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Судебное дело "Обжалование 30-ти процентного налога (дело в ЕСПЧ № 4985/12), которым облагаются нерезиденты-граждане Российской Федерации (вместо общеустановленного 13-ти процентного налога) "


Жалоба в Европейский суд по правам человека о признании нарушения права собственности (направомерно взысканный налог в размере 30% вместо 13%), дискриминация относительно взыскания подоходного налога по признаку места проживания, нарушение права на справедливое судебное разбирательство в части не рассмотрения Конституционным судом РФ аргументов стороны, основанных на Конвенции (жалоба на английском языке)

 

08.01.2012

 

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                                                           См. Инструкцию

                                                          (Version russe)

                   COUR EUROPEENNE DES DROITS DE L'HOMME

                      EUROPEAN COURT OF HUMAN RIGHTS 

                     ЕВРОПЕЙСКИЙ СУД ПО ПРАВАМ ЧЕЛОВЕКА

                  Conseil de l'Europe - Council of Europe

                  Strasbourg, France - Страсбург, Франция

                                  REQUETE

                                APPLICATION

                                   ЖАЛОБА

    presentee en application de l'article 34 de la Convention europeenne
                           des Droits de l'Homme,

          ainsi que des articles 45 et 47 du Reglement de la Cour

        under Article 34 of the European Convention on Human Rights

                 and Rules 45 and 47 of the Rules of Court

   в соответствии со статьей 34 Европейской Конвенции по правам человека

                     и статьями 45 и 47 Регламента Суда

   Table of Contents

   I. The Parties 4

   (1) The Applicant 4

   (2) The High Contracting Party 4

   II. Summary 5

   III. Statement of the Facts 6

   IV.  Statement  of  the  alleged  violations  of the Convention and/or
   Protocols and of relevant arguments 8

   (1) VIOLATION OF THE RIGHT TO PROPERTY 8

   THE LAW 8

   APPLICATION OF THE LAW TO THE CASE 10

   1) Interference with the right to property 10

   2)  The  rule  applying  to the case and the requirement of legitimate
   objective 11

   3) Fair balance and the principle of legal certainty 11

   (2)  VIOLATION  OF THE RIGHT TO NON-DISCRIMINATION IN CONJUNCTION WITH
   THE RIGHT TO PROPERTY 11

   THE LAW 11

   APPLICATION OF THE LAW TO THE CASE 12

   1) The difference of treatment between tax residents and non residents
   12

   2) Aim of the measure 13

   3) No proportionality between the aim sought and the means employed 14

   (3) VIOLATION OF THE RIGHT TO A FAIR TRIAL 14

   THE LAW 14

   1)  Notion  of "criminal charge" in the case law of the European Court
   14

   2)  Application of the notion of `criminal charge' to X v. Russia
   17

   APPLICATION OF THE LAW TO THE CASE 19

   1)  The  requirement to give reasons and consider the arguments of the
   parties under Article 6 of the Convention 19

   2) Violation of Article 6(1) of the Convention in the present case 21

   V. Admissibility of the case regarding Article 35, 3 B 24

   THE LAW 24

   APPLICATION OF THE LAW TO THE CASE 26

   VI. Statement relative to 35 S: 1 of the Convention 28

   VII. Statement of the object of the application 28

   VIII. Statement concerning other international proceedings 29

   IX. List of documents 29

   X. Declaration and signature 29

    I. The Parties

    1. The Applicant

    ..........................

    1. The High Contracting Party

   The  Russian  Federation  is  a  contracting  party  to  the  European
   Convention for the protection of human rights and fundamental freedoms
   (hereinafter: the Convention) since 5 may 1998.

    I. Summary

   CASE OF X V. RUSSIA

   The  applicant X is a citizen of the Russian Federation who
   had  been  enrolled  in  a  course  of study in the United Kingdom. He
   returned  to  Russia  in  April  2008  in order to deliver a course of
   lectures  in  the Ural Institute of Economics, Management, and Law. In
   calculating  the  wage  for  the  course  that he taught, a 30 percent
   income  tax  was withheld, with reference to Article 224, section 3 of
   the Tax Code of the Russian Federation. According to this disposition,
   the  rate of taxation applied to all income of natural persons who are
   not tax residents of the Russian Federation is set at the amount of 30
   percent,  while the income tax rate applicable to resident citizens of
   the  Russian  Federation  under  section  1  of the same article is 13
   percent. On October 29^th 2010, the applicant filed a complaint before
   the  Constitutional  Court  of  the  Russian Federation because of the
   uncertainty  related  to  the  compliance with the Constitution of the
   Russian  Federation.  On  July 14^th 2011, the Constitutional Court of
   the  Russian  Federation  ruled  in  its  judgement  that there was no
   violation of the applicant's constitutional rights.

   In this case, the applicant claims that:

   (1) The 30 per cent tax rate applied to the income he earned in Russia
   amounts to an unjustified and abusive interference in his right to use
   of  property  and  therefore  constitutes  a  breach  of  article 1 of
   Protocol 1 of the Convention.

   (2) This interference is discriminatory and violates article 14 of the
   Convention  and the right to non discrimination because the difference
   of  treatment  between  tax  residents and non residents, both Russian
   citizens, is not justified and does not follow a legitimate aim.

   (3)  The failure of the Constitutional Court of the Russian Federation
   to  mention  the Convention and the disregarding of the allegations of
   violations  of  it  in  its  judgment  of July 14^th 2011 results in a
   breach  of  Article  6(1)  of the Convention, since the Constitutional
   Court  of  the Russian Federation has to give reasons and consider the
   arguments  of the parties, in accordance with its commitment under the
   Convention.

   II. Statement of the Facts

    1. The applicant is a citizen of the Russian Federation and his place
       of  permanent  residence is Russia. From October 1^st 2005 to July
       18^th 2009, the applicant was enrolled in a course of study in the
       United Kingdom of Great Britain and Northern Ireland.
    2. The  applicant returned to Russia in April 2008 for the purpose of
       delivering   a  course  of  lectures  in  the  Ural  Institute  of
       Economics,  Management,  and  Law. In calculating the wage for the
       course  that he taught, a 30 percent income tax was withheld, with
       reference to Article 224, section 3 of the Tax Code of the Russian
       Federation (hereinafter: the tax measure).

   Article 224(3) :3. The tax rate shall be fixed in the amount of 30 per
   cent  with  respect to all incomes received by natural persons who are
   not tax residents of the Russian Federation (...)>>

    3. According to the aforementioned rule, the rate of taxation applied
       to  all income of natural persons who are not tax residents of the
       Russian  Federation  is set at the amount of 30 percent, while the
       income  tax  rate  applicable  to resident citizens of the Russian
       Federation under section 1 of the same article is 13 percent.
    4. On  October 29^th 2010, the applicant filed a complaint before the
       Constitutional  Court  of  the  Russian  Federation contesting the
       constitutionality  of  the  words "in the amount of 30 percent" in
       Article 224, section 3 of the Tax Code, as applied to non-resident
       citizens of the Russian Federation. The applicant submits that the
       tax  measure  as  a  violation of his right to use of property and
       discrimination  on  the  basis  of  the place of residence, rights
       guaranteed  under  articles  15(1),  19,  35(2),  55  (2,3) of the
       Constitution of the Russian Federation.
    5. The  applicant  also  submits  that  the tax measure as applied to
       nonresident  citizens  of  the  Russian  Federation  constitute  a
       violation  of  his  right  to  use  of property and discrimination
       against  him  on  the  basis of his place of residence, guaranteed
       under  Article  1  of  the  Protocol  1  of the Convention for the
       Protection  of Human Rights and Fundamental Freedoms (hereinafter:
       the  Convention)  and Article 14 of the Convention. In addition to
       that,  the  decision  of  the  Constitutional  Court  violates the
       applicant's  right  to  a fair trial (Article 6 of the Convention)
       since  the  Constitutional Court of the Russian Federation omitted
       and/or  neglected  to  mention  the  Convention  and  ignored  his
       allegations  of  violations  of it in its judgment, which deprived
       the applicant of the full support of the law and the Convention.
    6. On   14  July  2011,  the  Constitutional  Court  of  the  Russian
       Federation  ruled  in its judgement that there was no violation of
       the  applicant's  constitutional  rights,  failing  to analyse and
       consider the arguments of applicants regarding the Convention.

    I. Statement of  th e al leged vi olations of  th e Convention and/or
       Protocols and of relevant arguments

   7. The applicant claims that:

    1. The 30 per cent tax rate applied to the income he earned in Russia
       amounts  to  an interference with his right to use of property and
       therefore  constitutes  a breach of article 1 of Protocol 1 of the
       Convention;
    2. This interference is discriminatory and violates article 14 of the
       Convention and the right to non discrimination;
    3. The  failure of the Constitutional Court of the Russian Federation
       to  consider and analyse the arguments of applicant relying on the
       Convention  and  the disregarding of the allegations of violations
       of  it in its judgment of July 14^th 2011 amount to a violation of
       Article 6(1) of the Convention (the right to a fair trial).

   (1) VIOLATION OF THE RIGHT TO PROPERTY

   THE LAW 

    8. Article  1  of  Protocol 1 to the Convention for the Protection of
       Human Rights and Fundamental Freedoms provides that:

   "Every  natural  or legal person is entitled to the peaceful enjoyment
   of his possessions. No one shall be deprived of his possessions except
   in  the  public interest and subject to the conditions provided for by
   law and by the general principles of international law.

   The  preceding  provisions  shall  not, however, in any way impair the
   right of a State to enforce such laws as it deems necessary to control
   the  use  of  property  in  accordance with the general interest or to
   secure the payment of taxes or other contributions or penalties."

    9. In its case law, the Court has developed a methodology to evaluate
       whether  there  has  been  a violation of the right to property as
       protected  by  Article  1  of  Protocol  1. There are six steps to
       follow  to  determine whether a violation of the right to property
       has occurred.

   10. First, the existence of a right to property on the good in dispute
       must be demonstrated.

   11. Second,  the  Court determines whether there has been interference
       in the right to property of an applicant.

   12. Third,  the  Court  must  decide  under  which  of the three rules
       provided  by  the  case  of  Sporrong and Loennroth v. Sweden^ the
       interference has occurred:

   The  first  rule, which is of a general nature, enounces the principle
   of peaceful enjoyment of property; it is set out in the first sentence
   of  the  first  paragraph.  The  second  rule  covers  deprivation  of
   possessions  and  subjects it to certain conditions; it appears in the
   second  sentence of the same paragraph. The third rule recognises that
   the  States  are entitled, amongst other things, to control the use of
   property  in  accordance  with the general interest, by enforcing such
   laws  as  they  deem necessary for the purpose; it is contained in the
   second paragraph.

   Following  the  decision  in  Svenskamanagementgruppen AB. v. Sweden^,
   cases  related  to  taxation  fall under the third rule and the second
   paragraph  of  article 1 that <>

   13. Fourth,  the  Court seeks to find out if the interference serves a
       legitimate  objective. The legitimacy of the aim is being regarded
       in  the light of the "general'' or public interest^. Regarding the
       second  paragraph  of  article  1  of  Protocol 1, the State has a
       margin  of  appreciation  to secure the payment of taxes, but this
       margin is not absolute:

   The  Court,  finding  it  natural  that  the  margin  of  appreciation
   available  to  the  legislature  in  implementing  social and economic
   policies should be a wide one, will respect the legislature's judgment
   as  to  what  is  "in  the  public  interest"  unless that judgment be
   manifestly without reasonable foundation. In other words, although the
   Court  cannot  substitute  its own assessment for that of the national
   authorities,  it  is  bound  to  review  the  contested measures under
   Article  1  of  Protocol  No.  1  (P1-1)  and, in so doing, to make an
   inquiry   into   the  facts  with  reference  to  which  the  national
   authorities acted.^

   14. Then,  the  Court looks at the proportionality of the interference
       by  evaluating  "whether  a  fair  balance  was struck between the
       demands   of  the  general  interest  of  the  community  and  the
       requirements  of  the  protection  of the individual's fundamental
       rights".^

   15. Finally,  the  Court  observes  the lawfulness and legality of the
       interference in the light of the principle of legal certainty.^

   APPLICATION OF THE LAW TO THE CASE

    1. Interference with the right to property

   16. Following the  meth odology deve loped by t he  Cour t's case  law
       regarding  the right to property, the examination of the statement
       of  income  of  the applicant contained in the attachments attests
       the  applicant's right to property on the good in dispute; in this
       case,  17  per  cent  of the salary of 2000 roubles he earned from
       delivering a course of lectures at the Ural Institute of Economics
       in April 2008. The applicant submits that the 30 per cent tax rate
       applied  to the 2000 roubles earned from the course of lectures he
       delivered  constitutes an interference with his right to property,
       his personal income.

    1. The  rule  applying  to the case and the requirement of legitimate
       objective

   17. The ap plicant al so su bmits th at th is withholding, pursuant to
       section  3 of article 224 of the Russian Tax Code, falls under the
       third  rule  contained  in  the  first  paragraph  of article 1 of
       Protocol  1  to  the  European  Convention because it relates to a
       restriction  of  the  use  of  his duly earned salary and personal
       asset. The applicant submits that the taxation of an additional 17
       per  cent of his wage because of his stay in United Kingdom cannot
       be  considered  as falling under the second paragraph of article 1
       of  Protocol 1.^ Indeed, the tax measure goes beyond the margin of
       appreciation of the State and has no legitimate aim related to the
       public interest. In its decision, the Constitutional Court did not
       consider  nor  raise any reasonable aim that could justify the tax
       measure  in  light  of the public interest, therefore evidencing a
       lack  of  legitimacy  of  the  measure.  Moreover, even though the
       Constitutional  Court mentioned that the tax measure was justified
       on the basis of economic characteristics, it never went further in
       its  explanation and this reveals a definite problem of legitimacy
       of the tax measure.

    1. Fair balance and the principle of legal certainty

   18. In th e li ght of  th e pr eceding as sessments, th e ta x measure
       deprives a considerable number of people of the use of 17 per cent
       of their income on the sole basis of their place of residence. The
       Russian  constitutional  laws  protect  the  right  of property of
       Russian  citizens,  thus  the  tax  measure violates a fundamental
       right  in  Russian  law and certainly creates legal contradictions
       and   uncertainty.  On  that  sole  basis  there  is  no  need  to
       demonstrate  an absence of fair balance between the demands of the
       general  interest  of  the  community  and the requirements of the
       protection of the individual's fundamental rights.

   (2)  VIOLATION  OF THE RIGHT TO NON-DISCRIMINATION IN CONJUNCTION WITH
   THE RIGHT TO PROPERTY

   THE LAW

   19. Article 14 of the Convention guarantees that

   "The enjoyment of the rights and freedoms set forth in this Convention
   shall  be  secured  without  discrimination on any ground such as sex,
   race, colour, language, religion, political or other opinion, national
   or  social  origin,  association  with  a national minority, property,
   birth or other status".

   20. The  applicant  claims  that  the  interference  with his right to
       property  is  discriminatory.  In its case law, the European Court
       established a methodology for assessing whether discrimination has
       occurred. In the Belgian Linguistic Case^, the Court has developed
       a  test  and  identified  which criteria were necessary to prove a
       discrimination  claim.  First,  the  difference  of treatment is a
       breach  of  article  14 when "the distinction has no objective and
       reasonable  justification". In order to establish this, it must be
       determined that the aim is not legitimate. It is also necessary to
       prove that there is "no reasonable relationship of proportionality
       between the means employed and the aim sought to be realised".

   APPLICATION OF THE LAW TO THE CASE 

    1. The   difference  of  treatment  between  tax  residents  and  non
       residents

   21. The applicant alleges that the tax measure creates a difference of
       treatment  between tax residents and non residents that amounts to
       discrimination on the basis of the place of residence. The list of
       grounds  for  discrimination  enumerated  in  article  14  of  the
       Convention  is  not exhaustive. This is particularly apparent from
       the  words "or other status." Discrimination on the basis of place
       of residence amounts to discrimination on the basis of such "other
       status." (See Carson and others v. The United Kingdom and Darby v.
       Sweden^).
   22. Furthermore,  the  notion  of discrimination within the meaning of
       Article  14  (art.  14)  generally implies cases where a person or
       group  is  treated,  without proper justification, less favourably
       than  another,  even  though  the more favourable treatment is not
       called for by the Convention (Abdulaziz, Cabales and Balkandali v.
       the United Kingdom^).
   23. In this case, the difference of treatment is not justified because
       both  residents  and  non residents can be regarded as being in an
       analogous  situation. Indeed, they are all citizens of the Russian
       Federation, who have to pay taxes when they work in their country.
       There  is  no  denying  that  States  have a right to taxation, as
       guaranteed  by  article  1 paragraph 2 of Protocol 1 and that they
       enjoy  a  margin  of appreciation in this matter (see Gasus v. the
       Netherlands^).   However,  this  margin  of  appreciation  is  not
       unlimited.  Discretion  is  applicable  only  for  the  purpose of
       ensuring   that   taxpayers  comply  with  their  obligations.  In
       particular,   the   legislature  cannot  establish  discriminatory
       conditions  (e.g.  permanent  residence in the Russian Federation)
       that  impinge upon taxpayers' constitutional rights (e.g. property
       rights).   Without   reasonable  and  proper  justification,  this
       discrimination is arbitrary.

    1. Aim of the measure

   24. As  it  was submitted above, an acceptable difference of treatment
       must  be objective, justified and must pursue a legitimate aim. In
       this  case,  the difference of treatment between tax residents and
       non residents is based on the fact that the latter spend more than
       183  days  outside  of  the Russian Federation. The Constitutional
       Court  provided  no  further explanation as to why the tax rate is
       doubled for non residents taxpayers. The Constitutional Court only
       stated that the tax measure is justified and based on an objective
       criterion  "characterizing  a natural person's connection with the
       tax  jurisdiction  of  the  Russian  Federation". According to the
       applicant,   this  argument  is  not  sufficient  to  justify  the
       difference of treatment. The criterion of differentiation is based
       on  the  place  of residence, and not on an economic criterion. It
       seems  that  this  is  an arbitrary determination of the tax rates
       that  does  not take into consideration the financial situation of
       each  individual.  The applicant also submits that public interest
       demands  effective  tax  administration for which the enactment of
       unjust laws is unacceptable.

    1. No proportionality between the aim sought and the means employed

   25. As  the Court established in the Belgian Linguistic Case, "Article
       14  is likewise violated when it is clearly established that there
       is no reasonable relationship of proportionality between the means
       employed  and  the  aim  sought  to  be realised^". As it has been
       established  above,  there  is  no  legitimate  aim  or reasonable
       justification  to  such  a  major  difference of treatment between
       Russian  nationals  who  are  tax  residents and those who are non
       residents  according  the tax measure. The State failed to support
       and justify a measure that inflicts an additional financial strain
       on  non  residents.  Besides,  even  if  the  impugned legislation
       followed  a  legitimate  aim,  which  it  does  not,  a  law  that
       disproportionately  restricts  the  basic rights of the individual
       and  property  rights on the basis of temporary place of residence
       should  be  considered  unjust. Given all these considerations, it
       cannot  be  stated  that  the means employed by the State meet the
       principle of proportionality.

   (3) VIOLATION OF THE RIGHT TO A FAIR TRIAL

   THE LAW

   26. Article 6 of the Convention guarantees that

   "In  the  determination  of his civil rights and obligations or of any
   criminal charge against him, everyone is entitled to a fair and public
   hearing [...]" (emphasis added)

    1. Notion of "criminal charge" in the case law of the European Court

    1. Article  6(1)  of  the  Convention  guarantees the right to a fair
       trial  for  everyone  charged with a criminal offense. In its case
       law,  the  European  Court  has  defined  the  terms  of "criminal
       offense"  and  "criminal  charge"  in  a broader approach than the
       proceedings defined as "criminal" in the Contracting States. Thus,
       "the  indications  furnished by the domestic law of the respondent
       State  have  only  a relative value,"^ when determining whether or
       not  an  offence  should  be considered as criminal in its nature,
       since it is an autonomous concept under the Convention.

    2. The  European  Court  will first treat the charge as `criminal' if
       the  national  law of the Contracting States defines the charge as
       such^.  Since  tax  differentiation  is part of the Russian fiscal
       regime,  the  situation  does not comply with the first criterion,
       which is the classification as a criminal offense in national law.
       Thus,  the  European  Court  will  examine the consequences of the
       procedure  in  question  based  on  two alternative criteria^: the
       nature of the offense and the degree of severity of the penalty.

    3. In  evaluating the nature of the offense, several factors, amongst
       others, can be taken into account, such as:

     * The  generally  binding  character of the legal rule as opposed to
       rules addressed to a specific group^.

     * The  classification  of comparable procedures in other Contracting
       States in order to evaluate if there is a similar practice^
     * The punitive or deterrent purpose of the legal rule^.

   30. The  nature  of  the offense is the main criterion examined by the
       European  Court  in  order to determine the "criminal" nature of a
       charge  when  the  national  law does not qualify it as such^, the
       European  Court  will  also  examine the degree of severity of the
       maximum potential penalty, which depends on the circumstances of a
       specific  case.  In  Lauko  v. Slovakia^, the European Court ruled
       that   accusing   a   neighbour  of  causing  a  nuisance  without
       justification,  action punishable with a maximum fine of SKK 3,000
       (approximately  90EUR)  and  with  an  imposed  fine  of 9EUR, was
       "criminal  in  nature"  because  of  the  general,  deterrent  and
       punitive  character  of  the charge. In Weber v. Switzerland^, the
       European Court ruled that a fine of 300 Swiss francs for breach of
       confidentiality  in  a  judicial  proceeding  is a "criminal" act.
       Furthermore,  the  fact  that  sanctions  could  amount to a small
       amount  of  money  does  not  take  away their punitive character.
       Indeed, the Court ruled in Ozturk v. Germany that:

   There is in fact nothing to suggest that the criminal offence referred
   to   in  the  Convention  necessarily  implies  a  certain  degree  of
   seriousness.  [...]  it would be contrary to the object and purpose of
   Article  6  [art.  6],  which  guarantees  to "everyone charged with a
   criminal  offence"  the  right  to a court and to a fair trial, if the
   State were allowed to remove from the scope of this Article [art. 6] a
   whole  category  of offences merely on the ground of regarding them as
   petty.^

   31. In  Kadubec  v.  Slovakia, the European Court supported the Ozturk
       decision  and  ruled that "The relative lack of seriousness of the
       penalty  at  stake  cannot  deprive  an  offence  of  its inherent
       criminal  character"^,  which  is  also  confirmed  in  Jussila v.
       Finland^ (cited, para 32 and 35).

    1. Application of the notion of `criminal charge' to X v. Russia

   32. Under the current case law, the tax differentiation imposed on the
       applicant  based  on  the  tax  measure  shall  be  classified  as
       "criminal"  under  the  Convention  because  of  the nature of the
       offence and the severity of the maximum potential penalty.
   33. In  regards  to the nature of the offence, the tax differentiation
       fulfills  the criteria set down by the ECtHR case law for criminal
       charges:

   34. The  Tax  code  in  general,  the  tax  measure  as applied in the
       applicant's case in particular are of general binding character.

   35. This  situation  can potentially affect the whole population since
       all  citizens going abroad for more than 183 days will have to pay
       30%  in  taxes of the income earned in the Russian Federation. For
       instance, according to a UN Report^, there are about 1-1.5 million
       Russians who are working abroad, which can potentially be affected
       by  this  measure.  If  those  workers  decide to come back to the
       Russian  Federation, they will be considered as non-resident for a
       six-month period and they will have to pay more than the double in
       taxes  than  Russian  citizens  who  are  living  on  the  Russian
       territory.

   36. The   tax  surcharges  are  intended  as  a  punishment  to  deter
       re-offending,  which has a chilling effect on the Russian citizens
       willing to go abroad.

   37. Indeed, tax surcharges are falling within the context of a general
       tendency  of  the  Russian  Federation  to  control  its citizens'
       migration  that  goes  back to the propiska system in place during
       the  Soviet  regime^.  This  propiska has been settled in order to
       plan  "the  economic  development  of  the  country [and to shape]
       migration  flows''^. Therefore, migration management in the Soviet
       period was coordinated with the State interests and contributed to
       the  limitation  of  the mobility of the citizens of the USSR^. In
       addition  to the limitation of internal migration, it is important
       to  mention  that "international migration was an exception rather
       than  a rule in the Soviet Union. For decades of the Soviet regime
       the  USSR was a `closed' country where international migration was
       strictly limited by the State"^.

   38. Despite  the  fact  that  the propiska was officially abolished in
       1993 with the Federal Law "On the right of citizens of the Russian
       Federation  to  freedom  of movement and choice of domicile on the
       Territory  of  the  Russian  Federation",  it is still part of the
       system,  which  has notable effects in terms of enjoyment of human
       rights and basic freedoms.

   39. The  fact  that citizens who are going abroad are paying more than
       the  double  in  taxes  than  citizens  who  are  living in Russia
       inevitably  causes  a  chilling  effect  on  the  Russian citizens
       willing  to  go  abroad. Therefore, the Tax Code has the effect of
       deterring  re-offending,  which complies with the criterion of the
       penal nature of the measure.

   40. In this respect, this case is very similar to Lauko v. Slovakia in
       which  the  ECtHR  analyzed  the criminal nature of minor offences
       under Slovakian law (in that particular case, the minor offence of
       unjustified  accusation).  In  Lauko, the Court concluded that the
       general  character  of the legal provision taken together with the
       deterrent  purpose  of the penalty imposed on the applicant showed
       that the offence was criminal in nature^.

   41. In  regards  to  the  severity  of the penalty, there is a 17% tax
       surcharge  imposed on citizens who are not considered as residents
       in  light  of  the  Tax  code,  no  matter  what  their income is.
       Therefore,  there  is no specified maximum potential penalty. This
       combined   with  the  fact  that  this  situation  is  potentially
       applicable  to  all  Russian  citizens, is triggering the severity
       threshold^.^

   APPLICATION OF THE LAW TO THE CASE

    1. The  requirement to give reasons and consider the arguments of the
       parties under Article 6 of the Convention

   42. The lack of examination of the argument of the defendant regarding
       the  Convention  is  a  violation  of  the  right to a fair trial,
       ensured  by  Article  6(1).  This  guarantee is implied in Article
       6(1), as it has been recognised by the Court on many occasions.

   43. Indeed,  it has been recognized that "Article 6 para. 1 (art. 6-1)
       obliges   the  courts  to  give  reasons  for  their  judgments"^.
       Furthermore,  the  European Court ruled in Kraska v. Switzerland^,
       that  the  court was under a duty to "conduct a proper examination
       of  the submission, arguments and evidence adduced by the parties,
       without  prejudice  to its assessment of whether they are relevant
       to  its  decision".  The  same  reasoning  has  been reaffirmed in
       paragraph 59 of the case of Van de Hurk v. Netherlands^.

   44. However,   the   courts  have  some  discretion  when  considering
       arguments  and  evidence,  since Article 6(1) does not require the
       court  to  give  a  detailed  answer  to  every  argument raised^.
       Nevertheless,  the  court  must  justify  its activities by giving
       reasons  for  its  decisions^. This interpretation in confirmed in
       Hadjianastassiou  v.  Greece, in which the European Court declares
       that although states enjoy considerable freedom in the workings of
       their  judiciary  system:  "the national courts must indicate with
       sufficient   clarity   the  grounds  on  which  they  based  their
       decision"^in  order  to  demonstrate  that  the  parties have been
       heard^.

   45. In addition to that, the European Court mentions that the right to
       a  fair  trial  as  guaranteed  by  Article 6(1) of the Convention
       includes  the  parties'  right  to  raise  observations they judge
       relevant and that this right is not solely theoretical:

   La  Convention  ne  visant  pas  `a  garantir des droits theoriques ou
   illusoires  mais  des  droits  concrets et effectifs. Ce droit ne peut
   passer   pour   effectif   que   si  ces  observations  sont  vraiment
   <>, c'est-`a-dire dument examinees par le tribunal saisi.^

   46. Therefore,  even  though the obligation to state reasons will vary
       depending  on  the nature of the decision and the circumstances of
       the  case, the European Court states that the courts silence could
       give  rise  to  doubt on the scope of the examination conducted by
       the  national  court^.  Consequently,  if  a  court considers that
       certain  arguments and/or evidences presented by an applicant have
       no merit or are irrelevant to the matter in dispute, it must state
       the  reason why they are not considered. Moreover, it is important
       to  note  the  firmness  of  the  position  of  the European Court
       regarding   the   implementation  of  the  Convention:  "effective
       implementation  of  the  European  Convention  on  Human Rights at
       national  level  is  crucial  for  the operation of the Convention
       system.  In  line  with its subsidiary character the Convention is
       intended  to  be applied first and foremost by the national courts
       and  authorities"^.  This  position  has  been  reaffirmed  by the
       Committee  of Ministers of the Council of Europe since they deemed
       that  "the rights and freedoms guaranteed by the Convention [must]
       be  protected in the first place at the national level and applied
       by  national  authorities  [...]"^. Therefore, States "[must] give
       effect  to  the  Convention  in their legal order, in light of the
       case-law of the Court"^.

    1. Violation of Article 6(1) of the Convention in the present case

    1. The  aforementioned  section  presents numerous cases that confirm
       the  right  to  a  fair  trial  as  stated  in Article 6(1) of the
       Convention. Therefore, the guarantees underlying Article 6(1) must
       be   applied   before   all   types   of   courts,  including  the
       Constitutional Court of the Russian Federation.

    2. On  October 29^th 2010, the applicant filed a complaint before the
       Constitutional  Court,  in which he specifically mentioned the tax
       measure,  as  applied  to  non  resident  citizens  of the Russian
       Federation,  breaches the right to property and the right to equal
       treatment,  rights  guaranteed  by Article 1 of the Protocol 1 and
       Article 14 of the Convention.

    3. Moreover,  the  applicant  used  the  European Court's case law in
       order  to validate the allegations of violation of the Convention.
       In regards to the right to property, the applicant has put forward
       the  Sporrong  and  Loennroth  v.  Sweden  case  to illustrate the
       principle of fair balance between the interests of society and the
       conditions  necessary  for protection of the fundamental rights of
       the  individual.  Concerning  the  right  to  equal treatment, the
       applicant   explained  the  extent  of  the  guaranteed  right  by
       referring  to  the Abdulaziz, Cabales and Balkandali v. the United
       Kingdom case.

    4. In  its  judgement of July 14^th 2011, the Constitutional Court of
       the Russian Federation summarized the allegations of the applicant
       and  explicitly  mentioned that "according to the complainant, the
       tax  rate  of 30 percent to citizens of the Russian Federation who
       are  not  tax  residents  of  the  Russian  Federation  amounts to
       discrimination  on  the basis of place of residence, and causes an
       incommensurate  restriction  on  property  rights,  and  therefore
       violates [...] the Constitution of the Russian Federation, as well
       as article 14 of the Convention for the Protection of Human Rights
       and  Fundamental  Freedoms  and  article  1  of Protocol 1 to said
       Convention" (emphasis added)^ ^.

    5. Despite  the  fact  that  the  Constitutional Court of the Russian
       Federation  was  aware  of the alleged violations, it neglected to
       mention  the  Convention  and  disregarded  applicant's arguments.
       Therefore,   the  Constitutional  Court  failed  to  consider  the
       arguments   based   on  the  Convention  brought  forward  by  the
       applicant,   even   though   they  contained  additional  material
       submitted  in  relation  to  the petition. This failure to address
       these  arguments  in  its  decision  has  resulted  in a breach of
       Article 6(1) of the Convention.

    6. As  mentioned in the last section, the European Court has outlined
       in its past judgments that the right to be heard does not imply an
       obligation of providing a detailed response to every argument^. In
       contrast, in this particular case, the Constitutional Court simply
       failed to examine the questions regarding the Convention raised by
       the  applicant even though it was aware of the demand. Hence, this
       is  not  a  case  where  a  tribunal  has taken the liberty not to
       respond  in  detail  to  each  argument, but rather a case where a
       tribunal  has  chosen to consciously ignore a valid argument and a
       fundamental human right violation raised by the applicant. Indeed,
       this  omission  by  the  Constitutional  Court raises an important
       issue.  The  Hiro Balani v. Spain case featured a similar failure.
       In that case, the European Commission ruled that the fact that the
       Supreme  Court  had not addressed the petitioner's arguments was a
       violation  of  Article 6(1) of the Convention and added: "that the
       silence  of  the  Supreme  Court in this matter could give rise to
       doubts  as  to  the  scope  of  the  examination conducted by that
       court^".  Such  doubts are definitely present in the present case.
       The   legal   process   finds   much  of  its  legitimacy  in  the
       justification  of  its  judgments,  which is absent in the present
       case.

    7. Finally,  in  the  Gast and Popp v. Germany case, this Court ruled
       that  "a  State  which established a constitutional-type court was
       under  a  duty to ensure that litigants enjoyed in the proceedings
       before it the fundamental guarantees laid down in Article 6"^. The
       requirement  to  give reasons and to consider the arguments of the
       parties is part of the fundamental guarantees set by Article 6. In
       this  case, the Constitutional Court has not ensured that right to
       the applicant since there was no examination of the allegations of
       violations  of  the  Convention,  which  is leading in a breach of
       Article 6(1).

   IV. Admissibility of the case regarding Article 35, 3 B

   THE LAW

   54. Paragraph  3 b) of article 35 of the Convention for the Protection
       of Human Rights and Fundamental Freedoms provides as follows:

   "The  Court  shall  declare  inadmissible  any  individual application
   submitted under Article 34 if it considers that:

   ...

   (b)  the applicant has not suffered a significant disadvantage, unless
   respect  for  human  rights  as  defined  in  the  Convention  and the
   Protocols  thereto  requires  an examination of the application on the
   merits  and provided that no case may be rejected on this ground which
   has not been duly considered by a domestic tribunal."

    1. Paragraph  3  of Article 35 of the Convention was recently amended
       by  Protocol 14, which entered into force on 1^st June 2010, which
       sets  a  new  criterion of admissibility regarding applications in
       which the disadvantage suffered is not significant. This amendment
       aims  to  relieve  the Court's workload considering it is facing a
       growing  number  of  applications.  Paragraph  3  b) of Article 35
       establishes  that  applications in which the disadvantage suffered
       is  not significant are inadmissible. Indeed, the Court's case law
       established  that  the violation of a right must achieve a minimum
       level  of  severity  to  warrant consideration by an international
       Court.^   Regarding   the   pecuniary   damages,  the  significant
       disadvantage is established in relation with the importance of the
       financial  impact  on  the  applicant^  or  the  importance of the
       financial prejudice suffered and its repercussions on the personal
       life  of  the  applicant.^ However, the fact that an applicant did
       not  suffer  a great pecuniary loss does not mean that the case is
       automatically  inadmissible.  Indeed, the Court considers that the
       pecuniary  loss is not the sole criterion to determine whether the
       applicant  suffered  a significant disadvantage or not. In Korolev
       v. Russia, the Court ruled that "a violation of the Convention may
       concern   important  questions  of  principle  and  thus  cause  a
       significant disadvantage without affecting pecuniary interest".

    2. In  addition  to  that,  in  the case of Finger v. Bulgaria^ which
       concerned  the  length of civil proceedings in Bulgaria, the Court
       did  not  look  at  the  damage  suffered by Mrs. Finger, but only
       looked  at the two provisions following the element of significant
       disadvantage contained in article 35, 3b) and observed whether the
       State  of  Bulgaria  had complied with the criteria of the respect
       for  human  rights  as defined in the Convention and its Protocols
       and  the  due consideration by a domestic tribunal. Regarding Mrs.
       Finger's  case,  the  Court  ruled  that  there  was  no  need "to
       determine  whether  she  suffered  a "significant disadvantage" on
       account  of  their allegedly unreasonable duration, because of the
       second  and third elements of the new admissibility criterion. The
       sentences that follow the criterion of significant disadvantage in
       Paragraph 3) are intended to be two safeguard clauses ensuring the
       admissibility  of applications in which <> and those that have
       "not  been  duly  considered  by  a  domestic  tribunal". Once the
       safeguard clauses apply, it is unnecessary to evaluate whether the
       applicant  suffered a significant disadvantage and the application
       should be admissible.

   APPLICATION OF THE LAW TO THE CASE

   57. Following  Finger  v.  Bulgaria,  it is not necessary to determine
       whether the applicant suffered a significant damage resulting from
       the  taxation  of his income to the amount of 30 percent resulting
       from  the tax measure since the two safeguard clauses contained in
       paragraph 3 b) of article 35 of the Convention apply.

   58. Respect  for  human  rights  as  defined in the Convention and the
       Protocols  thereto  requires  an examination of the application on
       the  merits. Indeed, there are three problems with the application
       of  the  rule  of  law  and  the  administration of justice by the
       Constitutional  Court  regarding  the  present  case.  First,  the
       justification  given  by  the  Court  to  dismiss  the argument of
       discrimination raised by the applicant is clearly insufficient and
       does  not  address  any  specific  justifications  and aim for the
       differentiated  tax rate applicable to non-resident taxpayers. The
       tax   measure   reveals   a   potential   situation   of  systemic
       discrimination in the taxation of people who leave Russia for more
       than 183 consecutive calendar days.^.

   59. Second,  the  President of the Court, Valery Zorkin and the acting
       speaker of the Federation Council, Aleksandr Torshin made worrying
       statements  about  the  place of the Convention in Russian justice
       system.  Indeed,  those  two important Russian figures made public
       statements  reporting a desire to limit "the right of the European
       Court  to  interfere into the area of Russian jurisdiction"^. In a
       doctrinal    article,    President    Zorkin   argued   that   the
       Constitutionnal  Court,  when verifying the constitutionality of a
       law,  should  only use the European Convention and its case law as
       an  accessory ratio.^ In June 2011, Torshin proposed a "draft bill
       stat[ing]  that  Russian  court  decisions  should be reconsidered
       following  the  European  Court  of  Human Right rulings only if a
       specific law was unconstitutional."^

   60. Third,  there  is  a  major  background  issue  regarding Russia's
       attempts  to reduce the applications presented before the European
       Court  as  noted  by Alexei Trochev in an article presented in the
       Legal Research Studies Paper Series of the University of Wisconsin
       Law  School: "The Kremlin today has made it a priority to stem the
       flow  of  potential  complaints  to  the ECtHR and to do something
       about  the  complaints  that already been received by the Court"^.
       Considering  these three issues relating to the situation of human
       rights  in  Russia, the applicant submits that the first safeguard
       clause  of  article  35, paragraph 3 b) applies. Respect for human
       rights  as  defined  in  the  Convention and the Protocols thereto
       requires an examination of the application on the merits.

   61. In  addition,  he  present  case has not been duly considered by a
       domestic  tribunal,  here  the  Constitutional  Court,  since  the
       Constitutional  Court  declared  it  inadmissible  and  refused to
       examine  it  on  the  merits.  IN its decision, the Constitutional
       Court   sates  that  it  "finds  no  grounds  for  accepting  [the
       applicant's] complaint for trial" and dismissed it "on the grounds
       that  it  does  not  comply  with  the requirements of the Federal
       Constitutional    Law".    Moreover,    as   aforementioned,   the
       Constitutional  Court  did  not  consider  the arguments that were
       brought before it under the European Convention and this is one of
       the  "check point[s] raised by the present case"^ as the applicant
       submits  that  his  right  to  a fair trial under article 6 of the
       Convention  has  been  violated.  Therefore,  the second safeguard
       clause  regarding  his case applies and the present application is
       admissible.

   IV. Statement relative to 35 S: 1 of the Convention

   Final decision:

   62. According  to  Article  125  of  the  Constitution  of the Russian
       Federation,  the Constitutional Court of the Russian Federation is
       competent  to  rule  upon  the constitutionality of all applicable
       laws.  Therefore, when a Russian law contravenes the Convention or
       the  Constitution  of  the  Russian Federation, the Constitutional
       Court must be seized before bringing a case to the Court. This has
       been  stated  in Griшankova and Griшankovs v. Latvia, in which the
       Court  mentioned  that  "where the applicant calls into question a
       provision  of  (...) legislation or regulations as being contrary,
       as such, to the Convention, and the right relied on is among those
       guaranteed  by  the  Latvian  Constitution, proceedings should, in
       principle,  be  brought  before  the Constitutional Court prior to
       being brought before the European Court of Human Rights"^.
   63. In  this  case,  all internal state means of legal protection have
       been  exhausted  since  a  petition  has  been  brought before the
       Russian  Constitutional Court in order to declare unconstitutional
       the  words "in the amount of 30 percent" in Article 224 of the Tax
       code,   as   applied  to  non-resident  citizens  of  the  Russian
       Federation.  The  petition  was  dismissed  on  the basis that the
       disputed   legal   provision   doesn't   violate  the  applicant's
       constitutional rights.

   IV. Statement of the object of the application

   64. According to  Article 41 of the Convention, the applicant requests
       that the Court:

    a. declares the State Party in violation of Article 1 of the Protocol
       1 to the Convention,
    b. declares  the  State  Party  in  violation  of  Article  14 of the
       Convention,
    c. declares  the  State  Party  in  violation  of  Article  6  of the
       Convention,
    d. orders  that  the  State  Party refunds the applicant the fees and
       expenses of the lawyers in charge of this case.

   IV. Statement concerning other international proceedings

   65. This case has not been examined by any other international organs.

   IV. List of documents

    1. The  application  before  the  Constitutional Court of the Russian
       Federation dated of October 29^th 2010.
    2. Translation   into   English   of   the   application  before  the
       Constitutional  Court  of  the Russian Federation dated of October
       29^th 2010.
    3. The  decision  of  the  Constitutional Court of the Russian Federation
   dated of July 14^th 2011.
    4. Translation  into  English of the decision of the Constitutional Court
   of the Russian Federation dated of July 14^th 2011.
    5. The  statement  of  income  of  natural  person  for  2008,  from  the
   accounting  department  of the Ural Institute of Economics, Management
   and Law, indicating the withholding of a 30 percent income tax.
    6. The  document  confirming  the  presence of the applicant from October
   1^st  2005  to  July 18^th 2009 in the United Kingdom of Great Britain
   and  Northern  Ireland, period in which he was enrolled in a course of
   study.

   IV. Declaration and signature

   I  hereby  declare  that,  to the best of my knowledge and belief, the
   information I have given in the present application form is correct.

   Place 

   Date 

                                             (Signature of the applicant)

   ^Case  of  Sporrong  and Loennroth v. Sweden, application no. 7151/75;
   7151/75, 23 September 1982, para 61, online,
   [2]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=6
   95456&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF0
   1C1166DEA398649

   ^Case  of  Svenskamanagementgruppen  AB  v.  Sweden,  application  no.
   11036/84, 2 December 1985, online,
   [3]http://cmiskp.echr.coe.int/tkp197/view.asp?action=open&documentId=7
   92551&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF0
   1C1166DEA398649

   ^Case  of James and others v. United Kingdom, application no. 8793/79,
   21 February 1986, online,
   [4]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=6
   70934&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF0
   1C1166DEA398649

   ^Ibid, para 46

   ^See,  mutatis mutandis, the judgement of 23 July 1968 in the "Belgian
   Linguistic"   case,   Series   A   no.  6,  p.  32,  para  5,  online,
   [5]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=6
   95402&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF0
   1C1166DEA398649 

   ^Case  of Iatridis v. Greece, application no. 31107/96, 25 March 1999,
   online,
   [6]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=6
   96104&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF0
   1C1166DEA398649

   ^Case of Svenska Managementgruppen AB v. Sweden, aforecited.

   ^Case "Relating to certain aspects of the laws on the use of languages
   in  education in Belgium" v. Belgium, Application no 1474/62; 1677/62;
   1691/62;  1769/63; 1994/63; 2126/64, 9 February 1967, para. 10, online
   :
   http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=6954
   02&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1
   166DEA398649

   ^Case  of  Carson  and  others  v. The United Kingdom, Application no.
   42184/05,  16  march 2010, para. 70; Case Darby v. Sweden, Application
   no.    11581/85,    23   october   1990,   para.   31-34,   online   :
   http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=8646
   11&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1
   166DEA398649

   ^Case  of  Abdulaziz,  Cabales  and  Balkandali v. the United Kingdom,
   Application  no.  9214/80;  9473/81;  9474/81,  23 May 1985, para. 82.
   online:
   http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=6952
   93&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1
   166DEA398649

   ^Case  of  Gasus  Dosier-  Und Foerdertechnik GmbH v. the Netherlands,
   Application  no.  15375/89,  23  February  1995,  para.  60.  Online :
   http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=6957
   95&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1
   166DEA398649

   ^Case "Relating to certain aspects of the laws on the use of languages
   in education in Belgium" v. Belgium, cited, para.10.

   ^Kadubec v. Slovakia, Application no. 27061/95, 2 September 1998, para
   51, online :
   [7]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=6
   96112&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF0
   1C1166DEA398649

   Ozturk  v.  Germany, Application no. 22479/93, 28 September 1999, para
   52, online :
   [8]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=6
   95430&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF0
   1C1166DEA398649

   Benham v. United Kingdom, Application no. 19380/92, 20 June 1996, para
   56, online :
   [9]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=6
   95867&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF0
   1C1166DEA398649

   Engel  and  Others  v.  The  Netherlands, Application no. 50100/71, 23
   November 1976, para 82, online :
   [10]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   695356&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Engel and Others v. The Netherlands, cited, para 82

   ^The  ECtHR  ruled  that  a  cumulative  approach may be adopted where
   separate analysis of each criterion does not make it possible to reach
   a clear conclusion as to the existence of a criminal charge (Bendenoun
   v. France, Application no. 12547/86, 24 February 1994, para. 47).

   ^Bendenoun  v.  France,  Application  no.  12547/86, 24 February 1994,
   para. 47, online :
   [11]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   695740&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   Demicoli v. Malta, Application No. 13057/87, 27 August 1991, para. 33,
   online :
   [12]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   695559&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   Ozturk v. Germany, cited, para. 53

   ^Ozturk v. Germany, cited, para. 53

   ^Ozturk  v.  Germany,  cited,  para. 53 and Bendenoun v. France cited,
   para. 47

   ^Jussila  v.  Finland, Application no. 73053/01, 23 November 200, para
   38, online :
   [13]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   810782&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Lauko v. Slovakia, Application no. 26138/95, 2 September 1998, online
   :
   [14]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   696111&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Weber v. Switzerland, Application no. 11034/84, 22 May 1990, online :
   [15]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   695506&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Ozturk v. Germany, cited, para 53.

   ^Kadubec v. Slovakia, cited, para 52.

   ^Jussila v. Finland, cited, para 32 and 35.

   ^Leonid  Rybakovsky and Sergey Ryazantsev, "International Migration in
   the  Russian  Federation",  United  Nations  Expert  Group  Meeting on
   International Migration and Development (UN/POP/MIG/2005/11), p.16

   ^The  propiska  system  is  "a compulsory registration of the passport
   holder  at  a  specific  address.  [This  measure] was introduced by a
   Government   Decree''  in  1932,  in  Irina  Ivakhnyuk,  "The  Russian
   Migration  Policy  and its Impact on Human Development: the Historical
   Perspective", Human Development Research Paper, UNDP (2009/14), p.5

   ^Ibid., p.9

   ^Ibid., p.8

   ^Ibid., p.10

   ^Lauko v. Slovakia, cited, para. 58.

   ^The  case  law  on  the  `severity  of  the maximum penalty' seems to
   combine  also  elements  from  the  second  criterion  (`nature of the
   offence'),  in  particular  the general character of the offence. In a
   number  of cases where the ECtHR ruled that a charge would be criminal
   because  of  the  severity  of the maximum penalty, it was because the
   offence  was  in  fact of general character (Demicoli v. Malta, cited,
   Weber  v. Switzerland, cited). See also footnote 4 above on cumulative
   approach.

   ^Hiro  Balani  v. Spain, Application no. 303-B, 09 December 1994, para
   27, online :
   [16]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   695787&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Kraska  v. Switzerland, Application no. 13942/88, 19 April 1993, para
   30, online :
   [17]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   695705&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Van  de  Hurk  v.  The Netherlands, Application no 16034/90, 19 April
   1994, para 59, online:
   [18]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   695755&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Van de Hurk v. the Netherlands, cited, para 61; Ruiz Torija v. Spain,
   Application no. 303-A , 9 December 1994,

   para 29, online :
   [19]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   695786&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Suominen  v.  Finland, Application no 37801/97, 1 July 2003, para 36,
   online:
   [20]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   699055&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Hadjianastassiou  v.  Greece,  Application no. 252, 16 December 1992,
   para 33, online :
   [21]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   695656&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Kuznetsov  and  Others  v. Russia, Application no. 184/02, 11 January
   2007, para 83 to 85, online :
   [22]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   812677&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Dulaurans v. France, Application no 34553/97, 21 March 2000, para 33,
   online :
   [23]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   700893&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Ruiz Torija v. Spain, cited, para 29-30

   ^Erik  Fribergh,  "Foreword  by  the  Registrar on the occasion of the
   100th  issue  of  the Case-Law of the European Court of Human Rights,"
   Information  Note  of  the  European  Court  of  Human Rights, no. 100
   (September 2007), p.1.

   ^Recommendations  of  the  Committee  of  Ministers  of the Council of
   Europe Rec(2004)4, Preamble, Rec(2004)5, Preamble.

   ^Recommendation of the Committee of Ministers of the Council of Europe
   Rec(2004)5, section 3.

   ^Paragraph  1  of  the  Decision  of  the  Constitutional Court of the
   Russian  Federation,  attached  as  document number two in the present
   petition.

   ^Ruiz  Torija  v.  Spain,  cited,  para  29  and  Van  de  Hurk v. The
   Netherlands, cited, para 61.

   ^Hiro Balani v. Spain, cited, para 25.

   ^Gast and Popp v. Germany, Application no. 29357/95, 25 February 2000,
   para 63, online :
   [24]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   696375&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Case  of  Korolev  v.  Russia,  application  no. 25551/051 July 2010,
   online,
   [25]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   865826&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Case  of Bock v. Germany, application no. 11118/84, 21 February 1989,
   online,
   [26]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   695317&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Case  of  Ionescu  v.  Romania,  application no. 38608/97, 2 November
   2004. online,
   [27]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   706630&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^Case  of  Finger  c. Bulgaria, 10 May 2011, application no. 37346/05,
   para 75, online,
   [28]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   885172&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^See,  mutatis mutandis, the case of Finger v. Bulgaria, in regards to
   the  potential systemic problem, 10 May 2011, application no 37346/05,
   para 75, online,
   [29]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   885172&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

   ^RT,  <>, online,
   [30]http://rt.com/politics/torshin-european-court-russia/   (Consulted
   on 1^st December 2011)

   ^Kirill  Koroteev,  <>,  Droits
   fondamentaux, no 5, January-December 2005, pp. 8-12.

   ^RT,  <>, online,
   [31]http://rt.com/politics/torshin-european-court-russia/   (Consulted
   on 1^st December 2011)

   ^Alexei  Trochev,  <>, Legal Studies
   Research  Paper  Series,  paper  no 1082, University of Wisconsion Law
   School, Heldref Publications, 2009, p. 146

   ^Finger v. Bulgaria, aforecited, para 76

   ^Griшankova  and  Griшankovs  v.  Latvia,  Application no.36117/02, 13
   February 2003, p.7, online :
   [32]http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=
   671991&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF
   01C1166DEA398649

                                     29

Ссылки

   1. mailto:ab636@cantab.net
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=695456&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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action=open&documentId=792551&portal=hbkm&source=externalbydocnumber&table=F69A2
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action=html&documentId=670934&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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action=html&documentId=695402&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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action=html&documentId=695430&portal=hbkm&source=externalbydocnumber&table=F69A2
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7FD8FB86142BF01C1166DEA398649
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7FD8FB86142BF01C1166DEA398649
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action=html&documentId=695559&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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action=html&documentId=810782&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=696111&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=695506&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=695787&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=695705&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=695755&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=695786&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=699055&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=695656&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=812677&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=700893&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=696375&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
  25.
http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=865826&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=695317&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=706630&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=885172&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
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http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=885172&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649
  30. http://rt.com/politics/torshin-european-court-russia/
  31. http://rt.com/politics/torshin-european-court-russia/
  32.
http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=671991&portal=hbkm&source=externalbydocnumber&table=F69A2
7FD8FB86142BF01C1166DEA398649


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