARDINAL)CARDINAL

Information on the measures taken to comply with the judgment in PERSON and others v. GPE

Introductory summary of the case

The case concerns the non - enrolment of the applicants’ children for the DATE and their schooling in DATE in special preparatory classes . In particular , the ORG concluded that despite the authorities’ willingness to enrol the PERSON children , the conditions for enrolling these children in school and their assignment in special preparatory classes – in an annex to the main building of the school – ultimately resulted in discrimination ( violation of Article CARDINAL in conjunction with LAW No . CARDINAL ) . The case also concerns the lack of an effective remedy for redress in this regard . In particular , the ORG noted that ORG had not produced any case law demonstrating that the use of such a remedy could have led to the annulment of the alleged failure of the administration to proceed with the registration of the children ( violation of LAW ) .

On the non - enrolment of children in DATE , the ORG noted that the NORP law recognises the particularity of the PERSON situation , facilitating the procedure of registering the students in school . In this case , the authorities should have recognised the particularity of the situation of the NORP community and facilitated their enrolment in the primary school . However , even if the authorities did not explicitly refuse to enrol the students , they failed to execute as such , despite the explicit wish of the parents for them to be enrolled in school , to the competent school authorities .

As for the special preparatory classes in an annex to the CARDINALth primary school of LOC , in which the applicants’ children had been placed in DATE , the ORG found that the competent authorities had not relied on a unique and clear criterion for the children ’s placement . It noted in particular that the authorities had not performed adequate tests to which the children concerned would have been subjected in order to assess their aptitudes or potential learning disabilities . Moreover , even if the objective ascribed to these classes was so that the students concerned could achieve a level to integrate in due course into ordinary classes , not a single example was cited ( among the CARDINAL students concerned ) who had integrated into ordinary classes of the primary school of LOC . In addition , it had not been established that there were tests of evaluation to which the ORG students were periodically subjected to allow the school authorities to apprehend their aptitude to integrate into ordinary classes , on the base of objective data and not on rough estimates .

I. Payment of just satisfaction and individual measures

b ) Individual measures

Special preparatory classes in an annex of the CARDINALth primary school of Aspropyrgos have been discontinued .

NORP authorities have adopted measures to facilitate the enrolment of the applicants’ children in an ordinary school following the judgment of the ORG . A new ordinary primary school ( the CARDINALth primary school of LOC ) has been created in virtue of the ministerial decision No . CARDINAL/DCARDINAL/CARDINAL . The school which is supposed to welcome as many NORP children as non - NORP children , covers the area in which the NORP community of LOC resides . These measures were thus intended to assure the schooling of the applicants’ children in an ordinary school .

II . General measures

CARDINAL ) On the violation of LAW in conjunction with LAW No . CARDINAL

The NORP authorities have provided much information as part of their consolidated action plan ( ORG ) as well as additional information thereafter . This information is summarised below :

Measures concerning the registration and schooling of NORP children

Specific measures have been adopted to facilitate the registration of NORP children in the primary school . In contrast to other students , PERSON children are enrolled in the primary school according to a simplified process based on a simple declaration , without the need to provide certificates . The authorities have published several circulars with the intent of instructing the school administrations on the simplified registration of NORP children and to verify that they regularly attend classes ( nos NORP , CARDINAL - CARDINAL - CARDINAL , CARDINAL - CARDINAL - CARDINAL ) .

NORP authorities have also adopted a number of measures to integrate NORP children into national education and to put an end to the discrimination to which they are subject in this area . These measures include in particular the establishment of a new education policy based on the NORP model of “ priority education zones ” . These zones – including the region of LOC – aim to reinforce the integration of the most vulnerable social groups ( PERSON , migrants , etc . ) through a number of actions and through education ( LAW DATE ) . In addition , the awareness campaign PERSON ! promoted by ORG to combat stereotypes and prejudices against PERSON was also launched in GPE by the Minister of Education in DATE . The NORP campaign focuses on primary and secondary education .

Additionally , the authorities have begun , as of the DATE , a specific program for active participation of NORP children in national education , which will be implemented by CARDINAL major NORP universities . In compliance with this program , the authorities have put into place special intermediaries who speak PERSON fluently , in order to help NORP families with their children ’s schooling . They have thus recruited CARDINAL intermediaries in the LOC region , with CARDINAL in the LOC region . ORG is in the process of organising a number of training courses for them as part of its NORP Romani Intermediary Training Program ( ROMED ) . In accordance with the program “ Education for FAC ” , the authorities have also set up social workers to provide psychological support to NORP families . CARDINAL of the tasks for the social workers is to go to schools with ORG students and in NORP communities in order to identify NORP children who should go to school and to encourage their parents to send them there . School support is offered to NORP children with learning difficulties , through extracurricular support activities ( supplementary classes and remedial school activities ) , including in the LOC region . The authorities have also provided special training on intercultural education to teachers . At DATE , ORG set up an ORG for the “ Education for ORG ” program which plays an advisory role on relevant issues as well as a monitoring and evaluating role in the implementation of the program “ Education for FAC ” . This committee includes representatives of ORG , ORG , the OSCE / ODIHR and other major actors .

The NORP authorities also created CARDINAL educational adult education centres – ORG , ORG and ORG . People of NORP origin can participate beginning at DATE .

Finally , the NORP authorities have regularly provided information on the measures taken to improve the facilities and the working conditions of the CARDINALth primary school of Aspropyrgos , while noting that questions related to the functioning of this school are presently being examined by ORG in the context of a new application ( Application No . CARDINAL/CARDINAL , communicated to the authorities on DATE ) .

CARDINAL ) NORP On the violation of LAW concerning the failure of the authorities to register the applicants’ children

The NORP authorities have indicated that the acts or failures of the school authorities are in fact administrative acts . These may be challenged in the context of an administrative procedure ( before the administrative courts of appeal at first instance and before ORG at second instance ) . In the present case , the ORG found a violation due to the lack of an effective remedy , since the authorities could not produce case law examples in a similar context . They indicate that such an ad hoc case - law does not exist . However , domestic courts have held in a series of decisions following the ORG ’s judgment , that the administrative court of appeal was competent to hear applications for the annulment of administrative acts on education ( for example , decisions of school authorities to change the school environment for certain students following their conduct ; decision of non - enrolment following an interruption of studies ; decision not to accept a student to a precise degree of college following qualifying exams ) ” .

The report of ORG against Racism and Intolerance ( ECRI ) on GPE adopted DATE and published CARDINAL DATE , states that :

« CARDINAL . In its third report , the ORG strongly recommended that the NORP authorities promote equal opportunities for access to education for children from minority groups by organising NORP lessons and remedial classes and ensuring access of these children to education in their mother tongue .

The ORG notes with concern that ORG continue to be disadvantaged in the realm of education . Some schools always refuse to accept PERSON children , which can often account for the fact that in some cases , NORP children are separated from other children , inside the same establishment or nearby . In CARDINAL case , ORG decided that GPE had violated LAW ( the right to enjoy without discrimination the rights outlined in the Convention ) in conjunction with LAW No . CARDINAL of LAW ( the right to education ) . The ORG has learned that at ORG , where PERSON children were first refused enrolment in school , a separate class was created to accommodate them in order to allow them to progressively adapt to the school environment . ORG of the necessity for progressive integration in the school system , the ORG would like to draw the attention of the NORP authorities to its point of view on this question , which is stated in LAW CARDINAL on racism and racial discrimination in education . This general policy recommendation supports the creation , in particular cases and limited in duration , of preparatory classes for students from minority groups , if a real need is justified by objective and reasonable criteria and if the best interest of the children dictates it .

As the NORP authorities themselves have noted and as the ORG has confirmed , the drop - out rate among ORG students is very high . The authorities have signalled that special programs providing psychological support or social assistance , including intercultural education , had been established to treat this problem . However , in the absence of disaggregated data on the situation of the Romani , it is difficult to carry out an in - depth evaluation and design specific programs for this group . On this subject , the ORG would like to draw the attention of the NORP authorities to its General Policy Recommendation No . CARDINAL on the fight against racism and racial discrimination in education , in which it recommends that either carried out in collaboration with civil society , studies on the situation of children from minority groups in the school system in gathering statistic data on : CARDINAL ) their rate of attendance and of success ; CARDINAL ) their dropout rate ; CARDINAL ) their school results and CARDINAL ) their progress . In this General Policy Recommendation , the ORG recommends to Member ORG to collect the necessary information to assess the problems with which students from minority groups are confronted in the domain of education in order to put into place policies to resolve these problems .

The authorities have indicated that a program , co - funded by ORG and the NORP state , deals with issues such as remedial courses in NORP , mathematics , and history for NORP children and also oversees continued teacher training . However , the ORG has been informed of the needs for preparatory classes for ORG students and for adequately trained teachers . This is all the more necessary as the resulting benefits for ORG students are significant . ORG is one of the objectives of ORG for ORG adopted in DATE . However , more measures must be taken in order , in particular , that the difficulties faced by the ORG in the area of education are dealt with under this program . An interministerial commission coordinates , within ORG , the activities of all the ministries involved in the implementation of ORG for ORG . It is of crucial importance that all the ministries concerned work in concert , in the measure where the situation of NORP children in the school system is inextricably tied to their socioeconomic situation , including their housing conditions and the high rate of unemployment among their parents .

The ORG exhorts the NORP authorities to reinforce the measures taken to face the difficulties which NORP children meet in the area of education , particularly exclusion , discrimination and a low success rate , in accordance with , among others , the judgment delivered by ORG on the issue and its recommendation of ORG . CARDINAL on the fight against racism and racial discrimination in education . It also recommends them to adopt a comprehensive strategy to address these difficulties , including through ORG on NORP issues .


The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON N. Abdullayev , a lawyer practising in GPE . The respondent Government was represented by PERSON , Agent of GPE before the ORG .

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

The applicant was an executive director of ORG ( hereinafter the “ Company ” ) , a commercial legal entity with its headquarters in GPE . According to the ORG ’s articles of incorporation , its sole founder and owner was ORG . The latter was a non - profit public association aimed at providing social and other public - benefit assistance to the population . The applicant was appointed as the ORG ’s director pursuant to a decision of ORG , the sole shareholder in the Company .

By an order of DATE , issued by ORG ( GPE şəhəri PERSON ; hereinafter “ ORG ) , the Company was provided with a plot of land for construction of an office building . By DATE , the Company had started the construction work on the site . However , on an unspecified date in DATE , ORG repealed its order of DATE and ordered the demolition of the ORG ’s building .

The ORG filed a lawsuit against ORG , seeking compensation for damages . The Company was represented by the applicant , in his capacity of the ORG ’s director , and by GPE , the ORG deputy director . By a judgment of DATE , ORG held that , as a result of the building ’s demolition by ORG , the Company sustained financial damages in the amount of CARDINAL NORP Manats ( GPE . The court ordered ORG to compensate the Company for these damages .

No appeal was filed against the judgment and it entered into legal force . On DATE ORG issued a writ of execution of the judgment . Following ORG ’s failure to pay the compensation , on DATE another writ of execution was issued .

However , instead of compensating the Company in accordance with the judgment , it appears that , on DATE , ORG provided it with another plot of land for construction of a new building . On this ground , ORG filed an appeal with the President of ORG , asking to reopen the case due to the “ discovery of new facts ” and to reconsider the judgment of DATE .

By a letter of DATE , the President of ORG rejected ORG ’s request . The President explained that the case could be reopened due to the discovery of new facts only if such new facts had existed at the time of examination of the case by the first - instance court , but were unknown to the court at that time . However , since the new plot of land was transferred to the Company in DATE , after the judgment of DATE had entered into force , it could not be considered as a basis for reopening of the proceedings . Moreover , ORG President noted that the transfer of the new plot to the Company could not be considered as a substitute for compensation for the ORG ’s financial damages sustained as a result of the demolition of its first office building in DATE .

Following ORG ’s continuous failure to execute the judgment , on DATE ORG No . CARDINAL ( CARDINAL saylı PERSON ) issued a special order , directing ORG to bring ORG ’s responsible officials under criminal liability for non - execution of the valid court judgment . On DATE ORG refused to institute criminal proceedings against ORG officials , holding that there was no documentary evidence showing that the writ of execution had ever been presented directly to ORG .

On DATE ORG No . CARDINAL issued a new writ of execution which was sent to ORG through FAC rayon PERSON və PERSON şöbəsi ; hereinafter the “ ORG ” ) .

On DATE BCEA notified ORG that it was impossible to comply with the judgment of DATE , because ORG did not have sufficient funds allocated from the state budget for the purpose of compensating the Company .

On DATE ORG informed ORG and the applicant , in his capacity of the ORG ’s director , that the enforcement proceedings were still pending and insisted that ORG execute the judgment . On DATE BCEA notified the applicant that the issue of the compensation was referred to ORG . On DATE ORG informed the applicant that the issue was further referred to ORG .

Upon a petition by ORG , on DATE ORG imposed an administrative fine on ORG in the amount of FAC for failure to comply with the judgment of DATE .

The applicant , in the meantime , wrote letters to the President , ORG and ORG , complaining about the continuing nonexecution . In reply , he was again informed that the matter was under consideration by ORG .

On DATE ORG informed the applicant that , despite all of the efforts to ensure the enforcement of the judgment in accordance with the law , ORG consistently failed to comply with the judgment .

Finally , on DATE the judgment was executed and ORG transferred ORG to the ORG ’s bank account .

Article CARDINAL of LAW provides that legal entities can be represented before courts by their bodies , acting within the scope of powers conferred on them by law , regulations or articles of incorporation of the legal entity , or by representatives acting on the basis of a power of attorney .


The applicant is a NORP citizen , born in DATE and living in GPE , GPE . She is represented before the ORG by PERSON , a retired notary public .

A.

On DATE the applicant concluded the contract for a purchase of CARDINAL plots of land , nos . CARDINAL and DATE , from PERSON At that time PERSON proved her title to the plots by an administrative decision of DATE declaring that by virtue of ORG she had become their owner ( „ akt własności ziemi ” ) . The decision stated that PERSON had been using the farm , including plots nos . CARDINAL and DATE , previously owned by her parents , since DATE , and that she had thereby complied with the legal requirement of an uninterrupted possession of agricultural land for a period set out by law , for acquisition of its ownership by prescription .

Subsequently the applicant was registered in the local land register as the owner of the plot .

In DATE the ORG gave a decision by which it declared that PERSON and PERSON had acquired ownership of plot no . DATE by prescription in DATE . The applicant lodged an appeal against this decision , which was later dismissed .

On DATE ORG gave a decision by virtue of which plot no . CARDINAL was severed from the land belonging to the applicant , registered in the land register under file no . DATE , and included in the property of GPE and Mr NORP registered under file no . DATE .

By a decision of DATE ORG declared null and void the administrative title deed of DATE , confirming that PERSON had become the owner of plot no . DATE .

The applicant lodged an appeal against this decision .

On DATE the Minister of Agriculture upheld the decision of DATE . The applicant lodged an appeal with ORG .

On DATE ORG granted the applicant ’s request to register a warning in the land register that the ownershhip of plot no . CARDINAL , which had been registered as the property of Ms and Mr NORP , had become the subject of litigation .

On DATE ORG dismissed the applicant ’s appeal against the administrative decision of CARDINAL DATE . Consequently , the decision of DATE became final .

On DATE the applicant lodged with ORG a request to have appropriate steps taken ex officio by the court to put right the discrepancies between the entry in the land register and the actual ownership of the plot . She argued that she had validly acquired plot no . CARDINAL , having relied on the DATE title deed of her predecessor , PERSON The applicant further argued that the inviolability of her ownership acquired in good faith should be protected by law , and requested that plot no . DATE be included again in the register file no . DATE and that she be registered as its owner .

On DATE the applicant , in reply to the court ’s enquiry as to the result she wished to obtain by lodging her reqest , submitted that it should not be regarded as a suit for rectification of the land register . The applicant reiterated that she had purchased the plot in DATE in good faith and that a copy of this contract constituted sufficient evidence that she was the legal successor of PERSON and that her request was therefore well - founded .

On DATE the ORG refused to make the entry requested by the applicant . The applicant lodged an appeal .

On an unspecified later date the ORG set aside the decision under appeal and ordered that the case be reconsidered . The court considered that the lower court had failed to take any position as regards a question crucial for the determination of the case , i.e. the question of conflict between the rights of the applicant originating from the purchase contract of DATE and those of Ms and Mr NORP stemming from the prescription judgment of DATE . In order for this issue to be decided it was necessary to establish whether the decision of ORG of DATE , annulling the DATE title deed of Ms. PERSON , concerned also plot no . CARDINAL .

On DATE ORG , ORG , refused to grant the applicant ’s request . The court established that the DATE decision confirming the title of the previous owner of the land , i.e. plot no . CARDINAL , had been declared null and void by the decision of ORG of DATE . The applicant ’s appeal was subsequently dismissed by ORG . The court concluded that the question of the validity of the title of the applicant ’s predecessor had thus been settled by a final decision . The court further observed that it was not in dispute that PERSON and Ms D had acquired ownership of the plot by prescription in DATE .

The court considered that the applicant ’s claim to eliminate the discrepancies between the entries in the land register and the actual ownership of the land concerned could be brought before a court only in contentious civil proceedings . It was only in such proceedings that the applicant could rely on the argument that her ownership was protected by the principle , provided for by LAW , that entries in the land register should be presumed to be accurate . The court further considered that , in proceedings concerning registration of ownership in the land register , it lacked jurisdiction to determine the question who was the true owner of the land .

The applicant appealed . She invoked again the principle , provided for by LAW that entries in the land register should be presumed to be accurate . She further referred to LAW and argued that she had submitted sufficient documents to prove that she had validly acquired ownership from PERSON

On DATE the ORG dismissed the applicant ’s appeal . The court relied on LAW and pointed out that proceedings under the provisions of this Act were concerned only with obtaining a decision to make new entries in the ORG , confirming ownership of land . However , in such proceedings the court lacked jurisdiction to determine any disputes as to who was the true owner . Such questions could be examined in civil contentious proceedings under LAW . The lower court had correctly established that the documents submitted by the applicant were insufficient to show that she was the legal successor of Ms T. Thus , her appeal had to be dismissed as lacking any legal basis .

Later the applicant submitted an identical request to ORG , which was finally rejected by ORG on DATE on the ground that the applicant ’s request constituted a res iudicata .

B. Relevant domestic law and practice

LAW provides that the conclusion of a contract of sale , or other contracts by which the parties agree to have title to property transferred , bring about a transfer of that title .

Article CARDINAL of LAW establishes a legal presumption that the title registered in the land register corresponds to the actual legal situation of the property .

Under LAW , if there is a discrepancy between the title as registered in the register and the actual legal situation of the property , the person who acquired a title from a person whose title had been registered is regarded as having acquired it validly ( rękojmia wiary publicznej ksiąg wieczystych ) .

LAW reads :

“ If there is a discrepancy between the title or right as registered in the register and the actual legal status of the land , a person whose title or right is not registered or is registered is entitled to request a rectification of the relevant entries .

A claim for rectification of entries can be made public by registering a warning in the register . Such an entry shall be made on the basis of either a non - final judicial decision , or a judicial temporary order . ”

A claim under LAW should be submitted to the court in ordinary contentious proceedings .

The land registers are run by ORG of ORG . Article CARDINAL provides that a separate file shall be opened for each property . Pursuant to LAW , the files shall be divided into CARDINAL sections . The first section shall identify the real property . The second chapter shall name its owner or owners . The third section shall list rights in rem and other rights of third parties encumbering the property , and the fourth section shall contain entries concerning mortgages .

LAW provides that the court shall examine , in non - contentious proceedings , motions to have entries made in the register . The applicable provisions of LAW shall be applied in such proceedings , with the changes provided for by LAW .

Under LAW , the court shall order that an entry be made in the register exclusively upon the motion of a party , or ex officio if the law expressly provides for it . Such a motion can be submitted by a person who has a legal interest in having her or his rights or obligations registered .

Pursuant to LAW , when examining a motion to have an entry made in the register , the court shall confine itself to examining the contents of the motion , the documents submitted with it and the existing entries in the register .


Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Elisabet Fura;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Loukis Loucaides;Lucius Caflisch;Matti Pellonpää;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Stefan Trechsel;Volodymyr Butkevych

The applicant was born in DATE and lives in GPE , GPE .

On CARDINAL DATE ORG ( verotoimisto , skattebyrån ) requested the applicant , who ran a car - repair workshop , to submit his observations regarding some alleged errors in his value - added tax ( VAT ) declarations ( arvonlisävero , mervärdesskatt ) for DATE .

On DATE ORG found that there were deficiencies in the applicant ’s book - keeping in that , for instance , receipts and invoices were inadequate . ORG made a reassessment of the ORG payable basing itself on the applicant ’s estimated income , which was higher than the income he had declared . It ordered him to pay , inter alia , tax surcharges ( veronkorotus , skatteförhöjning ) amounting to PERCENT of the reassessed tax liability ( the additional tax surcharges levied on the applicant totalled CARDINAL NORP Marks , corresponding to CARDINAL ) .

The applicant appealed to ORG ( lääninoikeus , länsrätten ) ( which later became ORG ( hallinto - oikeus , förvaltningsdomstolen ) ) . He requested an oral hearing and that the tax inspector as well as an expert appointed by the applicant be heard as witnesses . On DATE ORG took an interim decision inviting written observations from the tax inspector and after that an expert statement from an expert chosen by the applicant . The tax inspector submitted her statement of CARDINAL DATE to ORG . The statement was further submitted to the applicant for his observations . On DATE the applicant submitted his own observations on the tax inspector ’s statement . The statement of the expert chosen by him was dated and submitted to the court on DATE .

On DATE ORG held that an oral hearing was manifestly unnecessary in the matter because both parties had submitted all the necessary information in writing . It also rejected the applicant ’s claims .

On DATE the applicant requested leave to appeal , renewing at the same time his request for an oral hearing . On DATE ORG refused him leave to appeal .

Section CARDINAL(CARDINAL ) of ORG ( arvonlisäverolaki , mervärdesskattelagen ; PERSON no . DATE ) provides that if a person liable to pay taxes has failed to pay the taxes or clearly paid an insufficient amount of taxes or failed to give required information to the tax authorities , ORG ( verovirasto , skatteverket ) must assess the amount of unpaid taxes .

Section CARDINAL provides that a tax assessment may be conducted where a person has failed to make the required declarations or has given false information to the tax authorities . The taxpayer may be ordered to pay unpaid taxes or taxes that have been wrongly refunded to the person .

Section CARDINAL provides , inter alia , that a maximum tax surcharge of PERCENT of the tax liability may be imposed if the person has without a justifiable reason failed to give a tax declaration or other document in due time or given essentially incomplete information . The tax surcharge may amount at most to twice the amount of the tax liability , if the person has without any justifiable reason failed to fulfil his or her duties fully or partially even after being expressly asked to provide information .

In , for example , the NORP judicial reference book , ORG , a tax surcharge is defined as an administrative sanction of a punitive nature imposed on the taxpayer for conduct contrary to tax law .

Under NORP practice , the imposition of a tax surcharge does not prevent the bringing of criminal charges for the same conduct .

Section CARDINAL(CARDINAL ) of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki , förvaltningsprocesslagen ; PERSON no . ORG ) provides that an oral hearing must be held if requested by a private party . An oral hearing may however be dispensed with if a party ’s request is ruled inadmissible or immediately dismissed , or if an oral hearing would be clearly unnecessary owing to the nature of the case or other circumstances .

The explanatory part of the Government Bill ( no . CARDINAL ) for the enactment of LAW considers the right to an oral hearing as provided by LAW possibility in administrative matters to dispense with the hearing when it would be clearly unnecessary , as stated in section CARDINAL(CARDINAL ) of the said LAW . There it is noted that an oral hearing contributes to a focused and immediate procedure but , since it does not always bring any added value , it must be ensured that the flexibility and cost effectiveness of the administrative procedure is not undermined . An oral hearing is to be held when it is necessary for the clarification of the issues and the hearing can be considered beneficial for the case as a whole .

During DATE , ORG did not hold any oral hearings in tax matters . As to the CARDINAL administrative courts , appellants requested an oral hearing in a total of CARDINAL cases . The courts held an oral hearing in CARDINAL cases . There is no information as to how many of these taxation cases concerned the imposition of a tax surcharge . According to the ORG ’s written submission of DATE , the administrative courts had thus far in DATE held a total of CARDINAL oral hearings in tax matters . As regards ORG in particular , in DATE it examined a total of CARDINAL cases of which CARDINAL were tax matters . Out of the last - mentioned group of cases , CARDINAL concerned GPE . During DATE ORG held a total of CARDINAL oral hearings of which CARDINAL concerned GPE .


No violation of Art. 6-1;Not necessary to examine P1-1

Mr PERSON is a NORP citizen who lives in GPE and is a dealer in coins .

On DATE he formed a public limited company under NORP law , ARTSBY DATE , with its head office in GPE , for the purpose of dealing in old coins , objets d’art and precious stones . He owned the greater part of its capital ( CARDINAL out of a total of CARDINAL shares ) and acted as its chairman and managing director .

As a result of his activities , CARDINAL sets of proceedings - customs , tax and criminal proceedings - were brought against him , and they progressed more or less in parallel .

DATE and CARDINAL DATE ORG ( ORG frontier zone ) carried out a check on imports made by DATE ; they were acting on information received from an anonymous informer . The main events during the investigation were that PERSON was questioned and documents were seized ( DATE ) , clients were questioned ( DATE ) , employees and former employees of the company and an expert were interviewed ( DATE ) and PERSON himself was arrested in PERSON ( DATE ) .

On the basis of the evidence thus gathered the applicant was prosecuted for various customs and exchange - control offences . A composition was reached on DATE , however , whereby PERSON admitted the offences and paid a fine of MONEY ( ORG ) and the customs returned the seized items to him .

During the proceedings the applicant had access to all the documents in the customs file , which contained CARDINAL reports and CARDINAL other documents .

The reports were the following :

no . CARDINAL/CARDINAL : questioning of PERSON ( GPE , DATE ) ;

no . CARDINAL/CARDINAL : searches of the premises of ARTSBY DATE and of ORG home , and interviewing of PERSON ( GPE , DATE ) ;

no . CARDINAL : arrest of an employee of ARTSBY DATE ( GPE , DATE ) ;

no . CARDINAL/CARDINAL : sealing of a bank strongbox ( GPE , DATE ) ;

no . CARDINAL/CARDINAL : arrest of an employee of DATE ( GPE , DATE ) ;

no . CARDINAL/CARDINAL : opening of the bank strongbox ( GPE , DATE ) ;

no . CARDINAL/CARDINAL : seizure of old coins , cash and a vehicle ( GPE , DATE ) ;

no . CARDINAL/CARDINAL : interviewing of Mr Bendenoun ( GPE , DATE ) ;

no . CARDINAL : interviewing of PERSON ( GPE , DATE ) ;

no . CARDINAL : interviewing of CARDINAL of ARTSBY DATE ’s clients ( ORG , DATE ) ;

no . CARDINAL : interviewing of CARDINAL of ARTSBY DATE ’s clients ( GPE , DATE ) ;

no . CARDINAL : interviewing of an employee of ARTSBY DATE ( GPE , DATE ) ;

no . CARDINAL : interviewing of a former employee of ARTSBY DATE ( GPE , DATE ) ;

no . CARDINAL/CARDINAL : interviewing of a numismatist ( GPE , DATE ) ;

no . CARDINAL/CARDINAL : interviewing of a former representative of DATE ( GPE , DATE ) ;

no . CARDINAL : interviewing of a former chairman of ARTSBY DATE ( GPE , DATE ) ;

no . CARDINAL : arrest and interviewing of ORG , DATE ) ;

no . CARDINAL : interviewing of a representative of ARTSBY DATE ( GPE , DATE ) ;

no . CARDINAL : interviewing of PERSON ( Metz , DATE ) ;

no . CARDINAL/CARDINAL : interviewing of a witness ( GPE , DATE ) .

PERSON received a copy of CARDINAL of them ( nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL ) .

The CARDINAL documents comprised a register bearing the title " Invoice control " ( sealed document no . CARDINAL ) , seized on ARTSBY DATE ’s premises on DATE , and invoices and authentication certificates ( sealed documents nos . CARDINAL to CARDINAL ) , seized on DATE at the applicant ’s home .

At some time - according to the Government - before DATE and pursuant to LAW ( which became LAW of LAW on DATE ) , the customs sent the file to the Revenue .

From DATE to CARDINAL DATE ORG carried out an inspection of ARTSBY DATE ’s accounts .

On DATE the inspector sent CARDINAL supplementary tax assessments to Mr Bendenoun as chairman and managing director of the company . CARDINAL of them related to corporation tax and the other to value - added tax . They set out in detail the manner in which the inspector had determined what receipts had not been entered in the accounts and he confirmed them on DATE after receiving comments from the applicant .

On DATE he also sent PERSON personally a supplementary income - tax assessment , which he confirmed on CARDINAL DATE .

Under the supplementary assessment the applicant was required to pay an additional ORG CARDINAL,CARDINAL , including FRF CARDINAL,CARDINAL in penalties . The company was required to pay additional tax and penalties amounting to ORG CARDINAL,CARDINAL and ORG CARDINAL,CARDINAL in respect of the value - added tax and ORG CARDINAL,CARDINAL and ORG in respect of corporation tax .

The inspector then drew up a CARDINAL - page report , ending with a request that criminal proceedings should be taken against the applicant , and these were instituted on DATE ( see paragraph CARDINAL below ) .

On DATE ARTSBY DATE , in the person of its chairman and managing director , lodged CARDINAL appeals with the Regional Commissioner of Revenue in GPE in respect of the corporation tax and the value - added tax . Mr Bendenoun filed a third appeal , in his own name , concerning the income tax .

The Regional Commissioner refused the first CARDINAL appeals on DATE and the third on DATE .

On DATE PERSON , acting on behalf of ARTSBY DATE , made CARDINAL applications to ORG concerning the corporation tax and the value - added tax .

On DATE he made a further application to the same court , this time in his own name , challenging the supplementary tax assessment on his income .

The Revenue annexed to its CARDINAL sets of pleadings dated DATE CARDINAL customs reports ( nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL and CARDINAL - see paragraph CARDINAL above ) and CARDINAL letters from DATE dated DATE and DATE .

On DATE Mr Bendenoun ’s lawyer sent CARDINAL identically worded letters to the President of the court . They read as follows :

" On DATE you kindly forwarded to me the Regional Commissioner of Revenue ’s pleadings of CARDINAL DATE .

These pleadings refer several times to a file opened on PERSON , the chairman and managing director of the ARTSBY company , by the customs authorities .

CARDINAL documents from that file are annexed to the Revenue ’s pleadings .

It would seem essential for the whole of the file to be sent to the court and the undersigned .

The scale of the customs investigation was very large indeed and a number of reports , whose existence has not been mentioned by the authorities , are directly relevant to the present dispute .

On DATE the President of the court wrote to the GPE public prosecutor to this end :

" For the purposes of preparing for trial a case concerning tax files relating to the LAW company , I should be obliged if you would kindly produce to ORG the file on PERSON , the chairman and managing director of the company . A number of reports are directly relevant to the case , and ORG has informed me that the file in question was sent to you on DATE ... "

In a letter of DATE the public prosecutor replied as follows :

" ... I am unable to send you the file opened on PERSON in connection with the criminal investigation on charges of tax evasion .

I would point out that the Revenue is a civil party to the criminal proceedings and therefore may , since it has access to the case file , apply for a copy of it if it sees fit .

On DATE counsel for the applicant wrote again to the President of the court :

... [ my ] request was not for production of the tax - evasion file but of a customs file which has not been the subject of any judicial investigation involving the GPE public prosecutor ’s office as a composition was reached between Mr Bendenoun and the customs authorities .

I would add that production is being sought at my request and not at that of the Revenue , since it is precisely the Revenue that is relying on documents from the customs investigation , and unless he has been able to inspect the customs file in its entirety Mr Bendenoun can not make any sensible comments . "

On DATE Mr GPE ’s lawyer sent another letter to the President of the court :

To date , I have ... not been able to study the customs file .

The Revenue , however , relies on certain reports taken from a large mass of reports .

I should therefore be obliged if you would let me know how I am to be able to study the whole customs file .

I should also be glad if you would kindly extend the time allowed me for submitting comments until the customs file has been made available to me , as requested DATE . "

The President of ORG sent the public prosecutor a letter dated DATE in which he said :

" For the purposes of preparing for trial a case concerning tax files on the LAW company , I should be obliged if you would kindly produce to ORG the documents relating to the customs file on the criminal investigation into PERSON , the chairman and managing director of the company .

This customs file is directly relevant to the tax case , which is before ORG also . "

The request went unanswered .

On DATE the ORG delivered CARDINAL judgments in which it dismissed ARTSBY DATE ’s and ORG applications .

It did not mention the decisions given in the case by the criminal courts ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE Mr Bendenoun , acting on his own behalf and on behalf of ARTSBY DATE , appealed to the ORG d’État against the CARDINAL ORG judgments .

In supplementary pleadings filed on DATE he set out the following ground of appeal :

" Although the tax authorities made ample use of items in the customs file which in their view showed that the supplementary assessments in issue were justified , while ignoring those which clearly would have provided grounds for setting them aside , they deliberately decided not to meet the appellant ’s requests to inspect that customs file in its entirety .

Compliance with the adversary principle precludes accepting an argument which the opposing side can not be aware of and which thus can not be sensibly challenged by them . "

The Conseil d’État dismissed the appeals in CARDINAL judgments on CARDINAL DATE .

The reasons given for the CARDINAL concerning value - added tax for the period from DATE to CARDINAL DATE ( no . DATE ) were worded as follows :

" The lawfulness of the judgment appealed against

It appears from the pre - trial preparations that the applicant company was put in a position to inspect all the documents in the file that were likely to have a bearing on the resolution of the dispute , including the customs reports establishing the existence of concealed receipts . That being so , the ground of appeal alleging that the judgment at first instance was unlawful because the ‘ ARTSBY CARDINAL’ company was unable , during the course of the proceedings at first instance , to inspect all the documents in the customs file must be rejected .

The lawfulness of the assessment procedure and the burden of proof

It appears from the pre - trial preparations that in DATE the customs seized invoices for a total of ORG CARDINAL,CARDINAL,CARDINAL at the home of PERSON , the chairman and managing director of the public limited company ‘ LAW CARDINAL’ , which trades in old coins and nearly all of whose capital was owned by ORG from DATE onwards . It appears from the findings of fact made by ORG in a judgment that was given in criminal proceedings on CARDINAL DATE and has become final ( findings which are binding erga omnes ) that PERSON , ‘ who did not have sufficient financial resources personally to carry out’ the transactions recorded in the invoices seized at his home , ‘ deliberately decided , with the aim of evading tax on part of the company ’s receipts , to conceal PERCENT of the company ’s turnover by not entering it in the company ’s books and taking care to keep the copies of the relevant invoices at home ... ’ . These findings establish that the bookkeeping of the ‘ LAW CARDINAL’ company was not reliable . That being so , the Revenue was legally entitled to rectify of its own motion the figure of the company ’s turnover for the period from DATE to DATE . It is consequently for the company to show that the basis taken by the Revenue for making the disputed assessments was too high .

The amount of the assessments

The penalties

The applicant company intended , by means of a systematic process of concealment , to evade payment of value - added tax on transactions made in DATE and DATE . The authorities were therefore entitled to regard it as having been guilty of deception and subsequently to increase the tax due by PERCENT as provided in Articles DATE and CARDINAL of the General Tax Code taken together . "

The same reasoning was adopted in the other CARDINAL judgments ( nos . DATE and DATE ) .

By means of CARDINAL applications made on DATE ORG lodged a complaint against PERSON with the GPE public prosecutor ’s office . The applications were accompanied by a series of supporting documents .

On DATE the investigating judge instructed the police to obtain the customs file . This was received on DATE and contained copies of the CARDINAL reports , sealed document no . CARDINAL drawn up by officials of ORG and the CARDINAL other sealed documents in a hardback file . The whole customs file remained at the court throughout the judicial investigation and counsel for the accused had access to it on each occasion that his client was questioned ( DATE , CARDINAL DATE and CARDINAL DATE ) and again before the trial .

On CARDINAL DATE the public prosecutor applied for PERSON to be committed for trial .

On DATE ORG delivered CARDINAL judgments ( nos . CARDINAL and CARDINAL ) concerning the accused , the first in his capacity as chairman and managing director of DATE ( corporation tax and value - added tax ) , the second in his personal capacity ( income tax ) . In each judgment he was given a suspended sentence of CARDINAL months’ imprisonment for tax evasion , both sentences to run concurrently , and was ordered to be imprisoned for DATE in the event of non - payment of the sums owed .

Mr Bendenoun appealed against these judgments to ORG . In his submissions he complained that the documents relating to the customs proceedings were no longer in the file .

In CARDINAL judgments on CARDINAL DATE ( nos . CARDINAL/CARDINAL and CARDINAL ) ORG upheld the decisions of the trial court and also sentenced PERSON to a fine of ORG CARDINAL .

In the first judgment it dismissed the ground of appeal based on the fact that documents were missing from the file :

( d ) knowledge of [ the documents in the customs file ] is in no way necessary or even helpful for the discovery of the truth , since the statements lawfully obtained from the accused during the present proceedings and the documents that he himself submitted at the trial provided ample evidence in respect of the sole difficulty on which his guilt depends ; and

( e ) the rights of the defence have thus not been prejudiced in any way . "

Mr Bendenoun appealed on points of law against the CARDINAL judgments . In particular , he alleged that the rights of the defence had been infringed in that the customs file had not been put before ORG .

ORG dismissed his appeals in CARDINAL judgments on CARDINAL DATE . It rejected the ground of appeal just referred to in the following terms , identical in both judgments :

In finding Bendenoun guilty of fraudulently evading assessment or payment of taxes , ORG stated that the defendant did not ‘ dispute the existence of the invoices ORG ; that it was thus ‘ unnecessary to be acquainted with all the documents in the customs proceedings’ ; that it was apparent from the facts established in the judicial investigation that GPE had evaded the payment of corporation tax by the ARTSBY DATE company by concealing taxable sums exceeding the statutory allowances ; and that the defendant ’s explanation that the transactions in question had been effected in the course of a private , unregistered business as a dealer in coins were unacceptable owing to the circumstances set out and analysed by the court below .

Given these findings and statements , which adequately and consistently show that all the ingredients of tax evasion - as regards both the actus reus and the mens rea - have been made out against GPE , and seeing also that it is apparent from this that the court below based its decision solely on evidence which was put before it during the trial and was the subject of adversarial argument before it in accordance with the provisions of LAW and did not in any way infringe the rights of the defence , the grounds of appeal , which merely attempt to call in question the unfettered discretion of the courts below to assess this evidence , must fail . "


Violation of Art. 10;Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in the village of PERSON , in GPE .

The applicant has been the editor of a DATE newspaper , ORG ( GPE будни ) , since he founded it in DATE .

In DATE the state of educational system in LOC became the subject of media attention .

NORP The newspaper ORG ( Брянское время ) , in issue no . CARDINAL of DATE , published an article entitled “ Textbook for an Alchemist ” ( “ GPE для алхимика ” ) . The article discussed the shortage of textbooks in schools and problems related to their publication and supply . In particular , the article mentioned a “ mysterious ” publisher of textbooks which it linked to the dismissal of the then head of ORG , PERSON , who was later reappointed to the post . The article also referred to an audit report which had revealed numerous financial irregularities in the supply of textbooks .

On DATE ORG ( GPE газета ) , a newspaper of ORG , published an abridged version of an article by ORG and ORG entitled “ Question for an official . Where does the ' children 's money ' disappear ' to ? ” ( GPE для чиновника. Куда исчезают « детские GPE деньги ) , which criticised the poor state of the education system in LOC . The article read as follows :

“ ORG headed by PERSON and his first deputy PERSON spends CARDINAL CARDINAL,CARDINAL [ roubles ] a month per boarding school pupil . Education in a vocational school is more expensive than in a prestigious commercial college . According to the GPE 's reports , DATE MONEY are allocated to each school for the additional training of teachers . However , the schools do not receive it .

GPE broke all records for the number of children playing truant from boarding schools and has been subject to harsh criticism as a result . A shocking number of children are put on a missing list DATE . All right , now it is DATE and the weather is warm . However , the number of children playing truant from the boarding schools is no smaller in DATE , when it is freezing outside and the child has neither a place to sleep nor food . What is the explanation for this ? Children are being kept in boarding schools in unbearable conditions . Material resources there are very scarce and there is a high turnover of tutors because of low wages .

CARDINAL of MONEY is allocated DATE to CARDINAL vocational schools in PERSON . However , the picture is not any better in these schools . Ugly walls , obsolete equipment , low wages for the teachers ... The quality of training also leaves much to be desired . It is notable that PERCENT of the school leavers do not take up their chosen profession .

Fortunately , school financing is not within the competence of the local education officials . However , significant finances aimed at the development of school education pass through ORG . And very strange things happen there !

For instance , take ORG programme . The ORG 's senior officials manage to convince the councillors that there are not enough textbooks in the schools and that children from low - income families are in a particularly difficult situation . However , as soon as the councillors take a decision on the allocation of funds , these officials immediately forget the acuity of the problem . Nobody remembers the children from low - income families any more . Thus , CARDINAL ] of budgetary funds are spent DATE in , DATE out . DATE the officials bought textbooks out of the budgetary funds from a single supplier without an open tender . This is a gross violation of the presidential decree on fighting economic crime and corruption .

Another sphere within the ORG 's competence is the advanced training of educational staff . PERSON teachers became accustomed a long time ago to working without any methodical support . However , MONEY from the regional budget is allocated DATE to each school for advanced training and retraining . Headmasters in rural areas have not seen this money for a long time and do not even know that it has been allocated .

Why does this happen ? There are CARDINAL reasons . First , the money is not received by the schools as earmarked funds , but by entities subordinate to the ORG , such as ORG of ORG , irrespective of the quality of their work .

And if you enter the rector 's reception area , you will see fashionable splendour , an incredible number of secretaries ... The maintenance of ORG costs the regional budget CARDINAL per year . Teachers and headmasters can not even rebel against it , the point being that the rector of ORG is the selfsame Mr PERSON , who heads ORG .

Clearly , in an organisation as secretive as the regional ORG it is very hard to get at the truth . For instance , we have still to find out where MONEY for computer and communications equipment in the ORG 's account left over from DATE have disappeared to . As far back as DATE schools in the region were due to be provided with modern communication systems , but they still have not received anything . ”

On DATE the Bryanskiye Budni published the full version of the article . It was entitled “ Where does the ' children 's money ' disappear to ? ” ( ORG исчезают « детские деньги PERSON ) and read as follows :

“ ORG headed by PERSON and his first deputy PERSON spends CARDINAL a month per boarding school pupil . Education in a vocational school is more expensive than in a prestigious commercial college . According to the ORG 's reports , DATE MONEY are allocated to each school for the additional training of teachers . However , the schools do not receive it .

The saddest thing about this situation is that the heads of the ORG do not even think about trying to change things for the better . They wearily give instructions for decisions taken at meetings held DATE previously to be rewritten . Indeed , why change anything when they are comfortable with everything .

Material resources there are very scarce and there is a high turnover of tutors because of the low wages . Many benefactors who have seen this picture grant considerable funds to afford some improvement in the conditions for the children . But if only they knew how much budgetary money is spent per child ! We repeat : CARDINAL per month ! This is in addition to the funds provided by the benefactors .

However , it is not the children 's fault , but the fault of the system which the abovementioned heads have been building for DATE .

Vocational schools are also directly dependent on the regional ORG and receive taxpayers ' money through the ORG . Getting acquainted with the way the vocational schools function brings you down . The material resources of most of them are in decline : ugly walls , obsolete equipment and low wages for teachers . School leavers have extremely low levels of knowledge and professional skills . Unfortunately , PERCENT of the school leavers do not take up their chosen profession , so that budgetary money is effectively wasted .

CARDINAL of MONEY is seemingly allocated DATE to CARDINAL vocational schools . Despite this they are in decline and those they have trained are not in demand in the labour market , even though nowadays highly qualified workers are in sufficient demand and earn quite good money .

Fortunately , school financing is not within the competence of the local education officials . However , significant finances aimed at the development of school education pass through ORG , including the material resources for the schools and methodical support for teacher training . And very strange things happen there !

For instance , take ORG programme . When it is time to allocate funds , the ORG 's senior officials go to the council and convince the councillors that there are not enough textbooks in the schools and that children from low - income families are in a particularly difficult situation and can not get the basic books . This is true . However , as soon as the councillors take a decision on the allocation of funds – these officials immediately forget the acuity of the problem . Books are purchased randomly , distributed among the districts even more chaotically and incomprehensibly large sums ( MONEY ) are spent on shipping the educational materials . Nobody remembers the children from low - income families any more .

CARDINAL more sphere within the ORG 's competence is the advanced training of educational staff . PERSON teachers became accustomed a long time ago to working without any methodical support . The situation is absurd even : many teachers prefer to avoid methodical institutions as they do not expect anything from them but admonition and disrespect . However , MONEY from the regional budget are allocated DATE to each school for advanced training and retraining . Headmasters in rural areas have not seen this money for a long time and do not even know that it has been allocated .

Why does this happen ?

There are CARDINAL reasons . First , the money is not received by the schools as earmarked funds , but by entities subordinate to the ORG , such as ORG of ORG , irrespective of the quality of their work . If you enter the rector 's reception area , you will see fashionable , chic secretaries ... The maintenance of ORG costs the regional budget an incredible figure of CARDINAL per year .

Not only are the teachers and headmasters of the schools deprived of money that is due to them , they can not even rebel against it , the point being that the rector of ORG is the selfsame Mr PERSON who heads ORG . He is responsible not only for training , but for performance appraisal as well . If a teacher claims that he was offered a poor quality or uninteresting course , the training specialist who appraises him will unnerve and humiliate him , and perhaps reduce his marks and leave him with a pittance .

These are the conditions in which teachers work : with the feeling that as far as professional development is concerned they can count only on themselves and their colleagues . Or , as a teacher of literature , a teacher of the highest grade , said : ' You work and work , try and try , and then a newly fledged training specialist comes along and humiliates you for no reason . '

The other reason for the stalemate and mismanagement in education is the following . The former Governor released PERSON from the post of director of the regional GPE . However , the new Governor reappointed him for some reason , thus violating the law for a third time . Section CARDINAL of the Law on State Service of the Bryansk Region provides that only persons under CARDINAL can be appointed to such posts and that the appointment should be made on the basis of a competition advertised in the media . The executive branch is not a private clique , everything here is subject to State laws . However , the competition did not take place , not even superficially .

And the third : PERSON holds CARDINAL posts of head of department at the same time . This is a flagrant violation of the PERSON of LOC and of the PERSON on ORG . The appointments of the first deputy head of ORG and the other deputy PERSON were gross violations .

Clearly , in an organisation as secretive as the regional ORG it is very hard to get at the truth . For instance , we have still to find out where MONEY for computer and communications equipment in the ORG 's account left over from DATE has disappeared to . Pursuant to the agreement with ORG the schools of GPE were to be provided with modern communication systems in DATE . We have not found any evidence that the modern communication systems have arrived in the schools , but the CARDINAL is not in the account either . We would hope that the new authority will put things right in the education system of the region .

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( an abridged version of this material was published in ORG . Readers of the PERSON budni have an opportunity to get acquainted with the full version . ) ”

The newspaper PERSON ( ORG рабочий ) , in its issue of DATE , published an interview with ORG , a member of ORG of ORG and a former deputy head of ORG , entitled “ ORG ” ( GPE учителей ) . PERSON stated , inter alia , that I. PERSON and his deputy , N. Prokopenko , were responsible for the deficient system of education in the region . In particular , funding for schools had been misappropriated and a tender for publication of textbooks had been conducted with irregularities . Furthermore , despite the significant financial support provided to boarding schools from local budgets and private sponsors , many pupils developed alcohol addiction and upon leaving the boarding schools became dependent on the welfare system or went to jail . PERSON claimed that this state of affairs was due to the system created by PERSON and ORG . He also blamed them for the lamentable conditions in vocational schools .

On DATE Mr PERSON brought an action for defamation against the applicant and the authors of the article in the Sovetskiy District Court of PERSON and sought damages in the amount of MONEY ( RUB ) and costs from the applicant , damages in the amount of RUB CARDINAL from GPE and RUB CARDINAL from ORG He claimed , in particular , that the following passages were untrue and damaging to his honour and reputation :

“ The ORG is remarkable not only because of the inefficient expenditure of taxpayers ' money but because of the inertia of its senior officials . Both PERSON and PERSON have held the top posts in the regional education office for a very long time . Establishments for children left without parental care are the first thing the GPE finances and is responsible for . LOC broke all records for the number of children playing truant from boarding schools and has been subject to harsh criticism as a result . A shocking number of children are put on the missing list DATE . All right , now it is DATE and the weather is warm . However , the number of children playing truant from the boarding schools is no smaller in DATE , when it is freezing outside , and the child has neither a place to sleep nor food . What is the explanation for this ? Children are being kept in boarding schools in unbearable conditions . ”

“ However , there is another sad fact : notwithstanding such heavy expenditure , in most cases the region still ends up with social misfits . Many of the boarding school pupils engage in alcohol abuse , become dependent on state benefits or end up being prosecuted and sent to jail . However , it is not the children 's fault , but the fault of the system which the abovementioned heads have been building for DATE . ”

“ DATE the officials bought textbooks out of the budgetary funds from a single supplier without an open tender . This is a gross violation of the presidential decree on fighting economic crime and corruption . ”

“ Not only are teachers and headmasters of the schools deprived of money that is due to them , they can not even rebel against it , the point being that the rector of ORG is the selfsame Mr PERSON who heads ORG . He is responsible not only for training , but for performance appraisal as well . If a teacher claims that he was offered a poor - quality or uninteresting course , the training specialist who appraises him will unnerve and humiliate him , and perhaps reduce his marks and leave him with a pittance . ”

“ Then followed the dismissal of uncooperative members of staff presumptuous enough to hold their own point of view . This was followed by CARDINAL purchases without tenders and the concealment of the unauthorised expenditure by subordinate entities . ”

At the hearing Mr PERSON 's representative amended the claim . He excluded the first passage on the ground that it directly concerned ORG , and the third passage since it had previously been published in ORG and was reproduced verbatim .

The applicant claimed that the passages in question were merely excerpts from articles that had been published in other media .

On DATE the ORG found for the claimant . It held :

“ It follows from the [ second assertion ] that the authors of the article drew an affirmative conclusion as to the connection between the fact that the region attracts social misfits DATE those who abuse alcohol , are dependent [ on state benefits ] or end up being prosecuted – and the system of work of the senior officials named in the article : PERSON and PERSON .

Without providing incontrovertible evidence , the author contends [ in the fourth assertion ] that there is a correlation between what might be regarded as “ improper ” working methods used by training specialists when making an appraisal and the head of ORG responsible for the teachers ' appraisal .

[ As regards the fifth assertion ] , without having , either now or when the article was published , any evidence , such as a court decision , the ORG 's decree in respect of the claimant or documentary evidence concerning the inquiries into the expenditure , the author has defamed the claimant 's business reputation and has not substantiated his allegations .

The defendants have not provided any evidence that the claimant dismissed uncooperative members of staff presumptuous enough to hold their own point of view , that he had made CARDINAL purchases without tenders and had concealed the unauthorised expenditure by subordinate entities . This is not supposition or speculation on the author 's part , but an assertion , since the statements in question are not interrogative but affirmative .

The author conveys to the reader the idea that there were negative aspects to GPE PERSON 's work as a person and a senior official ( the Director of ORG of GPE ) without providing evidence of this to the court ...

The court can not take into account [ ORG 's ] arguments that he only gave one interview to ORG . The article is signed by [ him and ORG ] ; there is no reference to the interview with ORG . The defendant does not deny that he was the author .

The court finds unfounded [ ORG 's ] arguments that the article provides critical coverage of the problem of education in the territory of LOC , that the aim of his interview was to try to change the educational system in GPE for the better , and that the article was not about PERSON , or ORG and PERSON , but about the problems of the children , teachers , headmasters and population in our region .

The article provides specific figures , and the surnames of senior officials . From the wording of the contested statements it is clear that the author was specifically referring to the activity of the ORG 's head , PERSON .

In order to substantiate his arguments [ ORG ] provided copies of decrees issued by ORG and documentary evidence of the inquiries that had been made .

By decree no . CARDINAL of DATE ORG established a commission to investigate the facts presented in the article ' Question for an official . Where does the ' children 's money ' disappear to ? ' By decree no . CARDINAL of DATE ORG established a commission to investigate the facts presented in the article entitled ' Teachers ' instructors ' .

The commissions ' conclusions show that the articles presented information that was not true and that no evidence of unlawful expenditure or of textbooks being purchased without a tender was found .

The court can not take into account the arguments of [ MONEY ] that the editors of LOC should not be liable because the passages in question reproduce verbatim excerpts from other media sources , such as ORG and the newspaper Good TIME , GPE [ GPE день , PERSON ] .

Pursuant to section CARDINAL § CARDINAL of the PERSON on Media no . DATE as amended , the editorial board , editor in chief and journalist are not liable for the dissemination of information that is not true , or damages the honour and dignity of citizens or organisations , infringes the rights and lawful interests of citizens , or constitutes abuse of freedom of the media and ( or ) journalist 's rights , if they reproduce verbatim information and materials or excerpts from them disseminated by another media source that is identifiable and can be made liable for the breach of the legislation of GPE on the media .

The court found that the article indeed reproduced verbatim an excerpt from an article that was published in ORG on DATE ( third assertion in dispute ) .

However , the claimant 's representative stated as much when he amended his client 's claims . In accordance with [ his ] request , this assertion was not examined by the court .

The defendant did not produce any evidence to show that he had reproduced an excerpt from materials published in TIME , GPE . The article was published in TIME , GPE on DATE . On the same date the material for the article that was published in LOC on DATE was ready for publication . Furthermore , the article contained no acknowledgment that it was reproducing material from the newspaper Good TIME , GPE . There is only a reference to the fact that ' an abridged version of this material was published in ORG .

The court considers that the passages in dispute do not constitute an opinion or speculations by the article 's authors , but a statement of fact .

Having analysed the text of the article , it concludes that the information contested by the claimant was published by the newspaper 's editorial board on the basis of insufficiently verified data . ”

The court held the applicant liable to pay RUB MONEY ( MONEY ( ORG ) ) in respect of non - pecuniary damage sustained by the claimant . The applicant was also ordered to pay costs of RUB CARDINAL and court fees of RUB MONEY , and to publish the operative part of the judgment under the heading “ refutation ” in GPE . The court also held FAC and ORG liable to pay RUB CARDINAL each in respect of non - pecuniary damage . The applicant and GPE appealed .

On DATE ORG reversed the part of the judgment relating to the award of costs and court fees , quashing the order to pay court fees in the amount of RUB CARDINAL , but upheld the remainder . It held :

“ [ The appeal court ] finds the [ first - instance ] court 's conclusion that the information in dispute published in the article ' Where does the ' children 's money ' disappear to ? ' damaged the honour , dignity and business reputation of the claimant well - founded , since the passages in question affirmatively conclude that there was a connection between the fact that the region attracts social misfits DATE those who abuse alcohol , are dependant on welfare benefits or end up being prosecuted and sent to jail – and the system of work of the senior officials named in the article , including GPE GPE . The defendants did not provide any evidence to support either the author 's contention that there is a correlation between what might be regarded as ' improper working methods ' used by training specialists when making an appraisal and the head of ORG responsible for the teachers ' appraisal , or the fact of unauthorised expenditure by the claimant and the dismissal of uncooperative members of staff ' presumptuous enough to hold their own point of view ' .

The [ first - instance ] court rightly concluded that [ GPE 's ] arguments that the article was an independent reproduction by the regional newspaper LOC of material from ORG which he had provided during an interview were unfounded . The names of the authors [ ORG and GPE ] appear under the article ' Where does the ' children 's money ' disappear to ? ' , which was published in the newspaper LOC on DATE , edition no . CARDINAL ( CARDINAL ) . It is also indicated that ' an abridged version of this material was published in ORG ( an assertion supported by a copy of the article published in ORG on DATE that was provided to the court ) , and that ' readers of the PERSON budni have an opportunity to get acquainted with the full version ' . ”

Article CARDINAL guarantees freedom of thought and expression , together with freedom of the mass media .

Article CARDINAL provides that an individual may apply to a court with a request for the rectification of information ( “ сведения ” ) that is damaging to his honour , dignity or professional reputation unless the disseminator of that information proves that it “ corresponds to reality ” ( Paragraph CARDINAL ) . The defamatory information must be refuted in the same media source that disseminated it ( Paragraph CARDINAL ) . The aggrieved person also has a right to publish a response in the same media source ( Paragraph CARDINAL ) . He may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of the information ( Paragraph CARDINAL ) .

Under LAW of the Law on ORG no . PERSON of CARDINAL DATE a media source may refuse to publish a response to defamatory information if the aggrieved person did not apply for the publication of the response within DATE of the publication of the defamatory information . Under LAW a refusal to publish a response may be appealed against to a court within DATE of the publication of the defamatory information .

The ORG provides that untrue information ( “ сведения ” ) constitutes statements concerning facts or events which did not take place in reality at the time to which the information relates . It includes allegations of a breach of laws or moral principles ( commission of a dishonest act , improper behaviour in the workplace or in everyday life , etc . ) . Dissemination of such information is understood as the publication of the information or its broadcasting , diffusion thereof on the Internet , inclusion in professional references , public speeches , applications to ORG officials and communication in other forms , including oral , to CARDINAL other person ( Section CARDINAL ) .

NORP The domestic courts are instructed to take into account the Declaration on Freedom of Political Debate in the Media adopted by ORG DATE , in particular in the part relating to public scrutiny of political figures and public officials . The burden of proof is on the defendant to show that the disseminated information was true and accurate . If a subjective opinion is expressed in an insulting form damaging the honour , dignity or business reputation of the plaintiff , the defendant may be held liable to pay damages for the harm caused by the insult ( Section CARDINAL ) .

The Declaration states , inter alia , that pluralist democracy and freedom of political debate require that the public is informed about matters of public concern , which includes the right of the media to disseminate negative information and critical opinions concerning political figures and public officials , as well as the right of the public to receive them ( Section I ) . Public officials must accept that they will be subject to public scrutiny and criticism , particularly through the media , over the way in which they have carried out or carry out their functions , insofar as this is necessary for ensuring transparency and the responsible exercise of their functions ( Section IV ) .