Preliminary objections dismissed;Violation of Art. 3;Violation of Art. 5-1;Not necessary to examine Art. 5-3 and 5-4;Violation of Art. 34;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1953 and lives in Chişinău.

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

The applicant worked as Deputy Mayor of Chişinău. He was also a lecturer at the Academy of Economic Studies in Moldova. Between 24 September 2004 and 25 February 2005 he was held in the remand centre of the Centre for Fighting Economic Crime and Corruption (“the CFECC”). On 25 February 2005 he was transferred to Remand Centre no. 3 of the Ministry of Justice in Chişinău (also known as “Prison no. 3”, which was subsequently re-named “Prison no. 13”). The applicant suffers from a number of illnesses (see paragraphs 17 and 20 below).

The applicant is accused in three separate sets of criminal proceedings under Articles 185 (3) and 327 (2) of the Code of Criminal Procedure (“the CCP”) of abuse of his position and excess of power.

On 17 September 2004 the CFECC opened a criminal investigation concerning the applicant and on 24 September 2004 he was taken into custody.

On 27 September 2004 the Buiucani District Court issued a warrant for his arrest and detention for 30 days. The reasons given by the court for issuing the warrant were that:

“[The applicant] is dangerous to society. If released he may reoffend, destroy evidence or abscond from the law-enforcement authorities, may obstruct the normal course of the investigation or the taking of evidence and may influence evidence and witnesses.”

On 4 October 2004 the Chişinău Court of Appeal upheld that decision. Judge M.B. dissented, finding no reason to detain the applicant, as the prosecution had not submitted any evidence of the alleged danger of his absconding or interfering with the investigation. The applicant had a family and a permanent residence in Chişinău, was ill and had no criminal record.

The applicant made habeas corpus requests on 5, 13 and 19 October, 2 November and 29 December 2004, and on 22 February, 23 June and 20 September 2005. He relied on the following facts: his poor state of health; the absence of a criminal record; his impeccable reputation as a Doctor of Economics and a university lecturer; the fact that his identification documents had been seized by the prosecuting authorities so that he could not leave the country; the fact that his family and permanent residence were in Chişinău; the fact that he supported his 75-year-old mother who was an invalid; he had the personal guarantee of three well-known persons (who had already deposited 3,000 Moldovan lei (MDL) and each of whom was prepared to pay the further MDL 8,000 initially requested by the court); and the lack of reasons for his arrest. All these requests were rejected for reasons similar to those given in the decision of 27 September 2004.

On 22 October 2004 the case file was submitted to the trial court.

On an unspecified date in October 2004 the prosecution submitted to the trial court a second case file in which the applicant was also identified as one of the accused. The investigation into that case had begun on 28 March 2003. The investigators twice closed it for lack of evidence (on 15 July and 26 September 2003) but on both occasions a prosecutor ordered its reopening. On 27 October 2004 both cases were joined.

On 2 November 2004 Judge L.V., President of the Centru District Court, rejected the applicant’s request for release against the personal guarantee of three well-known persons, without giving any reasons.

The applicant appealed but Judge L.V. refused to forward his appeal to the Court of Appeal because the law did not provide for an appeal against such decisions. The applicant submitted the appeal to the Chişinău Court of Appeal directly, which also refused to examine it for the same reason. A similar response was given to appeals made on 25 February and 27 September 2005.

On 30 December 2004 a third criminal case file was submitted to the trial court accusing the applicant of abuse of power in his own personal interest. This case was also joined to the two cases against the applicant mentioned above.

From 24 September 2004 the applicant was detained in the CFECC remand centre. On 29 September 2004 a medical consultative board examined the applicant’s medical file at his wife’s request and made the following diagnosis: type II diabetes (insulin-dependent), polyneuropathy, diabetic angiospasm, autoimmune thyroiditis stage 2, consequences of trauma to the head with intracranial hypertension, vagovagal paroxysm, chronic obstructive bronchitis, recurrent chronic pancreatitis with endocrine failure, chronic active hepatitis and asthenic syndrome. On 14 November 2004 the applicant’s wife informed the trial court of the findings of the medical board.

According to the applicant, the CFECC remand centre had no medical personnel until late February 2005, when a general practitioner was hired to work there. He claims that he requested medical assistance on a number of occasions but received treatment only from doctors from other institutions who visited him when there was an emergency. On 28 September 2004 an ambulance was called to treat the applicant for an acute hypertension. The doctor prescribed a consultation with an endocrinology specialist, who saw the applicant on 21 December 2004. The applicant also informed the prosecutor and the court of his special dietary and medical needs but received no reply. He submitted copies of complaints from his wife, his mother and a parliamentary group to the CFECC authorities, the Prisons Department, the trial court, the President of Moldova, the Minister of Justice and other authorities. The applicant’s wife received several formal replies, essentially informing her that her husband had been seen on a number of occasions by various doctors and that he would be given medical assistance should the need arise.

On 15 February 2005 the applicant was seen by Doctor B.E., a psychoneurologist, who concluded that his state of health was “unstable with a slight improvement” and that he needed to continue treatment under supervision. On 25 February 2005 the applicant was transferred to the remand centre of Prison no. 3 in Chişinău.

On 2 March 2005, in accordance with a court order, the applicant was examined by a medical board of the Ministry of Health. B.I., a neurologist and member of the board, diagnosed him with encephalopathy, polyneuropathy of endocrinal origin, hypertension, peripheral vascular disease and inferior paraplegia. He recommended that the applicant be treated on an in-patient basis. Z.A., an endocrinologist and member of the board, diagnosed the applicant with diabetes, macro and micro-angiopathy, cardiomyopathy, arterial hypertension, diabetic steatorrhoeic hepathosis, thyroiditis, hypothyroiditis and encephalopathy. He recommended a special diet and treatment on an in-patient basis in specialised clinics (endocrinology-cardiology-neurology). E.V., Head of the Cardiology Department of the Ministry of Health and a member of the board, diagnosed the applicant with ischaemic cardiomyopathy and mixed cardiopathy, unstable pectoral angina, prolonged attacks during the previous two weeks, arterial hypertension (3rd degree), congestive heart failure (2nd degree), hypertension and endocrinal renal failure, diabetic vascular disease and thoracic dilatation. E.V. recommended that the applicant be treated on an in-patient basis in a cardiology unit in order to investigate and prevent the risk of myocardic infarctus. She considered it necessary to undertake anti-coagulant treatment but noted that, given the risk of gastric haemorrhage, such treatment could take place only under conditions of strict supervision and with surgeons at hand to intervene if necessary.

On the basis of these recommendations, the trial court ordered the applicant’s transfer to a prison hospital.

On the basis of an order by the Ministry of Health, Doctor V.P., a neurologist from the Republican Neurology Centre of the Ministry of Health (“the RNC”), examined the applicant on 20 May 2005. He confirmed the earlier diagnoses and recommended complex treatment in a specialised neurological unit of the Ministry of Health, including treatment with hyperbaric oxygen (HBO) therapy.

On 30 May 2005 the director of the prison hospital where the applicant was held informed the court of V.P.’s recommendations and said that the applicant was being given the medication prescribed but not HBO therapy, which it was impossible to administer at the prison hospital for lack of the necessary equipment. He also informed the court that the applicant’s condition prevented him from attending court hearings.

On 1 June 2005 the Centru District Court found that the condition of the applicant and of another co-accused had worsened and suspended the examination of their cases “until recovery”. The court did not respond to the applicant’s wife’s request for his release to allow treatment or to the above-mentioned letter from the director of the prison hospital.

By letters of 9, 17 and 22 June, 5 July and 1 August 2005 the director of the prison hospital again informed the court of the lack of the necessary equipment at the hospital for the treatment prescribed by V.P.

On 7 and 15 September 2005 a medical board of the Ministry of Health, which included doctors from the RNC, examined the applicant, and on 16 September 2005 it recommended, inter alia, HBO treatment in a specialised neurological unit.

On 16 September 2005 the director of the prison hospital confirmed, on the applicant’s behalf, that the hospital did not have the necessary equipment for the required neurological treatment. That information was submitted to the Centru District Court.

On 19 September 2005 the Helsinki Committee for Human Rights filed an amicus curiae brief with the court after visiting the applicant in hospital. It considered that the applicant’s state of health was irreconcilable with his conditions of detention and treatment and protested against the decision to suspend the examination of the case pending his recovery.

In view of the findings of the Ministry of Health medical board of 16 September 2005 recommending that the applicant be treated in a specialised neurological unit, the Centru District Court on 20 September 2005 ordered his transfer to the RNC for 30 days.

On 27 September 2005 the applicant requested the Centru District Court to order an expert report regarding his state of health before and after his arrest, as well as his condition on the date of lodging the request. In its decision of the same day the Centru District Court rejected the applicant’s request, since no doubts regarding his state of health had been raised.

On an unspecified date the applicant requested the RNC management to describe his state of health and the treatment received. He received no answer. On 17 October 2005 the court ordered the RNC to answer immediately and the court received its answer on 20 October 2005. In it, the RNC set out its diagnosis of the applicant’s condition and found that his health was unstable and that he needed further treatment. On 20 October 2005 the Centru District Court extended the applicant’s treatment until 10 November 2005, on the basis of the letter from the RNC.

According to a certificate issued by the HBO Therapy Unit of the Republican Clinical Hospital (“the RCH”), the applicant received five HBO therapy sessions there starting on 2 November 2005, which produced positive results. The applicant was prescribed a twelve-session course, scheduled to continue until 28 November 2005. According to the applicant, he was escorted from the RNC to the RCH every second day for the procedure and also began an acupuncture course there. The applicant submitted a copy of the certificate to the Centru District Court, which on 10 November 2005 decided that he should be transferred to the prison hospital. The court based its decision on the RNC’s letter of 9 November 2005 which stated that the applicant’s condition had stabilised and that he would be released on 10 November 2005. Since the RNC letter did not include HBO therapy among its recommendations for treatment, the court found the schedule of HBO treatment for November to be irrelevant.

On 16 November 2005 the Ministry of Health and Social Welfare replied to the Government Agent’s questions regarding the need to treat the applicant. The letter stated that on 17 November 2005 the applicant’s medical records had been examined by a group of doctors, who found that he did not need in-patient treatment “in any medical establishment, including the [RNC]” and that he could be treated as an out-patient.

In his letter of 12 February 2007 the applicant submitted to the Court a certificate stating that on 20 June 2006 he had been recognised as having a second-degree disability.

On 23 June 2005 the trial court rejected the applicant’s habeas corpus request on the following grounds:

“the reasons for prolonging the accused’s detention pending trial remain valid because the charges against him are based on circumstances not yet examined by the court and altering the preventive measure may hinder the establishment of the truth in the criminal trial.”

On 8 July 2005 the applicant made another habeas corpus request, relying on Articles 2 and 3 of the Convention and emphasising that while examination of his case had been suspended pending his recovery, he had been refused the medical treatment necessary to ensure such a recovery. The court postponed examination of the request. Examination of the request was again postponed on 11 July 2005 for an indefinite period.

On 18 July Judge L.V. was absent and examination of the case was postponed. On 22 July 2005 other members of the court were absent and examination of the case was once more postponed.

On 25 July 2005 the applicant requested a copy of the court transcript of 8 and 11 July 2005 and informed the court of the worsening of his condition. The request was refused. On 3 August 2005 the Centru District Court informed the applicant that examination of his habeas corpus request had been postponed pending an answer from the Ministry of Health to its inquiry of 7 July 2005 regarding his condition.

On 20 September 2005 the Centru District Court rejected the applicant’s habeas corpus request “because the reasons for prolonging the detention remain valid”. The court also rejected the applicant’s complaint that the insufficient medical treatment he had received amounted to inhuman and degrading treatment:

“... because the representative of the [prison hospital] declared that [the applicant] had been given the necessary medical treatment on an in-patient basis; there is no evidence of inhuman or degrading treatment.”

At the same time, however, the court ordered the applicant’s transfer to the RNC (see paragraph 29 above).

On 27 September 2005 the applicant’s appeal was not examined, the court finding that no further appeal was possible. The court also rejected his request for a medical examination in order to establish his current state of health and the manner in which he had been treated during his detention.

On 11 October 2005 the applicant made another habeas corpus request, challenging, inter alia, the persistence of any reasonable suspicion justifying his continued detention. He referred to the finding of a violation of Article 5 of the Convention in the case of Sarban v. Moldova (no. 3456/05, 4 October 2005) as a new circumstance warranting re-examination of the need to detain him. The court rejected the request, finding that it could be submitted only one month at least after the last such request had been examined. It also found that the judgment referred to was not a new circumstance as it related only to Mr Sarban and not to the applicant.

On 10 November 2005 the applicant asked the Centru District Court to order his continued treatment at the RNC or his release based on his habeas corpus request. The court rejected the request (see paragraph 32 above) and did not examine the habeas corpus request.

On 15 November 2005 the Centru District Court rejected the applicant’s habeas corpus request of 10 November 2005, finding that:

“... not all the evidence has been examined; [the applicant] has worked as a deputy Mayor of Chişinău and continues to have influence over witnesses yet to be questioned; he may obstruct the presentation to the court of authentic evidence still being kept by Chişinău Municipality.”

On 15 December 2005 the applicant’s detention pending trial was replaced with an obligation not to leave the country.

On the evening of 10 November 2005 the Court indicated by facsimile to the Moldovan Government an interim measure under Rule 39 of the Rules of Court, stating that “the applicant should not be transferred from the RNC until the Court has had the opportunity to examine the case, i.e. until 29 November 2005 at the latest”. On 11 November 2005 the Deputy Registrar of the Fourth Section made several calls to the telephone numbers indicated by the Government Agent, but received no response.

On the morning of 11 November 2005 the applicant requested the trial court to stay the execution of its decision of 10 November 2005 and to prevent his transfer from the RNC. He submitted a copy of the facsimile from the European Court of Human Rights regarding the interim measures. The Centru District Court did not hold a hearing and did not reply to his request. He was transferred to the prison hospital on the same day.

On 14 November 2005 the applicant’s lawyer informed the President of the Supreme Council of Magistrates of the failure by Judge L.V., President of the Centru District Court, to examine his request of 11 November 2005 and asked for urgent action in order to ensure compliance with the Court’s order for interim measures. On the same day the lawyer submitted a similar request to the Agent for the Moldovan Government before the Court and to the Prosecutor General’s Office, noting that the prosecutor in charge of the case had supported the applicant’s request to continue being treated at the RNC.

On the same date and following the Government Agent’s request, the Centru District Court ordered the applicant’s transfer to the RNC until 29 November 2005. The subsequent events are disputed by the parties. According to the applicant, he was brought to the RNC at 6.30 p.m., but for six hours the management refused to admit him. When the applicant began to feel ill, the management admitted him after midnight. According to the Government, the applicant was admitted on the day the Centru District Court ordered his admission and the delay resulted from the doctors’ view that the applicant did not require further treatment at the RNC. The Government Agent had personally overseen execution of the order.

The applicant submitted a copy of a news report broadcast on the PRO-TV television channel, which showed the events at the RNC. The reporter stated that the applicant had been kept waiting for six hours for a decision and that he was finally admitted after midnight. The doctors informed the reporter that they had refused initially to admit the applicant because of the absence of his personal medical file and had admitted him only when the medical file was brought to them. In an interview given to the same reporter, the Government Agent stated that the reason for the delay in admitting the applicant was “certain technical, organisational issues”. This was confirmed by a statement by the head of the Prisons Department.

On 12 December 2005 the Supreme Council of Magistrates informed the applicant’s lawyer, in response to his letter of 14 November 2005, that the Centru District Court had officially received information about the European Court’s order for interim measures on Monday 14 November 2005 at 2.19 p.m. Following an urgent court hearing, the trial court had ordered the applicant’s transfer to the RNC.

In May 2006 the applicant allegedly made proposals in writing to the Government regarding the friendly settlement of his case. The document which he submitted to the Court referred to his poor state of health making it impossible for him to participate in the criminal proceedings and included the condition of his “final acquittal guaranteed by the State” before he would agree to withdraw his application before the Court.

On 27 July 2006 the Government submitted to the Court a friendly settlement agreement signed by them and the applicant on the same day. They asked the Court to strike the application out of its list of cases pursuant to Article 37 of the Convention.

The applicant did not inform the Court of the agreement and did not ask for the striking out of his application. When asked to comment, his lawyer submitted that he had not been aware of the agreement as he had not been involved in the negotiations. In response to the Court’s letter of 22 January 2007 asking the applicant to confirm the conclusion of his free will of the friendly settlement agreement, the applicant asked the Court, on 12 February 2007, to continue the examination of his case since his main condition, allegedly unofficially agreed upon with the Government, of being acquitted of all charges, had not been fulfilled and he considered the agreement null.

The relevant domestic law has been set out in this Court’s judgment in Sarban (cited above, §§ 51-56).

In addition, Article 329 of the Code of Criminal Procedure provides:

“(1) In trying a case the court may order, replace or revoke a preventive measure against an accused, either at the parties’ request or of its own motion. A new request for the ordering, replacing or revoking of a preventive measure can be submitted if there appear to be reasons for doing so, but not earlier than one month from the date when the previous court decision on the same matter entered into force, unless there are new circumstances which prompt the new request.

(2) Where detention pending trial is imposed, the court decision may be appealed against, within three days, to higher court, which will decide on the appeal in accordance with Article 312 applied mutatis mutandis.”


CASE OF BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND

Preliminary objection rejected (victim);Not necessary to examine preliminary objection (non-exhaustion of domestic remedies)

The applicants live in the villages of Wilteroltigen, Deltigen and Gümmenen, situated in containment zone no. 1 (Alarmzone 1) within a

radius of between four and five kilometres from the nuclear power station at Mühleberg (Canton of Berne). They either own or rent their homes.

On 9 November 1990 the company which had operated the power station since 1971, the Bernische Kraftwerke AG (“the operating company”), applied to the Swiss Federal Council (the government) for an extension of its operating licence for an indefinite period and for permission to increase production by 10%. The application was published in the Official Gazette of 4 December 1990 together with a notice inviting persons satisfying the requirements laid down by section 48 of the Federal Administrative Proceedings Act (see paragraph 15 below) to file an objection.

More than 28,000 objections in all were sent to the Federal Energy Office, 21,000 of which came from Germany and Austria.

In their objection of 4 March 1991, to which several expert opinions were attached, the applicants requested the Federal Council to refuse an extension of the operating licence and to order the immediate and permanent closure of the nuclear power station. Relying in particular on section 5 (1) and (the former) section 10 (1) of the Nuclear Energy Act (see paragraph 12 below), they maintained that the power station did not meet current safety standards on account of serious and irremediable construction defects and that, owing to its condition, the risk of an accident occurring was greater than usual. In addition, they asked the authorities to obtain further data and in the meantime take certain provisional measures. With regard to the fact that under the applicable law the Federal Council would consider the application for an operating licence as an authority of both first and last instance, they pointed out that its decision could give rise to an application based on Article 6 § 1 of the Convention since it affected their civil rights.

On 3 September 1991 and 23 June 1992 the Federal Department of Transport, Communications and Energy rejected the requests for interim measures and for gathering the additional data.

On 14 December 1992 the Federal Council dismissed all the objections as being unfounded and, subject to compliance with various specified safeguards, granted an operating licence until 31 December 2002 and authorised a 10% increase in production. In its decision it relied on an expert report by the Central Office for Nuclear Safety, an independent report prepared at the request of the Federal Energy Office on the effects of the power station on the nearby river and opinions of the Nuclear Technology and Safety Measures Section of the Federal Energy Office, the Federal Commission for the Safety of Nuclear Power Installations and the cantonal authorities.

The Federal Council found firstly that the objectors living in containment zone no. 1 were entitled to take part in the proceedings, unlike the objectors who lived further away from the power station, mainly in Germany and Austria.

It then recapitulated the factors which, under section 5 of the Nuclear Energy Act (see paragraph 12 below), justified refusing an operating licence or granting it subject to conditions and stated that applicants who satisfied all the statutory requirements were entitled to an operating licence.

It went on to note that although power stations built twenty years earlier certainly no longer met current technical standards, they could nonetheless be maintained and modernised so that they could continue to operate quite safely. In order to satisfy itself that this was so in the instance under review, the Federal Council considered each of the objections in turn. It found them to be unfounded.

With regard to the complaint based on the right to life protected by the Constitution, the Federal Council drew attention to the position under the Federal Court's case-law, whereby only deliberate infringements could constitute a breach of that right. That did not apply to the operation of a nuclear power station, at least so long as appropriate technical and operating procedures were adopted to prevent such an infringement and so long as these could reasonably be considered to provide a level of protection comparable to that existing in other generally accepted technical installations.

Under section 4 (1) (a) of the Federal Act of 23 December 1959 on the Peaceful Use of Nuclear Energy (“the Nuclear Energy Act”), a licence from the Confederation is required for the construction and operation of nuclear installations and for any changes in the purpose, nature or scale of such installations. Section 5 (1) provides that a licence must be refused or granted subject to appropriate conditions or obligations if that is necessary in order, in particular, to protect people, the property of others or important

rights. Section 6 provides that the Federal Council or a body designated by it decides licence applications. No appeal lies against its decisions.

Under the Federal Court's case-law, the safety of nuclear power stations can only be considered by the Confederation as part of its licensing procedures (Judgments of the Federal Court (ATF), vol. 119 Ia, p. 402).

Section 97 of the Federal Judicature Act of 16 December 1943 provides that the Federal Court hears, as a final court of appeal, administrative-law appeals against decisions of the federal authorities. However, by section 99 (e), as worded at the material time, no appeal lay against the grant of a licence for technical installations to be brought into service.

Section 44 of the Federal Administrative Proceedings Act of 20 December 1968 lays down the principle that administrative decisions are appealable. By section 46, however, an appeal is inadmissible if it is made against a decision against which an administrative-law appeal lies to the Federal Court. Under section 48 (a) a person has locus standi to appeal if he is affected by the decision and has an interest worthy of protection in having the decision set aside or varied.

The relevant provisions of the Civil Code read as follows:

“Any person who sustains or is exposed to damage because an owner abuses his right may bring an action against that owner requiring him to restore the previous position or to take preventive measures, without prejudice to any damages.”

“1. When exercising their right, especially when carrying on industrial processes, owners are required to refrain from acting in a manner detrimental to neighbouring properties.

The following, in particular, are prohibited: emissions of smoke or soot, offensive smells, noises, and vibrations which are harmful and exceed the limits of the tolerance which neighbours must show to each other having regard to local custom and the situation and type of the buildings.”

By virtue of section 1 of the Federal Expropriation Act of 20 June 1930, expropriations may be carried out “for the purposes of works that are in the interest of the Confederation or of a substantial area of the country and for any other public-interest aim recognised by federal law”.

Section 5 (1) provides: “The following may be expropriated: rights in rem over land, rights arising from land ownership that concern relations between owners and occupiers of adjacent premises and the rights in personam of tenants or farmers of the property to be expropriated.”

With regard to the latter provision, the Federal Court has held:

“Actions brought under Articles 679 and 684 to 686 [of the Civil Code] ... are included among the rights which may be expropriated under section 5 ... If the emissions or other allegedly adverse effects result from the construction, in accordance with the applicable law, of a building in the public interest for which land has been expropriated, or are the consequence of using the building for its intended purpose, no private-law action lies for the purpose of obtaining an injunction or compensation. A claim for compensation for expropriation replaces the cause of action under private law and must be made to the expropriations judge, who has jurisdiction not only to assess compensation but also to rule on whether the right ... exists. An expropriating authority's refusal to commence proceedings may be challenged, at last instance, by means of an administrative-law appeal to the Federal Court.” (ATF, vol. 116 Ib, p. 253)

In another judgment the Federal Court held:

“By virtue of section 5 ..., rights arising from land ownership that concern relations between owners and occupiers of adjacent premises may be expropriated and be forfeited or restricted, temporarily or permanently, provided that the proportionality principle is complied with ...” (ATF, vol. 119 Ib, p. 341)

Section 5 of the Act has applied in the case of people living near very busy main roads who were concerned about pollution from exhaust fumes (ATF, vol. 118 Ib, p. 205). Under the Federal Court's case-law, compensation is awarded if the nuisance was not foreseeable and resulted in substantial damage and if the owner suffered special loss (loc. cit., p. 205). In order to assess foreseeability, it is necessary to determine whether the owner could reasonably have known of the future nuisance when he became the owner of the property (ATF, vol. 111 Ib, p. 234).


David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1944 and lives in Rimavská Baňa.

The applicant's father was a member of an agricultural co-operative. He died in 1995.

The cooperative underwent a transformation and a monetary value of the membership interests of individual members was established. In a decree of 4 September 1998 the co-operative certified the financial value of the ownership interest that had once belonged to the applicant's father.

The applicant subsequently made a claim for compensation in respect of his father's membership interest (see below).

On 3 March 1998 the Banská Bystrica Regional Court declared the co-operative insolvent.

On 25 June 1998 the applicant registered his compensation claim in the insolvency proceedings.

On 18 May 1999 the regional court held a hearing (prieskumné pojednávanie) with a view to establishing the claims of the different creditors. At the hearing the receiver rejected the applicant's claim on the ground that he had filed it in his own name but had failed formally to show that the claim, which had originally belonged to his father, had actually devolved on him. The applicant was referred to the possibility of seeking judicial establishment of his claim by way of a separate action (incidenčná žaloba). The applicant brought such an action and was successful (see below).

In the following period, the regional court agreed to the sale of the co-operative's individual assets.

On 1 December 2005 a final report on the sale of the co-operative's assets was submitted to the regional court. It was amended on 14 March 2006 and displayed on the regional court's official notice board on 6 March 2007.

On 4 April 2007 a hearing took place. On 18 October 2007 a meeting of the insolvency creditors took place and a new receiver was appointed.

On 21 June 2010 the applicant informed the Court that the insolvency proceedings were still pending.

On 1 June 1999 the applicant brought an action against the insolvency receiver in the regional court seeking judicial establishment of his compensation claim.

On 30 April 2002 the regional court granted the action and decided that the applicant had a claim in an amount equivalent to 18,537 euros. The applicant alleged that the judgment had not been served on him but on his daughter and therefore had not yet become final.

The Government stated that the judgment had become final on 3 July 2002.

On 8 July 2003 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court in respect of the length of the insolvency proceedings and the proceedings in the action for establishment of his claim.

On 10 September 2003 the Constitutional Court declared the complaint inadmissible. As for the proceedings in the applicant's action, it observed that they had ended in 2002. They had thus no longer been pending at the time when the constitutional complaint had been lodged. In these circumstances, in line with the Constitutional Court's established practice, the complaint of the length of those proceedings was manifestly illfounded. As for the insolvency proceedings, the Constitutional Court observed that the sale of the co-operative's assets was still under way and had not yet been completed. As the Constitutional Court had not found any undue delays, it concluded that the complaint in respect of the insolvency proceedings was manifestly ill-founded.


Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1985 and lives in Izmir.

On 27 December 2001 the applicant, who was sixteen years old at the time, was arrested by police officers from the Karşıyaka Police Station in connection with an ongoing investigation concerning a robbery that had taken place in a primary school. In his police statement, the applicant confessed that he had been involved in a robbery on 26 November 2001 together with two of his friends. He explained that he had helped his friends in carrying a computer from the primary school. The same day he was brought before the public prosecutor, and the investigating judge at the Karşıyaka Magistrate’s Court, where he repeated his statement to the police. Having regard to the evidence in the file and considering that there was a risk of absconding, the investigating judge ordered that the applicant be detained on remand in a prison together with adults.

The applicant’s representative challenged this decision before the Karşıyaka Criminal Court and maintained that the evidence in the file did not suffice to keep her client in detention. Invoking Articles 5 and 6 of the Convention, she requested that the applicant be released.

On 10 January 2002 the Karşıyaka public prosecutor instituted criminal proceedings against the applicant in the Karşıyaka Criminal Court. He charged him with robbery under Article 493 of the Criminal Code.

On 14 January 2002 the Karşıyaka Criminal Court commenced the trial against the applicant. Taking into account the seriousness of the offence and the evidence in the case-file, it ordered that the applicant’s detention on remand be continued.

On 16 January 2002 the applicant’s representative challenged this decision. She invoked Articles 5 and 6 of the Convention and alleged that there was not sufficient evidence in the file to keep her client in detention. She further maintained that pursuant to Article 104 of the Criminal Procedure Code, a person could only be held in detention on remand if there were a risk of absconding and/or of tampering with evidence. She stated that the authorities knew where the applicant lived and there were no sufficient grounds to believe that the applicant would try to flee. Furthermore, according to the lawyer, as all the evidence relating to the case had already been gathered by the authorities, there was no risk of tampering with evidence.

On 30 January 2002 the Karşıyaka Assize Court refused the applicant’s request for release basing itself on the nature and seriousness of the accusation, and the evidence in the file.

During the hearing which was held on 8 February 2002, the Karşıyaka Assize Court heard the applicant’s testimony. Before the court, the applicant denied the charges and stated that he had not been involved in the robbery. Underlining that the applicant was a minor, the representative of the applicant asked the court for his release. Having regard to the nature of the crime, and taking into consideration the time spent in detention, the court decided that the applicant’s detention should be continued.

On 7 March 2002 the applicant’s representative asked the Karşıyaka Criminal Court to release her client. She maintained that he had been in detention since 27 December 2002 and stated that there was no sufficient evidence to keep him in detention. The court once again refused her request.

On 28 March 2002 the applicant’s representative further requested her client’s release referring to Article 5 of the Convention. She stated that the court was not examining their requests for release thoroughly. She contended that the applicant’s release would not in any way pose a danger to public order. She also stated that the applicant was ready give a guarantee to offset any risk of absconding.

On 29 March 2002 the Karşıyaka Criminal Court dismissed the applicant’s request relying on the evidence in the file and the seriousness of the offence.

On 5 April 2002 the Karşıyaka Criminal Court held another hearing, at the end of which it ordered that the applicant remain in detention on remand.

On 9 April 2002 the applicant’s lawyer challenged this decision before the Karşıyaka Assize Court. She maintained that her client was a minor and could not be kept in detention for such a long time. In this respect, she invoked Article 5 of the Convention and Article 37 (b) of the United Nations Convention on the Rights of the Child.

On 10 April 2002 the Karşıyaka Assize Court rejected the request for release basing itself on the evidence in the file, the time spent in detention and the nature of the offence.

On 1 May 2002, after spending almost four months in detention on remand, the applicant was released pending trial.

The proceedings against the applicant are still pending.


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicants, Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru, Mr Vasile Vâtu, Mr Vasile Călin, Ms Ana Ciubotaru, Ms Ana Romaşcu, Ms Eva Ciubotaru, Mr Aurel Călin and Ms Elena Avădanii, are Romanian nationals who were born on 15 December 1980, 1 March 1978, 27 January 1987, 3 November 1950, 18 March 1930 and on other unspecified dates and who live in Buhuşi, Romania. Romani Criss is a Romanian nongovernmental organisation located in Bucharest. They were all represented before the Court by Mr I. Lazăr, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.

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

On 3 December 2002 the Bacău and Neamţ Police Departments set up an operation to capture six Roma people, including Mr Cristian and Mr Ovidiu Ciubotaru and Mr Florin Călin, who lived in the town of Buhuşi and were suspected of a number of unlawful acts, including a robbery a few days earlier. The police operation was set up on the basis of an order of 28 November 2002 issued by the Romanian General Police Department attached to the Romanian Ministry of the Interior concerning the identification and capture of, inter alia, the abovementioned individuals. The police officers were divided into six teams and instructed to surround the town in order to prevent the wanted individuals from fleeing, to identify the homes of the suspects and to descend on the suspects’ homes simultaneously.

On 5 December 2002 fortyfive police officers from the Bacău and Neamţ Special Intervention Units and other regular police stations gathered and descended on the town of Buhuşi. After searching the suspects’ homes, the police discovered that some of them were hiding in an abandoned house in the town. The police units surrounded the house. At this point other Roma people started gathering in the street, some of them armed with stones, wooden posts and axes, and started a violent demonstration against the police officers. A further sixty police officers were called in support as a result of the violent behaviour of the crowd.

The police asked the occupants of the house twice to give themselves up, and when they failed to respond the police started using tear gas to draw them out of the house. After tear gas had been used officer D.C. negotiated with the occupants of the house for approximately ten minutes, trying to persuade them to give themselves up, but one of the suspects attacked him with an axe. More tear gas was used and another attempt at negotiation was made by D.C., but the police officer was attacked once more by the occupants of the house. The police officers used tear gas for a third time and two of the applicants, Mr Cristian Ciubotaru and Mr Ovidiu Ciubotaru, as well as another suspect, Mr Florin Călin, came out of the house. Mr Ovidiu Ciubotaru and Mr Florin Călin attacked police officer D.C. with axes. Police officer D.C. and his colleague N.N. opened fire in the direction of Mr Ovidiu Ciubotaru and Mr Florin Călin. As a result, Mr Florin Călin was shot in the thorax and stomach and died at the scene. Mr Ovidiu Ciubotaru was shot in the back and taken to hospital.

In the course of this incident two people in the crowd were also shot. The crowd became violent and some of the people in the crowd, including Mr Gelu Ciubotaru, started attacking the police officers. The officers launched verbal warnings and fired into the air to disperse the crowd and stop the attackers. Mr Gelu Ciubotaru attacked the police officers with a wooden post and grabbed police officer C.V.S. by the neck and hit him. Consequently, officer N.N., who had also been injured by the crowd, started firing at Mr Gelu Ciubotaru’s feet and then at his upper body. Mr Gelu Ciubotaru was shot in the thorax and died at the scene. Mr Vasile Vâtu, a minor at the time of the events, was also shot in the right side of the thorax and was taken to hospital. According to the forensic report, quoted by the prosecutor at the conclusion of the criminal investigation which followed the incident, some of the parties injured in the events required the following number of days of medical care: eighteen days for Mr Ovidiu Ciubotaru, twelve to fourteen days for Mr Vasile Vâtu, twenty four to twenty six days for officer N.N., and thirtyfive to forty days for officer C.V.S. Two other officers who were part of the support group called in to help the police officers who initiated the operation were also injured: E.I. had a serious eye injury which almost caused him permanent blindness, while D.C. received a leg injury.

On 5 December 2002 Mr Vasile Călin, Ms Ana Romaşcu, Ms Eva Ciubotaru and Ms Ana Ciubotaru signed authorisations for Romani Criss, a Romanian nongovernmental organisation whose purpose is to defend the rights of the Roma community in Romania, to represent them before the state institutions, including, inter alia, the police, the prosecutors’ offices and the civilian and military courts in respect of the events of 5 December 2002. There is no evidence in the file that the remaining applicants signed similar authorisations. The signatures of the four applicants on the authorisations signed on 5 December 2002, on the criminal complaints lodged against the police officers involved in the events of 5 December 2002 and on the powers of attorney signed by them on 16 August 2006 authorising their lawyer Mr I. Lazăr to represent them before the Court, appear not to match.

Romani Criss also authorised legal representatives of its own choice to assist and represent it throughout the entire proceedings.

On an unspecified date in December 2002 the applicant Ana Romaşcu lodged a criminal complaint against the police officers who had shot Mr Vasile Vâtu, her son, who was a minor. Her complaint does not contain any indication that she would have liked to lodge a complaint on her own behalf.

On unspecified dates the applicants Cristian and Ovidiu Ciubotaru also lodged criminal complaints against the police officers involved in the events of 5 December 2002. Mr Cristian Ciubotaru argued that he had been hit several times on the head and body and Mr Ovidiu Ciubotaru stated that he had been shot four times, although neither of them was resisting arrest. The applicants’ signatures on the complaints lodged against the police officers appear not to match their signatures on the powers of attorney of 16 August 2006 authorising Mr I. Lazăr to represent them before the Court.

On an unspecified date Mr Vasile Călin also lodged a criminal complaint against the police officers who had shot and killed Mr Florin Călin, his son. His complaint does not contain any indication that he would have liked to complain against the police officers on his own behalf. A second power of attorney of 16 August 2006 available in the file on Mr Vasile Călin’s name authorising Mr I. Lazăr to represent him before the Court was signed by Ms Elena Avădanii. Apart from her signature, Ms Elena Avădanii’s name does not appear on any of the powers of attorney available to the file authorising Mr I. Lazăr to represent the applicants before the Court.

On an unspecified date Ms Eva Ciubotaru lodged a criminal complaint against the police officers who had shot and killed Mr Gelu Ciubotaru, her husband. Her complaint does not contain any indication that she would have liked to make a complaint against the police officers on her own behalf.

On an unspecified date the applicant Ana Ciubotaru lodged a criminal complaint against the police officers involved in the events of 5 December 2002. She stated that while she was trying to reach her dead son, Mr Gelu Ciubotaru, the police officers hit her on the back and head and pushed her into a ditch. She also stated that she was 75 years old at the time and could have not been seen as a threat by the officers.

Between 5 December 2002 and 28 February 2003 the domestic authorities heard victims of the events and their relatives, people who had been in the crowd, and suspected offenders, as well as other police officers who had taken part in the operation. Approximately sixtyfive people were heard by the authorities.

On 6 December 2002 the police officers provided the Forensic Service of the Neamţ Police Department with two axes, allegedly used by the applicants to attack them on 5 December 2002. The same axes were delivered on 13 December 2002 to the prosecutor investigating the case.

On 6 December 2002 the Forensic Department of the Bacău County Hospital produced a forensic expert report on the bullet wounds sustained by Mr Vasile Vâtu and Mr Ovidiu Ciubotaru and autopsy reports on the deceased, Gelu Ciubotaru and Florin Călin. According to the reports Mr Vasile Vâtu had been shot on 5 December 2002 from the right with a firearm, using balls as ammunition. Mr Ovidiu Ciubotaru had been shot twice, once in the left cheek and once in the left thigh. The wounds were not lifethreatening to any of the applicants. Furthermore, according to the autopsy reports Mr Gelu Ciubotaru had been shot twice, first in the right thigh and then in the thorax, the latter wound causing his death. Mr Florin Călin had been shot five times, the first three times in the left thigh, then once in the right thigh and lastly, once in the thorax. The wounds to his thighs had been caused by metal bullets. The wound in the thorax was the only one responsible for his death and had been caused by a rubber bullet fired at close range from a distance equal to the length of the barrel of the gun it had been fired from.

On 9 December 2002 the Bacău Prosecutor’s Office investigated the scene of the crime and gathered the evidence found, including stones, wooden posts or sticks, parts of the wall penetrated by bullets, traces of blood and bullet shells for further examination.

On 20 January 2003 the Bacău Prosecutor’s Office ordered a ballistic expert report on the weapons fired on the day of the events.

On 25 March 2003 Romani Criss informed the Bacău Prosecutor’s Office about the events of 5 December 2002 and complained that police officers had shot and injured members of the Roma community. On the same date they submitted testimonial evidence gathered from people who had witnessed the events.

The investigation of the abovementioned incident was completed when the criminal investigation was discontinued by a Bacău prosecutor’s office order of 7 July 2003. The actions of officers D.C. and N.N were investigated on accusations of the crimes of murder and causing physical injuries, as were the actions of Mr Gelu Ciubotaru, Mr Florin Călin, Mr Ovidiu Ciubotaru and Mr Cristian Ciubotaru for the crime of insulting behaviour towards a State agent. The investigating prosecutor held that the use of force by the two policemen against Mr Gelu Ciubotaru, Mr Florin Călin, Mr Ovidiu Ciubotaru and Mr Cristian Ciubotaru was justified because of the behaviour of the victims, which resulted in the policemen having to resort to legitimate self-defence. The investigating prosecutor, although he referred to Mr Vasile Vâtu’s case, did not identify the person responsible for shooting him and did not state whether or not the proceedings would be discontinued in respect of his injury. The investigation in respect of Mr Gelu Ciubotaru and Mr Florin Călin was terminated because of their deaths, and that in respect of the applicants Mr Cristian and Mr Ovidiu Ciubotaru was terminated because it was held that their behaviour did not constitute a crime. The prosecutor’s decision quotes the results of the forensic reports conducted in respect of all the victims of the incident but did not mention the evidence which led to the non-indictment conclusion.

On 24 July 2003 Mr Vasile Călin, the father of the deceased Florin Călin, lodged a complaint with the Bacău Prosecutor’s Office concerning unreasonable length of the criminal investigation launched in respect of the events of 5 December 2002, and challenged the outcome of the investigation.

The Bacău Prosecutor’s Office dismissed Mr Vasile Călin’s complaint by an order of 23 September 2003. The prosecutor’s office held that the proceedings had not been excessively lengthy, given the number of ballistic and forensic reports carried out and the large number of witnesses heard, and that his son had been killed by the police officers in self defence.

On 21 November 2003 Romani Criss challenged the Bacău Prosecutor’s Office decision of 7 July 2003 in so far as the decision regarding the investigated policemen was concerned on behalf of Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru, Mr Vasile Călin, Ms Ana Romaşcu, and Ms Eva Ciubotaru.

By an order of 3 December 2003 the Bacău Prosecutor’s Office dismissed the challenge on the ground that the police officers had acted in legitimate selfdefence. Also, in respect of Mr Vasile Vâtu the unlawful act lacked a physicalinjury element. The Prosecutor’s Office acknowledged the challenge lodged by Romani Criss, to be introduced only on behalf of Mr Vasile Călin, Ms Ana Romaşcu and Ms Eva Ciubotaru. The Prosecutor’s Office held that according to the available evidence Mr Florin Călin and Mr Ovidiu Ciubotaru were shot by C.D. and N.N. while they were preparing to hit C.D. with an axe. At the same time, Mr Vasile Vâtu could not be seen by the policemen because he was hidden behind a wall made of sawdust when he was shot in the thorax. The wound did not endanger his life.

On 19 December 2003 Romani Criss appealed against the Bacău Prosecutor’s Order of 7 July 2003 before the domestic courts. The appeal was also lodged on behalf of Cristian Ciubotaru, Ovidiu Ciubotaru, Ana Romaşcu, Vasile Călin and Ana Ciubotaru, but it had not been signed by those five individuals. The applicant organisation argued that according to the witness statements and the evidence available to the file the domestic authorities tried to protect the police officers, who on 5 December 2002 acted in an uncoordinated manner, misused their firearms and breached the applicable legal provisions in force at the time protecting the applicants’ right to life and their right not to be subject to inhuman and degrading treatment in a discriminatory way.

On 13 and 28 January 2004 respectively Ms Ana Ciubotaru and Mr Vasile Călin died.

By a judgement of 20 February 2004 the Bacău Court of Appeal allowed an appeal by the applicants against the prosecutor’s orders. The court dismissed the preliminary objection raised by the Prosecutor’s Office and the two accused, namely that Romani Criss did not have standing to bring proceedings before the domestic courts concerning the events of 5 December 2002. The court held that because Romani Criss considered that Roma persons had been victims of discrimination they decided to represent them before the domestic courts in accordance with the authorisations signed by some of the parties concerned on 5 December 2002. The organisation also lodged a complaint before the domestic courts on its own behalf. Taking into account the organisation’s object of activity and the provisions of section 22 of Emergency Ordinance no. 77/2003, the court considered that it could not deny in principle the organisation’s legitimate interest and its standing to bring proceedings against state bodies in order to establish whether ethnic discrimination had occurred and whether the rights of its citizens had been protected. In respect of the merits of the case the court held, inter alia, that the operation of 5 December 2002 had been a work mission and all the police officers involved had been ordered to take part in it. However, the investigation into the events had not been carried out correctly. In particular, the wounding of the police officers E.I. and D.C. was not directly relevant to the claim of selfdefence, as the two police officers previously mentioned had been wounded in the final stages of the operation, when the police were retreating from the town, while the firearms had been used by the policemen at an earlier stage of the events. Moreover, the forensic expert report carried out over the course of the investigation did not establish with certainty if the rubber bullet Mr Florin Călin had been shot with by officer D.C. could have been the only cause of death in the absence of the rest of the shots. The court considered that this was an important factor in determining the identity of the perpetrator of the killing, considering that the same person had been shot almost simultaneously by police officer N.N., using live ammunition. Furthermore, the two axes allegedly used by Mr Florin Călin and Mr Ovidiu Ciubotaru had not been forensically checked for their fingerprints. The court held that such evidence was important to determine whether the use of firearms by the officers had been justified. In addition, the investigation failed to determine the exact position of the other members of the police force and whether they could have stopped Mr Florin Călin’s attack against D.C. At the same time, the investigation had failed to establish the distance and the angle from which Mr Ovidiu Ciubotariu had been shot. The circumstances of Mr Vasile Vâtu’s shooting had also not been clarified by the investigation in view of the parties’ statements, in particular there was no lawful explanation concerning why he had been shot through a wall or precisely when he had been shot during the operation. Lastly, the file did not contain sufficient evidence concerning the reasons for the police operation to capture the applicants: in particular, the court considered that the orders to seek and capture the applicants, the documents containing the charges against them and the arrest warrants issued in their names were missing from the file. Consequently, the court decided to send the case back to the prosecutor’s office in order to supplement the criminal investigation.

D.C., N.N. and the Bacău Prosecutor’s Office lodged an appeal on points of law (recurs) against the judgment of 20 February 2004. They argued, inter alia, that the complaints lodged by Romani Criss before the domestic courts on behalf of the applicants contesting the prosecutor’s office’s order to discontinue the criminal investigation was not valid. In particular the authorisations signed by some of the applicants allowing Romani Criss to represent them before the courts did not comply with the formal requirements for powers of attorney provided by the applicable rules of criminal procedure. In addition, they submitted that the evidence in the file proved that the police officers had acted in selfdefence.

On 20 May 2004 the Forensic Department attached to the Romanian Ministry of the Interior informed the investigating authorities that the axes allegedly used by Mr Florin Călin and Mr Ovidiu Ciubotaru to attack the police officers had wooden handles which were uneven and pitted. Consequently, the Forensic Department did not have substances or a method allowing them to examine fingerprints on such surfaces.

At the hearings of 21 May, 24 September, 19 November and 17 December 2004 the Court of Cassation adjourned the proceedings on account of procedural errors in summoning the parties and in order to allow them to read the written submissions attached to the file.

At the hearing of 11 February 2005 the Court of Cassation heard oral submissions from the parties and, because it needed time to deliberate, adjourned the proceedings to 25 February, 3 March and to 8 April 2005.

By a final judgment of 8 April 2005 the Court of Cassation allowed the appeals on points of law by C.D., N.N. and the Prosecutor’s Office, quashed the judgment of 20 February 2004 and declared inadmissible the applicants’ and Romani Criss’s complaints against the Prosecutor Office order of 7 July 2003. It held that none of the natural persons had contested the prosecutor’s office’s order to discontinue the criminal investigation before the domestic courts. Only Mr Vasile Călin lodged a complaint against the prosecutor’s office’s order of 7 July 2003, which was dismissed on 23 September 2003. He did not challenge the latter decision before the domestic courts. Moreover, none of the applicants had personally signed the challenge lodged by Romani Criss on their behalf. In addition, the appeal lodged by Romani Criss on behalf of the applicants against the prosecutor’s office’s order for the investigation to be discontinued was invalid. The nongovernmental organisation had not been empowered by the applicants to represent them before domestic courts on the form required by the applicable rules of criminal procedure, in particular Article 222 (3) of the Romanian Code of Criminal Procedure, and therefore the organisation could not be considered to be the applicants’ representative. The applicants had not provided Romani Criss with a special and certified power of attorney as required by law. In so far as Romani Criss’s argument was concerned, that on the basis of section 22 of Emergency Ordinance no. 137/2002 it had legal standing to bring proceedings before domestic courts, the court noted that the organisation had not sustained any prejudice as a result of the incident complained of, and the police action of 5 December 2002 concerned the taking into custody of wanted individuals, and did not represent acts of discrimination as required by section 22 of Emergency Ordinance no. 137/2002. Consequently, it held that Romani Criss did not have legal standing to bring proceedings before the domestic courts.

The applicants lodged their application before the Court with a letter dated 26 August 2005. The initial application form attached to the letter contained the names of Mr Cristian and Mr Ovidiu Ciubotaru, Ms Ana Romaşcu with the note that she was representing Mr Vasile Vâtu, Mr Vasile Călin, Ms Ana Ciubotaru and the organisation Romani Criss. The application form was signed by Mr I. Lazăr, as the applicants’ representative. No powers of attorney were attached to the application. The applicants complained that some of them had sustained bullet wounds and some of their relatives had been killed, but none of them referred, either expressly or in substance, to any other complaints as a result of other types of injury sustained.

Following the Court’s request on 16 September 2005 the applicants’ representative submitted powers of attorney signed on 16 August 2006 by all the initial applicants, including Mr Vasile Călin and Ms Ana Ciubotaru. In respect of Mr Vasile Călin, Mr I. Lazăr submitted two powers of attorney bearing his name, one of them signed however by Ms Elena Avădanii, whose name does not appear on any of the other powers of attorney. Moreover, Mr Vasile Vâtu’s name and/or signature were not present on any of the powers of attorney submitted before the Court. In addition, one of the powers of attorney had been filled in and signed by Ms Eva Ciubotaru.

On 31 January 2007 the Court received six sets of application forms which contained complaints identical to the ones mentioned in the first application form submitted by the applicants. Each application form bears the name of a different applicant, as follows: Mr Cristian Ciubotaru, Mr Ovidiu Ciubotaru, Ms Ana Romaşcu, Mr Vasile Călin, Ms Eva Ciubotaru and the organisation Romani Criss.

The name of Mr Aurel Călin does not appear on any of the application forms or the powers of attorney submitted by the applicants at any stage of the proceedings before the Court.

Article 197 (2) and (3) of the Romanian Code of Criminal Procedure provides, inter alia, that the breach of the rules concerning the lodging of a complaint before the court renders the complaint null and void. The nullity cannot be corrected and can be examined at any stage of the proceedings as well as by the court of its own motion.

Article 222 (3) of the Romanian Code of Criminal Procedure provides that a complaint can be lodged by a person, either on their own behalf or through a representative authorised by a certified mandate attached to the complaint.

The relevant legal provisions, in particular a description of the development of the law concerning complaints against decisions of the prosecutor (Articles 278 and 2781 of the Romanian Code of Criminal Procedure introduced by Law no. 281/2003 applicable from 1 January 2004), are set forth in the judgment of Dumitru Popescu v. Romania ((no. 1), no. 49234/99, §§ 4345, 26 April 2007).

Section 22 (1) and (2) of Emergency Ordinance no. 137/2000 on combating discrimination provides that nongovernmental organisations involved in the protection of human rights, or justifying a legitimate interest in combating discrimination, have legal standing to initiate proceedings if the discrimination occurs in their field of activity and targets a community or a group of people. They also have legal standing in cases where discrimination targets an individual at the latter’s request.