CASE OF NATSVLISHVILI AND TOGONIDZE v. GEORGIA

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Higher tribunal;Review of conviction;Review of sentence);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The first and second applicants were born in 1950 and 1953 and currently live in Moscow, the Russian Federation, and Kutaisi, Georgia, respectively. They are husband and wife.

The first applicant was the deputy mayor of Kutaisi, the second largest city in Georgia, from 1993 to 1995 and the managing director of the company operating the Kutaisi Automotive Plant (“the factory”), one of the most important public companies in the country, from 1995 to 2000. On 29 December 2000 he was appointed chairman of the factory’s supervisory committee at the shareholders’ general meeting.

The first applicant owned 12.95% of the shares through purchases made in 1998 and 2002 and was the principal shareholder in the factory after the State (78.61% of the shares). The second applicant owned 2.6% of the shares, purchased in 2002, so together the couple owned a total of 15.55% of the shares.

The first applicant was kidnapped in December 2002. After being severely ill-treated by his abductors, he was released in exchange for a large ransom paid by his family.

On 12 March 2004 the first applicant was accused of illegally reducing the share capital of the factory, for which he had first been responsible as managing director and then as chairman of the supervisory committee. He was charged with making fictitious sales, transfers and writeoffs, and spending the proceeds without regard to the company’s interests (Article 182 of the Criminal Code – “abuse of authority by embezzling and misappropriating the property of others”).

On 15 March 2004 the police and the Kutaisi prosecutor went to the first applicant’s workplace to arrest him. The arrest was filmed by journalists and broadcast on a local private television station the same night. The broadcast consisted of an interview with the prosecutor following footage showing the first applicant’s arrest and escort down a flight of stairs, with his arms held by policemen and surrounded by journalists. The prosecutor made two comments in respect of the matter: that the documents seized during a search of the first applicant’s office “were relevant to an ongoing criminal investigation and would be assessed and analysed”, and that the charge which the first applicant faced carried up to twelve years’ imprisonment.

The prosecutor’s interview was followed by that of the Governor of the Region. The Governor, without making any reference to the first applicant or the criminal proceedings against him, declared, among other things, that the State, which was “experiencing difficult times [due to a political crisis], would not stray from the path that it had chosen in pursuit of the identification of those who had devoured public money ... which was exactly why pensions and salaries had not been able to be paid on time”.

On 16 March 2004 the first applicant appointed a lawyer to protect his interests.

When questioned for the first time as a suspect on 17 March 2004, the first applicant, assisted by his lawyer, protested his innocence and exercised his right to silence.

On the same day the prosecuting authority brought an application before the Kutaisi City Court to have the first applicant detained pending trial arguing that the first applicant, who was accused of a crime of a serious nature, might try to evade justice, prevent the discovery of the truth and pursue his criminal activities. Ruling on this request on an unspecified date, the City Court decided to place the first applicant in detention for three months. Applying Article 243 of the Code of Criminal Procedure (“the CCP”), the first applicant challenged that decision before the Kutaisi Regional Court, which dismissed his appeal on an unspecified date.

On 25 March 2004 the first applicant sent a letter to the prosecuting authority, which read as follows: “Since I am not indifferent to the future of the automobile factory and consider it possible to settle the problems [I am having] with the State, I express my readiness to forfeit the shares in the factory which are currently in my and my wife’s possession to the State.”

On 14 June 2004 the first applicant’s detention pending trial was extended by the Kutaisi Regional Court until 15 July 2004, and in July 2004 it was extended until 15 September 2004.

During the first four months of his detention the first applicant was detained in the same cell as the person charged with his kidnapping in 2002 (see paragraph 11 above) and another person serving a sentence for murder. After the Public Defender’s Office complained of that fact on the ground that it put the applicant’s physical and psychological well-being at risk, the prison authorities transferred the applicant to another cell.

On 1 August 2004 the first applicant and his lawyer were given access to the criminal case materials. On 6 August 2004 the first applicant appointed a second lawyer to protect his interests in the proceedings.

On 6 September 2004 the investigation was terminated, and the first applicant was indicted on the aforementioned charges. Having acquainted himself, with the assistance of his two lawyers, with the case file in its entirety, he again protested his innocence but confirmed his intention to cooperate with the investigation.

On the same day both applicants transferred their shares free of charge, representing an overall total of 15.55% of the factory’s share capital, to the State.

According to a written statement in the case file from Mr G.T., a worker in the factory, on 6 September 2004 he and nine other employees of the factory transferred their shares to the State ex gratia, at the request of the prosecuting authority, in connection with the criminal proceedings against the first applicant and in exchange for the latter’s release from detention. The case file contains a copy of the relevant ex gratia agreements dated 6 September 2004.

The file also contains a witness statement by Mrs M.I., the second applicant’s sister-in-law, that the public prosecutor had also demanded that the first applicant’s family pay 50,000 laris (GEL) (about 21,000 euros (EUR)) to the Fund for the Development of State Bodies ensuring the Protection of the Law (“the Development Fund”) in order to conclude a “procedural agreement” releasing the first applicant from detention. Thus, the public prosecutor had supplied them with the documents necessary for the transfer, adding that the first applicant’s name must not appear as the one paying the money. The public prosecutor insisted that the money not be paid to the Development Fund directly by the applicants. Mrs M.I. therefore agreed to pay the required amount in her own name.

As confirmed by the relevant bank-transfer receipt, that payment was made on 8 September 2004, with Mrs M.I.’s name duly appearing on the document as the source of the transfer.

On the following day, 9 September 2004, the first applicant filed a written statement with the public prosecutor, requesting him to arrange a “procedural agreement” (hereinafter a “plea bargain”), which procedure had been introduced into the Georgian judicial system in February 2004. The applicant specified that, whilst considering himself to be innocent, he was willing to reach an agreement as regards the sentence and to repair the damage caused to the State; he stated that he would pay GEL 35,000 (EUR 14,700) to the State budget in that connection. He added that he fully understood the contents of the agreement.

On the same day the public prosecutor of Kutaisi offered and the first applicant accepted a plea bargain regarding sentence (Article 679 § 2 of the CCP). The written record of the plea agreement mentioned that, whilst the applicant refused to confess to the charges, he had “actively cooperated with the investigation by voluntarily paying compensation in the amount of GEL 4,201,663 (approximately EUR 1,765,000) for the damage caused by his criminal activity by returning 22.5% of the shares in the factory to the State”. The prosecutor further noted that, notwithstanding the fact that the applicant was charged with a particularly serious offence liable to a term of imprisonment of six to twelve years, it was still possible, having due regard to the full compensation of the damage and in the interest of the efficient use of State resources, to offer him a plea bargain. Notably, the prosecutor promised that he would request the trial court to convict the applicant without an examination of the merits, seeking a reduced sentence in the form of a GEL 35,000 (EUR 14,700) fine. It was explained to the applicant that the proposed plea bargain would not exempt him from civil liability. The first applicant stated that he fully understood the content of the bargain and was ready to accept it and that his decision was not the result of any duress, pressure or any kind of undue promise. The record of the plea agreement was duly signed by the prosecutor, the applicant and one of his two lawyers.

Also on the same day the public prosecutor filed a brief with the Kutaisi City Court, requesting approval of the aforementioned plea bargain consisting of no examination of the merits of the case, of finding the first applicant guilty of the charges brought against him and of reducing the sentence to which the offences were liable by fining the accused GEL 35,000 (EUR 14,700). It was mentioned in the prosecutorial brief that it was accompanied by the written record of the plea agreement and twelve volumes of the criminal case materials.

Also on the same day Mrs M.I. effected a bank transfer to the State in payment of the fine of GEL 35,000 (EUR 14,700) as per the above-mentioned plea bargain between the first applicant and the public prosecutor.

At an oral hearing on 10 September 2004, the Kutaisi City Court, sitting in a single-judge formation, examined the prosecutor’s request of 9 September 2004. As disclosed by the record of the hearing, the judge explained to the first applicant, who was assisted by one of the two lawyers who had countersigned the plea bargain (see paragraph 28 above), his rights under Article 679-3 of the CCP. In reply, the applicant acknowledged that he was well aware of his rights and that he had agreed to the bargain voluntarily, without having being subjected to any kind of undue pressure during the negotiations with the prosecutor. That was confirmed by the lawyer as well. The first applicant and his lawyer then asked the judge to endorse the plea bargain, as submitted by the prosecutor, confirming that they fully accepted its consequences. The lawyer added that he had assisted in the plea-bargaining negotiations between his client and the prosecution, that it was his client who had insisted on reaching a settlement, and that he, as a lawyer, had provided all the necessary counselling to the applicant.

Relying on the documentary evidence and the testimony of various witnesses acquired during the investigative stage, the Kutaisi Court found that the charges brought against the first applicant were well-founded. The court also noted that, when he was charged on 6 September 2004 with crimes under Article 182 §§ 2 (a), (b) and (c) and 3 (b) of the Criminal Code, the applicant “did not plead guilty and exercised his right to silence. However, having actively cooperated with the investigation, he had voluntarily repaired the damage of GEL 4,201,663 [EUR 1,765,000] caused by his criminal activity by returning 22.5% of the shares in the factory to the State”.

The City Court further held that, following the judicial examination, it reached the conclusion that the plea bargain had been concluded in accordance with the law, that the first applicant had signed it in full knowledge of the facts and that it was not the result of any duress, pressure or any kind of promise which went beyond what was permitted in plea bargaining. The court thus sanctioned the agreement by declaring the first applicant guilty of the charges brought against him and sentencing him to a GEL 35,000 (EUR 14,700) fine. The first applicant was then immediately released from the courtroom.

As mentioned in its operative part, the Kutaisi City Court’s decision of 10 September 2004 was final and not subject to appeal. A request could be made to have the decision quashed and the case reopened though, if newly discovered circumstances justified such a course of action.

According to the case file, after the termination of the criminal proceedings and his consequent release from detention, the first applicant left Georgia and has since been residing in Moscow, Russia.

After notice of the application had been given to the respondent Government on 21 September 2006 and the parties had exchanged their observations, the applicants complained to the Court, on 12 November 2007, that the General Prosecutor’s Office (“the GPO”) was continuing to exert pressure on them, this time with the aim of having them withdraw their application from the Court.

In support of that assertion, the applicants submitted a written statement given by their daughter, Ms A. Natsvlishvili, dated 6 November 2007.

According to that statement, after having been told by her parents that pressure was being brought to bear on them, in September 2004 Ms Natsvlishvili, who was a student at the Central European University in Budapest at the time, decided to approach an acquaintance of hers who was working at the GPO, Ms T.B. Subsequently, Ms Natsvlishvili exchanged several e-mails with her acquaintance in which the latter, claiming to act on behalf of the GPO, expressed that authority’s position on the applicants’ case. The case file contains a copy of the relevant e-mail exchange.

In the e-mail exchange, Ms Natsvlishvili and Ms T.B. addressed each other on friendly terms, using shortened, pet names and familiar instead of formal forms of address.

Ms Natsvlishvili was the first to contact Ms T.B., on 14 September 2006, asking her, as a friend and an experienced lawyer, to give her some advice about her master’s thesis and a forthcoming examination in law.

On 29 November 2006 Ms T.B. advised the applicants’ daughter, whom she considered to be “a friend”, that she had been “personally” working on her father’s case and thus possessed important information emanating from the Prosecutor General. Inviting the applicants’ daughter to express her parents’ position on the matter, Ms T.B. promised to share her hierarchical superiors’ views with them.

On 11 December 2006 Ms T.B. informed the applicants’ daughter that the GPO would be ready to reopen the first applicant’s criminal case and then terminate it again, this time in his favour, and to return the GEL 35,000 (EUR 14,700) which had been paid by him as a fine. Ms T.B. encouraged the applicants to think about that proposal quickly and to accept it, otherwise, she stated, “the prosecution authority would defend its position in Strasbourg and might even unilaterally annul the plea bargain and reopen the criminal proceedings against the first applicant”.

On 16 December 2006 Ms Natsvlishvili informed Ms T.B. that her father was ready to reach a friendly settlement, as provided for “by the Convention” and under the scrutiny of the Court. Ms Natsvlishvili then asked a number of procedural questions and also enquired whether it was possible, having due regard to the substantial pecuniary and non-pecuniary damage which had been inflicted on her family by the State, to review the conditions of the proposed settlement.

On the same date, 16 December 2006, Ms T.B. replied that “her personal involvement in the case was a guarantee that the applicants’ family would not find itself in an inauspicious situation again”. Ms T.B. then stated that the first applicant should file an application with the GPO, complaining that the plea bargain in question had been reached without a full consideration of his interests. The GPO would then treat that application as a request for the reopening of the case on the basis of newly discovered circumstances. Ms T.B. assured the applicants’ daughter that, after the reopening of the case, the first applicant would, as a matter of fact, be rehabilitated by having obtained the deletion of the conviction from his criminal record.

Ms T.B. then stated that the State would be ready to return the money which had been paid by the first applicant as a fine and the shares in the factory forfeited by the second applicant; she explained that the first applicant’s shares could not be returned as they had already been assigned to a third party. The GPO employee also assured Ms Natsvlishvili that the first applicant would become eligible to return to Georgia and to start business afresh there, in which entrepreneurial activity the prosecution authority would even assist him. Ms T.B. then continued:

“We all know that errors have been committed, but it has become a particularly vital issue, in the interests of the country, to set aside personal experience and trauma now, notwithstanding the painfulness of those [experiences]. I know that this is difficult, but if you can manage it, I am confident that after years have passed you would then be in a position to tell yourself that you were successful in differentiating Georgia, as your own country, from individual State agents, and to tell yourself that you made your own small sacrifice for your country.”

Ms T.B. specified that “they”, the GPO, were not telling the applicants to first withdraw their application from the Court and to settle the issue at the domestic level afterwards. On the contrary, the State was ready to start working on the settlement of the issue at the domestic level first. However, Ms T.B. then reminded the applicants’ daughter that “they had only a month left for [filing observations with] Strasbourg”.

On an unspecified date, but apparently subsequent to the abovementioned e-mail exchange, Ms T.B. informed Ms Natsvlishvili that the State would be ready to pay to the first applicant, in compensation, GEL 50,000 (EUR 22,000) and to take procedural measures to have the conviction deleted from his criminal record. She specified as follows:

“As regards the issue of rehabilitation and compensation, the decision will apparently belong, according to the applicable rules of jurisdiction, to the Kutaisi Court of Appeal. It will therefore be indicated in this court’s decision that, given the fact that the remainder of [the applicants’] shares have been assigned and that the factory has become indebted, it is factually impossible to return the shares in their entirety, which would then lead to the award of GEL 50,000 [(EUR 22,000)] in pecuniary and non-pecuniary damages.”

Ms T.B. then assured the applicants’ daughter that they could trust the GPO, as, in any event, should there be any improper conduct by the authorities, the applicants could always then complain to the Court about the alleged hindrance of the right of individual petition under Article 34 of the Convention, which allegation would be of particular harm for the respondent State’s international image. Ms T.B. mentioned, lastly, that the State might be ready to increase the amount of compensation to a maximum of GEL 85,000 (EUR 35,700).


Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Alena Poláčková;Branko Lubarda;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born on 30 August 1949 and lives in Nicosia.

The applicant was employed at the Department of Lands and Surveys on 1 December 1971. On 1 January 1996 he was promoted to the position of assistant officer and on 2 February 1998 he was authorised by the director of the department to sign payment orders as authorising officer. On 13 May 2002 a complaint was made by the director following an irregularity in a compulsory acquisition case. It emerged from the investigation that a series of cheques had been issued as alleged compensation to owners of land that had been compulsorily acquired, but that the cheques had never reached the payees named on them.

A number of criminal proceedings were brought against the applicant and an accomplice. It also appears that a third person was charged but those proceedings were terminated following the filing of a nolle prosequi by the AttorneyGeneral. The proceedings against the applicant involved a total of 223 criminal charges.

On 18 January 2005 the applicant received concurrent sentences ranging from two to five years’ imprisonment from the Nicosia Assize Court (no. 18115/02) on a plea of guilty, following a plea bargain to twenty-

four charges concerning a number of offences. These included, inter alia, obtaining the amount of 225,643.67 Cyprus pounds (CYP) (approximately 390,000 euros) by false pretences, issuing false documents, forging cheques, abuse of office, and concealment. Part of the agreement reached between the parties was that the applicant would repay the sum of CYP 150,000 (approximately 255,000 euros), and a confiscation order for that sum was issued in respect of his property. In imposing the sentences the Assize Court also took into consideration another eight cases pending against the applicant before it as well as the District Court of Nicosia.

The applicant lodged an appeal with the Supreme Court against his sentence (criminal appeal no. 22/05).

Following the applicant’s conviction, and having received the Attorney-General’s advisory opinion that the offences committed involved dishonesty or moral turpitude, the PSC instituted disciplinary proceedings against the applicant. Similar proceedings were also instituted against his accomplice, on whom the PSC imposed compulsory retirement pursuant to section 79(1)(i) of the Public Service Law of 1990 (Law 1/1990; hereinafter “the Public Service Law”; see paragraph 43 below).

By a letter dated 13 April 2005 the PSC informed the applicant of the Attorney-General’s opinion and invited him to appear before it on 17 May 2005 and to make representations before proceeding with the imposition of a disciplinary penalty.

The PSC convened on 17 May 2005. The applicant’s lawyer requested a month to prepare his pleadings, as he had only recently been appointed and in view of the special nature of the case. The PSC granted the request.

On 13 June 2005, the applicant, who was represented by a lawyer, was heard by the PSC. He put forward a number of mitigating factors, which included his dire financial situation following suspension from his duties, the fact that he had paid off most of the sum agreed upon with the authorities, the conviction and sentence he had received from the Assize Court, his significant years of service, and the less severe punishment imposed on his accomplice. He also submitted a socio-economic report by the Department of Social Welfare Services.

On 13 June 2005 the PSC decided to dismiss the applicant. In its decision the PSC observed that this case had been one of the most serious cases it had been faced with. The conception and planning of the crimes committed showed a well-set-up fraud which had dealt a blow to the prestige and credibility of the procedures of the Department of Lands and Surveys and also to the image of the Public Service in general. The PSC noted that the offences of which the applicant had been convicted included some of the most serious offences against property, as well as abuse of office and concealment. The gravity of the offences was evident from the severity of the sentences applicable under the law, the substantial sum the applicant had secured through his unlawful actions, and the fact that eight more cases pending against him concerning similar offences had been taken into account by the Nicosia Assize Court when imposing sentence. The PSC also pointed out that the applicant had faced 223 charges in total, which was unprecedented for Cyprus and which disclosed the seriousness and the magnitude of the case.

In reaching its decision the PSC observed that it had taken into account the circumstances and conditions under which the applicant had committed the offences. He had been authorised to sign payment orders and had been entrusted by the Republic with the important post of promoting cases concerning compulsory acquisition and serving citizens involved in these cases. The applicant, however, did not live up to his responsibilities, exploited his position, and developed his criminal activities with unprecedented effrontery and recklessness. He had been the mastermind, instigator and main executor of the criminal activities.

The PSC also noted that it had taken into consideration what had been said by the applicant’s counsel in mitigation, in particular, the applicant’s personal and family circumstances, as well as the fact that he had undertaken to compensate for the damage and/or part of the damage suffered by the Republic as a consequence of his criminal acts. Further, the PSC pointed out that he had been the main protagonist and this had been stressed by the Assize Court when distinguishing the sentence passed on him from that passed on his co-accused.

Pursuant to section 79(7) of the Public Service Law (see paragraph 43 below), the disciplinary penalty of dismissal resulted in the forfeiture of the entire applicant’s public service retirement benefits (hereinafter “retirement benefits”). This entailed the loss of a retirement lump sum and a monthly pension.

Lastly, the PSC decided that the part of the applicant’s salary that had been withheld during the period of his suspension from service would not be returned to him.

Up to the date of his dismissal the applicant had worked for thirty-three years in the public service.

On 23 March 2006 the applicant withdrew his appeal.

Pursuant to section 79(7) of the Public Service Law (see paragraph 43 below), his wife received a widow’s pension. This amounted to 15,600 euros (EUR) per year.

On 26 August 2005 the applicant brought a recourse before the Supreme Court (revisional jurisdiction) under Article 146 of the Constitution, seeking the annulment of the PSC’s decision to dismiss him from the Public Service and of the consequent forfeiture of his pension rights (recourse no. 994/2005).

The applicant claimed that the forfeiture of his retirement benefits had been in breach of Article 23 of the Constitution and Article 1 of Protocol No. 1 to the Convention. In this respect the applicant argued that his pension rights constituted a “possession”, and that their automatic forfeiture consequent to his dismissal was disproportionate.

On 2 April 2007 the Supreme Court, in an ex tempore decision, held that the recourse was admissible. The court observed that the case concerned the discretion of the PSC in deciding on the dismissal, taking into account all relevant parameters and, in particular, the consequences dismissal would have for the applicant. Therefore, the decision on the penalty and the consequences were very closely linked, bringing to the forefront the principle of proportionality as the main aspect of the PSC’s discretion. It was obvious from the PSC’s decision that in exercising its discretion when choosing the penalty to be imposed it had taken into account the automatic, as it considered, by law, loss of retirement benefits. As a result the court concluded that the extreme severity of the case justified, despite its grave repercussions on the applicant’s retirement rights, the penalty of dismissal. If in the end the court were to accept the applicant’s claims, the setting aside of the penalty of dismissal could not be excluded. The Supreme Court therefore concluded that it could continue to examine the merits of the recourse.

On 7 May 2007 the Supreme Court dismissed the recourse, but did not award costs against the applicant in view of the nature of the legal issues raised.

The Supreme Court, after having ruled that the retirement benefits of a public servant in Cyprus constituted a possession under Article 1 of Protocol No. 1, went on to examine whether or not there had been a violation of the applicant’s rights under this provision. Drawing guidance from the Court’s case-law, and in particular the judgments in the case of Azinas v. Cyprus (no. 56679/00, 20 June 2002, and [GC], no. 56679/00, ECHR 2004III), and the decision in the case of Banfield v. the United Kingdom ((dec.), no. 6223/04, ECHR 2005XI), the Supreme Court first pointed to those factors which justified the deprivation of the right to property in this case. One such main factor in the court’s view was the gravity of the offences committed. It considered in this respect that the characterisation of the case by the PSC as one of the most serious in its history did not appear to be an exaggeration. The impression given by the offences was such that not only did they entail a well-organised fraud but they also, most importantly, as the PSC asserted, dealt a blow to the prestige and trustworthiness of the administration. The court considered that sentencing the applicant to five years’ imprisonment, as well as dismissing him, did not necessarily exhaust the limits of the discretion of the State to put things right. Besides, as in Azinas, the non-deprivation of pension benefits in the case of a pension plan to which the employee did not make contributions would amount to rewarding the applicant.

At the same time, the serious consequences of the applicant’s punishment - a sentence of five years’ imprisonment and dismissal - had also to be considered, particularly the financial difficulties arising from the deprivation of the said rights as an additional “punishment” for the applicant and his family. The court observed that this was an important factor to be taken into account, according to the circumstances of each case. If the deprivation had not been automatic but discretionary within the framework of enacted procedures, as in England, it would have been possible to examine whether there should be a deprivation and to what extent. The court noted in this respect that it would indeed be good for the State to consider seriously the prospect of an amendment to the law so as to make the system more flexible and fairer in each case. Moreover, there was also the fact that the applicant had to a great extent returned the money he had embezzled, a fact which, although the PSC had said that it had taken it into account, did not appear to have affected its decision, since the punishment imposed on the applicant was, of the ten forms provided for, the extreme one of dismissal instead of choosing the second most serious form of punishment, that of compulsory retirement, which would not have entailed the loss of retirement rights.

In the end, however, the Supreme Court considered that the fact that the case in question arose and was heard on the basis of a different statutory regime from that in Azinas as regards the consequences of dismissal entailing the loss of pension rights, tilted the scales, albeit slightly, in favour of the Republic. The proviso in section 79(7) that the applicant’s pension from the day of his dismissal would be paid to his wife and dependent children as if he had died on that date reduced for the family the hardship resulting from the dismissal. Despite this, the court observed that it was likely that there would be cases with even more dire consequences for the dismissed employee, such as when there was no wife or dependent children, or their relationship was such that the dismissed employee could not reasonably expect to benefit through them. Nothing, however, had been said to include the present case among those cases, except for the theoretical possibility that his wife could die before the applicant. The court stated that, if matters were otherwise, it was likely that it would have ruled differently.

Finally, the Supreme Court stressed that the competent bodies should seriously study the possibility of amending the statutory framework on the basis of the law in force in England, so that deprivation of retirement rights was not automatic but could be looked at with the help of enacted procedures and with the exercise of discretion in order that the PSC might determine, by means of a reasoned decision, the extent to which it was just to forfeit, if at all, in any particular case, according to the individual’s special circumstances and needs. The Supreme Court considered that both the rule of law and the modern conception of individual justice demanded this.

On 5 June 2007 the applicant lodged an appeal with the Supreme Court (appellate revisional jurisdiction; appeal no. 78/2007). He first challenged the first-instance finding concerning section 79(7) of the Public Service Law. He submitted that this section was contrary to Article 23 of the Cyprus Constitution and Article 1 of Protocol No. 1 to the Convention, as the forfeiture of his retirement benefits had been automatic, without the exercise of any discretionary power. In this respect he argued that the first-instance court had applied the proportionality principle incorrectly during the examination of the penalty imposed by the PSC, and therefore had been wrong when it decided that the measure was proportionate and in line with the Convention. Secondly, the applicant claimed that the finding of the first-instance court that the consequences of this decision were reduced because he was married and thus his wife and dependent children would receive a pension, was discriminatory on the ground of marital status and thus in violation of Article 28 of the Constitution.

On 12 June 2007 the respondent Government also appealed (appeal no. 81/2007) challenging the first-instance findings (a) that in the present case the retirement benefits could be considered a “possession”; (b) that in the disciplinary dismissal of a public servant there was no enacted framework providing for the exercise of discretion as to whether the retirement benefits would be granted; and (c) that the payment of the pension to the applicant’s wife was the only essential factor which tilted the scales in favour of the Republic.

On 18 May 2010 the Supreme Court dismissed both appeals without awarding costs, in view of the importance of the matter raised. It agreed with the first-instance court’s finding that the right to a pension and its conditions constituted a possession of the employee. This right was created by the appointment of the employee. The fact that a pension was given to the wife and dependent children suggested that pension benefits were considered as “property” which could be transferred. In this respect the court referred to its judgment in the case of Pavlou v. the Republic (revisional appeal no. 161/2006, (2009) 3 CLR 1402; see paragraph 46 below) and the Court’s judgment in the case of Apostolakis v. Greece (no. 39574/07, 22 October 2009).

The court went on to find, however, that the deprivation of the applicant’s retirement benefits had been justified. In this respect, the court noted that the PSC had chosen the penalty of dismissal under section 79(7) of the Public Service Law, after exercising its discretion and after considering the consequences and the fact that such a penalty was in the public interest. The first-instance court had examined whether the imposition of the penalty of dismissal, which brought about the automatic forfeiture of retirement benefits, was disproportionate. It had examined whether the PSC, when exercising its discretion, had applied the principle of proportionality in deciding on the penalty of dismissal, which itself resulted in the automatic deprivation of retirement rights. In this respect it held that the PSC had exercised its discretion when deciding to impose the penalty of dismissal. The PSC had had a variety of available penalties at its disposal, such as compulsory retirement, which did not bring about the forfeiture of the pension. It decided, however, in view of the offences committed by the applicant, that such deprivation was justified.

The Supreme Court pointed out that the European Court of Human Rights had acknowledged that the administration had wide discretion in deciding on such matters.

It went on to agree with the first-instance court that the deprivation of the applicant’s retirement benefits had been justified in view of the seriousness of the offences, which had dealt a blow to the trustworthiness and credibility of the administration. The relevant domestic law provision was aimed at discouraging public servants from committing serious offences and at protecting the smooth running of the administration. Section 79(7) of the Public Service Law was not contrary to Article 1 of Protocol No. 1, since the deprivation of retirement benefits was not a punishment on its own, but a consequence of the imposition of the penalty of dismissal.

The court went on to distinguish the applicant’s case from that of Apostolakis, in which the forfeiture had been automatic following a criminal conviction and had entailed deprivation of both pension and social security rights and therefore of all means of subsistence. In the present case, although the applicant had been deprived of his retirement benefits as a public servant, he had been entitled to receive benefits from the Social Insurance Fund, which were calculated on the basis of contributions made by the employer and the employee. Referring to the Court’s judgment in the case of Wieczorek v. Poland (no. 18176/05, 8 December 2009), it found that the applicant had not been deprived of all means of subsistence.

As to the question of discrimination due to marital status, raised by the applicant, the Supreme Court held that the first-instance court’s comments on the matter did not support the applicant’s claim of discrimination. The comments in question had been made on a hypothetical basis and did not apply to the present case.

Lastly, the Supreme Court dealt with the remaining grounds of appeal put forward by the Government. It observed that the first-instance decision was to the effect that in the event of dismissal the law did not provide for a procedure concerning the exercise of discretion for forfeiting retirement rights, but it did not say that it was not possible to exercise discretion on the matter, since it recognised that there was a choice between dismissal entailing forfeiture of rights and compulsory retirement, which did not. Finally, it pointed out that the first-instance court had set out in its decision all the facts which it had taken into account in deciding on the proportionality of the forfeiture, and had rightly concluded that the payment of the pension to the wife meant that the deprivation was not disproportionate. The court did not award costs in view of the important issues raised.

The applicant has been receiving a social security pension from the Social Insurance Fund since 31 August 2012, when he reached the age of sixty-three. The pension therefore received by his wife pursuant to section 79(7) of the Public Service Law was then reduced by the complementary sum received by him from the Social Insurance Fund. According to a letter dated 28 November 2012 sent to her by State’s Treasury, her pension was reduced by EUR 854,94 per month.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in 1975. As of October 2013, he was serving a life sentence in Kherson Prison no. 61. On 21 March 2014 his representative informed the Court about the applicant’s new address, which was Lugansk Pre-Trial Detention Centre (SIZO), without any further details.

On 24 (or 25 according to the Government) September 2004 the applicant was arrested on suspicion of robbery and murder. According to the applicant, the police subjected him to various forms of ill-treatment following his arrest.

On 23 November 2005 the Court of Appeal of the Autonomous Republic of Crimea, sitting as a court of first instance, found the applicant guilty of aggravated robbery, two counts of murder, and unlawful possession of firearms. The court sentenced him to life imprisonment with confiscation of property.

The applicant appealed on points of law.

On 20 April 2006 the Supreme Court upheld the judgment of the first-instance court.

The applicant was detained in the following detention facilities:

the Simferopol Temporary Detention Facility (“the Simferopol ITT”, a part of the police system): from 25 September to 26 October and from 4 to 19 November 2004 (during the intervening period from 26 October to 4 November 2004 the applicant was undergoing a forensic psychiatric examination in a psychiatric hospital);

the Simferopol Pre-Trial Detention Centre (“the Simferopol SIZO”): from 19 November 2004 to 16 March 2006 and from 2 May to 18 October 2006;

the Dnipropetrovsk SIZO: from 17 March to 6 April, from 25 April to 1 May and from 19 to 29 October 2006;

the Kyiv SIZO: from 7 to 25 April 2006 (that is during the time when the applicant’s case was examined by the Supreme Court);

the Odessa SIZO: from 30 October to 4 November 2006 (the applicant raised no complaints in respect of his detention there); and

Kherson Prison no. 61: from 4 November 2006 onwards.

The applicant did not specify the cells in which he had been detained. According to him, he was held in an overcrowded, cold and damp cell located in a basement and lacking fresh air and sufficient daylight. He also alleged that he had not been provided with any bed linen. Furthermore, he was allegedly deprived of access to shower and had no facilities for shaving. Nor could he enjoy any outdoor walks. The nutrition was allegedly very poor and did not correspond to the applicant’s needs given his health condition.

The applicant further submitted that, although he was suffering from active tuberculosis, he had had to share his cell with healthy inmates, which had provoked conflicts.

According to the applicant, when he was transferred back to the ITT on 4 November 2004 after his forensic psychiatric examination, the temperature in his cell was very low. Nonetheless, the ITT administration withheld his warm clothes. As a result, the applicant allegedly caught bronchitis and pneumonia.

The Government submitted that they were not able to provide details as to the specific cells, in which the applicant had been detained, because the relevant records had been destroyed with the passage of the envisaged period of their storage. The Government therefore provided information about all the cells of the Simferopol ITT based on the information note issued by the ITT’s governor on 11 December 2012.

As specified in that information note, the ITT had nine cells able to accommodate up to forty-two inmates. Seven of those cells were identical: each of them measured 10 sq. m. and was designated for four persons. The eighth cell measured 13 sq. m. and accommodated two inmates. And, lastly, there was a bigger cell, measuring 21 sq. metres, which was designated for eight persons.

All the cells were located in a semi-basement. Each of them had a window and was equipped with a forced ventilation system.

The cells had beds for each inmate, a table, a lavatory and a washstand with centralised water supply. There was also centralised heating in the ITT functioning during the cold season (end of autumn, winter and beginning of spring).

According to the Government, the inmates were provided with all the required bed linen in the ITT.

According to the information note issued by the governor of the Simferopol SIZO on 29 November 2012 at the request of the Government’s Agent, the applicant was detained in the following cells:

from 19 November 2004 to 18 March 2005 and from 22 April to 23 November 2005 – in cell no. 101;

from 18 March to 22 April 2005 – in cell no. 105;

from 23 to 25 November 2005 – in cell no. 69;

from 24 November 2005 to 16 March 2006, from 30 June to 7 July 2006 and from 14 to 21 July 2006 – in cell no. 72; and

from 23 to 30 June, from 7 to 14 July and from 21 July to 18 October 2006 – in cell no. 70.

Cells nos. 101 and 105 were ordinary cells, which the applicant shared with two other inmates for most of the time. According to the applicant, however, starting from 29 June 2005 his cell-mates were transferred to other cells and he remained alone in cell no. 101. Cells nos. 69, 70 and 72 belonged to the maximum security unit and the applicant was in solitary confinement there.

The case file contains a copy of the SIZO governor’s decision of 24 November 2005 about the applicant’s placement in a separate cell of the maximum security unit on the ground of the prevention of the spread of tuberculosis (the applicant was then diagnosed with active tuberculosis).

Given that in 2007 the numbering of the SIZO cells had been changed, the Government found it impossible to locate with precision each cell, in which the applicant had been detained. They, however, submitted that all the cells of the same category (ordinary or maximum security) had the same characteristics.

According to the information provided by the Government, each of the cells had a double-glazed window enabling natural ventilation and penetration of daylight. All the cells were equipped with ventilating equipment, water supply and sewerage, as well centralised heating. There was all the required furniture in the cells.

According to the applicant, his cells were cold and damp. The window in cell no. 101 was allegedly not glazed and the inmates had to cover it with blankets and plastic bags.

The maximum security cells were allegedly very small and had poor lighting and ventilation. The applicant also submitted that the toilet had not been separated from the living area and smelled of excrement. There was no hot water supply and cold water was supplied irregularly.

Furthermore, the nutrition was allegedly very basic often being limited to bread, porridge and soup with sour cabbage. According to the Government, however, the nutrition for the detainees had been in accordance with the applicable legal requirements.

Lastly, the applicant submitted that the special “life prisoner” uniform had been too small for him, which had caused him discomfort and had provoked mockery by other inmates. The Government noted, without further details, that wearing a special uniform was a legal requirement.

According to the applicant, he was detained in a solitary cell measuring 1.7 by 3 metres in a semi-basement. It had a concrete floor and was equipped with a bench, which was also made of concrete. The light in the cell was very poor. The toilet was not separated from the rest of the cell.

The Government did not make any submissions in respect of the conditions of the applicant’s detention in the Dnipropetrovsk SIZO.

The applicant was held in a solitary cell, in allegedly poor conditions. Furthermore, he was allegedly denied the opportunity to use the common shower facilities. Instead, on 12 and 19 April 2006 he was locked for an hour in a small room equipped with a cold-water tap on the level of his stomach. As the temperature inside was very low, he preferred not to wash himself. The applicant had therefore no access to warm shower for the entire period of his detention in the Kyiv SIZO (from 7 to 25 April 2006).

The Government did not comment on this period of the applicant’s detention.

The applicant, being a life prisoner, was transferred from one cell to another every ten days. According to him, all the cells, in which he had been detained (he mentioned, in particular, cells nos. 8, 10, 11 and 14) were damp and cold. In some of them, the walls were covered with mold and fungus.

Furthermore, the prison cells allegedly lacked sufficient daylight and fresh air. They were not ventilated artificially and the only access to fresh air was through a window, which could not be opened wider than five centimetres. The applicant also submitted that the windows were closed during the inmates’ daily outdoor walks, as the cells were then being disinfected by ultraviolet germicidal irradiation lamps.

The applicant specified the size and population of only two cells: cell no. 8 measured 21 sq. m. and was shared by four inmates; and cell no. 14 measured about 15 sq. m. and accommodated three inmates.

During the period from May 2007 to December 2010 there were major repairs in the prison, which had allegedly caused the applicant such inconveniences as having to bear with a high level of noise and inhaling construction dust and paint smells.

The applicant further submitted that the yard for outdoor walks (which lasted two hours per day) had no shelter to protect detainees from rain or sun.

According to the Government, the conditions of detention in the prison were in compliance with the standards established by the Court.

On 17 October 2012 an official of the Kherson City Prosecutor’s Office in charge of the supervision of lawfulness in penitentiaries, a representative of the Association of Ukrainian human rights monitors in law-enforcement institutions, as well as the governor and the deputy governor of the prison, conducted “a monitoring visit” of the prison. According to their report, all the maximum security cells were located below the ground level and were damp. Cell no. 8 (in which the applicant was detained at the time) measured 21 sq. m. and accommodated four inmates. It had sufficient daylight and artificial light. It was, however, impossible for inmates to switch on/off the light or to regulate its brightness. The cell had natural ventilation and the window could be opened from inside. There was centralised heating, but at the time of the visit the weather was warm and the heating was off. The toilet was separated from the living area. There was a washstand, but the water tap was leaking. There were minor flood traces on the ceiling, which the administration explained by a recent accident.

On an unspecified date in October 2012 the deputy governor of the prison issued an information note about the conditions of detention in that prison at the request of the Government’s Agent. It stated, in particular, that cell no. 8 had a window of 1.3 by 1.1 metres, one 220V lamp and one night watch light (36V). The prison official also stated that between May 2007 and December 2010 the maximum security unit of the prison had undergone major refurbishments. In October 2012 some minor repairs were carried out in cell no. 8.

The Government submitted four photographs of cell no. 8, showing a spacious and light room in a visually good state of repair. According to the applicant, those photographs had been taken after his detention in that cell and were of no relevance for his case.

According to the information provided by the Government, the prison cells were disinfected on a daily basis during the detainees’ outdoor walks. The applicant noted that this did not happen when inmates chose not to go for a walk because of poor weather conditions.

As further submitted by the Government, cells for smear-positive and smear-negative inmates were located on different floors and had separate shower facilities, X-ray examination rooms and walking yards. The applicant specified that it had not been so before October 2012.

Prior to his detention the applicant had been suffering from chronic hepatitis, neurocirculatory asthenia, varicose veins, and astigmatism of both eyes. It is not known whether he had undergone any medical treatment in that connection.

Furthermore, in 1995 the applicant was diagnosed with tuberculosis for the first time. In November 2001 his tuberculosis disease was considered to have developed in a chronic form.

On 30 November 2001 the applicant was admitted for inpatient treatment to the Zaporizhzhya regional tuberculosis dispensary.

On 22 February 2002 he was discharged from it on the ground of his refusal from the treatment and his continued absence.

On 18 March 2002 the applicant was re-admitted to the aforementioned dispensary for treatment.

On 30 April 2002 he was discharged on the ground of his persistent breaches of the treatment regimen and the dispensary’s rules.

According to an information note issued by the dispensary’s chief doctor at the request of the applicant’s lawyer on 24 April 2013, during his treatment there in 2002 the applicant had been administered anti-tuberculosis medicines of the first and the second lines.

On 26 May 2003 the applicant was recognised as falling within the third category of disability (the mildest) on account of his tuberculosis disease.

On 25 September 2004 the applicant underwent a medical examination upon his admission to the Simferopol ITT. As recorded in the ITT’s journal, the applicant informed the doctor about his tuberculosis disease, but did not raise any complaints.

On 11 October 2004 the ITT governor wrote to the Simferopol prosecutor that, according to the conclusion of a tuberculosis specialist of the same date, the applicant was suffering from an active form of tuberculosis and required further examination and inpatient treatment in a hospital environment. At the time of writing he was, however, detained in the ITT as an ordinary detainee. The ITT governor requested the prosecutor to help in organising the applicant’s transfer to a tuberculosis dispensary. It appears that there was no follow up to that request.

On 26 October 2004, upon the applicant’s admission to the psychiatric hospital for his forensic psychiatric examination, a tuberculosis specialist examined him. The applicant complained of coughing with purulent sputum, general weakness, breathlessness and a considerable loss of weight. He was diagnosed with active fibrous-cavernous pulmonary tuberculosis at the stage of infiltration and was prescribed isoniazid, rifampicin, pyrazinamide, ethambutol, streptomycin and some other medications and vitamins.

On 1 November 2004, while still in the psychiatric hospital, the applicant was X-rayed and repeatedly examined by a tuberculosis specialist. The doctor confirmed the earlier diagnosis and recommended the continuation of the medicinal treatment, subsequent monitoring of the applicant’s condition and his isolation.

On 4 November 2004 the applicant was transferred back to the Simferopol ITT. According to him, his medical treatment for tuberculosis was disrupted at that point.

On 19 November 2004, following the applicant’s transfer to the Simferopol SIZO, a panel of doctors, including a tuberculosis specialist, examined him. He was prescribed with: isoniazid, rifampicin, pyrazinamide, ethambutol and streptomycin – for an intensive treatment phase (for the periods from 19 November 2004 to 28 February 2005, from 1 August to 30 November 2005 and from 2 May to 30 August 2006) and isoniazid, rifampicin and pyrazinamide – for a follow-up treatment phase (for the periods from 1 March to 31 July 2005, from 1 December 2005 to 16 March 2006 and from 1 September to 13 October 2006).

According to the applicant’s medical file, he was provided with the prescribed medications on a daily basis. Furthermore, during his detention in the Simferopol SIZO the applicant was examined by a tuberculosis specialist and underwent sputum smear testing on a monthly basis. He also had regular chest X-ray examinations. The applicant’s diagnosis remained the same and his X-raying showed no changes in the state of his lungs. The applicant’s medical file pertaining to his pre-trial detention contains no reference to his drug susceptibility test.

The applicant complained to various authorities, in particular, about his solitary confinement, which he did not consider to be justified on medical grounds. On 8 September 2005 an official of the regional office of the State Department for the Enforcement of Sentences wrote to the applicant that he was the only detainee suffering from an active form of tuberculosis and his isolation was justified. He was receiving regular medical treatment. Furthermore, as stated in the letter, he had undergone drug susceptibility testing carried out with the participation of the Simferopol city tuberculosis dispensary.

On 18 October 2006 the applicant was transferred from the Simferopol SIZO to Kherson Prison no. 61.

On 4 November 2006 the applicant arrived in Kherson Prison no. 61 having the status of a penitentiary tuberculosis hospital (before his arrival in the prison he had been detained in the Dnipropetrovsk and Odessa SIZOs (see paragraph 11 above), where he allegedly received no medical treatment).

Immediately after the applicant’s arrival in the prison, a panel of doctors examined him and diagnosed him with: chronic pulmonary tuberculosis, chronic hepatitis in an aggravation phase, neurocirculatory asthenia, varicose veins, and astigmatism of both eyes. He was placed in the prison’s medical unit for inpatient treatment.

On 28 November 2006, following the applicant’s complaint about heartache, weakness and loss of appetite, he was examined by a general practitioner who diagnosed him with chronic hepatitis in an aggravation phase and neurocirculatory asthenia of cardiac type. The doctor prescribed some medications to the applicant and recommended that he undergo an electrocardiogram. It appears that the above recommendation had not been implemented. As the applicant continued raising the same complaints, a general practitioner again examined him on 15 January and 6 June 2007. He confirmed the earlier diagnoses and prescribed medications.

Furthermore, in December 2006, April 2007, January 2008 and March 2009, as well as in May and July 2011, an ophthalmologist diagnosed the applicant with astigmatism of both eyes and prescribed eyeglasses for him. It is not known whether the applicant received the eyeglasses according to the prescription.

The applicant’s chest X-raying in January 2007 (the exact date is illegible) showed that his tuberculosis disease was progressing.

On 20 February 2007 the applicant underwent a drug susceptibility test, which established that he was resistant to isoniazid, rifampicin, pyrazinamide, ethambutol and streptomycin. His treatment was therefore corrected and he was prescribed different medicines (such as kanamycin, ethambutol, para-aminosalicylic acid, ciprofloxacin and ofloxacin).

On 27 April 2007, 24 April 2008, 30 April 2010 and 27 May 2011 the applicant was recognised as falling into the second category of disability on account of his tuberculosis disease (for a period of one or two years, with his condition to be reassessed thereafter).

On 15 April 2008 the applicant’s X-raying showed negative developments in his lungs.

His subsequent X-ray examinations on 3 and 28 October 2008 indicated that his condition “was becoming stable”. Accordingly, the applicant’s treatment was changed from inpatient to outpatient.

In March 2009 his tuberculosis disease progressed again. As a result, on 13 March 2009 he was referred again to the prison’s medical unit for inpatient treatment.

On 13 April, 28 July and 28 September 2009 the applicant refused to take the anti-tuberculous medicines.

On 5 May and 15 September 2009 he also refused from X-raying.

On 14 June, 14 July, 19 August, 8 October and 10 November 2009 the applicant refused that his blood samples be taken for analysis.

On 20 April and 29 December 2010 the applicant underwent further X-ray examinations of his chest, which showed no changes in his lungs.

On 26 January 2011 a neurologist diagnosed the applicant with cervical spine osteochondrosis and recommended him to put a hard surface (something like a wood shield) beneath his matrass. According to the applicant, the prison administration did not allow him to do that.

On 15 March and 15 September 2011 the applicant refused to take the anti-tuberculous medicines.

On 29 March, 5 July, 8 September and 11 October 2011 his X-raying showed no changes in his condition.

As indicated in the applicant’s medical records, on 28 October 2011 his treatment was corrected. He was prescribed with: pyrazinamide, para-aminosalicylic acid, capreomycin, ofloxacin and cycloserine.

On 30 January, 4 May and 13 November 2012 the applicant had his chest X-rayed again. Like before, no changes in his lungs were reported.

On 10 May 2012 the applicant agreed in writing to palliative care. He wrote that he was aware of the reasons and consequences of that decision and that he had taken it without any pressure.

On 14 September 2012 the prison administration wrote a letter to the applicant’s mother in reply to her complaint, in particular, regarding his medical care. The prison governor stated that the applicant’s treatment for tuberculosis had been without effect for a long period of time, as he had developed multi-resistance to all possible anti-tuberculosis drugs. Accordingly, it had been proposed to the applicant that his treatment be confined to palliative care and he had accepted that proposal. It was explained in the letter that the palliative care consisted of the administration of two anti-tuberculosis drugs of the first line (isoniazid and rifampicin) regardless of the applicant’s resistance to them. As rifampicin was not available in the prison, it had been replaced with ethambutol. Lastly, the prison official wrote that the palliative care had been prescribed to the applicant for life.

On 27 September 2012 the National Institute of Tuberculosis Studies and Pulmonology, to which the applicant’s mother had also complained about his medical treatment in detention, responded to her. The director of the Institute wrote that, as it appeared from the medical file, the applicant’s tuberculosis disease had become incurable. Accordingly, the prospects of its treatment were deplorable regardless of the place of that treatment. Lastly, as noted in the letter, it was open for the applicant to apply for release on the ground of his incurable infectious disease.

As confirmed by a record in the applicant’s file of 16 November 2012, his X-ray examinations had not shown any positive changes in the state of his lungs since 2008. More specifically, the lung cavities were not disappearing.

On 7 December 2012 the prison doctors recommended to continue the applicant’s inpatient treatment according to the prescribed regimen.

There is no information in the case file regarding the applicant’s health condition and treatment thereafter.

On 11 June 2006 the applicant sent his first letter to the Court, in which he complained, in particular, about the physical conditions of his detention and the lack of adequate medical care.

On 20 June 2006 the Registry sent him an application form and accompanying explanatory documents and instructed him to submit a duly completed and signed application form within six weeks from the date of receipt of the Court’s letter.

In October 2006 the Court received several copies of the completed application form from the applicant, in which he elaborated, in particular, on the complaints, which he had outlined in his initial letter to the Court, including about the conditions of his detention in the Simferopol, Dnipropetrovsk and Kyiv SIZOs. According to him (and confirmed by his three cell-mates), he had attempted to send his application form on 30 August 2006, but the administration of the Simferopol SIZO had refused to dispatch it unless he deleted any complaints about his conditions of detention there. The applicant also submitted that the domestic courts had rejected his requests for access to some documents in his case file, which he intended to enclose to his application form, on the ground that he had already received copies of those documents, which was confirmed by his signature. Furthermore, the administration of the Simferopol SIZO allegedly refused to produce copies of some documents at the applicant’s request.

On 1 February 2012 the applicant sent a letter to the Court supplementing his application form with a complaint about poor physical conditions of detention and inadequate medical care in the Kherson prison.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicant was born in 1941 and lives in the small village of Yamna, which forms part of Yaremche, a resort town located in the Carpathian Mountains in the Ivano-Frankivsk Region of Ukraine.

On 16 July 1996 the Executive Committee of Yaremche Town Council (“the Executive Committee”) allotted a plot of land next to the applicant’s house to St John’s Church to build a new cemetery (“the new cemetery”).

As is evident from the photographs submitted by the applicant, as of the date when they were taken (which is not specified) her land was adjacent to the cemetery. The house where she and her family lived was located some ten metres from the cemetery boundary. The applicant’s yard was separated from the cemetery by a wire mesh fence. The nearest row of graves was about a metre from the fence (some eleven metres from the house) and was clearly visible from the applicant’s yard. The part of the cemetery captured on the pictures contained over fifty graves, some freshly decorated with wreaths.

According to the applicant’s statements, at the time, when she lodged the present application, her family was routinely disturbed in its daily life by the sight of funeral processions and the sound of people mourning by the graves. In hot weather unpleasant smells sometimes emanated from the cemetery. In addition, the well from which the applicant’s family drew water for drinking and other household needs was situated some twenty-five metres from the cemetery and they were worried it could become contaminated with the by-products of human decomposition.

The applicant contacted various authorities on numerous occasions, complaining that the distance between her house and the new cemetery was less than the 300 metres required by law as a sanitary “health protection” zone.

On 14 September 2000 Yaremche’s Sanitary Officer banned burials in the new cemetery as its location was in breach of applicable sanitary standards.

On 30 August 2001 the Executive Committee took a further decision proscribing burials in the new cemetery.

On an unspecified date in 2001 the applicant received authorisation from the municipality to bury her son in the old cemetery in Yamna (“the old cemetery”) in exchange for a promise not to contest the location of the new cemetery.

On 25 June 2002 the Executive Committee overturned its previous decision of 30 August 2001 (see paragraph 13 above) in response to complaints from St John’s congregation members and village residents that no other suitable burial ground was available.

On an unspecified date in 2002 the applicant instituted court proceedings seeking the revocation of the Executive Committee’s decision of 25 June 2002 and the prohibition of burials. She noted, in particular, that the distance between her house and the cemetery was less than twenty-five metres. That was in breach of applicable sanitary rules, which were justified by the fact that toxins from decomposing corpses could seep into the ground water and contaminate an area around the cemetery as large as 300 metres. Locating the cemetery so close to the applicant’s home had put her life and health at risk. The applicant also claimed non-pecuniary damages for her sufferings.

On 16 January 2003 the Yaremche Court found the decision of 25 June 2002 unlawful as the applicant’s house had been located within the sanitary health protection zone, which had been illegal. It ordered the Executive Committee to proscribe the burials. The judgment was not appealed against and became final.

On 3 March 2003 the Yaremche Bailiffs’ Service initiated enforcement proceedings, however, no steps preventing the burials were taken.

On 23 June 2003 the acting chief sanitary officer of the IvanoFrankivsk Region sent a letter to the mayor of Yaremche, demanding that he take urgent measures to bring the new cemetery in Yamna into conformity with the applicable law. He noted, in particular, that the 300metre sanitary health protection zone had been established to prevent water and soil pollution and the spread of infectious diseases. Allowing burials ten metres from the applicant’s house was not in conformity with sanitary rules.

On 24 July 2003 the Yaremche Court found that the Bailiffs’ Service had failed to act to enforce the judgment of 16 January 2003, but dismissed the applicant’s claim for non-pecuniary damages arising from the bailiffs’ inaction.

On 26 August 2003 the enforcement proceedings concerning the judgment of 16 January 2003 were terminated on the grounds that enforcement was impossible because the Executive Committee members refused to vote to proscribe the burials.

In the meantime, on 14 August 2003 the applicant instituted further proceedings against the Yaremche Council, seeking to compel it to stop burials and to pay her non-pecuniary damages for her suffering.

On 18 March 2004 the Yaremche Court found for the applicant in part. It noted that the Yaremche Council had failed to take all the necessary steps to prevent unlawful burials on the disputed land and ordered it to take the requisite measures. At the same time, the applicant’s claim for damages was rejected. The decision became final and enforcement proceedings were instituted.

At many of its meetings the Executive Committee discussed draft decisions banning burials, however, they were never approved by a vote as no suitable alternative location for the cemetery could be found.

On several occasions the Bailiffs’ Service imposed fines on the Yaremche Council for failure to comply with the judgments.

On 28 February 2005 the enforcement proceedings were terminated because of the impossibility of enforcement as members of the Council refused to vote against the burials.

On 26 July 2005 the Yaremche Council informed the applicant that it had been unable to relocate the cemetery in view of the unavailability of other suitable land. It was further noted that they were continuing to look for alternatives and, in particular, were negotiating to acquire a plot from the Yamna forestry authority.

On 9 August 2005 the applicant requested that the mayor of Yaremche consider resettling her family and proposed that the Town Council acquire another house for her. She suggested a specific house that was for sale at the material time, which, according to her, was comparable to her present house.

On 15 September 2005 the Executive Committee informed the applicant that the municipal authorities were ready to consider the applicant’s resettlement as an option. However, the town had no funds in its budget to buy the proposed house at that time.

On 9 August 2006 the Ivano-Frankivsk Regional Bailiffs’ Service refused to re-institute the enforcement proceedings in view of the impossibility of enforcement.

According to the Government, the municipality has not authorised any burials in the new cemetery since 2011 owing to the applicant’s continued protests and the old cemetery has been used instead.


Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Mr Pēteris Bērziņš, is a Latvian national, who was born in 1964 and lives in Kārsavas novads.

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

On 25 October 1999 criminal proceedings were initiated against the applicant on suspicion of abuse of office.

Between 25 October and 15 December 1999 the applicant was in pre-trial custody. On 15 December 1999 he was placed under police supervision.

On 14 December 1999 the prosecution issued an order suspending the applicant from office on the grounds that if he remained in office he could obstruct the investigation. The order stated that the applicant would be suspended during the pre-trial investigation.

On 21 December 2001 the pre-trial investigation was completed and the case was transferred to a court.

The applicant and twelve other co-accused were brought before the Ludza District Court (Ludzas rajona tiesa) for the main trial.

According to the indictment, on 25 October 1999 the applicant, in his official capacity as customs officer and acting in concert with other individuals, had processed documents for a vehicle that had not crossed the State border and had not exported goods.

On 24 November 2011 the applicant was found guilty of aggravated abuse of office under section 318(2) of the Criminal Law, in the wording in force until 1 January 2005.

The District Court considered that the applicant had committed a serious crime with one aggravating circumstance and no mitigating circumstances. It took into consideration the applicant’s good character references and the fact that he had no previous convictions. Referring to section 5(2) of the Criminal Law (lex mitior) and section 491 of that Law (determination of sentence where the right to completion of criminal proceedings within a reasonable time has not been respected), the District Court considered it appropriate to impose a non-custodial sentence, namely, compulsory work, without any ancillary penalty.

In that regard, relying on section 14 of the Criminal Procedure Law (right to completion of criminal proceedings within a reasonable time), the District Court reasoned as follows:

“Completion of criminal proceedings within a reasonable time is related to the volume of a case, its legal complexity, number of procedural actions [and] the attitude on the part of the persons involved in the proceedings towards their obligations, and [is related to] other objective circumstances. The criminal proceedings under consideration were commenced on 25 October 1999 [and] on 14 January 2002 the criminal case was received for adjudication by the court. [T]he adjudication of the case was restarted anew before three compositions of the trial bench [and] twenty-one court hearings were scheduled for the adjudication of the case. The reasons for postponement of the [proceedings] were not related to the non-performance of procedural obligations on the part of the accused [including the applicant]. In such circumstances [and] taking into account the volume of the case file and [its] legal complexity, with the accused charged in relation to nine incidents, [the court] finds that the right of the accused to completion of criminal proceedings within a reasonable time has not been respected.”

In determining sentence the District Court cited the wording of section 491(1)1) of the Criminal Law (see paragraph 20 below). It stated that a court’s finding of non-compliance with the reasonable-time guarantee could be taken into account in mitigating sentence. The District Court’s further considerations read as follows:

“The court deems it impossible to apply ... a fine, because neither the prosecution nor defence have submitted evidence on the financial situation of the accused that would enable the court to assess their ability to pay the fine immediately or their possibility to gain income [in the future] enabling them to pay the fine imposed within the time-frame foreseen by the law. In determining the sentence ... the court takes into consideration that ... a very long time has passed since the commission of the crime, the positive character references of the accused and the fact that [the applicant] cares for a child who is a Category 1 disabled ... and that there are no mitigating circumstances ... with respect to [the applicant] there is one aggravating circumstance...”

Accordingly, the District Court found that it could determine the sentence within or close to the minimum penalty prescribed by law.

Applying section 491 of the Criminal Law, the District Court imposed a sentence of forty hours’ compulsory work on the applicant. It credited to the applicant’s sentence the time he had spent in pre-trial custody between 25 October and 15 December 1999. As a result, the court concluded that the applicant had already served his sentence in full.

On 7 May 2012 the Latgale Regional Court (Latgales apgabaltiesa) upheld the applicant’s conviction on appeal.

The Regional Court noted that the sentence which had been imposed on the applicant complied with the Criminal Law and there were no grounds to consider that it was disproportionate.

On 2 November 2012 the Senate of the Supreme Court (Augstākās tiesas Senāts) refused to consider an appeal on points of law lodged by the applicant.

That decision was final.

The applicant learnt of the decision of the Senate of the Supreme Court on 12 November 2012, when it was communicated to him.

The domestic law and practice has been cited in Trūps v. Latvia ((dec.), no. 58497/08, §§ 16-33, 20 November 2012). For the purposes of the present case it is appropriate to set out the wording of section 491(1)1) of the Criminal Law:

“(1) If a court finds that a person’s right to completion of criminal proceedings within a reasonable time has not been respected, it may:

1) take this circumstance into account in determining sentence and mitigate the sentence;

Under section 318(2) of the Criminal Law, an abuse of office that had caused grave consequences or had been committed with the intent to obtain a material benefit was punishable by a custodial sentence of up to eight years or a fine of up to one hundred and fifty minimum monthly salaries. On 1 January 2005 amendments to section 318(2) entered into force. The punishment of compulsory work and the ancillary penalty of prohibition on exercising certain duties for a period of one year to five years were added.


CASE OF BALAKIN v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicant was born in 1962 and lives in Chişinău.

On 21 August 2009 the applicant was arrested and charged with the offence of producing and putting into circulation counterfeit money. Since then he has remained remanded in custody pending criminal investigation and trial. The detention warrants were prolonged every month initially and every three months once the case had reached the Ialoveni District Court. Each time the reasons given for the detention were that the applicant had been accused of a serious offence punishable with imprisonment of up to fifteen years, that the criminal case was complex and that, if released, he might interfere with the investigation or collude with other co-accused, or abscond or re-offend.

The last two extensions of the applicant’s detention before the lodging of the present application took place on unspecified dates in May and August 2011. The applicant argued that there was no risk of his interfering with the investigation since all the witnesses and the parties to the proceedings had already been heard and all the evidence had been examined by the court. He also submitted that there were no reasons to believe that he would abscond or re-offend and he agreed to be placed under house arrest if he could not be released. The applicant also argued that according to Article 186 § 8 of the Code of Criminal Procedure, once the case had been referred to a court, the detention could not last longer than six months, other than in exceptional cases.

The Ialoveni District Court dismissed the applicant’s arguments and, relying on the same grounds as before, extended his detention for a further three months. The court stated that the case was exceptional within the meaning of Article 186 § 9 of the Code of Criminal Procedure. The decisions of May and August 2011 contain similar wording. The applicant’s appeals against them were rejected by the Court of Appeal.

On 30 January 2012 the applicant was convicted and sentenced to seven years’ imprisonment. The Court has not been informed about the final outcome of the criminal proceedings.


Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1972 and before his arrest lived in Kerch. In 2000 he contracted pulmonary tuberculosis. It remains unknown whether the applicant received any treatment for this condition while at liberty.


Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant, Mr Yaroslav Mykhaylovych Zolotyuk, is a Ukrainian national, who was born in 1955 and lives in Zhytomyr.

On 29 December 2002 Mr K. caused a traffic accident and his car collided with the applicant’s car. The applicant sustained bodily injuries of medium gravity as a result.

On 17 December 2003 the Zhytomyr District Court of the Zhytomyr region absolved Mr K., who had admitted his guilt, under the Amnesty Act.

By a judgment of 15 April 2005, the Korolyovskyy District Court of the city of Zhytomyr awarded the applicant 20,668.44 Ukrainian hryvnias (UAH) against Mr K. in respect of pecuniary and non-pecuniary damage caused by the traffic accident mentioned above. The bailiffs terminated the enforcement proceedings for the lack of property of Mr K. which could be attached. The applicant did not challenge termination of the enforcement proceedings before the domestic courts. The applicant unsuccessfully attempted to institute criminal proceedings against Mr K. for the latter’s failure to pay the judgment debt. He also complained about the nonenforcement to the prosecutor and then challenged the alleged inaction of the prosecutor before the courts.

In March 2010 the applicant lodged a claim with the Korolyovskyy District Court against the Cabinet of Ministers, seeking compensation for the damage caused by Mr K. under Articles 1177 and 1207 of the Civil Code.

By the judgment of 1 March 2012, the court rejected the applicant’s claim on the ground that a special law laying down the conditions and mechanism for enforcing the provisions of Articles 1177 and 1207 of the Civil Code had not yet been enacted. Furthermore, the court noted that the insolvency of Mr K. had not been established.

On 13 June and 20 July 2012 respectively the Zhytomyr Regional Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters upheld the decision of the first-instance court.

The Civil Code, which came into force in 2004, lays down different obligations as to compensation in respect of damage. Among others, two articles, namely Article 1177, relied on by the applicant in the domestic proceedings, and Article 1207, provide for the State to compensate the victims of a crime if the offender is not identified or is insolvent. The articles in question provide as follows:

“1. Pecuniary damage caused to the property of a natural person as the result of a crime shall be compensated for by the State if the person who committed the crime is not identified or is insolvent.

The conditions and procedure governing compensation for pecuniary damage caused to the property of a natural person who was the victim of a crime shall be established by law.”

“1. Damage caused by mutilation, other physical injury or death as the result of a crime shall be the subject of State compensation to the victim or to other persons defined in Article 1200 of this Code if the person who committed the crime is not identified or is insolvent.

The conditions and procedure governing State compensation for the damage caused by mutilation, other physical injury or death shall be established by law.”


André Potocki;Angelika Nußberger;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant, Mrs Tetyana Oleksiyivna Mindrova, is a Ukrainian national who was born in 1956 and lives in Lviv. She was represented before the Court by Mr V.M. Skakun, a lawyer practising in Kyiv.

The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr I. Lishchyna.

On 27 July 2002 Oleg Zheykov, the applicant’s nephew born in 1991 was killed in the Sknyliv air show accident (for more details concerning the accident, ensuing investigation and State aid to the victims see Mikhno v. Ukraine (no. 32514/12, §§ 6-8, 12-58 and 67-71, 1 September 2016).

On 8 August 2003 the applicant lodged a civil claim against the Ministry of Defence seeking 75,000 hryvnias (UAH) in damages on account of her nephew’s death. This claim was joined to the criminal proceedings instituted against military officers accused of negligent conduct resulting in the accident.

On 6 December 2004 the applicant increased the amount of her initial claim to UAH 1,066,000. According to her, this figure represented the equivalent of the amount allocated by the Government of Ukraine per death of each Israeli and Russian national under the recently ratified interstate friendly settlement agreements concerning the crash of a TU-154M airliner on 4 October 2001. That airliner had exploded over the Black Sea while en route from Tel-Aviv, Israel, to Novosibirsk in the Russian Federation. The exact causes of that accident had not been established; however, according to the leading version of the investigation, the airliner had been accidentally shot down by a Ukrainian missile launched during military training manoeuvres.

During the trial, the applicant submitted that she had been Oleg Zheykov’s primary caretaker since his infancy, as his parents had not taken care of him. Although she had had no formal guardianship over Oleg, they had a very close relationship. Losing him for her was the same as losing her own son.

On 23 June 2005 the Central Region Military Court of Appeal found five military officers guilty of negligent conduct resulting in the accident and sentenced them to various terms of imprisonment.

On the same date it awarded the applicant UAH 95,000 by way of compensation for non-pecuniary damage in connection with her nephew’s death. O.Z. (Oleg Zheykov’s father) was awarded UAH 5,000 under the same head.

The applicant appealed in cassation against this judgment, complaining that the compensation awarded for non-pecuniary damage was grossly inadequate. She also submitted that it was discriminatory to ascribe a value to her nephew’s life that was lower than the lives of the Russian and Israeli nationals who had died in the aforementioned TU-154M airliner crash, for which the military authorities had borne a similar degree of responsibility.

On 2 March 2006 the Military Panel of the Supreme Court of Ukraine rejected the applicant’s appeal and upheld the trial court’s judgment.

During 2008 four senior military officers (the criminal proceedings in respect of whom had earlier been disjoined) were tried and acquitted by courts at two judicial instances. The applicant did not lodge any civil claims in these proceedings.

Article 3 of the Constitution of Ukraine of 1996 reads as follows:

“The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value.

Human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State. The State is answerable to the individual for its activity. To affirm and ensure human rights and freedoms is the main duty of the State.”

The relevant provisions of the aforementioned agreement, ratified by the Verkhovna Rada of Ukraine on 25 December 2003, read as follows:

“The Government (Cabinet of Ministers) of Ukraine ... and the Government of the State of Israel ...

Taking note that Israel has formally supported before Ukraine the claims of its citizens, victims of the Air Catastrophe ...

Taking note that Ukraine has not recognized any legal obligations or responsibility in connection with the Air Catastrophe ...

Have agreed on the following:

With a view to full and complete settlement and resolution of any and all disputes ... Ukraine shall pay ex gratia to Israel a lump sum of USD 7,590,933.34 ... for the benefit of Israeli heirs, successors and dependents ... of the victims of the Air Catastrophe ...

... after the payment of the amount of settlement ... the State of Israel, its bodies, citizens, legal entities ... shall drop and forever relieve Ukraine ... from any and all claims ...

This Agreement does not constitute any acknowledgment on the part of Ukraine. This Agreement does not constitute a juridical precedent and shall be used only with a view to fulfil its provisions ...”

This agreement, ratified by the Verkhovna Rada of Ukraine on 4 June 2004, envisaged the transfer to the Russian Government of USD 7,809,066.66 on terms similar to those stipulated in the analogous agreement with the Government of Israel.


Inadmissible (Article 35-1 - Final domestic decision);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The first applicant was born in 1981 and lives in Siófok. The second applicant was born in 1995 and lives in Lepsény.

On 6 August 2012 the applicants were on an excursion to Lake Balaton. In the evening, they decided not to return home, but to spend the night in their car, a Fiat Punto, parked in a car park next to a pizzeria in Zánka. Waking up, they noticed that a car was passing by theirs, coming back and forth several times. They found this frightening and drove on to the village of Tagyon, where they stopped their car in the parking lot of a private house.

At the same time, around 3.05 a.m., an unknown person telephoned Mr S., a volunteer law enforcer, to tell him about a Fiat Punto suspiciously moving around in the neighbourhood, near a local grocery store. Mr S. informed off-duty police officer K., who was serving with the Balatonfüred Police Department.

Subsequently, officer K., driving his private car and taking a self-defence pistol, went to inspect the grocery store, together with Mr S. Not having found any trace of a criminal offence, they notified the duty officer of Balatonfüred Police Department about the sighting of the suspicious car. They were informed about the identity of the owner of the Fiat Punto, following which they continued to look for the vehicle in the surrounding area.

At about 3.30 a.m., they noticed the Fiat Punto parked in front of a private house. Officer K. stopped his vehicle, a black Ford Mondeo, perpendicularly to the applicants’ car, about a metre away. Both officer K. and the volunteer law enforcer started to run towards the applicants’ car, approaching from the back. The police officer shouted: “Police! Get out!” and held up his police identification card.

Ms Haász, sitting at the steering wheel, only noticed two people getting out of a dark civilian car and running towards them in civilian clothes. Finding this frightening, she attempted to drive away, forcing the garden gate of the adjacent property and driving into its yard. Inside the garden, the dimensions of which were 67 x 17.6 metres, and noticing that there was no other way to exit, she turned the car around and drove back towards the gate.

When the car was on its way out, officer K. waved at the car shouting “Police! Stop!” and fired a warning shot. As it appears from the case file, at this time Mr S. was standing in front of the police officer’s car, rather than in the prospective way of the applicants’ car. When the car passed officer K., he shot twice more, at the car. The first shot was fired downwards from about 6 metres’ distance, hitting the mudguard of the car on the left side at the level of the lights. The other shot was fired from about 4-4.5 metres following a downward trajectory. It went through the rear window, which fell into the car, missed the head of Ms Szabó by 5-10 centimetres and then went through the window of the right front door.

Ms Haász continued to drive, trying to leave the garden by passing around the police officer’s car to the left. She finally hit the officer’s car at its right side, at the passenger front door. At this moment Mr S. was standing next to the police officer’s car, at its left side, next to the open driver’s door.

Officer K. again called on the applicants to get out of the car, which they did. He put his gun away, presenting his police ID. Since the two men wore plain clothes and neither they nor their car had any police signs, the applicants realised that officer K. was a police officer and his associate a volunteer law enforcer only at this point in time.

Thereupon it became clear that the incident was based on a misunderstanding, since the applicants had only been frightened but had had no intention whatsoever of countering a police measure.

Subsequently the Veszprém District Investigating Prosecutor’s Office (Veszprémi Nyomozó Ügyészség) initiated proceedings against officer K. on charges of attempted manslaughter (the charge being later on re-characterised as intentional endangerment committed by a public official). The applicants were questioned several times as witnesses, and a confrontation took place. Other witnesses were also heard and the opinion of a forensic firearms expert was obtained.

Simultaneously, officer K.’s superior, the Head of Balatonfüred Police Department, investigated the use of a firearm by officer K. He found that the officer had had no intention of endangering human life – his purpose had been to halt the applicants’ car, which had represented a danger for him and his associate – but that the officer’s action, although not criminal, had been unprofessional. According to the superior’s internal report, following a first warning shot, a second, intentional shot had been directed at the car, while the third one had been accidental, endangering the life of Ms Szabó. The supervisor initiated disciplinary proceedings, which were suspended pending the criminal proceedings.

The applicants also lodged a complaint formally challenging the lawfulness of the police measures with the Balatonfüred Police Department. These proceedings were suspended on 8 October 2012 pending the outcome of the criminal investigation.

On 3 July 2013 the Veszprém District Investigating Prosecutor’s Office discontinued the investigation. It found that officer K.’s use of firearms was lawful in the face of the danger represented by the conduct of the applicants, namely driving, at a speed of 14-16 km/h, in the direction of his associate.

The Prosecutor’s Office accepted officer K.’s statements, according to which he had given a warning before shooting and had first shot on perceiving a danger to the life of his associate. It also accepted the police officer’s account of the events, namely that at the material time he could believe that his associate was standing between his car and the car of the applicants, which was approaching rather fast. Nonetheless, relying on the evidence furnished by a ballistic expert, the Prosecutor’s Office dismissed officer K.’s statement that the second shot following the warning had been accidental.

The decision also relied on the report of the Chief of the Balatonfüred Police Department stating that officer K.’s conduct had been unprofessional as regards the second shot fired at the applicants’ car.

The applicants’ lawyer filed a complaint against the discontinuation.

On 22 July 2013 the Veszprém County Public Prosecutor’s Office (Veszprém Megyei Főügyészség) dismissed the complaint, holding that the danger caused by the applicants had directly concerned the life and limb of officer K.’s associate. Relying on section 56 (2) of the Act on the Police, the Prosecutor’s Office found that the risk that the associate might be hit by their car had justified the shots by officer K. even if they had not been preceded by the requisite procedure, in particular a warning about the use of firearms, since any delay caused by the warning could have compromised the success of the measure. According to the decision, the applicants’ behaviour had constituted a direct threat to the life and limb of both Mr S. and officer K.

The applicants were informed that the complaint had been dismissed under section 199 (2) point b) of the Criminal Procedure Code and that they had the possibility of filing a motion for prosecution, acting as substitute private prosecutors, under sections 229-230 of the Criminal Procedure Code.

The decision was served on the applicants on 29 July 2013.

On 15 August 2013 the Veszprém County Public Prosecutor’s Office rejected the applicants’ renewed complaint. The County Public Prosecutor’s Office informed the applicants that the prosecution authorities would not deal with any further complaint unless it disclosed relevant new facts.

In a letter of 27 June 2014 the Attorney General’s Office informed the applicants that there was no legal ground to quash the decisions on the discontinuation of the investigation in respect of officer K.

Meanwhile, on 14 October 2013 the Head of Balatonfüred Police Department dismissed, in its resumed proceedings (see paragraph 16 above), the applicants’ complaint about the actions of officer K. He concluded that although the latter’s conduct had been unprofessional because of the way he had halted the applicants’ car and the use of a self-defence pistol rather than a service pistol, it had not been unlawful. The applicants’ appeal was dismissed by the Veszprém County Chief Police Department on 19 December 2013.

Since the incident, the applicants have been suffering from psychological troubles.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1979 and lives in Budapest.

The applicant was employed at a State-owned company from 1 January 2011 until the termination of her employment on 30 April 2013. A certain part of her severance payment was taxed at 98% rate in the amount of HUF 1,685,600 (approximately EUR 5,600).