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['I. THE CIRCUMSTANCES OF THE CASE', '4. The applicant was born in 1984 and lives in Leeds.', '5. The facts of the case may be summarised as follows.', '1. The criminal proceedings against the applicant', '6. The applicant arrived in the United Kingdom on 26 January 2001 and thereafter lived illegally at an address in Bedford.', '7. Whilst living in the United Kingdom the applicant successfully applied for three jobs using a false French passport. Between April 2003 and November 2004 he was employed by a recruitment agency. Between August 2004 and January 2006 he was employed in a cash and carry business and between January 2006 and February 2007 he was employed as a forklift truck driver.', '8. The applicant had used the false passport to support his assertion that he was entitled to work in the United Kingdom. All of his employers subsequently stated that they would not have employed him had they known of his true immigration status. Between April 2003 and February 2007 the applicant earned a total gross salary of 73,293.17 pounds sterling (GBP) from his employment. At the end of this period he had total savings of GBP 21,649.60.', '9. In January 2007 the applicant applied to the Driving and Vehicle Licensing Agency for a provisional driving licence. The application was accompanied by the same false French passport that the applicant had used to obtain employment in the United Kingdom. When the falsity of the passport was discovered, the police were informed.', '10. On 4 June 2007 the applicant pleaded guilty in the Crown Court at Luton to three counts of dishonestly obtaining a pecuniary advantage by deception (counts one, two and three on the indictment). He also pleaded guilty to one count of having a false identity document with intent (count four), one count of driving whilst disqualified (count five) and one count of driving a motor vehicle without insurance (count six). On 29 June 2007 the applicant was sentenced to concurrent terms of fifteen months ’ imprisonment for the first four counts together with a consecutive sentence of two months ’ imprisonment for the offence of driving whilst disqualified. No separate sentence was imposed for driving without insurance. The trial judge also recommended the applicant for deportation.', '11. In addition to the custodial sentence and the recommendation for deportation, the prosecution sought a confiscation order under section 6 of the Proceeds of Crime Act 2002 in respect of the applicant ’ s earnings (see relevant domestic law and practice below). The trial judge accepted that the applicant had paid all the tax and national insurance due on his earnings and that the money he had made from his employment had been truly earned. After deducting tax and national insurance payments, it was calculated that the benefit the applicant received from his earnings was GBP 50,000. It was agreed that of the GBP 50,000 the applicant still had assets of GBP 21,949.60. On this basis, on 29 June 2007 the trial judge imposed a confiscation order in the sum of GBP 21,949.60 upon the applicant, with a consecutive sentence of twelve months ’ imprisonment to be served in default of payment. Thus, the confiscation order had the effect of depriving the applicant of all of the savings that he had accumulated during the four years of employment.', '12. On 8 April 2008 the applicant sought an extension of time within which to appeal to the Court of Appeal against the imposition of the confiscation order. In his grounds of appeal, he contended that the grant of the confiscation order had not respected “European law”. That application was refused on 13 June 2008. The Single Judge noted that the applicant had failed to establish good reason for the extension of time sought and that he had no arguable grounds of appeal because he had benefited from the use of the false passport to the extent that it had enabled him to work and earn money and there had been no breach of his rights under the Convention.', '13. The applicant renewed his application before the Court of Appeal which, on 14 November 2008, granted him an extension of time and leave to appeal. Leading counsel was appointed on his behalf. Counsel initially argued first; that the applicant ’ s earnings were not a relevant benefit from criminal conduct within the meaning of the Proceeds of Crime Act 2002; and secondly, that the prosecutor ’ s decision to seek a confiscation order in this case constituted an abuse of process.', '14. The Court of Appeal heard part of the appeal on 18 February 2009. However, it decided to adjourn the appeal pending the publication by the Department of Public Prosecution (“the DPP”) of guidance for prosecutors on the circumstances under which a confiscation order could be sought.', '15. In a supplementary skeleton argument dated 5 June 2008, counsel for the applicant accepted that in light of the decision in R v. Carter and Others [2006] EWCA Crim 416 (see relevant domestic law and practice below), the court was bound to reject the first ground of appeal, namely that the applicant ’ s earnings were not a relevant “benefit”. He therefore accepted that the issue on appeal was whether it was oppressive and therefore an abuse of process for the Crown to seek and the court to impose a confiscation order for what amounted to the applicant ’ s entire savings over nearly four years of genuine work. In this regard, counsel submitted that there would be an abuse of process where, on a correct application of the law to the facts, the resulting “benefit” figure yielded a disproportionate or oppressive result. He further noted that Parliament has intended the Proceeds of Crime Act 2002 to be applied in a manner compatible with the requirements of the Convention. Therefore, in light of Article 1 of Protocol No. 1, in order to remain proportionate the application of the confiscation regime had to remain rationally connected to the public interest aims pursued and go no further than necessary to achieve them. It was therefore submitted that to seek the imposition of a confiscation order on the basis of a benefit figure which far exceeded the value of the defendant ’ s crimes could properly be described as disproportionate – either in the traditional sense used in criminal sentencing (“not fitting the punishment to the crime”) or in the language of the Convention – and was therefore an abusive exercise of jurisdiction.', '16. The applicant further submitted that a confiscation order could be described as oppressive where it did not pursue any of the legitimate aims of the confiscation regime and/or did not further the Parliamentary intent of stripping defendants of the proceeds of crime. He reiterated that Parliament had intended the legislation to be compatible with the Convention.', '17. On 28 July 2009, after the DPP guidance had been promulgated (see relevant domestic law and practice below), the Court of Appeal held that the decision to seek a confiscation order against the applicant did not constitute an abuse of process. The court therefore dismissed the applicant ’ s appeal against the order. In reaching this conclusion, the Court of Appeal said that the guidance represented a fair analysis of the effect of previous Court of Appeal and House of Lords decisions on the confiscation order regime.', '18. The court stated:', '“Abuses of the confiscation process may occur and, when they do, the appropriate remedy will normally be a stay of proceedings. However an abuse of process cannot be founded on the basis that the consequences of the proper application of the legislative structure may produce an ‘ oppressive ’ result with which the judge may be unhappy. Although the court may, of its own initiative, invoke the confiscation process, the responsibility for deciding whether properly to seek a confiscation order is effectively vested in the Crown. When it does so, the court lacks any corresponding discretion to interfere with that decision if it has been made in accordance with the statute. The just result of these proceedings is the result produced by the proper application of the statutory provisions as interpreted in the House of Lords and in this court. However to conclude that proceedings properly taken in accordance with statutory provisions constitute an abuse of process is tantamount to asserting a power in the court to dispense with the statute.', 'As a matter of principle, that is impermissible, and this court has said so. This, in R v. Shabir [2009] 1 CAR (S) 497, it was observed:', '‘ This jurisdiction must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic. ’', 'We repeat what was said at an earlier hearing involving Paulet.', '‘ The abuse of process jurisdiction is one which needs to be exercised with great circumspection. The jurisdiction cannot be converted on a case by case basis into a structure which involves, on proper analysis, something like wholesale undermining of the statutory provisions. It is not easy to conclude that it is an abuse of process for those responsible for enforcing legislation to see that it is indeed properly enforced. ’ ”', '19. The Court of Appeal found that applicant ’ s case could not be distinguished from its previous ruling in R v Carter and Others (see relevant domestic law and practice, paragraph 31 below). It concluded:', '“The reality is that throughout the period of his employment [the applicant] was relying on a continuing dishonest representation to three different employers. He deceived them into thinking that he was entitled to obtain employment with them. That was a crucial element of his criminality. His earnings, of course, reflected the fact that he had done the necessary work, as we shall assume, to the satisfaction of his various employers. But the opportunity for him to do so, that is the pecuniary advantage, was unlawfully obtained. If the employee worked to his employer ’ s satisfaction, and he paid his tax and National Insurance contributions on his earnings, and his deception either lacked any significant wider public interest, or, perhaps because of the passage of time, but for whatever reason, had ceased to have any meaningful effect on his employers ’ decision to continue his employment, the resolution of the issue might well be different. As it is there was here a wider public interest. The appellant was deliberately circumventing the prohibition against him seeking remunerative employment in this country in any capacity. No basis for interfering with the order made in the Crown Court has been shown. In our judgment the appropriate link between the appellant ’ s earnings and his criminal offences, in the context of the wider public interest, was plainly established. The appeal therefore fails.”', '20. On 27 October 2009 the Court of Appeal refused to certify a point of law of general public importance which ought to be considered by the Supreme Court.', '21. Enforcement proceedings have since been instigated against the applicant.', '2. The asylum and deportation proceedings', '22. On 28 June 2007 the applicant applied for asylum in the United Kingdom, alleging that his father had been killed in a land dispute between the Dioula and Bete community and that he would be at risk in Ivory Coast owing to his Dioula ethnicity. On 4 October 2007 his application was refused by the Secretary of State for the Home Department, who found no objective evidence that the Dioula were targeted solely on account of their ethnicity, and that the delay in claiming asylum had adversely affected the credibility of the rest of the applicant ’ s claim. A deportation order made by the Secretary of State was served on the applicant on 19 November 2007. On 24 April 2008 the applicant brought judicial review proceedings challenging the refusal of asylum and the decision to make a deportation order. This application was refused by the High Court on 16 May 2008 as the application had been lodged out of time and, in any event, the applicant had failed to avail himself of his statutory appeal rights by applying to the then Asylum and Immigration Tribunal. His renewed application for judicial review was rejected by the High Court on 27 June 2008. However, it appears that on 3 April 2008 the applicant submitted a notice of appeal to the Asylum and Immigration Tribunal. This was rejected by the Tribunal on 29 April 2008 as out of time.']
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This case concerned the confiscation of the applicant’s wages following his conviction for obtaining employment using a false passport. The applicant complained that the confiscation order against him had been disproportionate as it had amounted to the confiscation of his entire savings over nearly four years of genuine work, without any distinction being made between his case and those involving more serious criminal offences such as drug trafficking or organised crime.
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Work-related rights
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aspect_first
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Summarize the main question concerning work-related rights in this case.
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Document:
['I. THE CIRCUMSTANCES OF THE CASE', '4. The applicant was born in 1984 and lives in Leeds.', '5. The facts of the case may be summarised as follows.', '1. The criminal proceedings against the applicant', '6. The applicant arrived in the United Kingdom on 26 January 2001 and thereafter lived illegally at an address in Bedford.', '7. Whilst living in the United Kingdom the applicant successfully applied for three jobs using a false French passport. Between April 2003 and November 2004 he was employed by a recruitment agency. Between August 2004 and January 2006 he was employed in a cash and carry business and between January 2006 and February 2007 he was employed as a forklift truck driver.', '8. The applicant had used the false passport to support his assertion that he was entitled to work in the United Kingdom. All of his employers subsequently stated that they would not have employed him had they known of his true immigration status. Between April 2003 and February 2007 the applicant earned a total gross salary of 73,293.17 pounds sterling (GBP) from his employment. At the end of this period he had total savings of GBP 21,649.60.', '9. In January 2007 the applicant applied to the Driving and Vehicle Licensing Agency for a provisional driving licence. The application was accompanied by the same false French passport that the applicant had used to obtain employment in the United Kingdom. When the falsity of the passport was discovered, the police were informed.', '10. On 4 June 2007 the applicant pleaded guilty in the Crown Court at Luton to three counts of dishonestly obtaining a pecuniary advantage by deception (counts one, two and three on the indictment). He also pleaded guilty to one count of having a false identity document with intent (count four), one count of driving whilst disqualified (count five) and one count of driving a motor vehicle without insurance (count six). On 29 June 2007 the applicant was sentenced to concurrent terms of fifteen months ’ imprisonment for the first four counts together with a consecutive sentence of two months ’ imprisonment for the offence of driving whilst disqualified. No separate sentence was imposed for driving without insurance. The trial judge also recommended the applicant for deportation.', '11. In addition to the custodial sentence and the recommendation for deportation, the prosecution sought a confiscation order under section 6 of the Proceeds of Crime Act 2002 in respect of the applicant ’ s earnings (see relevant domestic law and practice below). The trial judge accepted that the applicant had paid all the tax and national insurance due on his earnings and that the money he had made from his employment had been truly earned. After deducting tax and national insurance payments, it was calculated that the benefit the applicant received from his earnings was GBP 50,000. It was agreed that of the GBP 50,000 the applicant still had assets of GBP 21,949.60. On this basis, on 29 June 2007 the trial judge imposed a confiscation order in the sum of GBP 21,949.60 upon the applicant, with a consecutive sentence of twelve months ’ imprisonment to be served in default of payment. Thus, the confiscation order had the effect of depriving the applicant of all of the savings that he had accumulated during the four years of employment.', '12. On 8 April 2008 the applicant sought an extension of time within which to appeal to the Court of Appeal against the imposition of the confiscation order. In his grounds of appeal, he contended that the grant of the confiscation order had not respected “European law”. That application was refused on 13 June 2008. The Single Judge noted that the applicant had failed to establish good reason for the extension of time sought and that he had no arguable grounds of appeal because he had benefited from the use of the false passport to the extent that it had enabled him to work and earn money and there had been no breach of his rights under the Convention.', '13. The applicant renewed his application before the Court of Appeal which, on 14 November 2008, granted him an extension of time and leave to appeal. Leading counsel was appointed on his behalf. Counsel initially argued first; that the applicant ’ s earnings were not a relevant benefit from criminal conduct within the meaning of the Proceeds of Crime Act 2002; and secondly, that the prosecutor ’ s decision to seek a confiscation order in this case constituted an abuse of process.', '14. The Court of Appeal heard part of the appeal on 18 February 2009. However, it decided to adjourn the appeal pending the publication by the Department of Public Prosecution (“the DPP”) of guidance for prosecutors on the circumstances under which a confiscation order could be sought.', '15. In a supplementary skeleton argument dated 5 June 2008, counsel for the applicant accepted that in light of the decision in R v. Carter and Others [2006] EWCA Crim 416 (see relevant domestic law and practice below), the court was bound to reject the first ground of appeal, namely that the applicant ’ s earnings were not a relevant “benefit”. He therefore accepted that the issue on appeal was whether it was oppressive and therefore an abuse of process for the Crown to seek and the court to impose a confiscation order for what amounted to the applicant ’ s entire savings over nearly four years of genuine work. In this regard, counsel submitted that there would be an abuse of process where, on a correct application of the law to the facts, the resulting “benefit” figure yielded a disproportionate or oppressive result. He further noted that Parliament has intended the Proceeds of Crime Act 2002 to be applied in a manner compatible with the requirements of the Convention. Therefore, in light of Article 1 of Protocol No. 1, in order to remain proportionate the application of the confiscation regime had to remain rationally connected to the public interest aims pursued and go no further than necessary to achieve them. It was therefore submitted that to seek the imposition of a confiscation order on the basis of a benefit figure which far exceeded the value of the defendant ’ s crimes could properly be described as disproportionate – either in the traditional sense used in criminal sentencing (“not fitting the punishment to the crime”) or in the language of the Convention – and was therefore an abusive exercise of jurisdiction.', '16. The applicant further submitted that a confiscation order could be described as oppressive where it did not pursue any of the legitimate aims of the confiscation regime and/or did not further the Parliamentary intent of stripping defendants of the proceeds of crime. He reiterated that Parliament had intended the legislation to be compatible with the Convention.', '17. On 28 July 2009, after the DPP guidance had been promulgated (see relevant domestic law and practice below), the Court of Appeal held that the decision to seek a confiscation order against the applicant did not constitute an abuse of process. The court therefore dismissed the applicant ’ s appeal against the order. In reaching this conclusion, the Court of Appeal said that the guidance represented a fair analysis of the effect of previous Court of Appeal and House of Lords decisions on the confiscation order regime.', '18. The court stated:', '“Abuses of the confiscation process may occur and, when they do, the appropriate remedy will normally be a stay of proceedings. However an abuse of process cannot be founded on the basis that the consequences of the proper application of the legislative structure may produce an ‘ oppressive ’ result with which the judge may be unhappy. Although the court may, of its own initiative, invoke the confiscation process, the responsibility for deciding whether properly to seek a confiscation order is effectively vested in the Crown. When it does so, the court lacks any corresponding discretion to interfere with that decision if it has been made in accordance with the statute. The just result of these proceedings is the result produced by the proper application of the statutory provisions as interpreted in the House of Lords and in this court. However to conclude that proceedings properly taken in accordance with statutory provisions constitute an abuse of process is tantamount to asserting a power in the court to dispense with the statute.', 'As a matter of principle, that is impermissible, and this court has said so. This, in R v. Shabir [2009] 1 CAR (S) 497, it was observed:', '‘ This jurisdiction must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic. ’', 'We repeat what was said at an earlier hearing involving Paulet.', '‘ The abuse of process jurisdiction is one which needs to be exercised with great circumspection. The jurisdiction cannot be converted on a case by case basis into a structure which involves, on proper analysis, something like wholesale undermining of the statutory provisions. It is not easy to conclude that it is an abuse of process for those responsible for enforcing legislation to see that it is indeed properly enforced. ’ ”', '19. The Court of Appeal found that applicant ’ s case could not be distinguished from its previous ruling in R v Carter and Others (see relevant domestic law and practice, paragraph 31 below). It concluded:', '“The reality is that throughout the period of his employment [the applicant] was relying on a continuing dishonest representation to three different employers. He deceived them into thinking that he was entitled to obtain employment with them. That was a crucial element of his criminality. His earnings, of course, reflected the fact that he had done the necessary work, as we shall assume, to the satisfaction of his various employers. But the opportunity for him to do so, that is the pecuniary advantage, was unlawfully obtained. If the employee worked to his employer ’ s satisfaction, and he paid his tax and National Insurance contributions on his earnings, and his deception either lacked any significant wider public interest, or, perhaps because of the passage of time, but for whatever reason, had ceased to have any meaningful effect on his employers ’ decision to continue his employment, the resolution of the issue might well be different. As it is there was here a wider public interest. The appellant was deliberately circumventing the prohibition against him seeking remunerative employment in this country in any capacity. No basis for interfering with the order made in the Crown Court has been shown. In our judgment the appropriate link between the appellant ’ s earnings and his criminal offences, in the context of the wider public interest, was plainly established. The appeal therefore fails.”', '20. On 27 October 2009 the Court of Appeal refused to certify a point of law of general public importance which ought to be considered by the Supreme Court.', '21. Enforcement proceedings have since been instigated against the applicant.', '2. The asylum and deportation proceedings', '22. On 28 June 2007 the applicant applied for asylum in the United Kingdom, alleging that his father had been killed in a land dispute between the Dioula and Bete community and that he would be at risk in Ivory Coast owing to his Dioula ethnicity. On 4 October 2007 his application was refused by the Secretary of State for the Home Department, who found no objective evidence that the Dioula were targeted solely on account of their ethnicity, and that the delay in claiming asylum had adversely affected the credibility of the rest of the applicant ’ s claim. A deportation order made by the Secretary of State was served on the applicant on 19 November 2007. On 24 April 2008 the applicant brought judicial review proceedings challenging the refusal of asylum and the decision to make a deportation order. This application was refused by the High Court on 16 May 2008 as the application had been lodged out of time and, in any event, the applicant had failed to avail himself of his statutory appeal rights by applying to the then Asylum and Immigration Tribunal. His renewed application for judicial review was rejected by the High Court on 27 June 2008. However, it appears that on 3 April 2008 the applicant submitted a notice of appeal to the Asylum and Immigration Tribunal. This was rejected by the Tribunal on 29 April 2008 as out of time.']
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MahmoudAly/LexAbSumm
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facts
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710
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['I. THE CIRCUMSTANCES OF THE CASE', 'A. The first and second applicants', '9. The first applicant, Mr Wilson, was employed as a journalist at the Daily Mail by Associated Newspapers Limited. The local branch, or “Chapel” of the second applicant, the NUJ, had been recognised since at least 1912 for the purpose of collective bargaining as regards all aspects of the terms and conditions of employment of its members.', '10. On 10 November 1989 the first applicant, in common with other journalists, received the following letter from the editor of the Daily Mail :', '“Dear Dave,', 'You probably know that the collective bargaining agreement between the Chapel and the Management is due to end on 1 April 1990. The Company has given notice that it does not intend to negotiate a new agreement with the Chapel and that, from that date, the NUJ will not be recognised as a negotiating body.', 'Instead, salaries will be reviewed annually each 1 October as they are already for the senior editors. Departmental heads will make recommendations to me for each individual member of their staff. I will, of course, discuss these with my editors in detail and add my own assessment, as I do now, for merit rises. I shall then implement salary increases.', 'A handbook has been drawn up which contains the benefits and conditions which exist under the current agreement.', 'Each member of staff will be given a new contract which embodies these conditions together with the Handbook. I think it is worth pointing out that the Handbook includes a grievance procedure.', 'All journalists who sign their new contracts before 1 January 1990 will be awarded a 4.5% wage increase backdated to 1 October 1989. As I have said, the next review of salaries will be on 1 October 1990.', 'I would like to point out that, contrary to what is happening on other national newspapers, our new arrangement does not involve any redundancies. Nor any radical changes in the way we produce our papers.', 'I think you should know that the initiative to end collective bargaining has come from the editors, not the management.', 'It is the skill of journalists as individuals that makes our papers. We appoint journalists as individuals and we want to continue to treat them as individuals throughout their whole career here, in order that they and our papers shall prosper.', 'The success of the Daily Mail is based on its team of highly qualified and highly paid journalists. We intend to develop that success and, with it, the careers of our journalists.', 'Yours sincerely,', '...”', "11. The first applicant refused to sign a new contract, because he objected to its provisions prohibiting trade union activity during working hours and removing his right to be represented by the union and the rights of the union to negotiate with management and be consulted on and agree changes to terms and conditions of employment. In subsequent years Mr Wilson's salary increased, but was never raised to the same level as that of employees who had accepted personal contracts.", '12. After 1 April 1990 the employer continued to deal with the NUJ on health and safety issues, but did not recognise the union for any other purpose.', 'B. The other applicants', '13. The third and fourth applicants, Mr Palmer and Mr Wyeth, were employed by Associated British Ports (“the ABP”) at the Port of Southampton as manual grade employees. They were members of the NURMTW (the fifth applicant). The trade union was recognised by the employer for the purposes of collective bargaining under the terms of a collective agreement.', '14. On 8 February 1991 the third and fourth applicants, in common with other manual grade employees, were sent letters in the following terms:', '“I am writing to advise you that Associated British Ports has decided to offer you a personal contract of employment to take effect on 1 March 1991.', 'You are probably aware that offers of personal contract terms have already been made to Management, Supervisory, Clerical, Technical staff and some Manual Grade Staff at Southampton. In offering personal contracts, the Company is seeking to introduce a system whereby the individual merit and contribution of an employee may be recognised and rewarded.', "Under the proposed new contract of employment, the level of future pay increases including that due on 1 March 1991, together with other improvements in conditions of service, will be determined by the Company. Wages will relate to the individual's responsibilities and performance together with conditions in the employment market, and the Company's financial position.", 'If you choose to accept a new individual contract then the Agreement with the Trade Unions, which currently forms part of your contract of employment, will no longer apply to you. Your conditions of employment will, however, differ only in limited respects from those which you have at present. The most significant alterations are that you will no longer have the right to be represented by a Trade Union and, in future, your pay will not be determined by the present negotiated wage ranges, i.e., Groups 1 to 4 and Chargehands will no longer apply. Membership of your current pension scheme is entirely unaffected by whether or not you elect for a personal contract; similarly, voluntary severance and redundancy payments are unchanged but your overtime calculator will rise to 100%.', 'As part of your personal contract the Company will pay you an increased wage from 1 March 1991, as advised to you in the attached personal letter, this new wage is inclusive of your pending March pay review.', 'This new wage has been determined by enhancing your present wage after first consolidating the following items of pay which will be discontinued under the personal contract terms:–', 'Allowances, e.g. Height, tool, allowances, etc.,', 'Holiday bonus and higher grade duty payments.', 'These items are being consolidated into the personal wage you are being offered and therefore become part of your pensionable pay.', 'Overtime will be offered as and when necessary. There will be no contractual overtime.', 'Under the new terms there will be a single annual review on 1 April, the first review being on 1 April 1992. Staff on personal contracts will be paid monthly by Bank Credit Transfer (BACS).', 'If you accept a personal contract, the Company will, if you so wish, provide private medical insurance by paying for membership of a Corporate Health Plan with Private Patients Plan (PPP) for yourself. Your spouse and children may be included in this cover if you choose to pay the appropriate additional subscription. Full details are enclosed with this letter. ...', 'The Company believes that the offer you are being made represents a significant improvement in your terms and conditions of employment. I hope therefore that you will decide to accept this offer. You should, however, clearly understand that you are free to reject it. ...”', 'The average pay increase offered to manual grade employees who accepted personal contracts was 10%.', '15. The third and fourth applicants refused to sign personal contracts. Their pay and conditions of employment for 1991/92 were decided on a collective basis following negotiations between the union and the employer. They received an increase of pay and allowances of 8.9% and were not offered private medical insurance.', '16. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.', '17. The remaining applicants, Mr Doolan and the others, were all employed by the ABP at the Bute Docks in Cardiff and were members of the fifth applicant trade union, which was recognised by the employer for the purposes of collective bargaining. On 19 April and 19 July 1991 employees were sent letters offering them personal contracts with pay increases. In return, the employee had to relinquish all rights to trade union recognition and representation, and to agree that annual increases and other terms and conditions would no longer be negotiated by the union on his behalf.', '18. The applicants refused to sign personal contracts and, as a result, received only a 4% annual pay increase on their basic rate of pay. Those employees holding the same positions as the applicants who accepted personal contracts received a pay increase which was approximately 8% to 9% greater than that awarded to the applicants.', '19. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.', 'C. Proceedings before the domestic courts and tribunals', '20. The individual applicants all separately applied to the Industrial Tribunal complaining that the requirement to sign the personal contract and lose union rights, or accept a lower pay rise, was contrary to section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 (“the 1978 Act” – see paragraph 27 below).', '21. In the proceedings brought by Mr Wilson, Mr Palmer and Mr Wyeth, the Industrial Tribunal found in favour of the applicants. The employers successfully appealed to the Employment Appeal Tribunal, and the applicants appealed to the Court of Appeal.', '22. The Court of Appeal found for the applicants on 30 April 1993 (judgment reported as Associated British Ports v. Palmer and Others; Associated Newspapers v. Wilson [1994] Industrial Cases Reports 97).', 'In Palmer and Others it was accepted in the Court of Appeal that, in discriminating against the employees who refused to sign personal contracts, the employer had taken “action (short of dismissal)” against them, within the meaning of section 23 of the 1978 Act. The court held that the concept “being ... a member of an independent trade union” in section 23 involved more than simply holding a union membership card, and included making use of the essential services provided by the union, such as collective representation. In offering pay increases to those who revoked their right to be represented by the union, the employer had intended to induce employees to abandon collective bargaining and thus to achieve greater flexibility and bring an end to the need to consult the union. In denying the pay rise to those who would not forgo collective representation, the employer had acted with the purpose of penalising union membership, contrary to section 23(1)(a) of the 1978 Act.', "In Wilson it was accepted that the employer's decision to de-recognise the union from 1 April 1990 was not contrary to section 23, since the de-recognition was aimed at the union as a whole and was not action against any individual employee. The union had no legal sanction against de-recognition or the termination of the agreement on conditions of employment it had negotiated; the only sanction available to it was the threat of industrial action. The employer's purpose in offering a pay rise to those employees who accepted the new terms of employment was to negate the power of the union with a view to bringing an end to collective bargaining. Its purpose in denying the pay rise to the applicant because he refused to abandon collective bargaining was to deter him from being a member of the union.", "23. The employers appealed to the House of Lords, which, on 16 March 1995, decided unanimously against the applicants ([1995] 2 Law Reports: Appeal Cases 454). Three of the five Law Lords held that the word “action” in section 23(1) could not be construed as including an omission, so that the withholding of benefits by the employers from the applicants did not amount to “action (short of dismissal)”. In addition, four of the five Law Lords found that the employers' conduct had not been motivated by “the purpose of preventing, ... deterring ... or penalising” union membership, although in Palmer and Others (in the words of Lord Bridge) “it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union's collective-bargaining umbrella and to deal in future directly with the employers over their terms and conditions of employment”. However, trade unions could offer their members services other than the negotiation of terms and conditions of employment, and membership of a trade union could not therefore be equated with the use of the union's services for collective bargaining.", "24. Following the House of Lords' judgment, the applicants withdrew their applications from the Industrial Tribunal, having been advised that they could not succeed."]
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See above, under “Right to bargain collectively”.
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Trade union rights
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aspect_first
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Summarize the central issue concerning trade union rights in this case.
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Document:
['I. THE CIRCUMSTANCES OF THE CASE', 'A. The first and second applicants', '9. The first applicant, Mr Wilson, was employed as a journalist at the Daily Mail by Associated Newspapers Limited. The local branch, or “Chapel” of the second applicant, the NUJ, had been recognised since at least 1912 for the purpose of collective bargaining as regards all aspects of the terms and conditions of employment of its members.', '10. On 10 November 1989 the first applicant, in common with other journalists, received the following letter from the editor of the Daily Mail :', '“Dear Dave,', 'You probably know that the collective bargaining agreement between the Chapel and the Management is due to end on 1 April 1990. The Company has given notice that it does not intend to negotiate a new agreement with the Chapel and that, from that date, the NUJ will not be recognised as a negotiating body.', 'Instead, salaries will be reviewed annually each 1 October as they are already for the senior editors. Departmental heads will make recommendations to me for each individual member of their staff. I will, of course, discuss these with my editors in detail and add my own assessment, as I do now, for merit rises. I shall then implement salary increases.', 'A handbook has been drawn up which contains the benefits and conditions which exist under the current agreement.', 'Each member of staff will be given a new contract which embodies these conditions together with the Handbook. I think it is worth pointing out that the Handbook includes a grievance procedure.', 'All journalists who sign their new contracts before 1 January 1990 will be awarded a 4.5% wage increase backdated to 1 October 1989. As I have said, the next review of salaries will be on 1 October 1990.', 'I would like to point out that, contrary to what is happening on other national newspapers, our new arrangement does not involve any redundancies. Nor any radical changes in the way we produce our papers.', 'I think you should know that the initiative to end collective bargaining has come from the editors, not the management.', 'It is the skill of journalists as individuals that makes our papers. We appoint journalists as individuals and we want to continue to treat them as individuals throughout their whole career here, in order that they and our papers shall prosper.', 'The success of the Daily Mail is based on its team of highly qualified and highly paid journalists. We intend to develop that success and, with it, the careers of our journalists.', 'Yours sincerely,', '...”', "11. The first applicant refused to sign a new contract, because he objected to its provisions prohibiting trade union activity during working hours and removing his right to be represented by the union and the rights of the union to negotiate with management and be consulted on and agree changes to terms and conditions of employment. In subsequent years Mr Wilson's salary increased, but was never raised to the same level as that of employees who had accepted personal contracts.", '12. After 1 April 1990 the employer continued to deal with the NUJ on health and safety issues, but did not recognise the union for any other purpose.', 'B. The other applicants', '13. The third and fourth applicants, Mr Palmer and Mr Wyeth, were employed by Associated British Ports (“the ABP”) at the Port of Southampton as manual grade employees. They were members of the NURMTW (the fifth applicant). The trade union was recognised by the employer for the purposes of collective bargaining under the terms of a collective agreement.', '14. On 8 February 1991 the third and fourth applicants, in common with other manual grade employees, were sent letters in the following terms:', '“I am writing to advise you that Associated British Ports has decided to offer you a personal contract of employment to take effect on 1 March 1991.', 'You are probably aware that offers of personal contract terms have already been made to Management, Supervisory, Clerical, Technical staff and some Manual Grade Staff at Southampton. In offering personal contracts, the Company is seeking to introduce a system whereby the individual merit and contribution of an employee may be recognised and rewarded.', "Under the proposed new contract of employment, the level of future pay increases including that due on 1 March 1991, together with other improvements in conditions of service, will be determined by the Company. Wages will relate to the individual's responsibilities and performance together with conditions in the employment market, and the Company's financial position.", 'If you choose to accept a new individual contract then the Agreement with the Trade Unions, which currently forms part of your contract of employment, will no longer apply to you. Your conditions of employment will, however, differ only in limited respects from those which you have at present. The most significant alterations are that you will no longer have the right to be represented by a Trade Union and, in future, your pay will not be determined by the present negotiated wage ranges, i.e., Groups 1 to 4 and Chargehands will no longer apply. Membership of your current pension scheme is entirely unaffected by whether or not you elect for a personal contract; similarly, voluntary severance and redundancy payments are unchanged but your overtime calculator will rise to 100%.', 'As part of your personal contract the Company will pay you an increased wage from 1 March 1991, as advised to you in the attached personal letter, this new wage is inclusive of your pending March pay review.', 'This new wage has been determined by enhancing your present wage after first consolidating the following items of pay which will be discontinued under the personal contract terms:–', 'Allowances, e.g. Height, tool, allowances, etc.,', 'Holiday bonus and higher grade duty payments.', 'These items are being consolidated into the personal wage you are being offered and therefore become part of your pensionable pay.', 'Overtime will be offered as and when necessary. There will be no contractual overtime.', 'Under the new terms there will be a single annual review on 1 April, the first review being on 1 April 1992. Staff on personal contracts will be paid monthly by Bank Credit Transfer (BACS).', 'If you accept a personal contract, the Company will, if you so wish, provide private medical insurance by paying for membership of a Corporate Health Plan with Private Patients Plan (PPP) for yourself. Your spouse and children may be included in this cover if you choose to pay the appropriate additional subscription. Full details are enclosed with this letter. ...', 'The Company believes that the offer you are being made represents a significant improvement in your terms and conditions of employment. I hope therefore that you will decide to accept this offer. You should, however, clearly understand that you are free to reject it. ...”', 'The average pay increase offered to manual grade employees who accepted personal contracts was 10%.', '15. The third and fourth applicants refused to sign personal contracts. Their pay and conditions of employment for 1991/92 were decided on a collective basis following negotiations between the union and the employer. They received an increase of pay and allowances of 8.9% and were not offered private medical insurance.', '16. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.', '17. The remaining applicants, Mr Doolan and the others, were all employed by the ABP at the Bute Docks in Cardiff and were members of the fifth applicant trade union, which was recognised by the employer for the purposes of collective bargaining. On 19 April and 19 July 1991 employees were sent letters offering them personal contracts with pay increases. In return, the employee had to relinquish all rights to trade union recognition and representation, and to agree that annual increases and other terms and conditions would no longer be negotiated by the union on his behalf.', '18. The applicants refused to sign personal contracts and, as a result, received only a 4% annual pay increase on their basic rate of pay. Those employees holding the same positions as the applicants who accepted personal contracts received a pay increase which was approximately 8% to 9% greater than that awarded to the applicants.', '19. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.', 'C. Proceedings before the domestic courts and tribunals', '20. The individual applicants all separately applied to the Industrial Tribunal complaining that the requirement to sign the personal contract and lose union rights, or accept a lower pay rise, was contrary to section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 (“the 1978 Act” – see paragraph 27 below).', '21. In the proceedings brought by Mr Wilson, Mr Palmer and Mr Wyeth, the Industrial Tribunal found in favour of the applicants. The employers successfully appealed to the Employment Appeal Tribunal, and the applicants appealed to the Court of Appeal.', '22. The Court of Appeal found for the applicants on 30 April 1993 (judgment reported as Associated British Ports v. Palmer and Others; Associated Newspapers v. Wilson [1994] Industrial Cases Reports 97).', 'In Palmer and Others it was accepted in the Court of Appeal that, in discriminating against the employees who refused to sign personal contracts, the employer had taken “action (short of dismissal)” against them, within the meaning of section 23 of the 1978 Act. The court held that the concept “being ... a member of an independent trade union” in section 23 involved more than simply holding a union membership card, and included making use of the essential services provided by the union, such as collective representation. In offering pay increases to those who revoked their right to be represented by the union, the employer had intended to induce employees to abandon collective bargaining and thus to achieve greater flexibility and bring an end to the need to consult the union. In denying the pay rise to those who would not forgo collective representation, the employer had acted with the purpose of penalising union membership, contrary to section 23(1)(a) of the 1978 Act.', "In Wilson it was accepted that the employer's decision to de-recognise the union from 1 April 1990 was not contrary to section 23, since the de-recognition was aimed at the union as a whole and was not action against any individual employee. The union had no legal sanction against de-recognition or the termination of the agreement on conditions of employment it had negotiated; the only sanction available to it was the threat of industrial action. The employer's purpose in offering a pay rise to those employees who accepted the new terms of employment was to negate the power of the union with a view to bringing an end to collective bargaining. Its purpose in denying the pay rise to the applicant because he refused to abandon collective bargaining was to deter him from being a member of the union.", "23. The employers appealed to the House of Lords, which, on 16 March 1995, decided unanimously against the applicants ([1995] 2 Law Reports: Appeal Cases 454). Three of the five Law Lords held that the word “action” in section 23(1) could not be construed as including an omission, so that the withholding of benefits by the employers from the applicants did not amount to “action (short of dismissal)”. In addition, four of the five Law Lords found that the employers' conduct had not been motivated by “the purpose of preventing, ... deterring ... or penalising” union membership, although in Palmer and Others (in the words of Lord Bridge) “it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union's collective-bargaining umbrella and to deal in future directly with the employers over their terms and conditions of employment”. However, trade unions could offer their members services other than the negotiation of terms and conditions of employment, and membership of a trade union could not therefore be equated with the use of the union's services for collective bargaining.", "24. Following the House of Lords' judgment, the applicants withdrew their applications from the Industrial Tribunal, having been advised that they could not succeed."]
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MahmoudAly/LexAbSumm
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facts
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1,053
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['I. THE CIRCUMSTANCES OF THE CASE', '8. The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant was not affiliated to the old-age pension system under the General Social Security Act. However, from 1 January 1994 he was affiliated to the unemployment insurance scheme in respect of periods worked in prison.', '9. On 8 February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office ( Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”).', '10. By a decision of 8 March 1999, the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. A list of the applicant’s insurance periods, running from October 1953 to February 1999, was appended to the decision. According to the list, the applicant had accumulated only 117 insurance months. The list shows lengthy periods during which no contributions were made, in particular from May 1963 to May 1964, from July 1965 to September 1968, from June 1969 to January 1974, from April 1974 to March 1984, from June 1984 to May 1986 and from February 1987 to April 1994. Between May 1994 and February 1999 a number of months, during which the applicant received unemployment benefits or emergency relief payments under the Unemployment Insurance Act, were counted as substitute periods.', '11. Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court ( Arbeits- und Sozialgericht ). He submitted that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights.', '12. On 4 April 2001 the Labour and Social Court dismissed the applicant’s claim. It confirmed that the applicant had not completed the required minimum number of insurance months. Referring to section 4(2) of the General Social Security Act, the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme. According to the Supreme Court’s established case-law (judgment no. 10 ObS 66/90 of 27 February 1990 and judgment no. 10 ObS 52/99s of 16 March 1999), their work, corresponding to a legal obligation, differed from work performed by employees on the basis of an employment contract. The difference in treatment under social security law did not disclose any appearance of discrimination.', '13. The applicant, now assisted by counsel, appealed. He argued in particular that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified. Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view, there was no reason not to affiliate them to the old-age pension system.', '14. On 24 October 2001 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal. It held that the Labour and Social Court had correctly applied the law. According to the Supreme Court’s established case-law, prisoners performing obligatory work were not to be treated as employees within the meaning of section 4(2) of the General Social Security Act and were therefore not affiliated to the compulsory social insurance scheme. The fact that, since the 1993 amendment to the Unemployment Insurance Act, prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old-age pension system. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners. In that connection, the Court of Appeal noted that it did not share the applicant’s doubts regarding the possible unconstitutionality of working prisoners’ non-affiliation to the old-age pension scheme.', '15. On 12 February 2002 the Supreme Court ( Oberster Gerichtshof ) dismissed an appeal on points of law by the applicant. Its judgment was served on the applicant on 6 May 2002.', '16. On 29 January 2004 the applicant completed his last prison term. Subsequently, he received unemployment benefits until 29 October 2004 and, upon their expiry, emergency relief payments ( Notstandshilfe ). According to his counsel’s submissions at the hearing, the applicant currently receives some 720 euros (EUR) per month (composed of EUR 15.77 per day plus EUR 167 per month in emergency relief payments and EUR 87 as an allowance towards his rent expenses).']
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The applicant, who spent some twenty-eight years of his life in prison, complained in particular that the exemption of prison work from affiliation to the old-age pension system was discriminatory and deprived him of receiving pension benefits.
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Work-related rights
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coverage_first
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What is the employment issue?
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Document:
['I. THE CIRCUMSTANCES OF THE CASE', '8. The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant was not affiliated to the old-age pension system under the General Social Security Act. However, from 1 January 1994 he was affiliated to the unemployment insurance scheme in respect of periods worked in prison.', '9. On 8 February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office ( Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”).', '10. By a decision of 8 March 1999, the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. A list of the applicant’s insurance periods, running from October 1953 to February 1999, was appended to the decision. According to the list, the applicant had accumulated only 117 insurance months. The list shows lengthy periods during which no contributions were made, in particular from May 1963 to May 1964, from July 1965 to September 1968, from June 1969 to January 1974, from April 1974 to March 1984, from June 1984 to May 1986 and from February 1987 to April 1994. Between May 1994 and February 1999 a number of months, during which the applicant received unemployment benefits or emergency relief payments under the Unemployment Insurance Act, were counted as substitute periods.', '11. Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court ( Arbeits- und Sozialgericht ). He submitted that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights.', '12. On 4 April 2001 the Labour and Social Court dismissed the applicant’s claim. It confirmed that the applicant had not completed the required minimum number of insurance months. Referring to section 4(2) of the General Social Security Act, the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme. According to the Supreme Court’s established case-law (judgment no. 10 ObS 66/90 of 27 February 1990 and judgment no. 10 ObS 52/99s of 16 March 1999), their work, corresponding to a legal obligation, differed from work performed by employees on the basis of an employment contract. The difference in treatment under social security law did not disclose any appearance of discrimination.', '13. The applicant, now assisted by counsel, appealed. He argued in particular that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified. Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view, there was no reason not to affiliate them to the old-age pension system.', '14. On 24 October 2001 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal. It held that the Labour and Social Court had correctly applied the law. According to the Supreme Court’s established case-law, prisoners performing obligatory work were not to be treated as employees within the meaning of section 4(2) of the General Social Security Act and were therefore not affiliated to the compulsory social insurance scheme. The fact that, since the 1993 amendment to the Unemployment Insurance Act, prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old-age pension system. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners. In that connection, the Court of Appeal noted that it did not share the applicant’s doubts regarding the possible unconstitutionality of working prisoners’ non-affiliation to the old-age pension scheme.', '15. On 12 February 2002 the Supreme Court ( Oberster Gerichtshof ) dismissed an appeal on points of law by the applicant. Its judgment was served on the applicant on 6 May 2002.', '16. On 29 January 2004 the applicant completed his last prison term. Subsequently, he received unemployment benefits until 29 October 2004 and, upon their expiry, emergency relief payments ( Notstandshilfe ). According to his counsel’s submissions at the hearing, the applicant currently receives some 720 euros (EUR) per month (composed of EUR 15.77 per day plus EUR 167 per month in emergency relief payments and EUR 87 as an allowance towards his rent expenses).']
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MahmoudAly/LexAbSumm
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facts
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1,070
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['2. The applicant was born in 1965 and lives in Seville. The applicant was represented by Mr E. Mora Figueroa Rivero, a lawyer practising in Seville.', '3. The Government were represented by their Agent, Mr A. Brezmes Martínez de Villarreal, State Attorney.', '4. The facts of the case, as submitted by the parties, may be summarised as follows.', '5. Following an inspection of the applicant’s personal income tax returns for the years 1991, 1992 and 1993, the Spanish Tax Management Agency (“the tax authorities”) claimed 180,021.94 euros (EUR) from the applicant in respect of taxes for 1991, EUR 0 for 1992 and EUR 228.90 for 1993.', '6. The applicant appealed before the Economic Administrative Court of Andalusia (“the TEARA”) and, by a decision of 27 May 1999, the court allowed the appeal, declaring all tax claims null and void.', '7. The tax authorities appealed against the TEARA’s decision before the Central Economic Administrative Court (“the TEAC”). By a decision of 16 November 2001, the TEAC allowed the appeal in part, revoking the annulment of the tax claims in respect of the years 1991 and 1992.', '8. The subsequent appeals lodged by the applicant with the domestic courts (the Audiencia Nacional and the Supreme Court) were dismissed by decisions of 26 July 2004 and 6 October 2005 respectively.', '9. On 28 March 2005 the tax authorities commenced the enforcement of the debt against the applicant. They issued a tax assessment for EUR 296,031.01, which included, in addition to the main debt, EUR 36,004.39 in respect of a surcharge for late payment and EUR 84,181.79 in respect of default interest. The tax assessment considered other items and previous payments, which is the reason why the total was lower than the sum of the main amount, the surcharge and the interest. The applicant paid these amounts, by means of a seizure of assets by the tax authorities.', '10. Once the payment had been made, within the framework of the tax enforcement proceedings, the applicant lodged two separate applications for undue payment against the tax authorities’ assessment, one in respect of the main debt and the other in respect of the surcharge for late payment and default interest. In both applications he relied on section 110 of the Royal Decree 391/1996 (see below) and argued that, after the TEARA’s decision of 27 May 1999 had declared the initial tax claims null and void (see paragraph 6 above), the tax claim for 1991 has lost its effect and the underlying title should have been reactivated before enforcing the debt. Therefore, he considered that the enforcement initiated by the tax authorities on 28 March 2005 had not been based on a valid title.', '11. The TEARA initially dismissed the application in respect of the main debt on 25 October 2012. However, on 8 September 2016, the TEAC allowed an appeal by the applicant and declared the payment of the main debt null and void. It agreed with the applicant’s arguments that the initial tax claim for year 1991 had lost its effect after the TEARA’s decision of 27 May 1999 and that the title had never been reactivated. It therefore considered that, in accordance with section 110 of the Royal Decree 391/1996, the enforcement title relied on by the tax authorities had not been valid; in view of this, the payment for the main debt was not due.', '12. In parallel proceedings, the TEARA also dismissed the application in respect of the surcharge for late payment and default interest on 25 October 2012, as did the TEAC on 28 January 2016, upon an appeal by the applicant. In these decisions, the TEARA and the TEAC considered that the tax claim for year 1991 had not lost its effect because the applicant had never requested the provisional enforcement of the TEARA’s decision of 27 May 1999; and the TEAC’s decision of 16 November 2001 (see paragraph 7 above) had revoked the annulment of tax claim for year 1991.', '13. On 3 May 2016 the applicant lodged an appeal against the TEAC’s decision with the Audiencia Nacional. He submitted his pleadings on 2 February 2017. In them, he alleged, among other things, that the main debt had been annulled by the TEAC’s decision of 8 September 2016 and that, as the surcharge and interest were ancillary to the main debt, they should equally be declared null and void.', '14. By a judgment of 19 June 2017, the Audiencia Nacional dismissed the applicant’s appeal in line with the reasoning of the TEARA and the TEAC. Concerning the applicant’s allegation that the surcharge and interest should be declared null and void as a result of the annulment of the main debt, the Audiencia Nacional did not expressly address that issue and stated only that “the allegations made at this time should have been made at the time when the tax was demanded or when the payment was requested, that is, once the tax assessments had become final”.', '15. By contrast, on 28 September 2017 the Audiencia Nacional, composed of the same judges but with a different judge acting as rapporteur, passed judgment in the cases of two of the applicant’s siblings, who until that moment had been subject to similar and parallel tax claims by the tax authorities, had followed the same route of appeal and had raised the same legal issues as the applicant. They had lodged their appeals with the Audiencia Nacional on the same day as the applicant, on 3 May 2016. In their cases, the Audiencia Nacional allowed their appeals and declared their respective surcharges and interest to be null and void, on the basis that, as they were ancillary to the main debt, which had been annulled by the TEAC on 8 September 2016, they should equally be annulled.', '16. The applicant lodged an appeal on points of law against the Audiencia Nacional judgment with the Supreme Court, which on 18 January 2018 was declared inadmissible owing to the lack of objective interest for the development of case-law.', '17. Subsequently, the applicant lodged an application for annulment with the Audiencia Nacional against the judgment of 19 June 2017. He complained that his right to equality before the law had been breached on account of the opposite outcome in his siblings’ cases, and that his right to a fair trial had also been breached on account of the Audiencia Nacional ’s failure to respond to his submission concerning the ancillary nature of the surcharge and interest.', '18. On 3 April 2018 the Audiencia Nacional dismissed the application for annulment. Firstly, it stated that, as the judgments in the cases of the applicant’s siblings were given after the judgment in the applicant’s case, the court was not bound by the criteria applied in the siblings’ cases. Secondly, without addressing the particular issue of whether the previous judgment had responded to the applicant’s submission that the surcharge and interest were ancillary to the main debt, it considered that the judgment of 19 June 2017 had duly stated the reasons for dismissing his appeal.', '19. The applicant lodged an amparo appeal with the Constitutional Court. In it he relied on Article 24 of the Spanish Constitution, concerning the right to a fair trial. He complained under that article that the Audiencia Nacional, in its judgment of 19 June 2017, had failed to respond to his submission concerning the ancillary nature of the surcharge and interest, and that, in its decision of 3 April 2018, it had again avoided responding to the applicant’s argument that his previous submission remained unresolved. He further relied on Article 14 of the Constitution, concerning the right to equality before the law, under which he invoked the opposite outcome in his siblings’ cases.', '20. On 26 September 2018 the Constitutional Court declared the amparo appeal inadmissible owing to the lack of special constitutional significance.']
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This case concerned administrative proceedings in which the applicant, after seizure of his assets to pay a tax debt of 296,031 euros that included, in addition to the main debt, a surcharge for late payment and default interest, lodged two separate applications for undue payment, one in respect of the main debt and the other in respect of the surcharge and interest. The one in respect of the main debt was allowed, while the one in respect of the surcharge and interest was dismissed. The applicant appealed to the Audiencia Nacional. In the ensuing judgment no reply was given to his allegation that the surcharge and interest should be declared null and void as a result of the annulment of the main debt. By contrast, two months later, the Audiencia Nacional allowed his siblings’ appeals, who had been subjected to similar and parallel tax claims, for that very reason.
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Taxation and the European Convention on Human Rights
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aspect_first
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Briefly describe how the Court considers fairness or proportionality in taxation measures.
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Document:
['2. The applicant was born in 1965 and lives in Seville. The applicant was represented by Mr E. Mora Figueroa Rivero, a lawyer practising in Seville.', '3. The Government were represented by their Agent, Mr A. Brezmes Martínez de Villarreal, State Attorney.', '4. The facts of the case, as submitted by the parties, may be summarised as follows.', '5. Following an inspection of the applicant’s personal income tax returns for the years 1991, 1992 and 1993, the Spanish Tax Management Agency (“the tax authorities”) claimed 180,021.94 euros (EUR) from the applicant in respect of taxes for 1991, EUR 0 for 1992 and EUR 228.90 for 1993.', '6. The applicant appealed before the Economic Administrative Court of Andalusia (“the TEARA”) and, by a decision of 27 May 1999, the court allowed the appeal, declaring all tax claims null and void.', '7. The tax authorities appealed against the TEARA’s decision before the Central Economic Administrative Court (“the TEAC”). By a decision of 16 November 2001, the TEAC allowed the appeal in part, revoking the annulment of the tax claims in respect of the years 1991 and 1992.', '8. The subsequent appeals lodged by the applicant with the domestic courts (the Audiencia Nacional and the Supreme Court) were dismissed by decisions of 26 July 2004 and 6 October 2005 respectively.', '9. On 28 March 2005 the tax authorities commenced the enforcement of the debt against the applicant. They issued a tax assessment for EUR 296,031.01, which included, in addition to the main debt, EUR 36,004.39 in respect of a surcharge for late payment and EUR 84,181.79 in respect of default interest. The tax assessment considered other items and previous payments, which is the reason why the total was lower than the sum of the main amount, the surcharge and the interest. The applicant paid these amounts, by means of a seizure of assets by the tax authorities.', '10. Once the payment had been made, within the framework of the tax enforcement proceedings, the applicant lodged two separate applications for undue payment against the tax authorities’ assessment, one in respect of the main debt and the other in respect of the surcharge for late payment and default interest. In both applications he relied on section 110 of the Royal Decree 391/1996 (see below) and argued that, after the TEARA’s decision of 27 May 1999 had declared the initial tax claims null and void (see paragraph 6 above), the tax claim for 1991 has lost its effect and the underlying title should have been reactivated before enforcing the debt. Therefore, he considered that the enforcement initiated by the tax authorities on 28 March 2005 had not been based on a valid title.', '11. The TEARA initially dismissed the application in respect of the main debt on 25 October 2012. However, on 8 September 2016, the TEAC allowed an appeal by the applicant and declared the payment of the main debt null and void. It agreed with the applicant’s arguments that the initial tax claim for year 1991 had lost its effect after the TEARA’s decision of 27 May 1999 and that the title had never been reactivated. It therefore considered that, in accordance with section 110 of the Royal Decree 391/1996, the enforcement title relied on by the tax authorities had not been valid; in view of this, the payment for the main debt was not due.', '12. In parallel proceedings, the TEARA also dismissed the application in respect of the surcharge for late payment and default interest on 25 October 2012, as did the TEAC on 28 January 2016, upon an appeal by the applicant. In these decisions, the TEARA and the TEAC considered that the tax claim for year 1991 had not lost its effect because the applicant had never requested the provisional enforcement of the TEARA’s decision of 27 May 1999; and the TEAC’s decision of 16 November 2001 (see paragraph 7 above) had revoked the annulment of tax claim for year 1991.', '13. On 3 May 2016 the applicant lodged an appeal against the TEAC’s decision with the Audiencia Nacional. He submitted his pleadings on 2 February 2017. In them, he alleged, among other things, that the main debt had been annulled by the TEAC’s decision of 8 September 2016 and that, as the surcharge and interest were ancillary to the main debt, they should equally be declared null and void.', '14. By a judgment of 19 June 2017, the Audiencia Nacional dismissed the applicant’s appeal in line with the reasoning of the TEARA and the TEAC. Concerning the applicant’s allegation that the surcharge and interest should be declared null and void as a result of the annulment of the main debt, the Audiencia Nacional did not expressly address that issue and stated only that “the allegations made at this time should have been made at the time when the tax was demanded or when the payment was requested, that is, once the tax assessments had become final”.', '15. By contrast, on 28 September 2017 the Audiencia Nacional, composed of the same judges but with a different judge acting as rapporteur, passed judgment in the cases of two of the applicant’s siblings, who until that moment had been subject to similar and parallel tax claims by the tax authorities, had followed the same route of appeal and had raised the same legal issues as the applicant. They had lodged their appeals with the Audiencia Nacional on the same day as the applicant, on 3 May 2016. In their cases, the Audiencia Nacional allowed their appeals and declared their respective surcharges and interest to be null and void, on the basis that, as they were ancillary to the main debt, which had been annulled by the TEAC on 8 September 2016, they should equally be annulled.', '16. The applicant lodged an appeal on points of law against the Audiencia Nacional judgment with the Supreme Court, which on 18 January 2018 was declared inadmissible owing to the lack of objective interest for the development of case-law.', '17. Subsequently, the applicant lodged an application for annulment with the Audiencia Nacional against the judgment of 19 June 2017. He complained that his right to equality before the law had been breached on account of the opposite outcome in his siblings’ cases, and that his right to a fair trial had also been breached on account of the Audiencia Nacional ’s failure to respond to his submission concerning the ancillary nature of the surcharge and interest.', '18. On 3 April 2018 the Audiencia Nacional dismissed the application for annulment. Firstly, it stated that, as the judgments in the cases of the applicant’s siblings were given after the judgment in the applicant’s case, the court was not bound by the criteria applied in the siblings’ cases. Secondly, without addressing the particular issue of whether the previous judgment had responded to the applicant’s submission that the surcharge and interest were ancillary to the main debt, it considered that the judgment of 19 June 2017 had duly stated the reasons for dismissing his appeal.', '19. The applicant lodged an amparo appeal with the Constitutional Court. In it he relied on Article 24 of the Spanish Constitution, concerning the right to a fair trial. He complained under that article that the Audiencia Nacional, in its judgment of 19 June 2017, had failed to respond to his submission concerning the ancillary nature of the surcharge and interest, and that, in its decision of 3 April 2018, it had again avoided responding to the applicant’s argument that his previous submission remained unresolved. He further relied on Article 14 of the Constitution, concerning the right to equality before the law, under which he invoked the opposite outcome in his siblings’ cases.', '20. On 26 September 2018 the Constitutional Court declared the amparo appeal inadmissible owing to the lack of special constitutional significance.']
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MahmoudAly/LexAbSumm
| 1
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facts
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1,077
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['I. THE CIRCUMSTANCES OF THE CASE', '8. The applicant, Mrs Ianka Riener, was born in 1946 in Lubimetz, Bulgaria, and lives currently in Sofia.', 'A. Relevant background', '9. The applicant moved to Austria in 1985 and in 1986 married an Austrian national. In December 1989 she obtained Austrian nationality. Until December 2004 she remained a Bulgarian national (see paragraphs 48-52 below).', '10. The applicant has a daughter, born in 1963 in Bulgaria, currently an Austrian national living in Austria with her husband and children (the applicant ’ s grandchildren).', '11. The applicant was co-owner and commercial director of a company registered in Austria. In January 1991 she also registered in Bulgaria as a foreigner conducting economic activities there. Her main business was the importation of coffee in Bulgaria.', '12. Between 1991 and 1995 the applicant spent most of her time in Bulgaria. She has remained there ever since.', '13. By decision of 1 July 1992 a district fiscal authority in Sofia found that the applicant owed 26,494,582 “old” Bulgarian levs (“BGL”) of unpaid excise tax and BGL 4,104,925 of interest (the total amount due having been at the time the equivalent of about 1 million United States dollars (“USD”). The applicant ’ s ensuing appeals were dismissed on 20 August 1992 by the Sofia fiscal authority and on 7 April 1993, after a hearing on the matter, by the Sofia City Court. On 7 October 1994 the Supreme Court dismissed the applicant ’ s petition for review (cassation) of the above decisions. The applicant then instituted proceedings seeking to declare the fiscal decisions null and void. This was refused by the Sofia Regional Court on 28 October 1996.', '14. In 1992 and 1993 the fiscal authorities attached certain monies in bank accounts of the applicant and her company. It appears that not more than BGL 400,000 (less than 2 % of the debt) was thus collected in 1992.', '15. In 1993 the fiscal authorities attached another USD 50,000. A smaller amount of money was seized from the applicant in relation to a criminal investigation against her, opened in 1991. The investigation was discontinued in 1993 and the money restored to her later (see paragraphs 53-56 below).', 'B. Prohibition against the applicant leaving the country (“the travel ban”)', '1. Events before April 1997', '16. On 1 March 1995 the Sofia fiscal authority asked the Passport Department at the Directorate of the Police ( Napravlenie “ Pasporti i vizov rezhim, DNP) (“the Passport Police”) to impose on the applicant a travel ban under section 7 of the Law on Passports for Travelling Abroad ( Zakon za zadgranichnite pasporti ) (“the Passport Law”), until the payment of her debt, as established by the courts.', '17. On 7 March 1995 the Passport Police issued an order which stated inter alia that a prohibition was imposed against the applicant leaving the country and that her document for travelling abroad should be seized. The order referred to the fiscal decisions in the applicant ’ s case, stated that she had Bulgarian and Austrian nationality, and relied on section 29(1)(v) of the Law on the Sojourn of Aliens in Bulgaria ( Zakon za prebivavane na chuzhdentzite v Balgaria ).', '18. On 4 April 1995 the Bulgarian border control authorities seized the applicant ’ s Austrian passport when she attempted to leave Bulgaria and to enter Greece. The applicant did not have a Bulgarian passport.', '19. Upon the applicant ’ s complaint, on 20 April 1995 the Passport Police informed her that a travel ban under section 29(1)(v) of the Law on the Sojourn of Aliens had been imposed, in relation to the applicant ’ s obligation to pay BGL 26,499,582.', '20. On 26 May 1995 the applicant submitted an appeal to the Ministry of the Interior. She stated that the measure was unlawful as on other occasions she had been considered a Bulgarian citizen. On 22 June 1995 the Ministry replied stating that the measure against her had been based both on section 7(e) of the Passport Law and on section 29(1)(v) of the Law on the Sojourn of Aliens and had been lawful.', '21. On 28 June 1995 the applicant submitted an appeal to the Sofia City Court. She stated, inter alia, that she was a Bulgarian citizen and measures under section 29 of the Law on the Sojourn of Aliens could not be applied against her. She also claimed that the authorities held an adequate security as they had attached funds of the Austrian company worth USD 50,000. Insofar as section 7(e) of the Passport Law had been invoked, this provision concerned the possibility to refuse the issuance of, or to seize, a Bulgarian passport, not an Austrian one.', '22. On 24 April 1996 the City Court held a hearing, which was attended by the parties and their representatives. The applicant ’ s husband was also present.', '23. On 13 June 1996 the Sofia City Court dismissed the appeal. It found that the applicant ’ s obligation to pay a significant amount in taxes, as established by the courts, was a sufficient ground, under section 7(e) of the Passport Law, to seize any passport which is used for international travel. Unpaid tax was also a ground to impose a prohibition against leaving Bulgaria under section 29(1)(v) of the Law on Sojourn of Aliens. Although this provision did not provide expressly for a confiscation of a foreign passport, if applied in conjunction with the relevant regulations, it clearly allowed such measure in respect of a person against whom there had been a decision prohibiting his departure from Bulgaria. Since the applicant had double citizenship the authorities correctly relied both on the Law on the Sojourn of Aliens and on the Passport Law.', '24. On 25 June 1996 the applicant submitted to the Supreme Court a petition for review (cassation). On 17 March 1997, the Supreme Administrative Court, to which the case was transmitted following a reform in the judicial system, dismissed the applicant ’ s petition for review (cassation). It appears that another appeal against these decisions was dismissed by the Supreme Administrative Court on 13 June 1999.', '2. The decision of the former Commission of 11 April 1997 in application no. 28411/95', '25. By partial decision of 12 April 1996 and final decision of 11 April 1997 (DR 89, p. 83) the former European Commission of Human Rights declared inadmissible the applicant ’ s application in which she claimed, inter alia, that there had been violations of her right to freedom of movement and to respect for her private and family life on account of the restrictions on her travelling outside Bulgaria. The Commission found that the former complaint was incompatible ratione materiae with the provisions of the Convention as Bulgaria had not been a party to Protocol No. 4 of the Convention and that the latter complaint, examined under Article 8 of the Convention, was manifestly ill-founded, the applicant not having substantiated details about her family circumstances or whether or not she actually lived with her family between 1991 and 1995. The Commission also noted that there were no obstacles against the applicant ’ s family joining her in Bulgaria. In these circumstances there was no interference with her rights under Article 8 of the Convention.', '3. Events after the decision of the former Commission', '(a) The authorities ’ refusal to lift the travel ban and ensuing proceedings', '26. In 1996 and 1997 the value of the Bulgarian currency depreciated sharply and the inflation rate ran high. Statutory default interest rates also increased significantly but did not compensate fully for the inflation and the depreciation of the currency. As a result, persons owing monetary debts denominated in Bulgarian currency saw the burden of their debt diminish.', '27. According to calculations made by the fiscal authorities, as of 25 June 1997 the applicant ’ s outstanding debt was BGL 317,482,761 (the equivalent of approximately USD 160,000 at that time).', '28. On 18 July 1997 the applicant requested the Ministry of the Interior to terminate the prohibition against her leaving the country. On 5 August 1997 the request was refused. The decision stated that the prohibition was still in force and that the matter could not be re-examined, all administrative and judicial avenues of appeal having been exhausted.', '29. The applicant appealed against that refusal to the Sofia City Court which, on 11 November 1997, granted the appeal and set aside the refusal of the Ministry of the Interior. The court noted that the prohibition had been based on the Law on the Sojourn of Aliens. However, the applicant also had a Bulgarian nationality and, therefore, was not an alien. The authorities should have applied the Passport Law. Furthermore, the fiscal authorities were holding a significant amount as security, which could probably satisfy their claim against the applicant. It appears that the latter conclusion of the court was not based on a precise calculation of the debt. The Sofia City Court ’ s judgment of 11 November 1997 never entered into force as the Ministry of the Interior successfully appealed (see paragraphs 38-40 below).', '30. On 14 November 1997 the passport police issued a new order prohibiting the applicant ’ s leaving Bulgaria. The order referred to new enforcement proceedings opened by the fiscal authorities in respect of the same debt. It was based on section 29(1)(v) of the Law on the Sojourn of Aliens.', '31. Following these developments, there were two separate sets of judicial proceedings and two administrative proceedings, all concerning the travel ban imposed on the applicant:', '(b) First set of judicial proceedings', '32. On an unspecified date in 1997 the applicant appealed to the Sofia City Court against the order of 14 November 1997.', '33. On 20 May 1999 the Sofia City Court dismissed her appeal, noting that the applicant owed significant amounts and that insufficient security had been provided.', '34. Upon the applicant ’ s cassation appeal, on 21 June 2000 the Supreme Administrative Court upheld the lower court ’ s decision. Addressing the applicant ’ s argument that the new Aliens Law, in force since December 1998, should be applied, the court stated that that law did not have retroactive effect. The courts ’ task was to assess the lawfulness of the impugned administrative order in accordance with the law as in force at the moment when it was issued. Furthermore, it was not true that there had been “violations of international law”.', '(c) Administrative proceedings', '35. Separately, in 2000 the applicant also submitted administrative appeals against the order of 14 November 1997. She relied, inter alia, on Protocol No. 4 to the Convention, in force for Bulgaria as of 4 November 2000.', '36. Her appeal to the Ministry of the Interior was dismissed on 12 December 2000. The reply stated that the travel ban could only be lifted in case of payment of the debt or if sufficient security were deposited. As to the Fourth Protocol to the Convention, its Article 2 provided that freedom of movement could be restricted by national law. The former Law on the Sojourn of Aliens and the new Aliens Law provided for such restrictions.', '37. The applicant ’ s appeal to the Ministry of Finance was dismissed on 2 January 2001. She received a letter explaining that the measures against her were lawful as she had not paid her debt. Furthermore, the applicant could not rely on the Fourth Protocol to the Convention, which had entered into force for Bulgaria in 2000, because the impugned order had been issued on 14 November 1997.', '(d) Second set of judicial proceedings', '38. On an unspecified date in 1997 the Ministry of the Interior appealed against the Sofia City Court ’ s judgment of 11 November 1997 (see paragraph 29 above). In these proceedings the Ministry ’ s request for a stay of execution was granted on 23 December 1997 by the Supreme Administrative Court. In her submissions to the courts the applicant relied, inter alia, on Articles 8 and 13 of the Convention.', '39. On 22 December 1999 the Supreme Administrative Court set aside the Sofia City Court ’ s judgment of 11 November 1997 and dismissed the applicant ’ s request for the termination of the travel ban. The court found that the deposit held by the fiscal authorities as security was insufficient. It also found that prohibitions on leaving the country could be imposed on Bulgarian and foreign nationals alike and that it was not unlawful to rely on the Law on the Sojourn of Aliens. Although certain aspects of the legislation as in force at the time the prohibition had been imposed might have been unclear, the applicant was not entitled to rely thereon with the purpose to leave the country without having paid her debt. The court also stated that the prohibition would remain in force as long as the reasons for which it had been imposed remained valid.', '40. The applicant ’ s subsequent request for reopening of these proceedings was dismissed on 19 March 2001.', '(e) Continuing refusals of the authorities to lift the travel ban', '41. The prohibition against the applicant leaving Bulgaria remained in force. Throughout the relevant period, by way of yearly internal notes the fiscal authorities informed the passport police that the applicant had not paid yet.', '42. On 13 February 2002 the applicant ’ s Austrian passport was returned to her without prejudice to the prohibition on her travelling outside Bulgaria, which remained in force.', '43. On 10 February 2003 the applicant again requested that the travel ban be lifted, arguing that the statutory limitation period in respect of her debt had expired.', '44. By letter of 13 February 2003 the Passport police refused. The applicant filed an appeal with the Sofia City Court, but it was never examined.', '(f) The lifting of the travel ban', '45. On 26 August 2004 the Sofia tax authority sent a letter to the Ministry of the Interior, Directorate of Migration, stating, inter alia :', '“Having regard to the fact that the absolute prescription period with regard to the [applicant ’ s] fiscal debt, which was established by administrative decisions of 1 July 1992 and 9 October 1992, has expired and taking into consideration the fact that the [applicant] has made an objection with reference to the expiry of the prescription period, [it follows that] the fiscal administration ’ s right to seek the collection of the debt is extinguished... Therefore, there are no longer valid grounds for the prohibition against [the applicant] leaving the country... You are requested to repeal [that] administrative measure...”', '46. On 27 August 2004 the Ministry of the Interior repealed the prohibition. On 1 September 2004 the applicant received a copy of the order.', '47. The applicant remained in Bulgaria. In her letter of 23 September 2005 to the Court she explained that she stayed because she needed to organise the liquidation of her husband ’ s company in Bulgaria and that she would leave as soon as the liquidation procedure was completed.', 'C. The applicant ’ s requests to renounce her Bulgarian citizenship', '48. In 1989, 1994 and 1995 the applicant ’ s requests to renounce her Bulgarian citizenship were refused by way of unreasoned decisions.', '49. In February 2001 the applicant submitted again a request to the Ministry of Justice, seeking to renounce her Bulgarian citizenship. By decree of the President of Bulgaria of 12 October 2001 the request was refused. The decree is not amenable to judicial review (see paragraph 70 below). The applicant nevertheless attempted to institute judicial proceedings, challenging the fact that the Ministry of Justice had given a negative opinion on her request, before its transmission to the President. Those proceedings ended by final decision of 22 April 2004 of the Supreme Administrative Court, whereby the applicant ’ s appeal was declared inadmissible.', '50. Despite the refusal of her request, as she did not wish to be regarded as a Bulgarian citizen, the applicant refused to apply for Bulgarian identity papers and as a result encountered certain difficulties in respect of health care, housing, etc in the period 2001–2004. The applicant wished to have papers of a foreigner residing in Bulgaria. However, she was repeatedly informed that in accordance with the relevant law Bulgarian citizens who held a second citizenship were considered as Bulgarian citizens for purposes of their relations with the Bulgarian authorities.', '51. On 19 June 2003 the applicant requested again to renounce her Bulgarian citizenship. In 2003 the Austrian Embassy in Sofia inquired with the Bulgarian authorities about the applicant ’ s situation, expressed the view that the statutory prescription period for the applicant ’ s debt had expired and considered that the applicant ’ s request to renounce her Bulgarian citizenship could be granted.', '52. By decree of 8 December 2004, the Vice President of Bulgaria granted the applicant ’ s request to renounce her Bulgarian citizenship. The applicant was informed thereof by letter of 25 January 2005.', 'D. Other developments', '53. On 23 November 1998 the Sofia District Court gave judgment in a case concerning the applicant ’ s appeal against the attachment order made by the fiscal authorities in 1993. The attachment order was declared unlawful and set aside. As a result, on 6 January 1999 the fiscal authorities lifted the attachment of USD 50,000 which was paid to the applicant ’ s bank account.', '54. In September 1999 the applicant brought an action against the fiscal authorities and several courts claiming damages as a result of numerous allegedly unlawful acts against her.', '55. On 15 May 2003 the Sofia City Court dismissed the claims. The court acknowledged, inter alia, that the attachment imposed by the fiscal authorities in 1993 had been declared unlawful in 1998 and that the seizure of an amount of money in 1991 by the investigation authorities had also been annulled. As a result, in principle the applicant was entitled to compensation under the State Responsibility for Damage Act. However, she had failed to prove the amount of the loss suffered. Her action was, therefore, unsubstantiated and ill-founded. As far as alleged losses resulting from the travel ban were concerned, the court found that the prohibition on the applicant leaving Bulgaria was lawful and no issue of State liability arose.', '56. The applicant appealed to the Sofia Appellate Court. The outcome of those proceedings is unknown.']
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At the relevant time the applicant held both Austrian and Bulgarian nationality. She had business interests in Bulgaria and spent most of her time there. She amassed tax debts to a considerable amount. This remained unpaid. In March 1995, at the request of the tax authorities, the passport authority imposed a travel ban under the Law on Passports for Travelling Abroad. One month later, the applicant’s Austrian passport was seized at the border when she tried to cross into Greece, and a travel ban was imposed on her under the Law on the Sojourn of Aliens. The travel ban was lifted in August 2004, after the applicant’s tax debts had been extinguished through lapse of time. The applicant complained, in particular, about the ban preventing her from leaving Bulgaria.
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Taxation and the European Convention on Human Rights
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aspect_first
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Summarize the taxation-related human-rights issue addressed in the case.
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Document:
['I. THE CIRCUMSTANCES OF THE CASE', '8. The applicant, Mrs Ianka Riener, was born in 1946 in Lubimetz, Bulgaria, and lives currently in Sofia.', 'A. Relevant background', '9. The applicant moved to Austria in 1985 and in 1986 married an Austrian national. In December 1989 she obtained Austrian nationality. Until December 2004 she remained a Bulgarian national (see paragraphs 48-52 below).', '10. The applicant has a daughter, born in 1963 in Bulgaria, currently an Austrian national living in Austria with her husband and children (the applicant ’ s grandchildren).', '11. The applicant was co-owner and commercial director of a company registered in Austria. In January 1991 she also registered in Bulgaria as a foreigner conducting economic activities there. Her main business was the importation of coffee in Bulgaria.', '12. Between 1991 and 1995 the applicant spent most of her time in Bulgaria. She has remained there ever since.', '13. By decision of 1 July 1992 a district fiscal authority in Sofia found that the applicant owed 26,494,582 “old” Bulgarian levs (“BGL”) of unpaid excise tax and BGL 4,104,925 of interest (the total amount due having been at the time the equivalent of about 1 million United States dollars (“USD”). The applicant ’ s ensuing appeals were dismissed on 20 August 1992 by the Sofia fiscal authority and on 7 April 1993, after a hearing on the matter, by the Sofia City Court. On 7 October 1994 the Supreme Court dismissed the applicant ’ s petition for review (cassation) of the above decisions. The applicant then instituted proceedings seeking to declare the fiscal decisions null and void. This was refused by the Sofia Regional Court on 28 October 1996.', '14. In 1992 and 1993 the fiscal authorities attached certain monies in bank accounts of the applicant and her company. It appears that not more than BGL 400,000 (less than 2 % of the debt) was thus collected in 1992.', '15. In 1993 the fiscal authorities attached another USD 50,000. A smaller amount of money was seized from the applicant in relation to a criminal investigation against her, opened in 1991. The investigation was discontinued in 1993 and the money restored to her later (see paragraphs 53-56 below).', 'B. Prohibition against the applicant leaving the country (“the travel ban”)', '1. Events before April 1997', '16. On 1 March 1995 the Sofia fiscal authority asked the Passport Department at the Directorate of the Police ( Napravlenie “ Pasporti i vizov rezhim, DNP) (“the Passport Police”) to impose on the applicant a travel ban under section 7 of the Law on Passports for Travelling Abroad ( Zakon za zadgranichnite pasporti ) (“the Passport Law”), until the payment of her debt, as established by the courts.', '17. On 7 March 1995 the Passport Police issued an order which stated inter alia that a prohibition was imposed against the applicant leaving the country and that her document for travelling abroad should be seized. The order referred to the fiscal decisions in the applicant ’ s case, stated that she had Bulgarian and Austrian nationality, and relied on section 29(1)(v) of the Law on the Sojourn of Aliens in Bulgaria ( Zakon za prebivavane na chuzhdentzite v Balgaria ).', '18. On 4 April 1995 the Bulgarian border control authorities seized the applicant ’ s Austrian passport when she attempted to leave Bulgaria and to enter Greece. The applicant did not have a Bulgarian passport.', '19. Upon the applicant ’ s complaint, on 20 April 1995 the Passport Police informed her that a travel ban under section 29(1)(v) of the Law on the Sojourn of Aliens had been imposed, in relation to the applicant ’ s obligation to pay BGL 26,499,582.', '20. On 26 May 1995 the applicant submitted an appeal to the Ministry of the Interior. She stated that the measure was unlawful as on other occasions she had been considered a Bulgarian citizen. On 22 June 1995 the Ministry replied stating that the measure against her had been based both on section 7(e) of the Passport Law and on section 29(1)(v) of the Law on the Sojourn of Aliens and had been lawful.', '21. On 28 June 1995 the applicant submitted an appeal to the Sofia City Court. She stated, inter alia, that she was a Bulgarian citizen and measures under section 29 of the Law on the Sojourn of Aliens could not be applied against her. She also claimed that the authorities held an adequate security as they had attached funds of the Austrian company worth USD 50,000. Insofar as section 7(e) of the Passport Law had been invoked, this provision concerned the possibility to refuse the issuance of, or to seize, a Bulgarian passport, not an Austrian one.', '22. On 24 April 1996 the City Court held a hearing, which was attended by the parties and their representatives. The applicant ’ s husband was also present.', '23. On 13 June 1996 the Sofia City Court dismissed the appeal. It found that the applicant ’ s obligation to pay a significant amount in taxes, as established by the courts, was a sufficient ground, under section 7(e) of the Passport Law, to seize any passport which is used for international travel. Unpaid tax was also a ground to impose a prohibition against leaving Bulgaria under section 29(1)(v) of the Law on Sojourn of Aliens. Although this provision did not provide expressly for a confiscation of a foreign passport, if applied in conjunction with the relevant regulations, it clearly allowed such measure in respect of a person against whom there had been a decision prohibiting his departure from Bulgaria. Since the applicant had double citizenship the authorities correctly relied both on the Law on the Sojourn of Aliens and on the Passport Law.', '24. On 25 June 1996 the applicant submitted to the Supreme Court a petition for review (cassation). On 17 March 1997, the Supreme Administrative Court, to which the case was transmitted following a reform in the judicial system, dismissed the applicant ’ s petition for review (cassation). It appears that another appeal against these decisions was dismissed by the Supreme Administrative Court on 13 June 1999.', '2. The decision of the former Commission of 11 April 1997 in application no. 28411/95', '25. By partial decision of 12 April 1996 and final decision of 11 April 1997 (DR 89, p. 83) the former European Commission of Human Rights declared inadmissible the applicant ’ s application in which she claimed, inter alia, that there had been violations of her right to freedom of movement and to respect for her private and family life on account of the restrictions on her travelling outside Bulgaria. The Commission found that the former complaint was incompatible ratione materiae with the provisions of the Convention as Bulgaria had not been a party to Protocol No. 4 of the Convention and that the latter complaint, examined under Article 8 of the Convention, was manifestly ill-founded, the applicant not having substantiated details about her family circumstances or whether or not she actually lived with her family between 1991 and 1995. The Commission also noted that there were no obstacles against the applicant ’ s family joining her in Bulgaria. In these circumstances there was no interference with her rights under Article 8 of the Convention.', '3. Events after the decision of the former Commission', '(a) The authorities ’ refusal to lift the travel ban and ensuing proceedings', '26. In 1996 and 1997 the value of the Bulgarian currency depreciated sharply and the inflation rate ran high. Statutory default interest rates also increased significantly but did not compensate fully for the inflation and the depreciation of the currency. As a result, persons owing monetary debts denominated in Bulgarian currency saw the burden of their debt diminish.', '27. According to calculations made by the fiscal authorities, as of 25 June 1997 the applicant ’ s outstanding debt was BGL 317,482,761 (the equivalent of approximately USD 160,000 at that time).', '28. On 18 July 1997 the applicant requested the Ministry of the Interior to terminate the prohibition against her leaving the country. On 5 August 1997 the request was refused. The decision stated that the prohibition was still in force and that the matter could not be re-examined, all administrative and judicial avenues of appeal having been exhausted.', '29. The applicant appealed against that refusal to the Sofia City Court which, on 11 November 1997, granted the appeal and set aside the refusal of the Ministry of the Interior. The court noted that the prohibition had been based on the Law on the Sojourn of Aliens. However, the applicant also had a Bulgarian nationality and, therefore, was not an alien. The authorities should have applied the Passport Law. Furthermore, the fiscal authorities were holding a significant amount as security, which could probably satisfy their claim against the applicant. It appears that the latter conclusion of the court was not based on a precise calculation of the debt. The Sofia City Court ’ s judgment of 11 November 1997 never entered into force as the Ministry of the Interior successfully appealed (see paragraphs 38-40 below).', '30. On 14 November 1997 the passport police issued a new order prohibiting the applicant ’ s leaving Bulgaria. The order referred to new enforcement proceedings opened by the fiscal authorities in respect of the same debt. It was based on section 29(1)(v) of the Law on the Sojourn of Aliens.', '31. Following these developments, there were two separate sets of judicial proceedings and two administrative proceedings, all concerning the travel ban imposed on the applicant:', '(b) First set of judicial proceedings', '32. On an unspecified date in 1997 the applicant appealed to the Sofia City Court against the order of 14 November 1997.', '33. On 20 May 1999 the Sofia City Court dismissed her appeal, noting that the applicant owed significant amounts and that insufficient security had been provided.', '34. Upon the applicant ’ s cassation appeal, on 21 June 2000 the Supreme Administrative Court upheld the lower court ’ s decision. Addressing the applicant ’ s argument that the new Aliens Law, in force since December 1998, should be applied, the court stated that that law did not have retroactive effect. The courts ’ task was to assess the lawfulness of the impugned administrative order in accordance with the law as in force at the moment when it was issued. Furthermore, it was not true that there had been “violations of international law”.', '(c) Administrative proceedings', '35. Separately, in 2000 the applicant also submitted administrative appeals against the order of 14 November 1997. She relied, inter alia, on Protocol No. 4 to the Convention, in force for Bulgaria as of 4 November 2000.', '36. Her appeal to the Ministry of the Interior was dismissed on 12 December 2000. The reply stated that the travel ban could only be lifted in case of payment of the debt or if sufficient security were deposited. As to the Fourth Protocol to the Convention, its Article 2 provided that freedom of movement could be restricted by national law. The former Law on the Sojourn of Aliens and the new Aliens Law provided for such restrictions.', '37. The applicant ’ s appeal to the Ministry of Finance was dismissed on 2 January 2001. She received a letter explaining that the measures against her were lawful as she had not paid her debt. Furthermore, the applicant could not rely on the Fourth Protocol to the Convention, which had entered into force for Bulgaria in 2000, because the impugned order had been issued on 14 November 1997.', '(d) Second set of judicial proceedings', '38. On an unspecified date in 1997 the Ministry of the Interior appealed against the Sofia City Court ’ s judgment of 11 November 1997 (see paragraph 29 above). In these proceedings the Ministry ’ s request for a stay of execution was granted on 23 December 1997 by the Supreme Administrative Court. In her submissions to the courts the applicant relied, inter alia, on Articles 8 and 13 of the Convention.', '39. On 22 December 1999 the Supreme Administrative Court set aside the Sofia City Court ’ s judgment of 11 November 1997 and dismissed the applicant ’ s request for the termination of the travel ban. The court found that the deposit held by the fiscal authorities as security was insufficient. It also found that prohibitions on leaving the country could be imposed on Bulgarian and foreign nationals alike and that it was not unlawful to rely on the Law on the Sojourn of Aliens. Although certain aspects of the legislation as in force at the time the prohibition had been imposed might have been unclear, the applicant was not entitled to rely thereon with the purpose to leave the country without having paid her debt. The court also stated that the prohibition would remain in force as long as the reasons for which it had been imposed remained valid.', '40. The applicant ’ s subsequent request for reopening of these proceedings was dismissed on 19 March 2001.', '(e) Continuing refusals of the authorities to lift the travel ban', '41. The prohibition against the applicant leaving Bulgaria remained in force. Throughout the relevant period, by way of yearly internal notes the fiscal authorities informed the passport police that the applicant had not paid yet.', '42. On 13 February 2002 the applicant ’ s Austrian passport was returned to her without prejudice to the prohibition on her travelling outside Bulgaria, which remained in force.', '43. On 10 February 2003 the applicant again requested that the travel ban be lifted, arguing that the statutory limitation period in respect of her debt had expired.', '44. By letter of 13 February 2003 the Passport police refused. The applicant filed an appeal with the Sofia City Court, but it was never examined.', '(f) The lifting of the travel ban', '45. On 26 August 2004 the Sofia tax authority sent a letter to the Ministry of the Interior, Directorate of Migration, stating, inter alia :', '“Having regard to the fact that the absolute prescription period with regard to the [applicant ’ s] fiscal debt, which was established by administrative decisions of 1 July 1992 and 9 October 1992, has expired and taking into consideration the fact that the [applicant] has made an objection with reference to the expiry of the prescription period, [it follows that] the fiscal administration ’ s right to seek the collection of the debt is extinguished... Therefore, there are no longer valid grounds for the prohibition against [the applicant] leaving the country... You are requested to repeal [that] administrative measure...”', '46. On 27 August 2004 the Ministry of the Interior repealed the prohibition. On 1 September 2004 the applicant received a copy of the order.', '47. The applicant remained in Bulgaria. In her letter of 23 September 2005 to the Court she explained that she stayed because she needed to organise the liquidation of her husband ’ s company in Bulgaria and that she would leave as soon as the liquidation procedure was completed.', 'C. The applicant ’ s requests to renounce her Bulgarian citizenship', '48. In 1989, 1994 and 1995 the applicant ’ s requests to renounce her Bulgarian citizenship were refused by way of unreasoned decisions.', '49. In February 2001 the applicant submitted again a request to the Ministry of Justice, seeking to renounce her Bulgarian citizenship. By decree of the President of Bulgaria of 12 October 2001 the request was refused. The decree is not amenable to judicial review (see paragraph 70 below). The applicant nevertheless attempted to institute judicial proceedings, challenging the fact that the Ministry of Justice had given a negative opinion on her request, before its transmission to the President. Those proceedings ended by final decision of 22 April 2004 of the Supreme Administrative Court, whereby the applicant ’ s appeal was declared inadmissible.', '50. Despite the refusal of her request, as she did not wish to be regarded as a Bulgarian citizen, the applicant refused to apply for Bulgarian identity papers and as a result encountered certain difficulties in respect of health care, housing, etc in the period 2001–2004. The applicant wished to have papers of a foreigner residing in Bulgaria. However, she was repeatedly informed that in accordance with the relevant law Bulgarian citizens who held a second citizenship were considered as Bulgarian citizens for purposes of their relations with the Bulgarian authorities.', '51. On 19 June 2003 the applicant requested again to renounce her Bulgarian citizenship. In 2003 the Austrian Embassy in Sofia inquired with the Bulgarian authorities about the applicant ’ s situation, expressed the view that the statutory prescription period for the applicant ’ s debt had expired and considered that the applicant ’ s request to renounce her Bulgarian citizenship could be granted.', '52. By decree of 8 December 2004, the Vice President of Bulgaria granted the applicant ’ s request to renounce her Bulgarian citizenship. The applicant was informed thereof by letter of 25 January 2005.', 'D. Other developments', '53. On 23 November 1998 the Sofia District Court gave judgment in a case concerning the applicant ’ s appeal against the attachment order made by the fiscal authorities in 1993. The attachment order was declared unlawful and set aside. As a result, on 6 January 1999 the fiscal authorities lifted the attachment of USD 50,000 which was paid to the applicant ’ s bank account.', '54. In September 1999 the applicant brought an action against the fiscal authorities and several courts claiming damages as a result of numerous allegedly unlawful acts against her.', '55. On 15 May 2003 the Sofia City Court dismissed the claims. The court acknowledged, inter alia, that the attachment imposed by the fiscal authorities in 1993 had been declared unlawful in 1998 and that the seizure of an amount of money in 1991 by the investigation authorities had also been annulled. As a result, in principle the applicant was entitled to compensation under the State Responsibility for Damage Act. However, she had failed to prove the amount of the loss suffered. Her action was, therefore, unsubstantiated and ill-founded. As far as alleged losses resulting from the travel ban were concerned, the court found that the prohibition on the applicant leaving Bulgaria was lawful and no issue of State liability arose.', '56. The applicant appealed to the Sofia Appellate Court. The outcome of those proceedings is unknown.']
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MahmoudAly/LexAbSumm
| 0
|
facts
|
235
|
['I. THE CIRCUMSTANCES OF THE CASE', '5. The applicant was born in 1969 and lives in Lapinlahti.', '6. While driving his pickup van on 17 January 2001, the applicant was stopped by the police during a road check. The police discovered a more leniently taxed fuel than diesel oil in the tank of the van.', '7. On 26 February 2001 the applicant was fined for petty tax fraud through a summary penal order. The form stated, inter alia :', '“Misdemeanour, modus operandi:', 'Petty tax fraud (motor vehicle tax misdemeanour). [The applicant] used as fuel in his car fuel more leniently taxed than diesel oil without having paid due additional tax ( lisävero, tilläggsskatt ).', 'Footnote: he had filled the tank himself.”', 'The fine amounted to 720 Finnish marks (FIM, or 121 euros (EUR)). The summary penal order indicated that Chapter 29, Article 3, of the Penal Code ( rikoslaki, strafflagen; Act no. 769/1990) and sections 20 and 33 of the Motor Vehicle Tax Act ( laki moottoriajoneuvoverosta, lagen om skatt på motorfordon; Act no. 722/1966, now repealed) had been applied. As the applicant did not contest the imposition of the fine, it became final on 6 March 2001.', '8. In separate proceedings, and having received the applicant’s submission in writing on an unspecified date, on 17 September 2001 the Vehicle Administration ( ajoneuvohallintokeskus, fordonsförvaltningscentralen ) issued the applicant with a fuel fee debit amounting to FIM 90,000 (equivalent to EUR 15,137) on the ground that his pickup van had been run on more leniently taxed fuel than diesel oil without prior notification to the Vehicle Administration or Customs. The decision indicated that sections 2-7 of the Fuel Fee Act ( laki polttoainemaksusta; lagen om bränsleavgift; Act no. 337/1993, now repealed) had been applied. The decision also included instructions on how to appeal against it and how to apply for a reduction of the imposed amount.', '9. The applicant lodged both an application for a reduction of the fee and an appeal with a view to having the decision overturned, arguing, inter alia, that the fuel fee should have been claimed at the same time as the summary penal order was issued. As it had not been claimed at that time, it was no longer possible to debit the fuel fee in the light of Article 7 of the Convention.', '10. On 10 October 2001 the National Board of Taxes ( verohallitus, skattestyrelsen ) rejected the application for a reduction of the fee. It reasoned:', '“No special reasons provided for by law to grant a reduction have been put forward.”', '11. The decision indicated that section 15 of the Fuel Fee Act had been applied. No appeal lay.', '12. On 28 August 2002 the Helsinki Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ), having received the observations of the Tax Ombudsman ( veroasiamies, skatteombudet ) and the Vehicle Administration and the applicant’s observations in reply, rejected the appeal. It reasoned:', '“Section 4 of the Fuel Fee Act provides that a fuel fee ( polttoainemaksu, bränsleavgift ) is collected for the number of days the vehicle has been continuously located in Finland prior to the noted use, but not for more than 20 days at a time. Section 5 provides that the fuel fee for a pickup van is FIM 1,500 [some EUR 252] per diem. Section 6 provides that if the use of more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notice has been given, the fuel fee collected is treble the [normal] amount.', 'The pickup van owned by Pertti Jukka Tapio Ruotsalainen, [registration no.] KJM-327, has been noted to have been used during the year 2001 using fuel more leniently taxed than diesel oil. Ruotsalainen had not informed the Vehicle Administration or the Customs thereof [in advance]. In the pre-trial investigation and in his writ of appeal he has conceded that he has used incorrect fuel in his vehicle.', 'The imposition of a fuel fee in an administrative procedure concerns the imposition of a fee comparable to a tax. What is in issue is not the imposition of a criminal punishment or a sanction in lieu.', 'The imposition of a fuel fee ... is not in breach of the Constitution of Finland or the Convention.', 'Despite the reasons for the use submitted by Ruotsalainen and despite his financial status, the Vehicle Administration was entitled to impose a fuel fee. The fuel fee amounts to FIM 1,500 per diem, it was to be imposed in respect of 20 days and it was to be trebled. The fuel fee FIM 90,000 has been imposed in accordance with the law. There is no reason to amend the debiting decision.”', '13. The decision indicated that sections 1, 3, 7 and 15 of the Fuel Fee Act and Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention had been applied.', '14. The applicant requested leave to appeal, alleging a breach of Article 4 of Protocol No. 7.', '15. On 26 February 2003 the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ) refused leave to appeal.']
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The applicant was running his van on fuel that was more leniently taxed than the diesel oil he should have been using, without paying the extra tax. He was fined the equivalent of about 120 euros for petty tax fraud, through a summary penal order. In subsequent administrative proceedings he was ordered to pay about 15,000 euros, corresponding to the difference between the tax he actually paid and the tax he should have paid, multiplied by three because he had failed to inform the competent authorities. He appealed against that decision, but to no avail. The applicant complained that he had been punished twice for the same motor vehicle fuel tax offence.
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Taxation and the European Convention on Human Rights
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aspect_first
|
Explain the rights dimension of the taxation dispute.
---
Document:
['I. THE CIRCUMSTANCES OF THE CASE', '5. The applicant was born in 1969 and lives in Lapinlahti.', '6. While driving his pickup van on 17 January 2001, the applicant was stopped by the police during a road check. The police discovered a more leniently taxed fuel than diesel oil in the tank of the van.', '7. On 26 February 2001 the applicant was fined for petty tax fraud through a summary penal order. The form stated, inter alia :', '“Misdemeanour, modus operandi:', 'Petty tax fraud (motor vehicle tax misdemeanour). [The applicant] used as fuel in his car fuel more leniently taxed than diesel oil without having paid due additional tax ( lisävero, tilläggsskatt ).', 'Footnote: he had filled the tank himself.”', 'The fine amounted to 720 Finnish marks (FIM, or 121 euros (EUR)). The summary penal order indicated that Chapter 29, Article 3, of the Penal Code ( rikoslaki, strafflagen; Act no. 769/1990) and sections 20 and 33 of the Motor Vehicle Tax Act ( laki moottoriajoneuvoverosta, lagen om skatt på motorfordon; Act no. 722/1966, now repealed) had been applied. As the applicant did not contest the imposition of the fine, it became final on 6 March 2001.', '8. In separate proceedings, and having received the applicant’s submission in writing on an unspecified date, on 17 September 2001 the Vehicle Administration ( ajoneuvohallintokeskus, fordonsförvaltningscentralen ) issued the applicant with a fuel fee debit amounting to FIM 90,000 (equivalent to EUR 15,137) on the ground that his pickup van had been run on more leniently taxed fuel than diesel oil without prior notification to the Vehicle Administration or Customs. The decision indicated that sections 2-7 of the Fuel Fee Act ( laki polttoainemaksusta; lagen om bränsleavgift; Act no. 337/1993, now repealed) had been applied. The decision also included instructions on how to appeal against it and how to apply for a reduction of the imposed amount.', '9. The applicant lodged both an application for a reduction of the fee and an appeal with a view to having the decision overturned, arguing, inter alia, that the fuel fee should have been claimed at the same time as the summary penal order was issued. As it had not been claimed at that time, it was no longer possible to debit the fuel fee in the light of Article 7 of the Convention.', '10. On 10 October 2001 the National Board of Taxes ( verohallitus, skattestyrelsen ) rejected the application for a reduction of the fee. It reasoned:', '“No special reasons provided for by law to grant a reduction have been put forward.”', '11. The decision indicated that section 15 of the Fuel Fee Act had been applied. No appeal lay.', '12. On 28 August 2002 the Helsinki Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ), having received the observations of the Tax Ombudsman ( veroasiamies, skatteombudet ) and the Vehicle Administration and the applicant’s observations in reply, rejected the appeal. It reasoned:', '“Section 4 of the Fuel Fee Act provides that a fuel fee ( polttoainemaksu, bränsleavgift ) is collected for the number of days the vehicle has been continuously located in Finland prior to the noted use, but not for more than 20 days at a time. Section 5 provides that the fuel fee for a pickup van is FIM 1,500 [some EUR 252] per diem. Section 6 provides that if the use of more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notice has been given, the fuel fee collected is treble the [normal] amount.', 'The pickup van owned by Pertti Jukka Tapio Ruotsalainen, [registration no.] KJM-327, has been noted to have been used during the year 2001 using fuel more leniently taxed than diesel oil. Ruotsalainen had not informed the Vehicle Administration or the Customs thereof [in advance]. In the pre-trial investigation and in his writ of appeal he has conceded that he has used incorrect fuel in his vehicle.', 'The imposition of a fuel fee in an administrative procedure concerns the imposition of a fee comparable to a tax. What is in issue is not the imposition of a criminal punishment or a sanction in lieu.', 'The imposition of a fuel fee ... is not in breach of the Constitution of Finland or the Convention.', 'Despite the reasons for the use submitted by Ruotsalainen and despite his financial status, the Vehicle Administration was entitled to impose a fuel fee. The fuel fee amounts to FIM 1,500 per diem, it was to be imposed in respect of 20 days and it was to be trebled. The fuel fee FIM 90,000 has been imposed in accordance with the law. There is no reason to amend the debiting decision.”', '13. The decision indicated that sections 1, 3, 7 and 15 of the Fuel Fee Act and Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention had been applied.', '14. The applicant requested leave to appeal, alleging a breach of Article 4 of Protocol No. 7.', '15. On 26 February 2003 the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ) refused leave to appeal.']
|
MahmoudAly/LexAbSumm
| 2
|
facts
|
713
|
['I. PARTICULAR CIRCUMSTANCES OF THE THE CASE', '9. From the summer of 1987 until the end of the summer of 1990 the applicant owned the summer restaurant Ihrebaden at Ihreviken, Tingstäde, on the island of Gotland. The applicant further owned - and continues to own - the youth hostel Lummelunda at Nyhamn, Visby, also on Gotland. The restaurant’s employees numbered less than ten. They were engaged on a seasonal basis, but had the option of being re-employed the following year. The applicant’s ownership of the restaurant and youth hostel was direct and entailed his personal financial liability (enskild firma).', '10. As the applicant was not a member of either of the two associations of restaurant employers, namely the Swedish Hotel and Restaurant Entrepreneurs’ Union (Hotell- och Restaurangar - betsgivareföreningen - "HRAF", which is affiliated to the Swedish Employers’ Confederation (Svenska Arbetsgivareföreningen - "SAF")) and the Employers’ Association of the Swedish Union of Restaurant Owners (Svenska Restauratörsförbundets Arbetsgivareförening - "SRA"), he was not bound by any collective labour agreement (kollektivavtal) between the two associations and the Hotel and Restaurant Workers’ Union (Hotell- och Restauranganställdas Förbund - "HRF"). Nor was he obliged to subscribe to the various labour-market insurance schemes (Arbetsmarknadsförsäkring) developed through agreements between SAF and the Swedish Trade Union Confederation (Landsorganisationen).', 'It was, however, open to the applicant to accede to a collective agreement by accepting a substitute agreement (hängavtal). He could also subscribe to insurance schemes with Labour-Market Insurances or any of the other ten or so insurance companies in the field.', '11. In late June or early July 1987 he refused to sign a separate substitute agreement with HRF. He referred to his objections of principle regarding the system of collective bargaining. He also emphasised that his employees were paid more than they would have been under a collective agreement and that they themselves objected to his signing a substitute agreement on their behalf.', 'The substitute agreement proposed to the applicant included these terms:', '"Parties: [The applicant] and [HRF]', 'Term of validity: From 1 July 1987 up to and including31 December 1988, thereafter for one year at a time, unlessnotice is given two months prior to the expiry of the[agreement]', '...', 'As from the [above] date, the most recent agreement between[the employers’ association] and [HRF] shall be applied between[the applicant and HRF]. Should [the employers’ association]and [HRF] subsequently reach a new agreement or agree to amendor supplement the [present] agreement, [the new agreement,amendments or supplements] shall automatically apply as fromthe day on which [it or they] [has or have] been [agreed upon].', '...', '1. [The employer shall] [on his employees’ behalf] subscribeto and maintain [five different] insurance-policy schemes withLabour-Market Insurances, ... as well as other possibleinsurance-policy schemes which [the employers’ association andHRF] might later agree upon.', '2. [The employer shall] issue employment certificates on aspecial form ... A copy shall be sent to [HRF].', '3. [The employer shall] only employ [workers who are members]of or [have] requested membership of [HRF]. In the event ofre-employment the provisions of section 25 of the EmploymentProtection Act (lag (1982:80) om anställnings-skydd) shallapply.', '4. [The employer shall] deduct on a monthly basis a part ofthe salary of employed members of [HRF] corresponding to theirmembership fees, and pay [the deducted part] to [HRF].', '..."', '12. On 16 July 1987, during further negotiations with the applicant, HRF proposed another substitute agreement, which he also rejected:', '"Subject: The signing of a collective agreement regarding [therestaurant] Ihrebaden ... and the Lummelunda youth hostel.', '1. Having regard to the forthcoming end of the [season of1987] the parties agree on the following procedure replacing the signing of a collective agreement.', 'The enterprise agrees to comply, during this season ..., with the collective labour agreement (`the green nationalagreement’) between [HRAF] and [HRF], this including the obligation to subscribe to [certain] insurance schemes(avtalsförsäkringar) with Labour-Market Insurances.', '2. The enterprise also agrees to [comply with] [the]collective labour agreement ... during the next season ...,either by way of membership of the employers’ union or bysigning a ... substitute agreement ..."', '13. Had the applicant accepted a substitute agreement, it would have applied not only to those of his employees who were unionised but also to those who were not.', 'In the summer of 1986, one member of HRF was employed by the applicant. In 1987 he employed another member of that union and also two persons who were respectively members of the Commercial Employees’ Union (Handelsanställdas Förbund) and the Union of Municipal Workers (Kommunalarbetareförbundet). In 1989, one member of the latter union was employed by the applicant.', '14. Following the applicant’s refusal to sign a substitute agreement, HRF, in July 1987, placed his restaurant under a "blockade" and declared a boycott against it. Sympathy industrial action was taken the same month by the Commercial Employees’ Union and the Swedish Food Workers’ Union (Svenska Livsmedelsarbetareförbundet).', 'In the summer of 1988 sympathy action was also taken by the Swedish Transport Workers’ Union (Svenska transportarbetareförbundet) and the Union of Municipal Employees (Kommunaltjenestemannaförbundet). As a result deliveries to the restaurant were stopped.', '15. One of the persons employed by the applicant at Ihre baden who was member of HRF had publicly expressed the opinion that the industrial action was unnecessary, as the salary and working conditions in the restaurant were not open to criticism.', 'According to the Government, the union action had its background in a request for assistance in 1986 by an HRF member employed by the applicant. In the view of the union, the applicant paid his employees approximately 900 Swedish kronor (SEK) a month less than what they would have received under a collective agreement. He did not pay his staff holiday compensation as provided for in the 1977 Annual Leave Act (semesterlagen 1977:480), nor salary during lay-offs due to poor weather conditions as required by the 1982 Employment Protection Act and he did not sign a labour-market insurance until 1988.', '16. In August 1988 the applicant, invoking the Convention, requested the Government to prohibit HRF from continuing the blockade and the other trade unions from continuing their sympathy action and to order the unions to pay compensation for damages. In the alternative, he requested that compensation be paid by the State.', '17. By a decision of 12 January 1989 the Government (Ministry of Justice) dismissed the applicant’s request. The Government stated:', '"The requests for a prohibition of the blockade and thesympathy action as well as compensation for damage from thetrade unions concern a legal dispute between private subjects.According to Chapter 11, Article 3, of the Instrument of Government [Regeringsformen which forms part of theConstitution], such disputes may not be determined by anypublic authority other than a court of law, except by virtueof law. There is no provision in the law which authorises theGovernment to examine such disputes. The Government will not,therefore, examine these requests on the merits.', 'The claim for damages is dismissed."', '18. The applicant applied to the Supreme Administrative Court (Regeringsrätten) for review under the 1988 Act on Judicial Review of Certain Administrative Decisions (lag (1988:205) om rättsprövning av vissa förvaltningsbeslut - "the 1988 Act"). On 29 June 1989 the Supreme Administrative Court dismissed the application on the ground that the Government’s decision did not concern an administrative matter involving the exercise of public power, which was a condition for review under section 1 of the Act.', '19. On 15 September 1989 the Swedish Touring Club (Svenska turistföreningen - "STF"), a non-profit-making association promoting tourism in Sweden, terminated the membership of the applicant’s youth hostel, referring to a lack of cooperation and the applicant’s negative attitude towards STF. As a result, the hostel was no longer mentioned in STF’s catalogue of youth hostels in Sweden. In 1989 about half of the youth hostels in Sweden were enrolled in STF.', '20. The applicant brought proceedings in the District Court (tingsrätten) of Stockholm. He contested what he considered to be his personal exclusion from STF, alleging that it had been caused by HRF threats that it would take industrial action against other youth hostels enrolled in STF if his hostel was not excluded. He also challenged STF’s termination of the membership of his youth hostel.', 'STF accepted, inter alia, that although the termination of the membership contract concerning the applicant’s youth hostel had not been prompted by the conflict between the applicant and the trade unions, this conflict might have affected the timing of the decision. STF also referred to an opinion of the Competition Ombudsman (ombudsmannen för näringsfrihet) of 14 November 1989 to the effect that the termination of the contract in question would have only a very limited impact on his business.', '21. By a judgment of 8 May 1991 the District Court rejected the applicant’s action on both points. It found, inter alia, that the applicant had not shown that he had been personally excluded from STF by virtue of the termination of STF’s contract concerning his youth hostel. It also found that he had not shown that the contract had been financially significant to his business. Reference was made to the Competition Ombudsman’s finding.', '22. The applicant appealed to the Svea Court of Appeal (Svea hovrätt) which, on 6 March 1992, upheld the District Court’s judgment. The Court of Appeal found, inter alia, that STF’s termination of the contract concerning the youth hostel had entailed the expiry of the applicant’s personal membership of STF. This, however, had not been tantamount to his exclusion, given that he could have continued or renewed his membership. Moreover, although the contract had been of appreciable significance to the applicant’s business, STF’s termination of the contract could not be considered unreasonable.', '23. At the beginning of 1991 the applicant sold his restaurant due to his difficulties in running his business which had allegedly been caused by the industrial action. The restaurant was bought by a person who signed a collective agreement with HRF. He continued, together with his family, to run the youth hostel in Lummelunda.', 'Following the above, the union action was terminated.', '24. On 9 November 1991 the applicant requested the Government to support his application to the Commission. On 12 December 1991 the Government decided not to take any action in respect of the request.']
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This case concerned trade union action (boycott and blockade of a restaurant) against an applicant who had refused to sign a collective agreement in the catering sector.
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Trade union rights
|
aspect_first
|
Outline the employment-related right under discussion.
---
Document:
['I. PARTICULAR CIRCUMSTANCES OF THE THE CASE', '9. From the summer of 1987 until the end of the summer of 1990 the applicant owned the summer restaurant Ihrebaden at Ihreviken, Tingstäde, on the island of Gotland. The applicant further owned - and continues to own - the youth hostel Lummelunda at Nyhamn, Visby, also on Gotland. The restaurant’s employees numbered less than ten. They were engaged on a seasonal basis, but had the option of being re-employed the following year. The applicant’s ownership of the restaurant and youth hostel was direct and entailed his personal financial liability (enskild firma).', '10. As the applicant was not a member of either of the two associations of restaurant employers, namely the Swedish Hotel and Restaurant Entrepreneurs’ Union (Hotell- och Restaurangar - betsgivareföreningen - "HRAF", which is affiliated to the Swedish Employers’ Confederation (Svenska Arbetsgivareföreningen - "SAF")) and the Employers’ Association of the Swedish Union of Restaurant Owners (Svenska Restauratörsförbundets Arbetsgivareförening - "SRA"), he was not bound by any collective labour agreement (kollektivavtal) between the two associations and the Hotel and Restaurant Workers’ Union (Hotell- och Restauranganställdas Förbund - "HRF"). Nor was he obliged to subscribe to the various labour-market insurance schemes (Arbetsmarknadsförsäkring) developed through agreements between SAF and the Swedish Trade Union Confederation (Landsorganisationen).', 'It was, however, open to the applicant to accede to a collective agreement by accepting a substitute agreement (hängavtal). He could also subscribe to insurance schemes with Labour-Market Insurances or any of the other ten or so insurance companies in the field.', '11. In late June or early July 1987 he refused to sign a separate substitute agreement with HRF. He referred to his objections of principle regarding the system of collective bargaining. He also emphasised that his employees were paid more than they would have been under a collective agreement and that they themselves objected to his signing a substitute agreement on their behalf.', 'The substitute agreement proposed to the applicant included these terms:', '"Parties: [The applicant] and [HRF]', 'Term of validity: From 1 July 1987 up to and including31 December 1988, thereafter for one year at a time, unlessnotice is given two months prior to the expiry of the[agreement]', '...', 'As from the [above] date, the most recent agreement between[the employers’ association] and [HRF] shall be applied between[the applicant and HRF]. Should [the employers’ association]and [HRF] subsequently reach a new agreement or agree to amendor supplement the [present] agreement, [the new agreement,amendments or supplements] shall automatically apply as fromthe day on which [it or they] [has or have] been [agreed upon].', '...', '1. [The employer shall] [on his employees’ behalf] subscribeto and maintain [five different] insurance-policy schemes withLabour-Market Insurances, ... as well as other possibleinsurance-policy schemes which [the employers’ association andHRF] might later agree upon.', '2. [The employer shall] issue employment certificates on aspecial form ... A copy shall be sent to [HRF].', '3. [The employer shall] only employ [workers who are members]of or [have] requested membership of [HRF]. In the event ofre-employment the provisions of section 25 of the EmploymentProtection Act (lag (1982:80) om anställnings-skydd) shallapply.', '4. [The employer shall] deduct on a monthly basis a part ofthe salary of employed members of [HRF] corresponding to theirmembership fees, and pay [the deducted part] to [HRF].', '..."', '12. On 16 July 1987, during further negotiations with the applicant, HRF proposed another substitute agreement, which he also rejected:', '"Subject: The signing of a collective agreement regarding [therestaurant] Ihrebaden ... and the Lummelunda youth hostel.', '1. Having regard to the forthcoming end of the [season of1987] the parties agree on the following procedure replacing the signing of a collective agreement.', 'The enterprise agrees to comply, during this season ..., with the collective labour agreement (`the green nationalagreement’) between [HRAF] and [HRF], this including the obligation to subscribe to [certain] insurance schemes(avtalsförsäkringar) with Labour-Market Insurances.', '2. The enterprise also agrees to [comply with] [the]collective labour agreement ... during the next season ...,either by way of membership of the employers’ union or bysigning a ... substitute agreement ..."', '13. Had the applicant accepted a substitute agreement, it would have applied not only to those of his employees who were unionised but also to those who were not.', 'In the summer of 1986, one member of HRF was employed by the applicant. In 1987 he employed another member of that union and also two persons who were respectively members of the Commercial Employees’ Union (Handelsanställdas Förbund) and the Union of Municipal Workers (Kommunalarbetareförbundet). In 1989, one member of the latter union was employed by the applicant.', '14. Following the applicant’s refusal to sign a substitute agreement, HRF, in July 1987, placed his restaurant under a "blockade" and declared a boycott against it. Sympathy industrial action was taken the same month by the Commercial Employees’ Union and the Swedish Food Workers’ Union (Svenska Livsmedelsarbetareförbundet).', 'In the summer of 1988 sympathy action was also taken by the Swedish Transport Workers’ Union (Svenska transportarbetareförbundet) and the Union of Municipal Employees (Kommunaltjenestemannaförbundet). As a result deliveries to the restaurant were stopped.', '15. One of the persons employed by the applicant at Ihre baden who was member of HRF had publicly expressed the opinion that the industrial action was unnecessary, as the salary and working conditions in the restaurant were not open to criticism.', 'According to the Government, the union action had its background in a request for assistance in 1986 by an HRF member employed by the applicant. In the view of the union, the applicant paid his employees approximately 900 Swedish kronor (SEK) a month less than what they would have received under a collective agreement. He did not pay his staff holiday compensation as provided for in the 1977 Annual Leave Act (semesterlagen 1977:480), nor salary during lay-offs due to poor weather conditions as required by the 1982 Employment Protection Act and he did not sign a labour-market insurance until 1988.', '16. In August 1988 the applicant, invoking the Convention, requested the Government to prohibit HRF from continuing the blockade and the other trade unions from continuing their sympathy action and to order the unions to pay compensation for damages. In the alternative, he requested that compensation be paid by the State.', '17. By a decision of 12 January 1989 the Government (Ministry of Justice) dismissed the applicant’s request. The Government stated:', '"The requests for a prohibition of the blockade and thesympathy action as well as compensation for damage from thetrade unions concern a legal dispute between private subjects.According to Chapter 11, Article 3, of the Instrument of Government [Regeringsformen which forms part of theConstitution], such disputes may not be determined by anypublic authority other than a court of law, except by virtueof law. There is no provision in the law which authorises theGovernment to examine such disputes. The Government will not,therefore, examine these requests on the merits.', 'The claim for damages is dismissed."', '18. The applicant applied to the Supreme Administrative Court (Regeringsrätten) for review under the 1988 Act on Judicial Review of Certain Administrative Decisions (lag (1988:205) om rättsprövning av vissa förvaltningsbeslut - "the 1988 Act"). On 29 June 1989 the Supreme Administrative Court dismissed the application on the ground that the Government’s decision did not concern an administrative matter involving the exercise of public power, which was a condition for review under section 1 of the Act.', '19. On 15 September 1989 the Swedish Touring Club (Svenska turistföreningen - "STF"), a non-profit-making association promoting tourism in Sweden, terminated the membership of the applicant’s youth hostel, referring to a lack of cooperation and the applicant’s negative attitude towards STF. As a result, the hostel was no longer mentioned in STF’s catalogue of youth hostels in Sweden. In 1989 about half of the youth hostels in Sweden were enrolled in STF.', '20. The applicant brought proceedings in the District Court (tingsrätten) of Stockholm. He contested what he considered to be his personal exclusion from STF, alleging that it had been caused by HRF threats that it would take industrial action against other youth hostels enrolled in STF if his hostel was not excluded. He also challenged STF’s termination of the membership of his youth hostel.', 'STF accepted, inter alia, that although the termination of the membership contract concerning the applicant’s youth hostel had not been prompted by the conflict between the applicant and the trade unions, this conflict might have affected the timing of the decision. STF also referred to an opinion of the Competition Ombudsman (ombudsmannen för näringsfrihet) of 14 November 1989 to the effect that the termination of the contract in question would have only a very limited impact on his business.', '21. By a judgment of 8 May 1991 the District Court rejected the applicant’s action on both points. It found, inter alia, that the applicant had not shown that he had been personally excluded from STF by virtue of the termination of STF’s contract concerning his youth hostel. It also found that he had not shown that the contract had been financially significant to his business. Reference was made to the Competition Ombudsman’s finding.', '22. The applicant appealed to the Svea Court of Appeal (Svea hovrätt) which, on 6 March 1992, upheld the District Court’s judgment. The Court of Appeal found, inter alia, that STF’s termination of the contract concerning the youth hostel had entailed the expiry of the applicant’s personal membership of STF. This, however, had not been tantamount to his exclusion, given that he could have continued or renewed his membership. Moreover, although the contract had been of appreciable significance to the applicant’s business, STF’s termination of the contract could not be considered unreasonable.', '23. At the beginning of 1991 the applicant sold his restaurant due to his difficulties in running his business which had allegedly been caused by the industrial action. The restaurant was bought by a person who signed a collective agreement with HRF. He continued, together with his family, to run the youth hostel in Lummelunda.', 'Following the above, the union action was terminated.', '24. On 9 November 1991 the applicant requested the Government to support his application to the Commission. On 12 December 1991 the Government decided not to take any action in respect of the request.']
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MahmoudAly/LexAbSumm
| 2
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facts
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1,076
|
['I. THE CIRCUMSTANCES OF THE CASE', '5. The facts of the case, as submitted by the parties, may be summarised as follows.', '6. The applicant Church has a worldwide membership of over 12 million people, known as Mormons, of whom approximately 180,000 live in the United Kingdom or the Republic of Ireland. Local church congregations are called wards, typically consisting of between 100 and 500 members, and are presided over by a local bishop. Each ward meets in a local chapel. Five to 15 wards constitutes a stake. In each stake one of the larger chapels is designated as a stake centre, where meetings from members of all the wards in the stake can take place.', '7. In addition, the applicant Church has two temples in the United Kingdom: one in London and one in Preston, Lancashire. The temple is considered, by the applicant Church ’ s members, to be the house of the Lord and one of the holiest places on earth. Ceremonies or “ordinances” held at the temple carry profound theological significance to Mormons, who believe as a tenet of their faith that only the worthy may be admitted. Only the most devout members of the applicant Church, who hold a current “recommend”, are entitled to enter the temples. This is explained in the applicant ’ s published statement of doctrine:', '“WORTHY TO ENTER', 'You must possess a current recommend to be admitted to the temple ... Only those who are worthy should go to the temple ...', 'The interview for a temple recommend is conducted privately between the bishop and the Church member concerned. Here the member is asked searching questions about his or her personal conduct, worthiness and loyalty to the Church and its officers. The person must certify that he is morally clean and keeping the Word of Wisdom, paying a full tithing [approximately 10% of income to be paid to the Church], living in harmony with the teachings of the Church and not maintaining any affiliation or sympathy with apostate groups ...', 'THE PROCESS OF OBTAINING A TEMPLE RECOMMEND IS A BLESSING”', 'The standards required in order to be granted a recommend include honesty, eschewing abusive conduct, attention to family duties, marital fidelity, the adoption of healthy lifestyle practices and, for divorcees, full compliance with support orders and other legal obligations.', '8. The present application concerns the temple at Preston, where congregational services are attended by on average 950 people a week. Under the Local Government Finance Act 1988, a valuation officer must compile and maintain a local rating list for his or her area. Premises included on the list are liable for the payment of business rates. Premises used for charitable purposes are entitled to charity business rates relief, which cuts the amount of rates payable by 80%. Places of “public religious worship” are wholly exempt from the tax. In 1998 the Preston temple was listed as a building used for charitable purpose and therefore retained a liability to pay only 20% rates, but it was refused the statutory tax exemption reserved for places of “public religious worship”. The valuation officer accepted that the stake centre on the same site, with its chapel, associated hall and ancillary rooms, was a “ place of public religious worship” which was entitled to exemption. Other buildings on the site, for example a building providing accommodation for missionaries and various ancillary buildings were subject to full business rates. For the financial year 199 9 / 2000, the applicant paid a total of GBP 117,360 in respect of all the rateable buildings on its Preston site.', '9. On 5 March 2001 the applicant applied to have the temple removed from the rating list, claiming the benefit of the exemption for places of “public religious worship”. On 21 October 2004 the Lancashire Valuation Tribunal granted the application for appeal and determined the temple to be exempt under the statutory provision. On 14 December 2005 the Lands Tribunal overturned that decision. The applicant ’ s appeal to the Court of Appeal was dismissed on 24 November 2006. The applicant then appealed to the House of Lords.', '10. The applicant did not raise any arguments under the Convention before the Valuation Tribunal, the Lands Tribunal or the Court of Appeal. However, with the House of Lords ’ permission, upon their granting leave to appeal, the applicant argued that the legislation in question was incompatible with its rights under Article 9 of the Convention and Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 14.', '11. On 30 July 2008 the House of Lords unanimously dismissed the further appeal ( Gallagher (Valuation Officer) v. Church of Jesus Christ of Latter-day Saints [2008] UKHL 56) holding, on the basis of an earlier judgment ( Church of Jesus Christ of Latter-day Saints v. Henning [1964] AC 420), that as a matter of domestic law a place of “public religious worship” must be one that is open to the general public. Four of the five Law Lords further dismissed the applicant ’ s arguments under the Convention, holding that the liability to pay 20 % business rates on the Temple did not fall within the ambit of Article 9, since Mormons were still free to manifest their religion and since the statutory requirement to be open to the public applied equally to all religious buildings and did not target Mormons in particular. In the words of Lord Hoffmann, with whom Lords Carswell and Mance agreed:', '“13. In order to constitute discrimination on grounds of religion, however, the alleged discrimination must fall ‘ within the ambit ’ of a right protected by article 9, in this case, the right to manifest one ’ s religion. In the present case, the liability of the Temple to a non-domestic rate (reduced by 80% on account of the charitable nature of its use) would not prevent the Mormons from manifesting their religion. But I would not regard that as conclusive. If the legislation imposed rates only upon Mormons, I would regard that as being within the ambit of article 9 even if the Mormons could easily afford to pay them. But the present case is not one in which the Mormons are taxed on account of their religion. It is only that their religion prevents them from providing the public benefit necessary to secure a tax advantage. That seems to me an altogether different matter.', '14. For example, I do not think that a Sabbatarian could complain that he was discriminated against because he was unable, on religious grounds, to provide services on the Sabbath and therefore earned less than people of a different religion. A case which in my opinion is very much in point is M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91, in which a woman would have been able to secure a reduction in her liability for the maintenance of her child if she had been living with a male partner. She was unable to qualify because, on account of her sexual orientation, she chose to live with a female partner. The House of Lords decided that the alleged act of discrimination did not fall within the ambit of article 8 (her right to family life and in particular her right to live with a female partner) because loss of the opportunity to gain a financial advantage was too remote from interference with the right in question. The same seems to me true of this case.', '15. Furthermore, I think that even if this can be regarded as a case of indirect discrimination, it was justified. Parliament must have a wide discretion in deciding what should be regarded as a sufficient public benefit to justify exemption from taxation and in my opinion it was entitled to take the view that public access to religious services was such a benefit.”', 'Lord Hope of Craighead agreed with Lord Hoffmann and added:', '“31. ... I do not see this case falling within the ambit of article 9. Those who are qualified to worship in the Temple are not prevented from manifesting their religion or their belief by the fact that it is subject to non-domestic rating, the legislation is not directed at Mormons because of what they believe in. It applies generally to all whose religious beliefs and practices prevent them from participating in public religious worship. It is easier to see the case as falling within the ambit of article 1 of Protocol 1, but the second paragraph of that article preserves the right of the State to secure the payment of taxes or other contributions or penalties. In my opinion Parliament ’ s decision as to the scope of the exemption was within the discretionary area of judgement afforded to it by that paragraph. ... ”', 'Lord Scott of Foscote, however, differed from the majority in his concurring opinion and found that the difference in treatment fell within the ambit of Article 9, although he considered that the Article was not violated:', '“49. Lord Hoffmann and Lord Hope have expressed the view that the withholding of rating relief from the Temple does not fall within the ambit of article 9. I am uneasy about that conclusion because it is well settled that an allegedly discriminatory act said to be in breach of article 14 does not need to constitute an actual breach of the substantive article within whose ambit the act in question is said to fall. It needs simply to be within the ambit of the substantive article. The case-law as to when an act of discrimination, not being in breach of a particular substantive article, will sufficiently relate to that article in order to be capable of constituting a breach of article 14 does really no more than ask whether the act is within ‘ the ambit ’ of the article. There is no precise yardstick; the requirement is left inherently, and perhaps unsatisfactorily, flexible. It seems to me, however, that the levying of taxation on a place of religious worship, or on those who enter the premises for that purpose, would be capable in particular circumstances of constituting a breach of article 9 and, accordingly, that it is difficult to regard the levying of rates on such premises as otherwise than within the ambit of article 9. I would prefer, therefore, to examine the second issue on the footing that the withholding of rating relief from the Temple does fall within the ambit of article 9 for article 14 purposes.', '50. If that is so, there is, as it seems to me, an element of discrimination that requires to be justified. The discrimination consists of the denial of rating relief for the Temple on the ground that, although a place of religious worship, it is not a place of public religious worship. No one who is not a Mormon, or who, although a Mormon, does not possess a ‘ recommend ’ permitting him or her entry, can enter the Temple .... The ‘ open doors ’ requirement in order to enable premises used for religious worship to qualify for rating relief discriminates, adversely to the Mormons, between premises used for religious worship that are open to the public and those that are not. If that is right, the discrimination requires to be justified if it is to escape being held unlawful.', '51. I would, for my part, unhesitatingly hold that the grant of rating relief to premises for religious services that are open to the public and the withholding of that relief from premises for religious services which take place behind closed doors through which only a select few may pass is well justifiable and within the margin of appreciation available to individual signatory states. First, states may justifiably take the view that the practice of religion is beneficial both to the individuals who practise it as well as to the community of whom the individuals form part, and that, therefore, relief from rating for premises where religious worship takes place is in the public interest. But, second, states may also recognise that, although religion may be beneficial both to individuals and to the community, it is capable also of being divisive and, sometimes, of becoming dangerously so. No one who lives in a country such as ours, with a community of diverse ethnic and racial origins and of diverse cultures and religions, can be unaware of this. Religion can bind communities together; but it can also emphasise their differences. In these circumstances secrecy in religious practices provides the soil in which suspicions and unfounded prejudices can take root and grow; openness in religious practices, on the other hand, can dispel suspicions and contradict prejudices. I can see every reason why a state should adopt a general policy under which fiscal relief for premises used for religious worship is available where the premises are open to the general public and is withheld where they are not. In my opinion, the withholding of rating relief from the Temple does not constitute a breach of article 14, whether considered in the context of article 9 or, for the same reasons, in the context of article 1 of the 1 st Protocol.”']
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This case concerned the complaint of the applicant – a religious organisation, registered as a private unlimited company in the UK, part of the worldwide Mormon Church – of being denied an exemption from local property taxes. In 2001 the church applied to have its temple in Preston, Lancashire, removed from a list of premises liable to pay business tax, on the grounds that it was a “place of public religious worship” which was entitled to exemption from that tax. While a first-instance court decision granted the church’s claim, that decision was overturned in 2005. In a final decision of July 2008, the House of Lords dismissed the church’s appeal, holding in particular that the temple was not to be qualified as a “place of public religious worship”, since access to the temple was restricted to a select group of the most devout followers holding a special authorisation.
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Taxation and the European Convention on Human Rights
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coverage_first
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Summarize the tax point briefly.
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Document:
['I. THE CIRCUMSTANCES OF THE CASE', '5. The facts of the case, as submitted by the parties, may be summarised as follows.', '6. The applicant Church has a worldwide membership of over 12 million people, known as Mormons, of whom approximately 180,000 live in the United Kingdom or the Republic of Ireland. Local church congregations are called wards, typically consisting of between 100 and 500 members, and are presided over by a local bishop. Each ward meets in a local chapel. Five to 15 wards constitutes a stake. In each stake one of the larger chapels is designated as a stake centre, where meetings from members of all the wards in the stake can take place.', '7. In addition, the applicant Church has two temples in the United Kingdom: one in London and one in Preston, Lancashire. The temple is considered, by the applicant Church ’ s members, to be the house of the Lord and one of the holiest places on earth. Ceremonies or “ordinances” held at the temple carry profound theological significance to Mormons, who believe as a tenet of their faith that only the worthy may be admitted. Only the most devout members of the applicant Church, who hold a current “recommend”, are entitled to enter the temples. This is explained in the applicant ’ s published statement of doctrine:', '“WORTHY TO ENTER', 'You must possess a current recommend to be admitted to the temple ... Only those who are worthy should go to the temple ...', 'The interview for a temple recommend is conducted privately between the bishop and the Church member concerned. Here the member is asked searching questions about his or her personal conduct, worthiness and loyalty to the Church and its officers. The person must certify that he is morally clean and keeping the Word of Wisdom, paying a full tithing [approximately 10% of income to be paid to the Church], living in harmony with the teachings of the Church and not maintaining any affiliation or sympathy with apostate groups ...', 'THE PROCESS OF OBTAINING A TEMPLE RECOMMEND IS A BLESSING”', 'The standards required in order to be granted a recommend include honesty, eschewing abusive conduct, attention to family duties, marital fidelity, the adoption of healthy lifestyle practices and, for divorcees, full compliance with support orders and other legal obligations.', '8. The present application concerns the temple at Preston, where congregational services are attended by on average 950 people a week. Under the Local Government Finance Act 1988, a valuation officer must compile and maintain a local rating list for his or her area. Premises included on the list are liable for the payment of business rates. Premises used for charitable purposes are entitled to charity business rates relief, which cuts the amount of rates payable by 80%. Places of “public religious worship” are wholly exempt from the tax. In 1998 the Preston temple was listed as a building used for charitable purpose and therefore retained a liability to pay only 20% rates, but it was refused the statutory tax exemption reserved for places of “public religious worship”. The valuation officer accepted that the stake centre on the same site, with its chapel, associated hall and ancillary rooms, was a “ place of public religious worship” which was entitled to exemption. Other buildings on the site, for example a building providing accommodation for missionaries and various ancillary buildings were subject to full business rates. For the financial year 199 9 / 2000, the applicant paid a total of GBP 117,360 in respect of all the rateable buildings on its Preston site.', '9. On 5 March 2001 the applicant applied to have the temple removed from the rating list, claiming the benefit of the exemption for places of “public religious worship”. On 21 October 2004 the Lancashire Valuation Tribunal granted the application for appeal and determined the temple to be exempt under the statutory provision. On 14 December 2005 the Lands Tribunal overturned that decision. The applicant ’ s appeal to the Court of Appeal was dismissed on 24 November 2006. The applicant then appealed to the House of Lords.', '10. The applicant did not raise any arguments under the Convention before the Valuation Tribunal, the Lands Tribunal or the Court of Appeal. However, with the House of Lords ’ permission, upon their granting leave to appeal, the applicant argued that the legislation in question was incompatible with its rights under Article 9 of the Convention and Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 14.', '11. On 30 July 2008 the House of Lords unanimously dismissed the further appeal ( Gallagher (Valuation Officer) v. Church of Jesus Christ of Latter-day Saints [2008] UKHL 56) holding, on the basis of an earlier judgment ( Church of Jesus Christ of Latter-day Saints v. Henning [1964] AC 420), that as a matter of domestic law a place of “public religious worship” must be one that is open to the general public. Four of the five Law Lords further dismissed the applicant ’ s arguments under the Convention, holding that the liability to pay 20 % business rates on the Temple did not fall within the ambit of Article 9, since Mormons were still free to manifest their religion and since the statutory requirement to be open to the public applied equally to all religious buildings and did not target Mormons in particular. In the words of Lord Hoffmann, with whom Lords Carswell and Mance agreed:', '“13. In order to constitute discrimination on grounds of religion, however, the alleged discrimination must fall ‘ within the ambit ’ of a right protected by article 9, in this case, the right to manifest one ’ s religion. In the present case, the liability of the Temple to a non-domestic rate (reduced by 80% on account of the charitable nature of its use) would not prevent the Mormons from manifesting their religion. But I would not regard that as conclusive. If the legislation imposed rates only upon Mormons, I would regard that as being within the ambit of article 9 even if the Mormons could easily afford to pay them. But the present case is not one in which the Mormons are taxed on account of their religion. It is only that their religion prevents them from providing the public benefit necessary to secure a tax advantage. That seems to me an altogether different matter.', '14. For example, I do not think that a Sabbatarian could complain that he was discriminated against because he was unable, on religious grounds, to provide services on the Sabbath and therefore earned less than people of a different religion. A case which in my opinion is very much in point is M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91, in which a woman would have been able to secure a reduction in her liability for the maintenance of her child if she had been living with a male partner. She was unable to qualify because, on account of her sexual orientation, she chose to live with a female partner. The House of Lords decided that the alleged act of discrimination did not fall within the ambit of article 8 (her right to family life and in particular her right to live with a female partner) because loss of the opportunity to gain a financial advantage was too remote from interference with the right in question. The same seems to me true of this case.', '15. Furthermore, I think that even if this can be regarded as a case of indirect discrimination, it was justified. Parliament must have a wide discretion in deciding what should be regarded as a sufficient public benefit to justify exemption from taxation and in my opinion it was entitled to take the view that public access to religious services was such a benefit.”', 'Lord Hope of Craighead agreed with Lord Hoffmann and added:', '“31. ... I do not see this case falling within the ambit of article 9. Those who are qualified to worship in the Temple are not prevented from manifesting their religion or their belief by the fact that it is subject to non-domestic rating, the legislation is not directed at Mormons because of what they believe in. It applies generally to all whose religious beliefs and practices prevent them from participating in public religious worship. It is easier to see the case as falling within the ambit of article 1 of Protocol 1, but the second paragraph of that article preserves the right of the State to secure the payment of taxes or other contributions or penalties. In my opinion Parliament ’ s decision as to the scope of the exemption was within the discretionary area of judgement afforded to it by that paragraph. ... ”', 'Lord Scott of Foscote, however, differed from the majority in his concurring opinion and found that the difference in treatment fell within the ambit of Article 9, although he considered that the Article was not violated:', '“49. Lord Hoffmann and Lord Hope have expressed the view that the withholding of rating relief from the Temple does not fall within the ambit of article 9. I am uneasy about that conclusion because it is well settled that an allegedly discriminatory act said to be in breach of article 14 does not need to constitute an actual breach of the substantive article within whose ambit the act in question is said to fall. It needs simply to be within the ambit of the substantive article. The case-law as to when an act of discrimination, not being in breach of a particular substantive article, will sufficiently relate to that article in order to be capable of constituting a breach of article 14 does really no more than ask whether the act is within ‘ the ambit ’ of the article. There is no precise yardstick; the requirement is left inherently, and perhaps unsatisfactorily, flexible. It seems to me, however, that the levying of taxation on a place of religious worship, or on those who enter the premises for that purpose, would be capable in particular circumstances of constituting a breach of article 9 and, accordingly, that it is difficult to regard the levying of rates on such premises as otherwise than within the ambit of article 9. I would prefer, therefore, to examine the second issue on the footing that the withholding of rating relief from the Temple does fall within the ambit of article 9 for article 14 purposes.', '50. If that is so, there is, as it seems to me, an element of discrimination that requires to be justified. The discrimination consists of the denial of rating relief for the Temple on the ground that, although a place of religious worship, it is not a place of public religious worship. No one who is not a Mormon, or who, although a Mormon, does not possess a ‘ recommend ’ permitting him or her entry, can enter the Temple .... The ‘ open doors ’ requirement in order to enable premises used for religious worship to qualify for rating relief discriminates, adversely to the Mormons, between premises used for religious worship that are open to the public and those that are not. If that is right, the discrimination requires to be justified if it is to escape being held unlawful.', '51. I would, for my part, unhesitatingly hold that the grant of rating relief to premises for religious services that are open to the public and the withholding of that relief from premises for religious services which take place behind closed doors through which only a select few may pass is well justifiable and within the margin of appreciation available to individual signatory states. First, states may justifiably take the view that the practice of religion is beneficial both to the individuals who practise it as well as to the community of whom the individuals form part, and that, therefore, relief from rating for premises where religious worship takes place is in the public interest. But, second, states may also recognise that, although religion may be beneficial both to individuals and to the community, it is capable also of being divisive and, sometimes, of becoming dangerously so. No one who lives in a country such as ours, with a community of diverse ethnic and racial origins and of diverse cultures and religions, can be unaware of this. Religion can bind communities together; but it can also emphasise their differences. In these circumstances secrecy in religious practices provides the soil in which suspicions and unfounded prejudices can take root and grow; openness in religious practices, on the other hand, can dispel suspicions and contradict prejudices. I can see every reason why a state should adopt a general policy under which fiscal relief for premises used for religious worship is available where the premises are open to the general public and is withheld where they are not. In my opinion, the withholding of rating relief from the Temple does not constitute a breach of article 14, whether considered in the context of article 9 or, for the same reasons, in the context of article 1 of the 1 st Protocol.”']
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MahmoudAly/LexAbSumm
| 1
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facts
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716
| "['I. THE CIRCUMSTANCES OF THE CASE', '6. The applicant is a trade union based in London with a memb(...TRUNCATED)
| "The applicant – a trade union with a membership of more than 80,000 persons employed in different(...TRUNCATED)
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Trade union rights
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aspect_first
| "Summarize the central issue concerning trade union rights in this case.\n\n---\nDocument:\n['I. THE(...TRUNCATED)
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MahmoudAly/LexAbSumm
| 0
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facts
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1,061
| "['II. RELEVANT DOMESTIC LAW', '23. The collection and refunding of value-added tax (VAT) is regulat(...TRUNCATED)
| "The Court held that there had been a violation of Article 1 (protection of property) of Protocol No(...TRUNCATED)
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Taxation and the European Convention on Human Rights
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aspect_first
| "Summarize the taxation-related human-rights issue addressed in the case.\n\n---\nDocument:\n['II. R(...TRUNCATED)
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MahmoudAly/LexAbSumm
| 0
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law
|
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