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

The applicant, Ms Ana Marušić, is a Croatian national, who was born in 1962. She was represented before the Court by Mr M. Samaržija, a lawyer practising in Zagreb.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

Ksenija Turković, the judge elected in respect of Croatia, withdrew from sitting in the case (Rule 28 of the Rules of Court). On 3 October 2016 the President of the Chamber decided to appoint Georges Ravarani, the judge elected in respect of Luxembourg, to sit as an ad hoc judge (Rule 29 § 2(a)).

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

The applicant was a tenured professor at the University of Zagreb, School of Medicine (Medicinski fakultet Sveučilišta u Zagrebu, hereinafter: the Faculty). She was the co-editor-in-chief of the Croatian Medical Journal, an international peer-reviewed journal owned by four Croatian medical schools (the universities of Osijek, Rijeka, Split and Zagreb). The applicant also performed various other functions in different international academic initiatives in the field of medical science.

In 2001 together with J.K.N., the applicant co-authored a textbook on anatomy entitled ‘Anatomija čovjeka’ [Human Anatomy], which was in use in teaching at the Faculty.

On an unspecified date in 2006 the Office of the Dean received an anonymous letter signed by “students of the School of Medicine” alleging that in the applicant’s textbook on anatomy she had plagiarised a textbook written in English by Keith L. Moore, an author from the United States, entitled ‘Clinically Oriented Anatomy’. Attached to the letter were copies of the relevant parts of the applicant’s and Moore’s books.

On 14 June 2006 the Dean established a special commission to assess the allegations of plagiarism against the applicant.

In a report of 24 October 2006 the commission found that a more appropriate avenue concerning the allegations of plagiarism would be an inquiry by the criminal justice authorities, where a certified court expert would compare and assess the two texts. Stressing, however, that it wished to facilitate the process, the commission explained that it had randomly taken and compared certain parts of the two texts (ten short paragraphs and five tables) and found that they were identical.

With regard to the special commission’s report, the Dean asked the Faculty’s Committee for Research (hereinafter “the Research Committee”) to assess the report’s findings. The Research Committee consisted of several faculty professors, including Professors M.J. and I.K.

The applicant had a long-lasting conflict with I.K. concerning various issues of academic conduct and integrity. In April and July 2005 the applicant and I.K. respectively lodged complaints before the Court for Integrity of the University of Zagreb School of Medicine (Sud časti Sveučilišta u Zagrebu, Medicinskog fakulteta; hereinafter “the Integrity Court”) making reciprocal allegations of academically improper conduct.

On 27 November 2006 the applicant reported to the Dean that I.K. had plagiarised parts of an earlier version of the book ‘Anatomija čovjeka’ when writing his book on anatomy, and that he and M.J. had plagiarised another book on neural sciences when writing their book on the matter.

On 28 November 2006 the Research Committee scheduled a meeting for the assessment of the report for 5 December 2006 and invited the applicant to attend the meeting.

On 5 December 2006 the applicant replied by letter, arguing that the anonymous letter had not been forwarded to her and that the real motive for the allegations of plagiarism against her had to be viewed in the context of similar allegations made by a certain professor, H.B., concerning another article which she had published with her researchers and which had been dismissed as unfounded. The applicant contended that the members of the Research Committee M.J. and I.K. had actively supported H.B.’s allegations against her and she therefore considered that they should withdraw from the case. She also stressed that she had reported I.K. and M.J. to the Dean for plagiarism. The applicant also extensively discussed why she considered that the allegations of plagiarism against her were unfounded. In particular, she contended that at maximum around 10% of her text corresponded to Moore’s book and that this concerned well-known information which could not be stated differently in different textbooks on anatomy.

By a letter of 23 April 2007 the applicant reiterated her above arguments, contending that the allegations of plagiarism against her were unfounded and that the proceedings at issue had damaged her professional academic status.

On 2 July 2007 the Research Committee expressed its view on two reports. Two members of the Research Committee accepted a report prepared by B.L. and expressed their view that probably 25% of the text in the applicant’s book corresponded to the relevant text in Moore’s book, without the necessary references. Seven members of the Research Committee, including M.J. and I.K., accepted a report prepared by I.K. according to which 5,182 lines of the applicant’s text were plagiarised from Moore’s book, which corresponded to 26.66% or, depending on the method of calculation, 21.33% of the overall text. In addition, 22 tables had been plagiarised, which meant that 84.62% of the tables in the book had been plagiarised. One member of the Research Committee abstained.

On 23 July 2007, on the basis of the Research Committee’s findings, the Dean instituted proceedings against the applicant in the Faculty’s Integrity Court in connection with a suspicion that she had plagiarised parts of Moore’s book, by which she had breached sections 3, 8 and 12 of the Code of Ethics (see paragraph 46 below). In support of her allegations, the Dean forwarded to the Integrity Court the Research Committee’s findings and the examples from the applicant’s and Moore’s books.

On 29 October 2007 the applicant complained to the Research Committee that she had several times requested access to the relevant documents on the basis of which its findings had been drafted but had never received a reply. She therefore reiterated her request for access to the relevant documents.

On 5 November 2007 the Integrity Court forwarded the Dean’s submission to the applicant and invited her to respond to the allegations against her. On 9 November 2007 the applicant replied, contending that no supporting evidence had been forwarded with the Dean’s submission. She rejected the accusations of plagiarism.

Meanwhile, the Faculty had commissioned a report from Z., a court interpreter for English, concerning the similarities between the texts in the applicant’s and Moore’s books. In a report of 12 October 2007 the interpreter had analysed various parts and aspects of the two texts and concluded that 35-40% of the first part of the applicant’s book and 20-25% of the second part of the book were literal translations of Moore’s book. In addition, 76% of the tables and the relevant text in the first part and 52% in the second part of the book corresponded to Moore’s book.

At a hearing before the Integrity Court on 12 December 2007, a letter from the co-author of the applicant’s book, J.K.N., was read out. In the letter she explained that she had started to work with the applicant on the updating of a previous edition of the book on anatomy. The applicant had presented her a manuscript and J.K.N. had realised that the information provided had been correct and well presented. She stressed that she had trusted the applicant and that she could not be held responsible for any issues arising from the way the applicant prepared her part of the book. Further to this letter a summary of the special commission’s findings was also read out (see paragraph 9 above). In addition, the findings of the Research Committee’s reports (see paragraph 16 above) and the concluding part of Z.’s report (see paragraph 20 above) were read out as well.

Following the reading out of the materials in support of the accusations against her, the applicant asked to be provided with a copy of these documents, and sought an adjournment of the hearing so she could study the evidence obtained. The Integrity Court dismissed her request on the grounds that the relevant documents had been read out during the hearing.

On the same day the Integrity Court found that the applicant had committed plagiarism and sentenced her to a public reprimand. The Integrity Court considered it established on the basis of the evidence obtained and examined at the hearing that the applicant had plagiarised Moore’s book in a proportion of 35-40% in the first part and 20-25% in the second part of her book. The applicant was instructed that she could challenge the Integrity Court’s decision before the Faculty Council (Fakultetsko vijeće Medicinskog fakulteta Sveučilišta u Zagrebu).

On 15 January 2008 the applicant challenged the Integrity Court’s decision before the Faculty Council. She contended in particular that her right to a fair trial had been breached owing to the fact that she had never been provided with the relevant evidence against her and that therefore she had not been able to prepare her case properly. The applicant also argued that Z. was not a properly certified interpreter and that her findings lacked clarity. In addition, the applicant stressed that she had reported M.J. and I.K. for plagiarism. She also considered that the proceedings should have been conducted in accordance with the Regulations on the disciplinary responsibility of teachers, associates and students of the School of Medicine (see paragraphs 49-51 below; hereinafter “the Disciplinary Regulations”), which had come into force before the proceedings in her case had been instituted.

On 29 January 2008 the Faculty Council dismissed the applicant’s complaints. It stressed that the proceedings had been conducted before the Integrity Court in accordance with its rules and that the disciplinary proceedings under the Disciplinary Regulations were a separate but parallel avenue which could be pursued against a faculty employee for breaches of working duties. The Faculty Council also considered that the applicant had had an effective opportunity to participate in the proceedings and that the Integrity Court had correctly established all the relevant facts concerning the allegations of plagiarism. The decision of the Faculty Council was signed by the Dean.

On 10 March 2008, as no further remedy lay against the Faculty Council’s decision, the applicant lodged a request for protection of constitutionally guaranteed rights under section 66 of the Administrative Disputes Act (see paragraph 57 below) before the Administrative Court (Upravni sud Republike Hrvatske) alleging, inter alia, that her right to a fair trial and respect for her honour and reputation had been breached. She contended in particular that the Integrity Court was not a tribunal established by law, given that the proceedings should have been conducted in accordance with the Disciplinary Regulations. She further argued that she had not had an effective opportunity to participate in the proceedings and to prepare for the case due to the fact that she had never been shown the anonymous letter containing allegations of plagiarism against her and had never been provided with the other evidence on which the findings of plagiarism had been based. Moreover, the applicant complained that she had not had access to the relevant expert report which had been relied upon for her conviction and the conclusions of which had only been read out at the trial. The applicant also challenged the findings of the Faculty bodies concerning the charges of plagiarism.

In April 2008 the reprimand against the applicant was published on the public noticeboard and the Faculty’s website.

On 20 May 2009, on the basis of the parties’ written submissions, the Administrative Court dismissed the applicant’s request for the protection of constitutionally guaranteed rights. The relevant parts of the decision read:

“The appellant lodged a request under section 66 of the Administrative Disputes Act ... alleging that the decision of the Faculty Council, dismissing her appeal and upholding the decision of the Integrity Court applying a public reprimand for the breaches of sections 3, 8 and 12 of the Faculty’s Code of Ethics, infringed [her] rights and freedoms guaranteed by the Constitution ...

According to section 66 of the Administrative Disputes Act ... a request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying, mutatis mutandis, the provisions of this Act.

In the case at issue the impugned decision of the Faculty Council is an individual act under section 66 of the cited Act and thus the appellant was allowed to submit a request for the protection of constitutionally guaranteed rights before the Administrative Court.

In her request the appellant firstly alleges a breach of Article 5 of the Constitution arguing that in the disciplinary proceedings the Faculty failed to comply with the provisions of the Scientific Activity and Higher Education Act, the Faculty’s Statute and the Regulations on the disciplinary responsibility of teachers, associates and students.

However, Article 5 of the Constitution, according to the well-established case-law of the Constitutional Court, does not provide for individual rights given that it stipulates the basic principles of constitutionality and lawfulness ... Accordingly, as the said provision of the Constitution concerns a general principle of the legal order of the Republic of Croatia, this court finds that the appellant’s constitutional rights in this respect were not and could not have been breached.

The appellant invokes Article 14 of the Constitution alleging that she has not been treated equally before the law ...

... [t]his court has considered the appellant’s arguments from the perspective of Article 14 § 2 of the Constitution which guarantees equality before the law.

In view of the above, this court finds that the available materials show that the impugned decision was based on an acceptable application of the substantive law and on its constitutionally acceptable interpretation. The competent bodies, in view of the facts established during the proceedings, provided sufficient reasoning for their decisions, which are not the result of an arbitrary interpretation and application of the substantive law. For these reasons, this court does not accept the appellant’s arguments that she has not been treated equally before the law as guaranteed under Article 14 § 2 of the Constitution.

Furthermore, with regard to the complaint of a breach of the right to a fair trial under Article 29 of the Constitution, and in view of the fact that the available materials show that the Integrity Court allowed the appellant to participate in and to follow the proceedings, and that she was able to take all the relevant procedural actions and to use remedies, and being mindful of the fact that the impugned decisions are sufficiently reasoned and adopted in accordance with the relevant procedural law, this court finds that the appellant’s constitutional right to a fair trial have not been breached.

In view of the above, the impugned decision was adopted in proceedings which, according to this court, did not breach the appellant’s [constitutional] rights and thus it cannot be held that the decision in question breached any of the protected guarantees under Article 35 of the Constitution, namely the respect for private and family life, dignity, reputation and honour. Accordingly, this right invoked by the appellant has not been breached either.”

On 16 July 2009 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that the Administrative Court had not properly ruled on her complaint of a breach of her constitutional rights. The applicant stressed in particular that the Faculty bodies’ decisions on the allegations of plagiarism against her had not been adopted by a “tribunal” established by law, and that she had not had an effective opportunity to participate in the proceedings with regard to the manner in which the relevant evidence against her had been obtained and used by the Integrity Court. The applicant also stressed that her conviction for plagiarism by the Integrity Court had damaged her professional academic integrity and reputation, which the Administrative Court had failed to rectify.

On 6 June 2012 the Constitutional Court, emphasising that it was not its function to deal with alleged errors of law or fact but to review compliance with the applicant’s constitutional rights, dismissed the applicant’s complaints as unfounded, endorsing the findings of the Administrative Court.

The decision of the Constitutional Court was served on the applicant’s representative on 5 July 2012.

On 28 January 2008 the Ministry of Science, Education and Sports (Ministarstvo znanosti, obrazovanja i športa; hereinafter “the Ministry”) conducted an administrative supervision of the Faculty’s acts in the applicant’s case, and found that with the adoption of the Faculty’s Disciplinary Regulations the proceedings against the applicant on charges of plagiarism should not have been conducted before the Integrity Court. It thus considered that the proceedings had not been conducted before a body established by law, and prohibited the enforcement of the decision on the applicant’s responsibility for plagiarism.

On 29 January 2008 the Faculty Council issued an authentic interpretation of the Disciplinary Regulations, by which it explained that the purpose of the Disciplinary Regulations was not to set aside the provisions concerning the functioning of the Integrity Court. It also stressed that the procedure before the Integrity Court and the procedure under the Disciplinary Regulations were two separate parallel procedures and that a case could be processed in either of two ways, depending on the nature of the misconduct at issue. This meant that breaches of ethics would be processed before the Integrity Court, while breaches of work duties would be processed in accordance with the Disciplinary Regulations. In this context, section 9 (1.3) of the Rules of the Integrity Court represented a link between the proceedings under the Rules and the proceedings under the Disciplinary Regulations (see paragraphs 49-51 below).

On 20 May 2009, following an administrative action by the Faculty, the Administrative Court quashed the Ministry’s decision on the grounds that it had overstepped its powers and authorities and unlawfully encroached upon the Faculty’s autonomy as provided under the Scientific Activity and Higher Education Act, the Constitution and the case-law of the Constitutional Court. The Administrative Court explained that the decision of the Integrity Court did not represent a decision which would be susceptible to further administrative supervision.

According to the documents provided by the applicant, in January 2013 she was found not to be eligible for a Fulbright scholarship award because of the public reprimand issued against her on charges of plagiarism. The applicant also explained that as a result of pressure from within the Faculty following her conviction for plagiarism she had had difficulty in being reappointed to the position of tenured professor. She eventually left Zagreb and now works in the University of Split School of Medicine (Medicinski fakultet Sveučilišta u Splitu).

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette, nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:

“In Croatia the laws shall comply with the Constitution ...

Everyone should abide the Constitution and the law and respect the legal order of the Republic of Croatia.”

“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.

All shall be equal before the law.”

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

“Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.”

“The autonomy of the universities shall be guaranteed.

A university shall independently decide on its organisation and operation, in accordance with the law.”

The relevant part of section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002 and 49/2002) reads:

“Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided on his or her rights and obligations, or about a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter “constitutional right”) ...”

The Scientific Activity and Higher Education Act (Zakon o znanstvenoj djelatnosti i visokom obrazovanju, Official Gazette nos. 123/2003, 198/2003, 105/2004, 174/2004, 2/2007 and 46/2007) provides that one of the basic principles governing higher education in Croatia is the principle of autonomy and self-regulation of universities (section 2(3.1)). The employment and academic status of university teachers and other university staff are regulated in sections 31-46.

Section 104 (1) of the Act provides that university teachers and other staff face disciplinary action for breaches of their work duties and other related activities, as well as for causing serious damage to the reputation of the university, in accordance with the relevant university statute. Paragraph 2 of the same section provides that disciplinary responsibility exists only with regard to an offence which was at the time of its commission proscribed under the relevant university acts and for which a sanction has been provided. Under section 112 (7), as in force at the relevant time, the Act provided that the institutions in the higher education system could establish their own ethical boards and adopt their own codes of ethics.

Section 113 provides that overall regulation of the lawfulness of the activities and general acts of the academic institutions is the responsibility of the Ministry.

According to the Statute (Statut Sveučilišta u Zagrebu) of 25 February 2005, Zagreb University is a State-funded public institution (section 2). The Statute in section 79 (2) and (3) provides that the Senate of the University shall adopt a code of ethics on the professional and public activity of teachers and other employees and that staff shall face disciplinary action for infringements of work obligations and violations of the code of ethics, in accordance with this Statute and the regulations of the University’s constituent units.

Section 94 of the Statute specifies that failure to meet the requirements of the rules of conduct set forth in the Statute or the statutes of the University’s constituent units or regulations based on them, as well as damage caused to the reputation of the University and its employees, shall be subject to disciplinary responsibility. The disciplinary sanctions are reprimand, public reprimand and dismissal. The description of disciplinary offences and disciplinary procedure shall be determined by the regulations of the University and its constituent units.

The Code of Ethics of Zagreb University (Etički kodeks Sveučilišta u Zagrebu) of 15 May 2007 in section 2 provides that the aim of the Code of Ethics is to promote the values of academic society as a whole. Paragraph 2 of the same section in conjunction with sections 29-30 explains that ethical boards, established either at the level of the University or its constituent units, shall be competent to give advisory opinions on general or particular issues related to compliance with ethical standards.

Section 2 (3), (4) and (5) of the Code of Ethics further provide that procedures under the Code of Ethics exist independently of any civil, criminal, administrative or disciplinary proceedings. However, if under the Statute a breach of the Code of Ethics also implies disciplinary responsibility, the relevant University or Faculty regulations may need to obtain an opinion from the competent ethical board. The opinion at issue serves to promote the principles established in the Code of Ethics.

The Statute of the School of Medicine (Statut Medicinskog fakulteta Sveučilišta u Zagrebu), first adopted on 14 June 2005 with further amendments on 27 October 2010, provides in section 130 that breaches of the relevant University and Faculty acts and conduct damaging the reputation of the University entail disciplinary responsibility which may be sanctioned by a reprimand, public reprimand or dismissal. Detailed provisions in this respect should be provided under the regulations on disciplinary responsibility (section 130). Section 133 provides that the Dean is presiding over the Faculty Council.

The consolidated version of the Code of Ethics of the Zagreb University, School of Medicine (Kodeks nastavničke etike), adopted by the Faculty Council on 29 January 2008, which was, according to an undisputed submission by the Government, applicable at the relevant time, in section 3 obliged faculty teaching staff to carry out their tasks diligently and to have their private lives and conduct bear witness to the integrity of the profession. In section 8 the Code of Ethics emphasised a heightened duty of diligence for teachers when carrying out their duties in respect of the Faculty itself. Section 12 obliged teachers to maintain a heightened awareness of the ethical standards in the interest of their profession, students and the Faculty.

The Rules of the Integrity Court (Poslovnik suda časti), first adopted in 1997 with further amendments, in their relevant parts provided:

“The Integrity Court of the School of Medicine is established in order to protect the proclaimed ethical standards and the ethical standards set out in the Code of Ethics and other general acts which the teachers are obliged to respect when carrying out their activities.”

“(1) For a breach of the ethical standards under the Code of Ethics, the Integrity Court may pronounce the following sanctions: reprimand, public reprimand, or proposal for the institution of proceedings for the adoption of a disciplinary sanction for serious breaches of work duties.

(2) In addition to a reprimand or public reprimand, the Integrity Court may suggest to the competent faculty body that proceedings be instituted for the removal of a teacher from the position which he or she occupies in the Faculty.”

The Rules of the Integrity Court further provided specific provisions concerning the composition and procedure before that court. In particular, the Integrity Court had a president, two vice-presidents, five full members and their deputies elected by the Faculty Council. It also had a Registrar (section 2). Any of these could institute proceedings before the Integrity Court, but it could not act on the basis of anonymous submissions (section 3). Cases were to be decided after a preliminary inquiry and a hearing. Respondents could be legally represented and proceedings could be held in their absence if that absence was not justified (sections 4-6). The decisions of the Integrity Court were published in the Faculty’s official gazette (section 10). Appeals against decisions of the Integrity Court could be lodged before the Faculty Council, which could overturn the first instance judgment by adopting its own judgment or could quash it and remit the case for a re-examination (section 11).

The Regulations on the disciplinary responsibility of teachers, associates and students of the School of Medicine (Pravilnik o stegovnoj odgovornosti nastavnika, suradnika i studenata Medicinskog fakulteta), which were adopted on 27 March 2007 by the Faculty Council and came into force on 7 April 2007, prescribe the responsibility and procedure for breaches of professional duties and conduct seriously damaging the reputation of the Faculty (section 1). They also oblige the teachers to comply with the relevant ethical standards (section 2).

The possible sanctions which may be adopted under the Disciplinary Regulations are: reprimand, public reprimand, or a proposal for dismissal. A fine may also be imposed as an ancillary sanction, and further sanctions are envisaged for discrimination and harassment (section 17). Proceedings under the Disciplinary Regulations are conducted before a committee of three members (section 36). An appeal against the decision of the committee may be lodged before the Faculty Council, which could overturn it by adopting its own decision or could quash it and remit the case for a re-examination (sections 45-46).

The relevant part of the transitional provisions provides:

“Proceedings before the Faculty Court of Integrity instituted before the coming into force of these Regulations shall be conducted in accordance with the provisions of general acts as in force at the moment of the lodging of the request [instituting the proceedings].”

The Regulations on the functioning of the Ethical Board (Pravilnik o Etičkom povjerenstvu, 02-107/15-97) were adopted on 31 January 1997 and were then amended on 1 July 2008. A consolidated version of the text of 6 April 2009 establishes further relevant ethical standards for faculty teachers and other staff (sections 2-4). It also provides that the Faculty Ethics Board shall have the competence to advise the Faculty on matters of ethics and shall work on the development and application of ethical standards. It can also give opinions on matters of ethics and compliance with the relevant ethical standards in individual cases (section 5).

In the transitional provisions, the Regulations on the functioning of the Ethics Board of 6 April 2009 repeal the following: the Regulations on the functioning of the Ethics Board of 31 January 1997 and 1 July 2008, the Code of Ethics of 29 January 2008, and the Rules of the Integrity Court (section 22). Section 23 (2) obliges the Integrity Court to inform the Dean and the Faculty Council of all proceedings pending before it in order for them to take further necessary measures as provided under the Regulations.

On 17 April 2007 the Faculty Council adopted rules of conduct concerning allegations of academically improper behaviour and fraud in science (Pravila o postupanju pri optužbama za znanstveno nedolično postupanje i prijevaru u znanosti), published on 30 July 2007; the rules came into force in August 2007. The aim of these rules was to complement existing faculty regulations on the matter of, inter alia, plagiarism, and to regulate procedures for inquiry into such cases. It provided in particular “depending on the outcome of the proceedings, it is possible to take disciplinary measures and proceedings under the Rules of the Integrity Court, [Disciplinary] Regulations and other general regulations of the Faculty and the University” (para. II.1).

With regard to the institution of proceedings before the competent body concerning allegations of plagiarism, these Rules provided as follows:

“... the Dean shall decide whether disciplinary measures should be taken against the defendant and, if he or she finds it necessary, shall forward the case to the Integrity Court, which will establish and recommend such measures ... A final decision on the disciplinary measures will be adopted by the Faculty Council on the basis of the suggestion of the Integrity Court.”

The Civil Servants Act (Zakon o državnim službenicima, Official Gazette no. 92/2005, with further amendments) provides in section 2 that civil servants are those employed in State bodies, judicial bodies, penal institutions, the administrative staff of the Croatian Parliament, the administrative staff and officers of the Government of the Republic of Croatia, the administrative staff of the Constitutional Court of the Republic of Croatia, the administrative staff of the ombudsman, the administrative staff of the children’s ombudsman, the administrative staff of the gender equality ombudsman, the State Audit Bureau, the Office of the President of the Republic of Croatia, and other State bodies.

The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992), as in force at the relevant time, provided as follows:

“(1) The [Administrative] Court resolves the matter, in principle, on the basis of the facts established in the administrative proceedings.

(2) If the court finds that the dispute cannot be settled on the basis of the facts established in the administrative proceedings because there are inconsistencies related to the operative facts, or [the operative facts] are not fully or correctly established, or if [the administrative bodies] failed to observe the procedural rules of relevance for the outcome of the proceedings, the court shall adopt a judgment quashing the impugned administrative act. The administrative body is then obliged to comply with the findings in the judgment ...

(3) If the quashing of the impugned administrative act and re-examination of the case by the administrative body as provided under paragraph 2 of this section would cause serious damage to the claimant, or if it is obvious from the public documents or other evidence available in the case file that the facts are different from the one established during the administrative proceedings, or an administrative act in the same proceedings had already been quashed, and the competent body has failed to fully comply with the judgment, the court can establish the facts on its own and adopt a judgment or a decision on the basis of those facts.”

“(1) The court adjudicates the matter by a judgment.

(2) By a judgment, [the court] upholds or dismisses as unfounded the [administrative] action. If the action is upheld, the court quashes the contested administrative act.

(3) When the court finds that a contested administrative act has to be quashed, it may adjudicate on the administrative matter by a judgment if the nature of things allows and if the information from the procedure provides a reliable basis. Such judgment replaces the quashed [administrative] act in all respects.

“(1) When the court quashes an [administrative] act against which an administrative dispute was initiated, the proceedings shall be reinstated to the stage in which they were prior to the adoption of the quashed act. If by the nature of the matter in dispute a new act has to be adopted instead of the annulled administrative act, the competent body is obligated to adopt it without any delay, at the latest within the period of thirty days from the day of service of the judgement.

(2) The competent body is bound by the legal standpoint of the court and by the comments of the court concerning the procedure.”

“(1) If the competent body, after the annulment of an administrative act, adopts an administrative act contrary to the legal standpoint of the court or contrary to the comments of the court regarding the procedure, and the claimant therefore submits a new complaint, the court shall annul the contested act and, as a rule, adjudicate the matter on its own by a judgement. Such judgement replaces the act of the competent body in all respects.

“A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying, mutatis mutandis, the provisions of this Act.”

According to the conclusion reached at the plenary session of judges of the Administrative Court held on 26 October 1987, an action against an administrative act is to be considered a request for judicial protection within the meaning of section 66 of the Administrative Disputes Act if from the content of the action it transpires that it may concern a breach of rights or freedoms guaranteed by the Constitution. In such cases the Administrative Court could not review every breach of procedural or substantive law but only those that amount to breaches of constitutionally guaranteed rights or freedoms (see further Majski v. Croatia (no. 2), no. 16924/08, §§ 35-36, 19 July 2011).

According to the Administrative Court’s case-law (judgment no. Zpa-5/2004-5 of 2 December 2004), the requirements for affording judicial protection under section 66 of the Administrative Disputes Act, which must be met in their totality, are: (a) the request has to concern rights or freedoms expressly guaranteed by the Constitution, (b) those rights or freedoms were allegedly breached by a final decision which does not have the characteristics of an administrative act, and (c) the legal system does not provide for another judicial avenue of redress.

In its decision no. U-I-902/1999 of 4 February 2000 the Constitutional Court explained that universities’ autonomous status encompasses the right of a university to determine its internal organisation and functioning in accordance with the law.

The autonomy of a university means that the university must be organisationally and functionally independent of all other bodies and institutions in carrying out its activities. The beneficiaries of the university’s autonomous status are also individual faculties and other organisational units within a university as well as all academic staff.

However, the Constitutional Court explained that there are inevitable limits to university autonomy imposed by those who establish, support or supervise the work of universities. These limits are expressed through laws and other regulations determining the functioning of a university. However, such limitations should not disproportionately affect the university’s autonomous status. In this respect the Constitutional Court identified the core aspects of university autonomy, which include, inter alia, the appointment of teachers.

For the case-law of the Constitutional Court and the High Administrative Court on the applicability of the guarantees of a fair trial in the administrative proceedings see Letinčić v. Croatia, no. 7183/11, §§ 29-31, 3 May 2016.

In March 2011 the European Science Foundation (ESF), as a common platform of seventy eight member organisations from thirty countries, and the All European Academies (ALLEA), a European Federation of National Academies of Sciences and Humanities of fifty three member academies in forty countries, published the European Code of Conduct for Research Integrity as a “Europe-wide agreement on a set of principles and priorities for the research community”.

The European Code of Conduct for Research Integrity explains that researchers, and other research organisations, must observe and promote the principles of integrity in scientific and scholarly research. According to the Code, plagiarism is a violation of the rules of responsible conduct. It is defined as the appropriation of other people’s material without giving proper credit. The Code stresses that researchers must show fairness in providing references and giving credit for the work of others and that all authors, unless otherwise specified, should be fully responsible for the content of publication.

Attached to the Code is Annex I containing Recommended Principles for Investigating Research Misconduct, the relevant text of which reads as follows:

“Integrity of the process

• Investigations into research misconduct allegations must be fair, comprehensive and conducted expediently but without compromising accuracy, objectivity, and thoroughness.

• Those parties involved in the procedure must ensure that any interests they have which might constitute a conflict of interest are disclosed and managed.

• Detailed and confidential records will be maintained on all aspects of the procedure.

Uniformity

• Procedures for dealing with misconduct should be spelled out in sufficient detail so that the transparency of the process and uniformity within one domain of jurisdiction from one case to another is ensured.

Fairness

• Investigation of research misconduct allegations should be conducted in a manner that is fair to all parties and in accordance with relevant laws.

• Persons accused of research misconduct must be given full details of the allegation(s) in writing and allowed a fair process for responding to allegations, asking questions, presenting evidence, calling witnesses, and providing responses to information presented.

• Allow witnesses to be accompanied by or seek advice and assistance from anyone of their choosing.

• Proportionate action should be taken against persons found to have committed research misconduct.

• Any action(s) taken should be subject to appeal. Of course, there should be an authority issuing the final decision.

Confidentiality

• The procedure should be conducted as confidentially as possible, in order to protect those involved in the investigation. Such confidentiality should be maintained provided this does not compromise the investigation of the allegation, health and safety, or the safety of participants in research.

• Where possible any disclosure to third parties should be made on a confidential basis.

• If the organisation and/or its staff have legal obligations to inform third parties of research misconduct allegations, those obligations must be fulfilled at the appropriate time through the correct mechanisms.

No detriment

• Anyone accused of research misconduct is presumed innocent.

• No person should suffer any unnecessary penalty when accused of research misconduct before the allegation is proven.

• No person should suffer any penalty for making an allegation of research misconduct in good faith, but action should be taken against persons found to have made allegations in bad faith.”


No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Georgia)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1969 in Gori, Georgia.

According to the applicant, he first arrived in Penza, the Russian Federation, in 1992. Since his arrival took place shortly after the disintegration of the USSR, there were no entry requirements to comply with.

According to the Government, the applicant lived in Penza between 1993 and 1995.

In 1994 the applicant married L., a Russian national, and in September 1995 they had a son, G. According to the applicant, at some stage they sold their flat. Later they bought another flat. A loan for that flat was taken by the applicant’s wife, L., and is to be repaid by 2027.

In 1996 the applicant together with his family moved to Gori, Georgia, where until 1999 he worked at the Security Department of the Ministry of Internal Affairs.

According to the applicant, between 1996 and 1999 he regularly went to Russia to visit his parents-in-law. In May 1999 L. and G. moved back to Penza as L. had to return to her work after the maternity leave. The applicant also moved back to Penza in August 1999. He then regularly went to Georgia to visit his mother. As before 2000 there was no visa system between Russia and Georgia, he did not have to obtain any documents in this regard. After the visa system had been put in place, the applicant’s wife had to issue him an invitation so that he could legally reside in Russia. After one of his stays in Georgia he moved back to Russia on the basis of this invitation and thereafter lived together with his family in Penza.

According to the Government, having left for Georgia in 1996, the applicant returned to Russia on 18 May 2001 on the basis of a visa valid until 18 August 2001. Between 1999 and 2001 he still worked at the Georgian Ministry of Internal Affairs. After his return to Russia in 2001 his visa was renewed on a number of occasions.

On 25 December 2001 the applicant applied for a residence permit.

On 17 June 2002 the Penza Region Directorate of Internal Affairs granted the application.

On 31 July 2002 the applicant was issued with a residence permit valid until 10 August 2004, the date of expiry of his Georgian passport.

On 27 April 2006 the applicant was found in breach of Article 18.8 of the Code of Administrative Offences on account of his failure to apply for the renewal of his residence permit, which had expired one year and eight months earlier.

On 24 May 2006 the applicant applied for the renewal of his residence permit.

On 8 August 2006 his residence permit was renewed until 10 August 2009.

On 27 October 2006 the applicant’s residential registration in Penza was cancelled upon his request and he obtained residential registration at a different address in the Penza Region until 10 August 2009, the date of expiry of his residence permit.

On 14 February 2009 the Federal Migration Service notified the applicant at the address of his registration in the Penza Region that he had to apply for the renewal of his residence permit six months prior to the expiry of the valid residence permit. As it transpired later, the applicant had moved to a different address in Penza and did not receive the notification.

According to the applicant, the authorities refused to accept his application for renewal of the residence permit submitted in due time because his birth certificate was not enclosed.

The applicant reapplied for residence permit on 27 July 2009, that is two weeks before the expiry of his valid residence permit.

On 29 July 2009 the applicant was found to have violated Article 18.8 of the Code of Administrative Offences on account of his failure to submit annual notifications of his continuous stay in Russia in breach of section 8 § 6 of the Foreigners Act.

On 5 August 2009 the Penza Region Directorate of the Federal Migration Service refused to renew the applicant’s residence permit. The decision stated that the applicant had failed to apply for the renewal in due time, despite the reminder sent to him on 14 February 2009, and had not specified any reasons for his failure. Furthermore, he had been twice found guilty of an administrative offence, on 27 April 2006 and 29 July 2009.

On 6 August 2009 the Penza Region Directorate of the Federal Migration Service sent the decision to the applicant with an accompanying letter which stated that upon expiry of his residence permit his residential registration would be cancelled and he would no longer have the right to live in Russia. Therefore, he had to leave Russia within fifteen days. However, the applicant could re-enter Russia and, after having obtained registration in the immigration register, reapply for a temporary residence permit. The applicant appealed to a court.

Also on 6 August 2009 the applicant was found in breach of Article 18.8 of the Code of Administrative Offences on account of his failure to inform the authorities of the change of his address as required by the legislation on immigration.

On 27 October 2009 the Leninskiy District Court of Penza upheld the decision of the Penza Region Directorate of the Federal Migration Service of 5 August 2009. The court dismissed, inter alia, the applicant’s argument that he had first applied for the renewal of his residence permit in February 2009, but his application had not been accepted as he had had to renew his Georgian passport prior to applying. The court noted, firstly, the lack of evidence that the applicant had applied for the renewal of his residence permit in February 2009, and, secondly, that in his application of 27 July 2009 he had only stated that he had not been familiar with the procedure as the only explanation of his failure to apply in due time.

On 22 December 2009 the Penza Regional Court upheld the firstinstance court’s decision on appeal.

Between 10 August 2009 and March 2011 the applicant lived in Russia without a residence permit.

On 3 March 2011 the Penza Region Migration Service found the applicant to have violated Article 18.8 of the Code of Administrative Offences on account of his continued failure to leave Russia after the expiry of his residence permit on 10 August 2009 and imposed on him a fine in the amount of 3,000 Russian roubles (RUB, approximately 67 euros).

The applicant did not appeal against this decision, and it became final on 15 March 2011.

On 11 March 2011 the applicant was granted transit visa valid until 21 March 2011 so that he could leave Russia legally.

According to the applicant, he went to Georgia to have his birth certificate reissued.

In the meantime the applicant’s wife applied to the Penza Region Directorate of the Federal Migration Service to issue an invitation for the applicant to stay in Russia.

By a decision of 1 April 2011 her application was refused on the ground of the applicant having been three times found guilty of an administrative offence on account of breach of immigration rules and numerous other times on account of other administrative offence involving breach of traffic rules. For these reasons the issue of an invitation for the applicant to enter Russia was refused until 14 September 2013.

It appears that the applicant’s wife resubmitted her application which was again refused on 23 May 2011 on the same grounds. The letter of the same date accompanying the decision reiterated that the issue of an invitation for the applicant to enter Russia had been refused until 14 September 2013.

On 6 October 2011 the applicant entered Russia through the border with Belarus. Belarus had no visa requirements for Georgian nationals. According to the applicant, passport control officers on the BelarussianRussian border explained to him that, having entered Russia from Belarus, he could stay in Russia without a visa for two or three weeks.

On 24 October 2011, in the course of an identity check conducted by the police, the applicant failed to present any documents that would authorise his stay in Russia. On the same date the Oktyabrskiy District Court of Penza found him guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences on account of a breach of immigration regulations, fined him with RUB 3,000 and ordered his administrative removal from Russia. The court also ordered the applicant’s placement in custody until his removal and noted that the decision could be appealed against within ten days after its announcement. In the decision the court noted the particular circumstances in which the offence had been committed and further stated as follows:

“In order to determine the type ... of administrative penalty, the judge takes into account the concrete circumstances of the offence ... committed, [the applicant’s] financial and family situation, his personality, [the fact that] in 2011 he was found guilty of an administrative offence on account of a breach of regulations on foreign nationals’ stay in the Russian Federation, and, furthermore, that from 10 August 2009 to 11 March 2011 he was living in the Penza Region without [registration] in the migrants’ register and without a residential registration either, and avoided leaving the Russian Federation.

The court is unaware of any circumstances that would prevent [the applicant’s] removal from Russia, given that he had been ... previously found guilty of an administrative offence in 2011 and the issue of an invitation for him to enter Russia is refused until 14 September 2013.”

As the applicant did not appeal within the set time-limits, the decision became enforceable.

The applicant was deported on 8 November 2011.

The applicant subsequently appealed against the decision of 24 October 2011. In his statement of appeal he submitted, in particular, that he had been married to L. since 1994 and that they had a son born in 1995. The decision on his administrative removal disrupted his family life. In particular, his son, who was sixteen at the time, needed his father at his side. The applicant’s removal from his family also placed a heavy burden on his wife, who not only had to raise their son on her own, but also to pay back the bank loan for the flat they had bought together. The applicant argued that the decision was in breach of Article 8 of the Convention. He also noted that he had failed to comply with the time-limits to apply for the renewal of his residence permit which had expired on 10 August 2009 as his application had been refused for his failure to enclose his birth certificate, which he had not had with him in Russia (see paragraphs 18 and 21 above).

On 18 April 2012 the Penza Regional Court upheld the decision of 24 October 2011, having found that the Oktyabrskiy District Court had duly taken into account the information about the applicant, his financial and family situation, the previous administrative offence, the fact that between 10 August 2009 and 11 March 2011 he had lived in Russia without being duly registered, and that the issue of an invitation for him to enter Russia was refused until 14 September 2013. The court also took note of the fact that, according to the applicant’s explanations provided on 24 October 2011, he had come to Russia for certain business matters and was going to leave once they were solved.

The applicant submitted a request for supervisory review.

On 16 November 2012 the Supreme Court of Russia upheld the decisions of 24 October 2011 and 18 April 2012 under supervisory review. It noted, in particular, that the penalty imposed on the applicant was in accordance with the law and proportionate for the purposes of Article 8 of the Convention, since the courts had taken into consideration the nature of the offence, his financial and family situation and other circumstances.


Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Sergiy Goncharenko;Síofra O’Leary

The applicants were born in 1938 and 1939 respectively and live in the city of Kherson, Ukraine.

On 14 January 2000 a police training exercise was conducted in accordance with an operational plan entitled “Sirena” (оперативний план «Сирена») (hereinafter “Operation Sirena”). During the exercise the applicants’ son, a police officer at the material time, played the role of a criminal for the purposes of the exercise and was accidentally shot dead by another police officer.

Operation Sirena for the Kherson Region was approved in 1999 by the police, civil and military authorities of that region on the basis of order No. 230 (classified) of 24 April 1998 of the Ministry of the Interior (see paragraph 66 below). The plan set out the steps to be taken and the procedure to be followed in the event of a search for and the arrest of armed or other dangerous criminals, including those who had escaped from detention.

A senior traffic police inspector, L., following instruction no. 20/10-33 of 9 January 2000 issued by the Kherson Regional Department of the Ministry of the Interior (Управління Міністерства внутрішніх справ в Херсонській області) (“the Kherson Regional Department”) and pursuant to an order from a senior traffic police officer, Kos., drafted a training exercise for traffic police officers in the city of Kherson and the village of Antonivka in the context of Operation Sirena.

The one-page training scenario stipulated that the training was to take place on 14 January 2000 between 10 a.m. and 5 p.m. At 10 a.m. a police office on duty was to circulate information that armed criminals had hijacked a car and that Operation Sirena had been launched. The scenario stipulated that, in addition to the police officer who would drive the car, there should also be in the car a second police officer, O., who would observe the actions of police patrol officers. The hijacked car would be followed by a second car containing a police officer, Ts., who would film the exercise. The scenario was approved on 13 January 2000 by a deputy head of the Kherson Regional Department, S.

Senior traffic police officer Kos., who on 14 January 2000 was the acting head of the Traffic Police Department, later stated in the course of the criminal investigation that traffic police officers had been given prior notice of the training exercise on the day that it was held.

At 10.30 a.m. on 14 January 2000 a senior traffic police officer, So., briefed traffic police officers O., Ts., Ku., Sh. and the applicants’ son about the training. At 10.50 a.m. L. instructed a traffic police officer on duty to give the police unit on duty («чергова частина») prior notice of the training exercise and to issue a “lookout alert”.

At 10.56 a.m. a police officer on duty, P., was informed by a traffic police unit that two unknown armed criminals had hijacked a car and were moving in the direction of Tavriyskyy, a Kherson residential neighbourhood. He communicated this information to the patrol cars, to the city’s district police stations and to the head of the Kherson Regional Department. Two or three minutes later P. received additional information that the above-mentioned alert was part of a training exercise being conducted under Operation Sirena. According to the findings of the subsequent internal police investigation (see paragraph 19 below), P. forwarded that additional information to the head of the Kherson Regional Department, who instructed P. to pass it on to the city’s district police stations. It was established by the police internal investigation that P. failed to do so.

Having been informed of the alleged hijacking, Os., the First Deputy of the Dniprovskyy district police office, issued appropriate instructions to four police officers and placed them at various posts. In particular, police officer K. was placed, together with a traffic police officer, Ko., in the vicinity of the Antonovskyy Bridge over the River Dnipro.

The car containing the “criminals” (played by the applicants’ son and police officer Ku.) passed the aforementioned post without being stopped. According to Ko., his radio transmitter had not been working properly and he had left his post in order to inform the traffic police office in charge that the hijacked car had passed their post. Later Ko. testified that he had given K. prior notice of the training exercise. After Ko. had left, police officer Ts., who was in the second car and was filming the exercise, switched off his camera (see paragraph 26 below).

Traffic police officer O., who was an observer in the “hijacked” car, instructed the applicants’ son, who was driving, to drive by the post again. This time, police officer K. stopped the car, released his gun’s safety catch, and ordered the applicants’ son and police officer Ku. to get out of the car. While searching the applicants’ son, K. pulled the trigger since the applicants’ son had allegedly made a sudden movement. The applicants’ son was fatally wounded and died on the way to hospital.

The applicants submitted a copy of the video recording of the training exercise. However, the part containing the shooting incident involving the applicants’ son was missing. The original video recording has been lost (see paragraph 46 below).

On 15 January 2000 the Kherson Regional Board of the Ministry of the Interior adopted a decision by which it was concluded that the “extraordinary event” («надзвичайна подія») of 14 January 2000 had taken place because of low professional standards on the part of the police; K.’s failure to assess properly the “extraordinary circumstances” («екстремальні умови»), ignorance of the steps to be taken when arresting a suspect and failure to properly handle his weapon; and the irresponsible attitude of senior police officers towards the organisation of the training exercise. It was decided, inter alia, to dismiss K., O., P., Os. and A.

On 16 January 2000 the head of the Kherson Regional Department, I., approved the findings of an internal investigation conducted following the death of the applicants’ son.

The conclusion of that investigation provides, in so far as relevant, as follows:

“The inspection established that:

In accordance with instruction no. 20/10-33 of 9 January 2000 issued by the Kherson Regional Department of the Ministry of Interior ..., L. ... drafted a training scenario for traffic police personnel ... When doing so he did not take into consideration the provisions of Operation Sirena ... [It] is pointless and not efficient to conduct training only for the traffic police officers of Kherson and Antonivka.

The procedure for the conduct of the training was not comprehensively set out; [failures included]:

- the failure to stipulate an itinerary for the car containing the “criminals”;

- the failure to provide for the necessary number of observers ...

In their turn, the senior officers of the Kherson Regional Traffic Police ... acted in a perfunctory and irresponsible manner ..., did not properly study the scenario and did not correct its shortcomings...

Moreover, no training instructor was appointed and the heads of services and subdivisions involved in the training were not informed of the details of the scenario.

The deputy head of the Department ..., S. – approved the above-mentioned scenario on 13 January 2000 without correcting its shortcomings...

So., a lieutenant-colonel, ... briefed those police officers who were due to participate in the training but failed to notify the head of the Department of the time of the training and did not personally supervise the progress of the training ...

P. ... was briefed by the traffic police unit on duty that two unknown armed criminals had hijacked a car and were moving in the direction of Tavriyskyy [a residential neighbourhood of Kherson]. Two or three minutes later he was informed that this information was part of a training scenario being conducted under Operation Sirena. P. informed the head of the Department about it and was instructed to inform the Kherson district police stations accordingly. P., acting incompetently and ignoring those instructions, ... failed to inform the officers on duty at the district police stations about the ongoing training but only circulated descriptions of the criminals.

... G., the head of the police unit on duty at the Department, ... was informed by P. about the training exercise being held by the traffic police; G. ordered P. to follow prior practice but ... failed to supervise him.

The senior officers of the Dniprovskyy District Police Department, Os. and A. ... negligently and lackadaisically implemented Operation Sirena ...

... instead of two police officers, who were to have been provided with transport and communication devices under Operation Sirena, ... only one police officer, K., was placed at the post, together with a traffic police officer, Ko. The latter states that he [gave] K. [prior notice of] the training ...

At the same time K. and Ko. failed to properly regulate the traffic and to block the road ...

Police officer O. ... failed to assess the situation in a timely manner, exhibited negligence and carelessness and, despite the fact that K. had released his gun’s safety catch, in blatant breach of order no. 230 of the Ministry of the Interior, failed to stop the progression of events which led to a police officer’s death.

That extraordinary event became possible because of:

- irresponsibility, insufficient professional standards, and incompetence in the conception and drafting of the training scenario ... on the part of police officer L.;

- the formalistic and irresponsible approach to the planning and organising of the practical training ..., lack of cooperation with the regional police, and low level of supervision of subordinates on the part of the regional traffic police management (police officers Kos. and So.);

- the negligence of official duties, formalistic approach to the organisation of the training (and the lack of supervision of its conduct), ... and failure to introduce comprehensive measures aimed at the prevention of extraordinary events on the part of police officer S.;

- the low level of professionalism, irresponsible attitude to official duties, and disregard of instructions issued by the head of the Department on the part of the assistant to the head of the unit on duty (police officer P.);

- the indifference and lack of supervision of the professional activities of his subordinates on the part of police officer G.;

- the irresponsibility, negligent and indifferent attitude towards the performance of tasks assigned during the training and failure to take precautions in respect of the personal security of the police officers on duty on the part of police officer O.;

- the low level of professional training and inability to act [appropriately] in extraordinary circumstances ... on the part of police officer K.”

As a result, it was concluded that police officers K., O., P., Os. and A. should be dismissed and that the dismissal of police officer S. should be initiated before the Ministry of the Interior. It was further proposed to discipline a number of the other police officers involved. The investigation concluded that the senior police officers involved had failed to properly train their personnel to act in emergency circumstances.

On 17 January 2000 the Ministry of the Interior issued an order which noted that even though safety and the prevention of death and injury in respect of police officers were priorities in police activities, there had been a number of serious shortcomings in the organisation and conduct of the training exercise, which had led to the incident in question. It was noted, inter alia, that since the beginning of his service with the Dniprovskyy District Police Office in November 1999 K. had not attended the relevant theoretical instruction classes. The Ministry also concluded that the police officers involved had failed to properly organise the training.

It was further noted that by order No. 17 of 16 January 2000, issued by I., the head of the Kherson Regional Department, Os., A., P., O., and K. had been dismissed and other police officers disciplined. For the most part, that decision was approved by the Ministry of the Interior. However, it was decided not to dismiss but rather to demote Os. and A. and to reprimand I.

On 14 January 2000 the Dniprovskyy District Prosecutor’s Office of Kherson (“the District Prosecutor’s Office”) instituted criminal proceedings in respect of the incident. On the same day it was decided to assign the case to three investigating officers and to conduct a forensic medical examination of the body of the applicants’ son. In particular, the expert was asked to determine what injuries were on the corpse.

On 15 January 2000 a forensic medical expert concluded that the applicants’ son had a gunshot wound to the chest and scratches on the left side of the face, possibly sustained when he fell down.

In the course of the investigation K. pleaded guilty. His testimonies regarding the events of 14 January 2000 coincided with the facts as described in paragraphs 13-15 above.

The testimony of different police officers involved in the organisation and conduct of the training exercise included, inter alia, the following:

- P. testified that the “orders in force” had not required that information about the training be circulated;

- the head of the police unit on duty at the Kherson Regional Department (начальник чергової частини штабу Управління МВС), G., testified that he had instructed P. to “comply with the Sirena plan, in accordance with the existing instructions”. G. also submitted that the police unit on duty had only received the training scenario on 15 January 2000 that is the day after the training exercise. It had been impossible to involve only the traffic police in the training since Operation Sirena had required joint action, involving both the police and the traffic police;

- S., a deputy head of the Kherson Regional Department, testified that there had been no legal instruments governing the conduct of police training under Operation Sirena. S. stated that the police officer who had ordered the implementation of the training had been supposed to instruct police officers on duty as to what information should be given to the district police stations. S. stated that the training scenario had been discussed with Kos., who had told S. that the scenario had been approved by the head of the Kherson Regional Department;

- police officer O. testified that the district police stations must have been aware of the training exercise. This information should have been circulated, together with a “lookout alert”;

- police officer A. testified that nobody in the Dniprovskyy District Police Office had been aware of the training exercise;

- police officer Ku. testified that he and the applicants’ son had been “aware that the police officers [would] have guns with live rounds”;

- traffic police officer Ko. testified that he had told K. about the training;

- police officer Ts. testified that he had stopped filming after traffic police officer Ko. had left (see paragraph 14 above), since he had “not known that the car would make a second attempt to pass this post”.

During a confrontation held between K. and traffic police office Ko., the latter insisted that he had informed K. about the training.

In the course of the investigation a number of other investigating measures were conducted, including a forensic ballistics examination and a reconstruction of events.

On 13 July 2000 the Dniprovskyy District Court (“the Dniprovskyy Court”), in the absence of the applicants, terminated the criminal proceedings against K. under the Amnesty Act, since he was the father of a minor and should thus not be liable to serve a punishment. It was noted that this decision was not subject to appeal.

On 3 April 2009 the Dniprovskyy Court rejected as unsubstantiated an application lodged by the second applicant on March 2009 for the renewal of the time-limit in respect of an appeal against the decision of 13 July 2000. On 19 May 2009 the Kherson Regional Court of Appeal upheld this decision. The court noted that although the second applicant had been absent from the court hearing on 13 July 2000, she had been aware of that decision since at least 2004 and had received a copy of it on 23 January 2008 at the latest.

In June 2000 the District Prosecutor’s Office refused to institute criminal proceedings against other police officers involved in the organisation and conduct of the training exercise. In particular, on 7 and 8 June 2000 the District Prosecutor’s Office refused to institute criminal proceedings against L., O., Kos., So., S., A., Ost. and G. in the absence of any evidence of a crime, given that there had been no causal link between their actions and the death of the applicants’ son.

On 27 and 28 June 2000, citing the same reasons, the District Prosecutor’s Office refused to institute criminal proceedings against P. and O. On 18 August 2000 those decisions were quashed by the Kherson Regional Prosecutor’s Office and the case was remitted for additional investigation.

On 1 September 2000 the District Prosecutor’s Office instituted criminal proceedings in respect of the alleged negligence on the part of the Kherson Regional Department police officers involved in the organisation and conduct of the training exercise.

On 30 October 2000 the District Prosecutor’s Office terminated the proceedings. It noted that, according to a Kherson Regional Department senior police officer, the legal instruments of the Ministry of the Interior had not stipulated that police officers should have been informed about the training. Such training was to be conducted under realistic conditions. It was further noted that no obligation to inform colleagues about the training exercise had been part of the duties of any police officer on duty.

On 28 November 2000 the Kherson Regional Prosecutor’s Office quashed that decision and remitted the case for additional investigation. It noted that the investigation had not been thorough and that the decision taken had been unsubstantiated. In particular, it had not been established whether there had been a causal link between the shortcomings on the part of the police officers and the death of the applicants’ son. It had also not been established which legal instruments regulated police training exercises.

By a letter of 29 December 2000 the Kherson Regional Department informed the District Prosecutor’s Office that, under (classified) order No. 230 of the Ministry of the Interior (see paragraph 66 below), the relevant skills were “to be mastered during training [conducted] under realistic conditions”. At the same time the relevant legal instruments did not specify any procedure for the conduct of training exercises.

On the same day the District Prosecutor’s Office terminated the criminal proceedings.

On 12 February 2001 the Kherson Regional Prosecutor’s Office quashed that decision, citing the failure to fully comply with the decision of 28 November 2000. The recommenced proceedings were again terminated on 29 March 2001. It was noted in the latter decision that the constituent elements of a crime (“negligence”) under Article 167 of the Criminal Code included failure to perform properly or at all certain duties. However, in the absence of any regulations governing procedure for the conduct of training exercises under Operation Sirena, the duties of the police officers involved in such training had not been defined. Moreover, there had been no causal link between the actions of the Kherson Regional Department police officers and the death of the applicants’ son, since the latter had died following K.’s mishandling of firearms. It was concluded that there was no indication of any crime in the actions of the police officers.

On 1 April 2004 the General Prosecutor’s Office quashed the decision of 29 March 2001. It was noted that the decision to terminate the criminal proceedings had been “premature and unlawful”. In particular, during the investigation it had not been clarified whether there had been a possibility to equip the police officers with blank cartridges and why O. had not intervened to prevent K. firing his gun after seeing that its safety catch had been released.

On 25 April 2004 the District Prosecutor’s Office again terminated the proceedings. When questioned again, O. stated that he had not known that K.’s gun had been loaded. Moreover, K. should have been aware that a training exercise was in progress. The tragic incident had happened within seconds, so O. had not had the possibility of preventing it. P. testified that, “under the Department’s instructions regarding the ‘Sirena’ training plan”, it had not been his responsibility to circulate the information that the announcement about the car hijacking was part of a training exercise. As to whether blank cartridges could have been used for the training exercise, the head of the Kherson Regional Department staff, D., testified that the regional police senior officers had decided to use live rounds for the training. The investigation concluded that the applicants’ son had died as a result of the mishandling of firearms on the part of K.

On 21 September 2004 the Kherson Regional Prosecutor’s Office quashed this decision and remitted the case for additional investigation. It was noted that a number of investigative actions had yet to be undertaken and a number of issues had yet to be clarified. In particular, the plans for the training exercise and Operation Sirena had to be seized and it had to be clarified who had briefed K. and why K. had been alone at his post. It was also noted that order No. 230 was not classified and should therefore be added to the case materials.

In January 2005 the applicants’ relatives testified that at the funeral of the applicants’ son they had noted that make-up had been applied to the applicants’ son’s face to cover a hole in his head. An ambulance doctor testified that he had not examined the body in detail since it had been evident that the applicants’ son had died after being shot.

On 20 January 2005 the investigating authorities decided to exhume the body.

On 24 March 2005 a forensic medical examination of the body of the applicants’ son was ordered because the applicants insisted that their son had not been accidentally shot but rather killed by either being hit on the head with a gun or shot in the head because he had possessed information regarding unlawful activity on the part of other police officers. They stated that the body had had a large haematoma on the head and there had been a crack in the skull.

After the forensic medical examination of the body of the applicants’ son, a forensic expert concluded that the crack in the skull of the applicants’ son had appeared during the initial forensic medical examination.

On 25 January 2006 the Deputy Prosecutor of the Kherson Regional Prosecutor’s Office upheld the conclusions of an internal investigation into the loss of the original video recording of the training exercise. It was proposed to discipline the investigating officer, I., who, between April 2004 and April 2005, had lost the video.

On 10 February 2006 it was again decided to terminate the criminal proceedings in the absence of any evidence of a crime. A deputy head of the Kherson Regional Department, T., submitted that the police officers had not been informed about the training exercise since, under (classified) order No. 230 of the Ministry of the Interior, police training should be conducted under conditions as realistic as possible. There were no legal instruments of the Ministry of the Interior stipulating the procedure for the conduct of training exercises and there was no obligation to inform police officers when any such training was being conducted. Consequently, the scope of duties of those involved in the training conducted under Operation Sirena had not been defined.

On 8 September 2006 the Suvorovskyy District Court (“the Suvorovskyy Court”) quashed this decision and remitted the case for additional investigation, since the prosecutor’s office had failed to take into account the fact that some police officers had been disciplined. The court also observed that “all necessary and possible investigative actions had not been undertaken”.

On 14 November 2006 the Kherson Regional Court of Appeal quashed the decision of 8 September 2006 and upheld the decision of 10 February 2006. The court concluded that the Suvorovskyy District Court had, in particular, failed to specify which facts had not been examined by an investigating officer.

The second applicant appealed against the decision of 14 November and that many aspects of the case remained unclear (whether there had been an obligation to inform the police officers about the training, what did the “near-reality” conditions mean etc.), therefore, the first instance court decision had been well-grounded and should not had been quashed. On 31 January 2008 the Supreme Court of Ukraine dismissed the second applicant’s appeal. It found that the applicant’s arguments about unlawfulness and lack of reasoning of the second instance court decision had been unsubstantiated. In particular, the court of appeal correctly concluded that the investigation had been comprehensive while the first instance court had failed to give reasons for the need for additional investigation.

On 16 October 2000 a lump-sum insurance payment in the amount of 18,270 Ukrainian hryvnias (UAH) (at the material time around 3,894.68 euros (EUR)) was paid jointly to the applicants and to their son’s widow and daughter pursuant to section 23 of the Police Act (see Lovygina v. Ukraine (dec.), no. 16074/03, 22 September 2009).

According to the Government, between 2002 and 2013 a total of UAH 21,320 (around EUR 2,558) was paid to the applicants in financial aid and the first applicant was furnished with a washing machine, construction materials for a house renovation and a table for a computer.

The applicants instituted proceedings against the Kherson Regional Department claiming compensation for damage inflicted by their son’s death. On 13 October 2000 the Suvorovskyy District Court awarded them UAH 23,600 (around EUR 5,000) as compensation for non-pecuniary damage. This decision was quashed and the case remitted for fresh consideration.

On 26 September 2001 the same court awarded the applicants UAH 20,000 (around EUR 4,000). On 15 January 2002 the Kherson Regional Court of Appeal upheld that decision. However, on 21 October 2002 the Supreme Court of Ukraine quashed it and dismissed the applicants’ claim, finding that, after having accepted a full insurance payment, the applicants no longer had a valid compensation claim. The parties did not submit copies of the applicants’ claim and the domestic courts’ decisions.

In March 2006 the applicants instituted proceedings against the prosecutor’s offices at various levels. The applicants complained that the investigation into their son’s death had been ineffective and claimed compensation for non-pecuniary damage.

On 8 September 2006 the Suvorovskyy District Court, examining the case under administrative procedure, found for the applicants. The court found that the investigation had lasted for six years and that on four occasions the Kherson Regional Prosecutor’s Office had quashed the decisions of the District Prosecutor’s Office terminating those proceedings. The court concluded that the case had been investigated improperly, with numerous breaches of the law, and awarded the applicants compensation.

On 23 January 2007 the Kherson Regional Court of Appeal quashed that decision and remitted the case for fresh consideration by the first-instance court.

After declining several times to consider the applicants’ case because of their failure to comply with procedural requirements, on 6 February 2008 the Komsomolskyy District Court (“the Komsomolskyy Court”) decided to terminate the proceedings, ruling that the applicants’ claim for damages should have been lodged under a civil procedure. On 24 December 2008 the Odessa Administrative Court of Appeal upheld this decision. The applicants appealed in cassation.

On 10 March 2011 the Higher Administrative Court upheld the above decisions and held that the applicants should have complained to a higher prosecutor about the allegedly unlawful actions of the lower prosecutor.

In April 2009 the applicants lodged a claim under civil procedure with the Komsomolskyy Court against the Kherson Prosecutor’s Office, claiming compensation for damage resulting from an ineffective investigation. On 22 April 2009 the court dismissed that claim on the ground that the applicants should have lodged their claim under administrative procedure. On 20 July 2009 the Kherson Regional Court of Appeal upheld that ruling. The applicants did not appeal against those rulings.

In February 2009 the second applicant instituted administrative proceedings in the Kherson Regional Administrative Court against the Ministry of the Interior and the Kherson Regional Department, complaining that their conduct relating to the organisation of the police training of 14 January 2000 had been unlawful. It is not clear whether she claimed any compensation in this respect.

On 26 June 2009 the Kherson Regional Administrative Court found against the second applicant. The court noted that the death of the second applicant’s son had been investigated several times; K. had been found guilty but amnestied, criminal proceedings against other police officers had been terminated in the absence of evidence of any crime, and police officers S. and I. had been disciplined. Moreover, the second applicant’s son had died in 2000, but the second applicant had only lodged her claim against the Ministry and the Kherson Regional Department in 2009.

On 4 January 2010 the Odessa Administrative Court of Appeal dismissed an appeal lodged by the second applicant, ruling that it had been lodged out of time. On 16 November 2010 the Higher Administrative Court of Ukraine upheld that ruling.

On 1 April 2003 the applicants lodged an application before this Court complaining that termination of the proceedings against K. had been in breach of the State’s positive obligation under Article 2 of the Convention to conduct an effective independent investigation into their son’s death. They also invoked Article 6 § 1 of the Convention complaining about the outcome of the proceedings in respect of their claim for compensation (see paragraph 54 above).

On 18 October 2005 the Court by a Committee decision declared their complaints inadmissible (application no. 15439/03).