Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano

The present case concerns the applicant’s trial and conviction for attempted murder of M. G., a businessman and former parliamentarian. A co-defendant, Y. W., was tried and convicted for assisting an offender.

The facts of the case may be summarised as follows.

On 29 December 2001 a bomb placed under M.G.’s car detonated when the latter started the engine in the morning. M.G. survived without major injuries.

On the same date the District Prosecutor’s Office started an investigation into the matter. When questioned by police officers, M.G. pointed to the applicant’s ex-husband, A.G., with whom he had major disagreements over business-related issues, as the only possible offender.

On the same day A.G. was summoned to the police station. Having acknowledged the existence of disagreements with M.G., he denied the offence and stated that he had been at home with his son, V.G., the night before the incident.

On the same day V.G. was arrested on suspicion of attempted murder. The charges against him were eventually dropped several months later since his involvement in the offence had not been established.

On 18 February 2002 A. At., A.G.’s friend who also knew the applicant and the family, was interviewed. He stated, inter alia, that he was aware of A.G.’s problems with M.G. and that the applicant had always been against A.G. doing business with M.G. since she considered the latter a “scammer”.

On the same date A.A., A.G.’s neighbour, was interviewed and described his family as a normal and ordinary one. She mentioned that about a year before, the applicant had complained about M.G. because he owed them some money.

On 29 January 2002 L.G., the applicant’s daughter, was interviewed and stated, inter alia, that she had learnt about her parents’ divorce three or four years previously. The parents had maintained good relations and the family was in contact almost every day. She also stated that, most of the time, the applicant stayed in the apartment where the father lived.

On 21 February 2002 A.B., the applicant’s neighbour, was interviewed. He stated that he had known the members of the family, A.G., the applicant and their two children V.G. and L.G., since 2001, when they had settled in the building.

On 16 September 2005 Y.W., a friend of the family, was arrested following the discovery of a large quantity of firearms and explosives in his house. Shortly after, Y.W. confessed to M.G.’s attempted murder and stated that he had acted on the applicant’s orders.

On 23 September 2005 the applicant was arrested and charged with instigation of attempted murder and property damage.

On an unspecified date the investigation was concluded and the criminal case was referred to the Avan and Nor-Nork District Court of Yerevan for trial. The bill of indictment included L.G. in the witness call list while it appears that A.At., A.A. and A.B. were not included in it.

At the trial, Y.W. retracted his pre-trial statements, claiming that they had been obtained under duress. The applicant denied any involvement in M.G.’s attempted murder, stating that she had divorced A.G. in 1999 and since then she had lived with their daughter L.G. in another apartment while A.G. lived with their son, V.G. She also stated that at some point she had been asked to sign some documents in relation to a contract between A.G. and M.G. since the contract concerned the sale of the house where she used to live, which she did. However, in general she had no connection with A.G. and tried not to maintain any contact with him.

At the hearing of 22 June 2006 the applicant’s lawyer asked for L.G. to be excluded from the witness call list, since the latter was the applicant’s daughter. This request was granted when L.G. expressed her wish to use the testimonial privilege.

On 12 October 2007 the District Court found the applicant guilty as charged and sentenced her cumulatively to nine years’ imprisonment. Y.W. was also convicted. The District Court found it established that the applicant had ordered M.G.’s murder as the property-related disputes between the latter and A.G. had also affected her property rights. In this connection the District Court mainly relied on the trial statements of S.A., Y.W.’s spouse, and L.C., his former colleague and the fact that the applicant was involved in court disputes with M.G., which showed that both she and A.G. had a strained relationship with the latter.

On 29 October 2007 the applicant lodged an appeal against the judgment of the District Court. On 3 December 2007 she lodged a supplement to her appeal claiming, inter alia, that she had no reason to murder M.G. as she had been living separately from A.G. since their divorce in 1999 and had no interest in his business activities.

In the course of the proceedings before the Criminal Court of Appeal Y.W. retracted his statements made before the District Court and submitted that in reality he had organised the explosion of M.G.’s car upon the applicant’s request. However, he had no intention of killing M.G., but was trying to frighten him. The applicant maintained her defence.

On 18 June 2008 the Criminal Court of Appeal dismissed the applicant’s appeal and upheld the judgment of 12 October 2007 as regards her conviction and sentence, while Y.W.’s sentence was reduced. In its judgment the Court of Appeal, inter alia, established that although the applicant had divorced A.G., she had maintained a family-like relationship with him and expressed her annoyance at M.G.’s actions in the presence of different people. In this respect, the judgment of the Court of Appeal referred to L.G.’s pre-trial statement of 29 January 2002, A.At.’s pre-trial statement of 18 February 2002, as well as the pre-trial statements of two neighbours, A.A. and A.B., made on 18 and 21 February 2002 respectively.

On 21 November 2008 the applicant lodged an appeal on points of law claiming, inter alia, that the Court of Appeal had based its conclusions on the pre-trial statements of L.G., A.A., A.B. and A.At., which had not been read out and examined either by the Avan and Nor-Nork District Court of Yerevan or the Court of Appeal. Furthermore, she had had no opportunity to question these witnesses.

On 15 December 2008 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit.

On 14 April 2009 the applicant lodged an application with the Constitutional Court challenging the compatibility with the Constitution of certain provisions of the Code of Criminal Procedure (hereafter, the CCP) allowing the Court of Cassation not to indicate reasons when declaring inadmissible an appeal on points of law.

On 28 July 2009 the Constitutional Court granted the application by finding such provisions of the CCP incompatible with the Constitution.

On 11 August 2009 the applicant, based on the above decision of the Constitutional Court, requested the Court of Cassation to reopen the proceedings and to re-examine her appeal on points of law of 21 November 2008.

By decision of 25 September 2009 the Court of Cassation reopened the proceedings, re-examined the applicant’s appeal on points of law and declared it inadmissible for lack of merit. In doing so, the Court of Cassation, inter alia, indicated that the Criminal Court of Appeal’s conclusion concerning the applicant’s guilt was correct as it was based, among other things, on the witness statements of L.G. and A.A.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

The applicant was born in 1974 and lives in Paris.

The applicant is a lawyer at the Paris Bar. He acted for S.A. in criminal proceedings on a charge of criminal conspiracy for the preparation of an act of terrorism constituting one of the offences provided for in Article 421-1 of the Criminal Code.

In 2000 the domestic security and intelligence agency (Direction de la surveillance du territoire – the “DST”) sent an intelligence report to the Paris public prosecutor’s office stating that in Frankfurt the German police had dismantled a network of Islamist terrorists who were likely to be preparing attacks on French territory. In this context, one S.A., who was a suspect in criminal proceedings in France, was arrested in Damascus on 12 July 2003. The French authorities were apprised of this arrest on 18 July 2003.

On 1 April 2004 the investigating judges in charge of the case, in the “anti-terrorism” judicial investigation division of the Paris tribunal de grande instance, issued an international letter of request to the Syrian military authorities for the purpose of questioning S.A.

From 2 to 7 May 2004, one of the investigating judges, M.B., accompanied by members of the DST, went to Damascus for the execution of the letter of request.

During the questioning S.A. was allegedly tortured.

On 11 May 2004, after the file had been received in reply to the letter of request, the investigating judges issued an international arrest warrant. S.A. was extradited and remanded in custody on 17 June 2004.

By a decision of 15 December 2005 the investigating judge committed S.A. and two other persons to stand trial before the Paris Criminal Court on charges of participating in a criminal conspiracy for the preparation of an act of terrorism. Prior to that decision there had been no applications to the investigation division for the annulment of any investigative acts, neither by the lawyer previously assigned to S.A., nor by the prosecutor or the investigating judges ... Therefore, under Article 174 of the Code of Criminal Procedure, the parties were no longer entitled to raise grounds of nullity in respect of procedural acts or evidence, “except where they could not have been aware of [those grounds]”.

Before the Criminal Court the applicant requested in his written pleadings that documents that had been obtained, according to him, through torture by the Syrian secret services, be excluded from the file: the written “confession” of S.A., the report by the Syrian secret services dated 3 May 2004 and the interview records of 30 April and 2, 3, 4 and 5 May 2004. He alleged that there had been “complicity on the part of the French investigating judges in the use of torture against S.A. in Syria by military personnel of the secret service” (see, for details of these pleadings, their reproduction by the Paris Court of Appeal, paragraph 15 below).

In a judgment of 14 June 2006 the court excluded the documents obtained through the international letter of request and sentenced S.A. to nine years’ imprisonment. It took the view, in the light of statements by the Director of the World Organisation against Torture, a member of the French section of Amnesty International and the Secretary of the International Federation of Human Rights, called by S.A. as witnesses, and who were unanimous as to the almost systematic use of torture by the Syrian security bodies (since a military decree of 1963), that it was “likely that the statements made by S.A. in Syria, to the Palestine Section, had been given under torture, and that his confession had thus been obtained by this method”. The court continued as follows:

“Moreover, in his report on his mission to Damascus for the execution of his international letter of request of 1 April 2004 ..., M.B., investigating judge (First Vice-President) in charge of the investigation, specified that at the first working meeting with Syrian intelligence officials, he was told that S.A. ‘had already been questioned on 30 April and 2 May 2004’ and that ‘his interviews were continuing on the basis of the list of questions contained in the international letter of request and additional questions which he [M.B.] wanted to be put, particularly in the light of the answers already recorded’.

However, the judge stressed that he had ‘not been allowed to participate in the questioning of S.A. but only to follow it in real time’. On 4 and 5 May the questioning thus continued under the same conditions as the day before.

For his part, S.A. emphasised that his entire interrogation had taken place without the French investigating judge being present.

When presented to that judge on 17 June 2004 he indicated that he was ‘tired’, that he ‘wished to see a doctor immediately’, and that he was ‘worried about his wife and daughter’. He subsequently described his conditions of detention in Syria and the torture to which he had been subjected during the interrogation.

As a result, the French investigating judge was not able to exercise any real control over the conditions in which S.A. was interrogated in Syria, even though he was being held in the ‘Palestine Section’, which was known to be a very harsh section, according to witnesses, in which many cases of torture had been reported.

It is therefore almost certain that the admissions or ‘confession’ of S.A. were obtained under torture and must be excluded as evidence against him and his co-defendants.

Accordingly, S.A.’s handwritten statement, his interview records from Syria and the report prepared by the Syrian secret services must be removed from the case file.”

S.A. appealed against the judgment. The applicant lodged with the Paris Court of Appeal his pleadings in defence of S.A., extending to more than eighty pages, at paragraph 5 of which he again sought the exclusion of the documents obtained under torture. To that end, he relied on Articles 3 and 6 of the Convention, as well as Articles 3 and 15 of the Convention against Torture of 10 December 1984, and referred to the reports of non-governmental organisations concerning the practice of torture in Syria and to the evidence taken at first instance. In particular, he wrote as follows:

“Page 25: ‘it was thus blindly that the investigating judges did not want to try and avoid the torture to which Mr. [S.A.] was subjected in the hands of the Syrian secret services in Damascus.’

Page 47: ‘the French investigating judges allowed the Syrian secret services to torture [S.A.] without intervening, and it can even be shown that they promoted torture – this amounts to a judicial outsourcing of torture.’

Page 68, paragraph entitled: ‘Complicity of the French investigating judges in the use of the torture against Mr. [S.A.] in Syria by military personnel of the secret services’.

Page 69: ‘The investigating judges, who had felt from the beginning of the proceedings that they should be brought against Mr. [S.A.], allowed torture to be used against him by military personnel of the Syrian secret services ... They chose to accept the outsourcing of torture.’

Page 70: ‘the international letter of request issued by the French investigating judges provides the Syrian secret service officers with the answers to be obtained from the questions to be asked: it encourages torture.’”

In a judgment of 22 May 2007 the Court of Appeal upheld S.A.’s conviction and sentenced him to ten years’ imprisonment, after excluding the documents in question: “the defendant’s statements, as they had been obtained in Syria, were included in documents whose lawfulness in terms of French procedural rules and the Convention could not be guaranteed”. It rejected the applicant’s submissions “relating to complicity in acts of torture committed by the investigating judges and the criticisms about the conduct of the judicial investigation” as being “prejudicial to the dignity of the investigating judges and without any basis or moderation”. The judgment of the Court of Appeal indicated that its president had asked the applicant “to moderate his remarks concerning the allegations of complicity on the part of the investigating judges in the use of the torture against S.A. (see p. 68 et seq. of the pleadings)”.

In a letter of 17 January 2008 the Chairman of the Paris Bar Association informed the public prosecutor at the Paris Court of Appeal, who had sent him a copy of the pleadings, that he did not intend to act upon this matter.

In a formal referral to the disciplinary body dated 4 February 2008, pursuant to Article 188 § 1 of the decree of 27 November 1991 concerning the organisation of the legal profession ... the public prosecutor asked that body to bring disciplinary proceedings against the applicant for disregarding the essential principles of honour, tactfulness and moderation governing the legal profession. He indicated the passages in the applicant’s pleadings which, in his view, had seriously impugned the honour of the investigating judges, namely the statements on pages 25, 47 and 68 to 70 (see paragraph 15 above). He pointed out that the criminal immunity for words spoken in court as provided for in section 41 of the Law of 29 July 1881 on the freedom of the press (“the 1881 Act”, ...) was not applicable in disciplinary matters.

In a decision of 30 September 2008 the Disciplinary Board of the Paris Bar Association dismissed all the charges against the applicant. It considered that his objective had been to ensure the removal from the case file of the documents which emanated from the Syrian authorities. It observed in this regard that although the practice of torture by the Syrian secret services was notorious, the investigating judges had failed to issue an international arrest warrant immediately but had, on the contrary, waited until 1 April 2004 to issue a letter of request to the Syrian military authorities, and “that letter was, according to S.A.’s lawyers, executed with astonishing speed”. It thus found that “it was on this basis and in support of the request for the exclusion from the case file of the documents from the Syrian authorities that [the applicant] called into question, in the terms for which he is reproached, the conduct of the investigating judges”. The Disciplinary Board further found that the applicant should benefit from judicial immunity in so far as the impugned remarks were not unrelated to the case. Relying on the case-law of the Court of Cassation on this point..., and on the protection under Article 10 of the Convention of the lawyer’s freedom of speech in court (referring to the judgment in Nikula v. Finland, no. 31611/96, ECHR 2002-II), it pointed out that the applicant’s impugned remarks did not constitute personal attacks on the judges, but sought to call into question the manner in which they had conducted the proceedings, and that the remarks were “obviously not unrelated to the facts of the case”. The disciplinary body finally pointed out that the applicant was justified in believing that the argument as to the procedural conduct of the investigating judges had not been without influence on the first-instance decision to exclude the Syrian statements from the case file and that he had been justified in using these arguments before the Court of Appeal, irrespective of their vitriol, whereas the raising of this issue in the court below had not even led to any reaction on the part of the prosecution.

On 3 October 2008 the Principal Public Prosecutor appealed against that decision.

In a judgment of 25 June 2009 the Paris Court of Appeal quashed the decision of the Bar Association and issued the applicant with a reprimand accompanied by disqualification from professional bodies for a period of five years. The Court of Appeal observed that the immunity of the courtroom could not be invoked in disciplinary matters. Stressing that lawyers’ freedom of expression was not absolute, it took the view that the remarks at issue were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of S.A.’s statements during his interrogation, they also called into question the moral integrity of the investigating judges at a personal level. It found that the applicant “had visibly sought to ‘do as he pleased’ even to the extent of harming his client (whose sentence was extended by a year by the Court of Appeal)”. The court took the view that the accusation of complicity had been pointless in relation to the interests of his client, and gratuitous, since the judges had mentioned in a mission report the difficulties they had encountered with the Syrian authorities, who had prevented them from attending the interviews (see paragraph 14 above). The Court of Appeal pointed out that the documents in question had been excluded by the court below and that “there was no need for [the applicant], in the interest of S.A., to claim without any proof that the French investigating judges had been complicit in the torture of S.A.”. It concluded that the attacks were not proportionate to the aim pursued and that the impugned remarks constituted a breach of the essential principles of the legal profession, namely dignity, honour, tactfulness and moderation.

The applicant lodged an appeal on points of law. The Chairman of the Paris Bar Association did likewise. In his grounds of appeal, the applicant relied in particular on Articles 6 and 10 of the Convention to argue that the immunity provided for by the 1881 Act was applicable in disciplinary proceedings. He also pointed out that the fact of denouncing the shortcomings of the justice system on the basis of a letter of request issued to the Syrian secret services had been necessary for his client’s defence, and such denunciation could not be considered as a disciplinary offence given the absolute nature of the prohibition of torture.

In a judgment of 14 October 2010 the Court of Cassation declared inadmissible the appeal by the Chairman of the Bar Association on the ground that he was not a party to the proceedings. As to the applicant’s appeal on points of law, it was rejected in the following terms:

“However, firstly, the judgment states precisely that the provisions of sections 41 and 65 of the Law of 29 July 1881 are not applicable in disciplinary matters. Having rightly observed that, while the lawyer has the right to criticise the functioning of the justice system or the conduct of a particular judge, his freedom of expression is not absolute because it is subject to restrictions which derive, in particular, from the need to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary, the Court of Appeal found that the offending remarks were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of statements made by the suspect during interviews conducted for the execution of the international letter of request issued by the French investigating judges, but personally impugned the moral integrity of those judges, accusing them of deliberately promoting the use of torture and of being actively complicit in the ill-treatment inflicted by the Syrian investigators. Having noted that these serious accusations were both pointless in relation to the client’s interests and gratuitous, since the judges, in the report of their mission to Damascus, had described the difficulties they had encountered with the Syrian authorities, who had refused to allow them to attend the interviews, the court rightly inferred that the offending remarks did not fall under the protection of freedom of expression, but breached the principles of honour and tactfulness. On those grounds, without there being any lack of impartiality or any breach of the principle of the presumption of innocence, it legally justified its decision to impose on the lawyer a mere reprimand together with a temporary disqualification from membership of professional bodies and councils; ...”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Ms Krystyna Błońska, is a Polish national, who was born in 1950 and lives in Olsztyn. She was represented before the Court by Mr W. Wrzecionkowski, a lawyer practising in Olsztyn.

The applicant is the mother of Mr Przemysław Błoński (PB) who died on 2 December 2006.

On 19 November 2006 PB met with two friends (MG and SG) in a pub in Olsztyn and later took them home in his Ford car.

At about 8.20 p.m. on 19 November 2006 a police patrol was informed that a Ford car was driving dangerously in a district of Olsztyn. The police patrol, comprised of officers DD and BC, moved into the area and passed the information on to another patrol. They were in an unmarked police car.

The unmarked police car was overtaken by a speeding Ford. The police patrol turned on the flashing lights and the siren and gave chase. Officers DD and BC gave signals to the driver of the Ford to stop but they were not respected. A second unmarked police car, with officers LL and IP, joined the chase. At some point the first police car overtook the Ford and blocked the nearest junction by parking the car sideways across the road. The Ford stopped but as officer DD tried to get out of the car the driver of the Ford suddenly accelerated and hit the back of the police car. Officer DD gave a warning “Stop police!” and ordered the driver to stay still.

Subsequently, the Ford reversed and the two police officers (DD and BC) got out of their car. Officer DD ran to arrest the driver of the Ford but when he was near the driver, he suddenly accelerated in reverse. In reaction, officer DD had to jump aside to avoid being hit. He found himself in front of the Ford. Officer DD held his hand on the holster and shouted to the driver to stop the engine. The driver started moving in the direction of police officer DD who jumped to the right and later towards officer BC. Officer DD, who found himself at the back of the Ford, fired three shots aiming at the left wheel of the car. The Ford drove for another 100 metres and then hit a tree.

PB was taken to a hospital with a gunshot wound to the back of his head. A bullet was removed from his head. On 2 December 2006 PB died in hospital.

On 19 November 2006 the on-duty officer of the Olsztyn Police informed the Olsztyn-Południe District Prosecutor’s Office about the incident involving PB. Prosecutor JJ arrived at the scene of the incident shortly after.

The police secured the firearms of the police officers present during the incident and three cartridges.

The District Prosecutor opened an investigation into the alleged excess of authority by the police.

The prosecutor ordered that a forensic report be prepared. On 4 December 2006 the forensic expert submitted his report describing PB’s injuries, in particular a gunshot entry wound to the back of the head (right side). The cause of the death was acute heart failure related to the gunshot injuries of the brain.

The prosecutor heard PB’s mother (the applicant) and his sister. They stated that PB had been afraid of the policemen because a former officer MH had threatened him in the past. Officer DD denied having known PB. He stated that he had used the gun (aiming at the back tyre) because PB had attempted to knock him and officer BC down. Officer BC confirmed this version of events. She stated that PB had not obeyed their commands.

On 11 December 2006 a reconstruction of the incident was staged with officer DD. He demonstrated his position at the time of firing. The position of officer DD corresponded to the location of the cartridges found on the site of the incident.

The prosecutor ordered that a report by a firearm expert be prepared in order to establish, inter alia, the trajectory of the bullet removed from PB’s head. In his opinion of 9 January 2007, the firearm expert found that the bullet had been fired from officer DD’s gun. The shape of the bullet could indicate that it had ricocheted before entering PB’s body. Three cartridges found on the spot had also been fired from officer DD’s gun. Two remaining bullets had missed the car.

In his supplementary opinion of 19 January 2007, the firearm expert found that PB had been shot in his head by a bullet fired by officer DD, which ricocheted from the road. The findings of the firearm expert were supported by a reconstruction of the incident. In the course of the reconstruction a crack had been found in the road where the bullet had ricocheted.

The prosecutor also ordered a report by a car expert. The expert established that damage to the police car confirmed the version of events as presented by officers DD and BC.

Having regard to the above evidence, the prosecutor found that the police officers, including officer DD had acted lawfully in the pursuit of the driver of the Ford. When police officers DD and BC attempted to arrest PB, he started driving the car in their direction thus exposing them to a direct danger to their life and limb. Officer DD had fired 3 times aiming at the back wheel of the car seeing that the driver (PB) was driving towards officer BC. The prosecutor established that the version of events put forward by officers DD and BC was consistent with the findings of the experts.

The prosecutor established that officer DD had not exceeded his authority when firing at the car. The driver of the car had not obeyed police orders and had resisted police attempts to arrest him. He further endangered directly the life of officer BC. The use of a firearm had been justified under sections 17 § 1 (1) and 17 § 1 (6) of the Police Act. Accordingly, the prosecutor found that officer DD had used his firearm in accordance with the law (both grounds were present) and thus had not transgressed his authority.

On 7 February 2007 the Olsztyn-Południe District Prosecutor discontinued the investigation in the case since no crime had been committed.

The applicant appealed. She alleged that the district prosecutor had relied exclusively on the testimonies of officers DD and BC and had omitted to refer to testimonies of other witnesses who had given a different account of the relevant events. She also claimed that at the relevant time there had been no justification for the use of firearms in the absence of a direct danger to life.

On 13 July 2007 the Olsztyn District Court quashed the decision to discontinue the investigation. It found that the prosecutor had not addressed all the MH. The latter officer had been in conflict with PB and had allegedly threatened PB. Secondly, the prosecutor had to explain why the radio communications between the police officers and the on-duty officer had not been recorded. Thirdly, it was necessary to establish the precise course of the events in view of the ambiguous testimonies of the two police officers (DD and BC) including a drawing of the movements of the cars and persons involved. Fourthly, it was necessary to establish whether the use of the firearm had been justified by a risk to the life of officer BC at the relevant time.

On 3 July 2007 the applicant requested the Białystok Appellate Prosecutor’s Office that all prosecutors of the Olsztyn District and Regional Prosecutor Offices be excluded from the examination of the case. The request was granted and the subsequent investigation was conducted by the Łomża District Prosecutor.

The prosecutor ordered that an additional opinion by a firearm expert be prepared. In his opinion of 18 October 2007, the firearm expert presented his version of the consecutive stages of the incident, accompanied by drawings, which were based on the testimony of the two officers (primarily of officer DD). The expert observed that it was likely that the car had been moving at the time of firing and for this reason the bullets had missed the wheel and ricocheted.

On 22 November 2007 the Łomża District Prosecutor discontinued the investigation concerning the abuse of authority by police officer DD. The prosecutor followed the instructions of the district court in respect of the additional evidence to be obtained. It was also established that PB’s blood contained 2.84 mg of alcohol per litre.

On the basis of the additional expert report the prosecutor established that officer DD had fired three shots aiming at the left back wheel of the Ford (at the time DD had been behind the car). The distance between him and the car was of 4 to 6 metres. He had not hit the tyres and the bullet had ricocheted. The incident took place in the evening on an unlit road. It was not possible to have regard to the communications between the police officers and the on-duty officer because the relevant recording device had been defective for a few years. The two other police officers had been too far from the site to see precisely what happened.

The prosecutor accepted all the expert opinions obtained in the case. The most relevant were the opinions of the firearm expert which explained the trajectory of the bullet, and the opinion prepared following the reconstruction of the incident. The analysis of the telephone traffic and of other evidence led the prosecutor to conclude that the former police officer MH had not been in any way involved in the incident.

Officer DD stated that he had used his firearm because the driver of the Ford had attempted to run him and officer BC over. Officer BC confirmed this version of events. With regard to certain inconsistencies in the accounts of the witnesses, the prosecutor noted that the incident had taken place in the late evening and in bad visibility. In addition, the events unfolded speedily and had been very stressful. The prosecutor found officer DD’s testimony most comprehensive. This testimony was supported by the material evidence in the case.

The prosecutor found that the use of the firearm by police officer DD had been justified under sections 17 § 1 (1) (illegal attempt on the life or health of a person) and 17 § 1 (6) (direct pursuit of a person posing danger to someone’s life or health) of the Police Act. In accordance with the Ordinance of the Council of Ministers of 19 July 2005 (“the 2005 Ordinance”) on the specific conditions of the use of firearms by the police no further warnings of the police were necessary in situations governed by section 17 § 1 (1) of the Police Act (as in the case).

The prosecutor established that officer DD had fired three shots at the back wheel of the car in the situation of a direct danger to the life and limb of the police officer BC. This version of events was supported by other evidence collected in the case, and in particular, by the expert evidence. According to the prosecutor, the police officer DD had not exceeded his authority in the situation when PB had not obeyed police commands and had continued carrying out dangerous car manoeuvres. The police officer DD had used his firearm in order to protect the life of his fellow officer PB and had aimed at the wheels of the car. He could not have predicted that one of the bullets would rebound against the surface of the road and would hit the driver.

On 18 December 2007 the applicant filed a private bill of indictment against the police officer DD, alleging that he had exceeded his authority when using his firearm. She claimed that at the critical time there had been no direct danger to the life and limb as PB had been driving away from the scene.

Prosecutor JJ was heard as one of many witnesses. She testified that when she arrived at the scene of the incident officers DD and BC had already left. Some other police officers, including senior ones, were present. The prosecutor asked in vain for the firearm to be handed over. She alleged that the police failed to respect the relevant procedures because they had not waited for her arrival before commencing investigative work. Later, she went to the hospital where officers DD and BC had been taken. Certain police officers had objected to the questioning of BC directly after the incident but the questioning had taken place. It was terminated in the early hours of the morning. The prosecutor excluded that the questioning had been influenced by third parties. The prosecutor wanted to hear also officer DD. After consultation with a doctor she decided not to question him.

On 22 May 2009 the Olsztyn Regional Court acquitted officer DD. It considered credible the evidence of the accused as it had been confirmed by various expert reports in the case and the evidence of officer BC. The credibility of the statements of officer BB had been supported by the evidence of prosecutor JJ who had questioned her directly after the incident and the police psychologist EKS. It appeared from the protocol that prosecutor JJ had arrived at the scene of the incident at 22.05 hours, which was just over one hour after the incident. There were no indications that her arrival at the scene had been delayed or that some evidence at the scene had been destroyed. The court held that there had been no evidence indicating that the police had obstructed or interfered with the investigation into the incident.

Two other police officers confirmed the circumstances concerning the pursuit of the Ford and the dangerous manoeuvres of the driver. They had not seen the moment of shooting. The court attached significant weight to the evidence of the expert in ballistics and the results of the reconstruction of the incident. They confirmed that PB had been shot in his head with a bullet ricocheting from the road. The court noted that telephone calls between officers DD and BC were normal. It also noted that that officer DD had worn a vest with a sign “Police” on it.

The court held that the accused had not breached the relevant rules concerning the use of firearms by the police. The use of a firearm had been justified under section 17 § 1 (6) in conjunction with section 17 § 1 (1) of the Police Act. PB had exposed third parties to direct danger to their life and limb by his dangerous driving. Subsequently, he posed danger to the life of the police officers when they had attempted to arrest him. In conclusion, the accused was acquitted.

The applicant appealed. She argued that the use of firearms had been unlawful since at the critical time PB had not endangered the life of the police officers. In addition, the police officer DD had not complied with the rules set out in the 2005 Ordinance as he had failed to give a verbal warning and to fire a warning shot.

On 13 October 2009 the Białystok Court of Appeal upheld the firstto fire a warning shot. He had been solely required to give a verbal warning “police” which he had done.

The applicant filed a cassation appeal. She claimed that the use of firearm had been unlawful.

On 22 September 2010 the Supreme Court quashed the Court of Appeal’s judgment and remitted the case. It found that the lower court had failed to address the argument of the private prosecutor (the applicant) that officer DD had not been exempted from the requirement to fire a warning shot. The Supreme Court found that at the time of firing there had been no direct danger to the life or limb of the police officers. It had been established by the lower courts that at the critical time the Ford had been driving away from the scene. This situation was controlled therefore by section 17 § 1 (6) of the Police Act (direct pursuit of a person). Under the relevant provisions of the 2005 Ordinance in such a case the police officer had been required to give a verbal warning and to fire a warning shot. The Supreme Court accepted that the first of these requirements appeared to have been complied with since officer DD had given a warning “stoppolice” and had kept his right hand on the holster. There was no doubt, however, that the second requirement (warning shot) had not been complied with.

On 10 March 2011 the Court of Appeal again upheld the Regional Court’s judgment. Following the instructions of the Supreme Court, it concentrated its review on the lawfulness of the use of a firearm. The Court of Appeal found that the dynamic nature of the incident did not permit to distinguish precisely between an attempt on life of the police officers and the pursuit of the driver. In fact, these two elements of the case overlapped considerably. It was important to note that officer DD had aimed at the wheel and had had no intention of causing injury. The Court of Appeal noted that since the incident unfolded in a matter of seconds it would have been unrealistic to expect of officer DD to comply strictly with the 2005 Ordinance by giving first a verbal warning and then firing a warning shot. It was important to note that officer DD had given a warning “stop-police” which had been evidently ignored. The Court of Appeal found that the use of the firearm in order to immobilise the Ford had been justified by the circumstances. Although, the use of firearms by the police had to comply with the relevant regulations it was necessary to have regard to specific circumstances of each case. The court held that officer DD had not abused his authority in such a way that his criminal liability was called for. The Court of Appeal, contrary to the lower court, found that at the critical time the actions of PB had entered the phase of “escaping”. Accordingly, from the formal point of view specified in the 2005 Ordinance the use of a firearm should have been preceded by a verbal warning and a ’s failure to comply with these rules did not amount to a criminal offence since there had been no causal link between this omission and the unfortunate result of the use of a firearm. Furthermore, there was no criminal intent in the behaviour of officer DD. Accordingly, officer DD could not be held criminally liable for the offence of abuse of authority.

The applicant appealed. She argued that the Court of Appeal had failed to heed the instructions of the Supreme Court. She also alleged that the Court of Appeal had wrongly found that the use of the firearm had been justified despite the failure to give a verbal warning and to fire a warning shot. Lastly, she alleged a breach of Article 2 § 2 (b) of the Convention. In this respect, she claimed that the Court of Appeal had found that shooting at the escaping car had been justified and that the firearm could be used despite a failure to comply with all relevant requirements. She relied on Nachova v. Bulgaria.

On 15 December 2011 the Supreme Court dismissed the applicant’s cassation appeal. It noted that the Court of Appeal had followed its instructions. In particular, the Court of Appeal found that the firearm had been used at the time when PB began to escape the location. Secondly, the Court of Appeal analysed whether the failure to comply with the relevant requirements of the 2005 Ordinance applicable to the situation of escaping could have resulted in holding officer DD criminally liable for the offence of the abuse of authority. The Supreme Court noted that one of the constitutive elements of this offence was acting to the detriment of a public or individual interest. However, the Supreme Court concurred with the lower court that officer DD had not intended to deprive the victim of his life and had not been able to foresee that his action would result in such an unfortunate outcome.

With regard to the applicant’s argument concerning the failure to fire a warning shot, the Supreme Court noted that the lower court had acknowledged this failure, but had found no causal link between the latter and PB’s death. The issue of a verbal warning had been already determined in the earlier judgment of the Supreme Court. Lastly, the Supreme Court dismissed as unfounded the argument concerning a breach of Article 2 § 2 (b) of the Convention. A deprivation of life shall not be regarded as incompatible with this provision if it resulted from the use of force which was absolutely necessary in order to effect a lawful arrest.

The Supreme Court noted that the use of a firearm in respect of an escaping driver could be justified by the danger to which he exposed other persons. The Strasbourg case-law indicated that the police should fire at the tyres, but not at the windows and the body of an escaping car. In the present case these conditions were met. It was justified to fire at the tyres of the escaping car because its driver had not reacted to police orders and created danger for the life and limb of the other persons on the road as well as to the police officers attempting his arrest.

Section 16 of the Police Act of 6 April 1990 (Ustawa o Policji) reads, in so far as relevant:

“1. If a lawful order given by a police authority or police officer has not been complied with, a police officer may apply the following coercive measures:

1) physical, technical and chemical means to restrain or escort persons or to stop vehicles;

2) truncheons;

3) water cannons;

4) police dogs;

5) rubber bullets fired from firearms.

Police officers may apply only such coercive measures as correspond to the exigencies of a given situation and are necessary to ensure that their orders are obeyed.”

Section 17 of the Police Act provides:

“1. If the coercive measures mentioned in section 16 (1) prove insufficient, or their use in the circumstances is not possible, a police officer may use firearms exclusively:

1) in order to fend off a direct and illegal attempt on the life, health or liberty of a police officer or other person, or to prevent activities directly related to such an attempt,

2) against a person who fails to obey an order to drop immediately a weapon or another dangerous instrument whose use poses a threat to the life, health or liberty of a police officer or other person,

6) in the direct pursuit of a person in relation to whom the use of firearms was lawful under paragraphs 1-3 or 5, or who is reasonably suspected of committing a crime, an attempted act of terrorism, abduction in order to obtain a ransom or other demand, mugging, robbery, violent assault, intentional serious bodily injury, rape, arson or other intentional threat to public security, life and/or health,

Firearms shall be used so as to cause minimum damage to the person targeted, and without any intention of depriving that person of his or her life and without endangering the life or health of others.

The Council of Ministers shall issue a resolution defining the conditions and operational procedural requirements for the use of firearms by the organised Police detachments mentioned in paragraph 2.”

The Ordinance of the Council of Ministers of 19 July 2005 (“the 2005 Ordinance”) on the specific conditions of the use of firearms by the police specified in § 3.1 that prior to the use of a firearm a police officer shall (1) give a verbal warning “police”, (2) give a verbal warning “stop – I shoot” and (3) fire a warning shot. Pursuant to § 3.2 of the Ordinance the above requirements were not applicable to situations foreseen in section 17 § 1 (1), (3), (5) and (8) of the Police Act.


Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits

The applicants are three Latvian nationals. They were represented before the Court by Ms A. Rektiņa, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce.

The first applicant is the third applicant’s biological mother. The third applicant – a child – was born out of wedlock in January 2004. The second applicant does not live with the child and his mother. According to the applicants, the child nevertheless recognises the second applicant as his father.

On 1 June 2006 S.G. lodged an action with the Riga City Vidzeme District Court seeking to establish his paternity of the third applicant, submitting that he was the biological father.

On the following day – 2 June 2006 – the second applicant officially acknowledged his paternity of the third applicant.

On 9 May 2007 the Riga City Vidzeme District Court adopted a judgment in which it dismissed S.G.’s claims in full. The first applicant was the respondent and the second applicant was a third party in the civil proceedings. The court held the corresponding provision of the Civil Procedure Law did not give S.G. the standing to dispute in court a voluntary acknowledgement of paternity.

S.G. appealed to the Riga Regional Court and later – on 10 October 2007 – requested the same court to order genetic (DNA) testing in order to establish whether the second applicant or S.G. was the biological father of the child.

On the same day, 10 October 2007, the Riga Regional Court held a hearing and adopted a decision to order the genetic testing of S.G., the second applicant and the third applicant in order to verify the child’s biological descent. According to the court, it was necessary to order genetic testing because the second applicant had acknowledged paternity of the child only after S.G. had already lodged the action with the court. For that reason it was held that S.G. had standing to bring a claim to determine paternity. The decision to order genetic testing was not subject to appeal in accordance with the provisions of the Civil Procedure Law. On 22 October 2007 a copy of the record of the hearing was sent to the applicant’s representative.

On 12 November 2007 the applicants, relying on sections 483 and 484 of the Civil Procedure Law, submitted a request to the President of the Civil Division of the Senate of the Supreme Court asking him to lodge a protest against the order of the Riga Regional Court. They claimed, inter alia, that in giving the order for genetic testing the Riga Regional Court had failed to take into consideration the interests of the child and the second applicant’s right to respect for his private and family life.

On 20 December 2007 the President of the Civil Division of the Senate of the Supreme Court lodged a protest, citing several violations of procedural and substantive law, notably that: the contested order had been issued prior to the examination on the merits of the civil case; the decision had not been prepared in accordance with the procedure set out by the Civil Procedure Law; and the court had not examined whether the medical laboratory was authorised to carry out such tests. In particular, the wording of the protest noted that at the time of the examination of the case the child’s paternity had been voluntarily acknowledged, whereas the claimant – S.G. – had not challenged the paternity.

On 5 March 2008 the Senate of the Supreme Court, relying on section 448 of the Civil Procedure Law, dismissed the protest. The Senate considered that the claim submitted by S.G. had not been intended to challenge the paternity of the second applicant; rather, it considered that the claim had been submitted in order to determine S. G.’s paternity. The Senate argued that the second applicant had recognised his paternity only after S.G. had lodged his action and that therefore, the question of S.G.’s standing would only fall to be examined when the case was examined on the merits. The Senate also disagreed that procedural violations such as those alleged in the protest were decisive for the outcome of the case.

Section 483 (as worded at the material time) provided that a protest against a court judgment and/or decision that had taken effect might be submitted to the Senate of the Supreme Court by the President of the Supreme Court, by the President of the Civil Division of the Senate of the Supreme Court or by the Prosecutor General, provided that no more than ten years had passed since the ruling took effect.

Section 484 provides that admissible grounds for submitting a protest regarding a ruling (a judgment or decision) that has taken effect are: substantive breaches of material or procedural legal provisions in cases which have been adjudicated only by a first-instance court (provided that no appeal against the ruling has been lodged by the parties to the case in accordance with the law, for reasons beyond their control), or the rights of State or municipal institutions or persons who were not parties to the case have been affected by the ruling.

Section 448 sets out the jurisdiction of the Senate when reviewing an ancillary complaint. It follows from the domestic courts’ practice that the Senate has the same jurisdiction when reviewing a protest. In particular, the Senate may adopt the following decisions: 1) to uphold the lower court’s decision and dismiss the appeal or protest; 2) to quash the decision, in whole or in part, and remit it to the lower court for fresh examination; 3) to quash the decision, in whole or in part, and decide the question on the merits; 4) to amend the decision.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1978 and lives in Nizhniy Novgorod.

On 25 October 2002 the Military Court of the Vladikavkaz Garrison (“the Military Court”) ordered, inter alia, the head of the respondent military institute to re-calculate the period of the applicant’s service, applying the favourable terms of such calculation for a specified period of service. The applicant was also awarded some additional allowances and payments for certain periods.

The judgment came into force on 5 November 2002.

On 3 March 2003 the Military Court issued a writ of execution. On 4 August 2003 the bailiffs’ service instituted the enforcement proceedings.

On 19 September 2003 the enforcement proceedings were terminated and the writ of execution was returned to the applicant, as the debt could not be recovered.

On 13 November 2003 the head of the respondent military institute issued Order No. 463 requiring to make payments in accordance with the judgment of 25 October 2002. However, no calculations or payments were made at that time.

On 4 February 2005 the applicant submitted the writ of execution to the Federal Treasury.

On 18 May 2005 the writ was returned to the applicant on the ground that the judgment obliged an official of an organisation to take certain actions rather than ordered to recover payments from a budgetary organisation. Thus, the writ of execution was to be submitted to the bailiffs’ service.

On an unspecified date in 2005 the applicant submitted the writ of execution to the bailiffs’ service.

On 14 April 2006 the writ of execution was returned to the applicant from the bailiffs’ service without enforcement. The bailiffs explained that for the applicant to be able to receive the payments under the judgment, he should obtain a writ of execution stating the sum of the debt to be recovered. After that, the writ could be submitted to the Federal Treasury for enforcement.

In 2005 in accordance with Order No. 463, the defendant military institute calculated the amounts due to the applicant as follows: the compensation for the supplementary ration for the period from October 1998 until March 2000 –11,341.85 Russian roubles (RUB); allowance for special regime of the service in 1998-2002 – RUB 2,720.1; and special allowance – RUB 327,000. In total: RUB 341,061.95.


Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1981 and lives in Veshenskaya, a village in the Rostov Region.

According to the applicant, on an unspecified date at the end of June 2002 he was sitting in a cafe. He saw P. there, a police officer and former schoolmate who was drunk and making indecent suggestions to a girl. The applicant, in his words, reprimanded P. for his behaviour, to which he replied with a vague threat.

Between about 10.30 and 11 p.m. on 9 July 2002 the applicant was hit by a car while on the pavement. The driver was P., who was accompanied by a passenger, Ms S.K. The accident took place in a recreational area in the centre of the village. As a result, the applicant suffered severe head and spinal injuries. P.’s car was also damaged. With the help of a passerby, G., P. loaded the semiconscious applicant into his car and drove him away from the scene of the accident.

At about 11 p.m. P. arrived with the applicant at a local hospital. The applicant was able to walk but was suffering from memory loss, was disoriented and did not understand what had just happened. His condition started to worsen; at about midnight he was transferred to the hospital’s intensive care unit.

According to the applicant, having seen what he had done, P. called his father, the chief of the local tax police and former chief of the local traffic police. P.’s father called his acquaintances, A., a traffic police officer, and M., the head of the laboratory of the local hospital. He explained to them what had happened and asked if they would help protect his son. The Government did not comment on this allegation.

Shortly after the applicant’s admission to the hospital A. arrived and spoke to the applicant. At 12.15 a.m. on 10 July 2002 he drew up a report stating that the applicant had fallen down the stairs of a nearby cafe and had injured himself. He made the applicant sign the report. No mention of the car accident was made. The report contained a handwritten entry, apparently in the applicant’s own handwriting, which read: “Recorded from my words, I have read it”. The report was then submitted to Sholokhovskiy police station, where the accident was logged in the daily accident record as “no. 2”.

At 12.20 a.m. on 10 July 2002, M. arrived at the hospital in P.’s father’s car and took samples of the applicant’s blood. After testing them she concluded that his blood contained a high level of alcohol (1.9 per mille), which meant he had been drunk at the time of the accident. The applicant was unconscious when M. took the samples. She also took blood from P. The tests showed the presence of 0.4 per mille of alcohol in his blood (the then acceptable legal limit for driving a car). The applicant alleged that the results of the tests had been falsified by M. He referred to the testimony of two staff members of the hospital, who later testified that he had not been drunk. The applicant also pointed to inconsistencies in the report by A. and the results of subsequent tests of the samples of his blood, which had revealed different levels of alcohol.

At about 1.15 a.m. the applicant’s parents arrived at the hospital. According to the applicant, they did not smell any alcohol on him. Furthermore, the entries made by the hospital personnel about his condition and the nature of his injuries were incomplete. No mention of his spinal injury had thus been made, since the existence of such an injury would have gone against the story that he had fallen down the stairs. Furthermore, the hospital authorities had washed his t-shirt, which contained traces of his blood and could have confirmed his version of events.

In the meantime P. left the hospital and returned to the scene of the accident. According to the official examination report, the police examined the scene between 1 and 2 a.m. on 10 July 2002. P. took part in the examination, together with police officers from Sholokhovskiy police station. He signed the report, as did the attesting witnesses present. The applicant claimed that the examination had taken place much later in the day, during the afternoon.

According to the applicant, later that day P. drove his car to a garage, where it was quickly repaired and the broken windscreen replaced.

At 1.45 a.m. on 10 July 2002 the applicant’s father arrived at Sholokhovskiy police station and tried to formally report the car accident. However, the officer on duty refused to accept it, referring to the earlier report by A. stating that the applicant had fallen down the stairs.

Between 2 and 3 a.m. doctors at the hospital made an encephalogram of the applicant’s head and took samples of his spinal fluid.

At 10 a.m. a second test of the applicant’s blood was carried out, which showed the presence of 0.2 per mille of alcohol. A further test of the same sample showed the presence of 0.1 per mille of alcohol.

The applicant’s first operation took place at about 1.30 p.m. on 10 July 2002 and was carried out by Dr Zh, a surgeon from the hospital. His condition, however, remained very unstable and continued to worsen. His relatives suspected that when they had left the hospital, someone had tried to strangle him to death, because upon their return they had discovered marks on his neck. They also blamed the hospital authorities for their inaction in dealing with the applicant’s case.

That day the police examined P.’s car. It appears from the report of the examination that the car had dents on the right side of the bonnet and on the front right windscreen support. The police did not mention the windscreen in their report. It is unclear whether the car was examined before or after it had been repaired.

At 9 a.m. on 13 July 2002 the local hospital requested the help of the Rostov City Hospital at the insistence of the applicant’s relatives. A neurosurgeon arrived at about 3.30 p.m. and performed further surgery, which was more successful. The applicant started to recover. A few days later he was transferred to the Rostov City Hospital for further treatment. In the years that followed he had to undergo a further two neurosurgical operations, but he never recovered completely; he lost the ability to work and started to suffer from repeated epileptic fits. He was registered as Category 2 disabled (where Category 1 corresponds to a severe disability preventing a person from working, and Category 3 corresponds to a less severe disability).

According to the applicant, on 12 July 2002 the Sholokhovskiy district police informed the District Prosecutor about the incident on 9 July 2002. The Government did not comment.

On 16 July 2002 the Sholokhovskiy District Prosecutor’s Office opened a criminal investigation into the accident (registered as case no. 2707168). The applicant alleged that the investigator in charge of the case, M., had been a schoolmate and close friend of P. He also alleged that the date the decision was taken to open an investigation was incorrect, as the case had in fact been opened on 18 July 2002.

On 17 July 2002 the investigator started questioning witnesses. G., who had been with the applicant on the night of 9 July and helped take him to the hospital, testified that the applicant had not been drinking that evening. He also testified that the applicant had been walking parallel to the road when the car had hit him. His account was confirmed by the testimony of several other witnesses. In contrast, some other witnesses testified that the applicant had suddenly moved in the direction of the car a second before the collision. Several witnesses had also noticed that the windscreen of the car of P. had been broken after the incident. It appears that the investigator identified and questioned more than twelve witnesses who had seen the accident or observed the events immediately afterwards. The investigator also questioned paramedics from the local hospital, some of whom testified that P. had probably been drunk. Others had not noticed anything of that kind.

On 19 July 2002 the investigator examined the car again. His report suggests that the car did not have any visible dents, but evidence of repair work was discovered on the front right windscreen support.

On 23 July 2002 the investigator questioned P. again. It appears that he was questioned as a witness. He claimed that the applicant had made a dangerous unexpected move in the direction of the car. He also denied that the car had sustained any damage to the windscreen or the front right windscreen support.

On 29 July 2002 the investigator examined the scene of the accident. It was established, amongst other things, that it had taken place in an area marked as a pedestrian zone. There was a road sign prohibiting cars from access, although it was unclear whether it had been there on the night of the accident and had been visible.

On 29 July 2002 a forensic expert tested a sample of P.’s blood, obtained from him on 10 July 2002. The expert did not find any traces of alcohol. A similar test of a sample of the applicant’s blood revealed the presence of 2.9 per mille of alcohol.

On 31 July 2002 the investigator conducted a reconstruction of the accident, in the presence of P. Neither the applicant nor his parents were notified or participated.

On 1 August 2002 a forensic expert drew up a report examining the nature of the applicant’s injuries and making conclusions as to the speed and direction P.’s car had been travelling, the position of the applicant’s body at the time of the accident, and other relevant factors.

On 2 August 2002 the investigator questioned P.’s father who explained, among other things, that the dent on the bonnet of the car was not related to the accident involving the applicant. P. testified that he had arranged for the car to be repaired a few days before the accident.

On 6 August 2002 the applicant’s father complained to the Regional Prosecutor that the investigator M. had been leaking information about the investigation to P.’s father. He asked that the case be transferred to another investigator from a neighbouring district.

On 12 August 2002 the applicant’s father submitted to the investigator in charge of the case a list of over a dozen witnesses who had seen the accident. He asked the investigator to summon and question them.

On 5 September 2002 the applicant was granted victim status in the investigation. On 6 and 25 September 2002 the investigator questioned him. The applicant testified, among other things, that he had not been drinking on the day of the accident. He also claimed that he had been walking straight when the car had hit him from behind.

On 9 September 2002 the investigator organised a reconstruction of the accident in the presence of the applicant, P. and G.

On 17 September 2002 the investigator questioned M. She denied falsifying the results of the blood test. The difference between the original and second blood tests could, in her words, be explained by a different testing method and the acceptable margin of error.

On an unspecified date experts examined the applicant’s clothes in order to establish the mechanics of the injuries.

On 25 September 2002 P. was questioned again, this time as a suspect in the criminal case. He refused to give evidence.

On 27 September 2002 the investigator questioned an expert, who explained the difference between the results of the two tests of the blood samples taken from the applicant and P.

On 2 October 2002 the investigator questioned the applicant’s father.

On 4 December 2002 a team of experts produced a report analysing the applicant’s injuries and the mechanics of the accident. They answered twentytwo questions which had been formulated by the investigator.

On 10 January 2003 the applicant lodged a civil claim against P. in connection with the health problems he had suffered as a result of the accident.

On 19 January 2003 P. was ordered by the investigator not to leave the village without his consent.

On 14 February 2003 P. was formally charged under Article 264 § 1 of the Criminal Code for causing serious bodily harm by negligently breaching traffic regulations. He was questioned but denied his guilt.

On 24 March 2003 the investigator questioned the deputy head of Sholokhovskiy police station, Ch., who had been an eyewitness to the accident.

On 26 April 2003 a further reconstruction of the accident was carried out.

On 14 May 2003 the applicant obtained an expert report from the Volgograd Forensics Bureau, in which the events of 9 July 2002 were reconstructed on the basis of the material of the case file.

On 20 March 2003 the applicant was examined by medical experts.

On 15 April 2003 doctors examined X-ray images of the applicant’s neck and drew up a report.

On 27 August 2003 P. started working at Sholokhovskiy police station as a district police officer. On 7 July 2003 two witnesses to the accident, S. and B., complained to the district prosecutor that pressure had been put on them by P. in connection with his criminal case.

On 22 November 2003 the investigator obtained another expert examination of the applicant’s injuries and the mechanics of the accident.

On 24 December 2003 the prosecutor approved the indictment against P. By the end of the investigation, the case file was nine volumes and over three thousand pages long. The applicant was given access to the case material.

On 26 December 2003 the applicant brought proceedings to challenge the investigator’s decision, as he was dissatisfied with the accident being classified as an Article 264 § 1 offence. He applied for an injunction requiring the investigator to instead charge P. under Article 111 § 2 (intent to cause serious bodily harm). On 29 January 2004 the Sholokhovskiy District Court dismissed his complaint; it held that the courts had no jurisdiction to review the decisions of the investigator in so far as they concerned the legal classification of a criminal charge, since such a decision did not interfere with the applicant’s constitutional rights and freedoms.

On an unspecified date in early 2004 the investigation was completed, and the parties were given access to the case material. The investigator’s decision of 27 April 2004 stated that the applicant’s father had studied it. According to him, he only had five-and-a-half hours to study the material, which consisted of four files, each three hundred pages long. During that time he was only able to read part of the material and copy one hundred and thirty pages. The last volume of the case file was incomplete and did not contain an index of documents. As a result, the applicant had to request additional time to examine the case file during the court proceedings. A handwritten inscription he had written indicating that he had not read all the material allegedly disappeared from the case file.

On 5 January 2004 the criminal case and indictment were forwarded to the Sholokhovskiy District Court for examination on the merits.

On 12 February 2004 the Sholokhovskiy District Court ruled that the first hearing in the case would be held on 26 February 2004, and that there was no need to hold a preliminary hearing. The applicant objected, claiming that one was necessary.

The hearings in the case were held on 26 February, 11 June and 5 July 2004.

On 13 September 2004 the Sholokhovskiy District Court found P. guilty under Article 264 § 1 of the Criminal Code and sentenced him to eighteen months’ imprisonment, although he was not required to serve his sentence owing to the expiry of the statutory limitation period for crimes of that category. As to the civil claim lodged by the applicant within the criminal proceedings, the court awarded him 50,000 Russian roubles (RUB) in respect of non-pecuniary damage. It also acknowledged that he had a right to compensation in respect of pecuniary damage but decided to transfer the matter to a civil court for examination because it was impossible to make a precise calculation within the criminal proceedings.

On 26 November 2004 P. was dismissed from service in the police at his own request.

On 28 December 2004 the Rostov Regional Court quashed the judgment of 13 September 2004 and remitted the case for fresh examination. In particular, it ordered the lower court to clarify whether the road sign could have been visible to P. on the night of the accident.

In the course of the second round of the trial the court examined documentary evidence in the case file and heard over twenty witnesses, including the applicant, P., M., the applicant’s parents, several people who had seen the accident, police officers who had been involved in the initial inquiry, two expert witnesses, attesting witnesses and a number of hearsay witnesses.

On 8 April 2005 the Sholokhovskiy District Court found P. guilty under Article 264 § 1 of the Criminal Procedure Code. Its findings of fact can be summarised as follows. The court found that P.’s car had been moving at 30 to 40 km/h. The car had entered the pedestrian zone, which had been marked by a road sign, and had hit the applicant from behind. He had been walking straight and had not contributed in any manner to the accident. P. had been able to avoid collision by manoeuvring or stopping his car, but for whatever reason he had not done so. He had applied the brakes a while after the collision. As a result of the collision, the applicant had received lifethreatening injuries. No mention was made of P. or the applicant being drunk during the accident. The court was also unable to make any conclusive findings as to when the dents on P.’s car had been repaired, or whether or not the windscreen had been broken. It concluded that the injuries had been caused to the applicant by P.’s carelessness, but not deliberately. The court sentenced P. to eighteen months’ imprisonment, although again he was not required to serve his sentence owing to the expiry of the statutory limitation period for crimes of a less serious nature. The court awarded the applicant RUB 50,000 in respect of nonpecuniary damage. As to compensation for pecuniary damage, the court referred the case to a civil court. The Sholokhovskiy District Court specified that although the applicant had produced contracts, receipts and other documents to support his claim for pecuniary damages, he had failed to explain the amounts claimed and the court was therefore unable to make a precise calculation.

Both parties appealed.

On 31 May 2005 the Rostov Regional Court amended the decision of the first-instance court. Confirming its conclusions as to the facts of the case and their legal classification, the court decided that P. could not be held guilty, owing to the expiry of the statutory limitation period. As a result, the judgment of the first-instance court was quashed in its entirety and the proceedings discontinued. The Rostov Regional Court’s judgment did not make reference to the civil award made by the first-instance court.

On an unspecified date the applicant brought civil proceedings against P. claiming compensation for health damage, moral suffering, loss of earning capacity and the inability to live a normal life. The applicant’s relatives also lodged separate claims within the same proceedings. The applicant claimed compensation of RUB 1,118,307 for past medical expenses, 6,000 United States dollars (USD) for a year’s loss of earnings, 100,000 euros (EUR) for future surgery and medical expenses, and EUR 2,000 a month for health damage. In addition, he claimed USD 100,000 in respect of non-pecuniary damage.

On 8 August 2005 the Sholokhovskiy District Court, at the applicant’s request, ordered that the car belonging to P. be temporarily seized.

On 10 August 2005 the Sholokhovskiy District Court allowed the applicant’s claims in part.

On 10 October 2005 the Rostov Regional Court quashed that decision and remitted the case for fresh examination.

Since all the judges working in the Sholokhovskiy District Court had participated in the earlier proceedings, the case was transferred to a court in an adjacent district, the Verkhnedonskoy District Court, situated 50 kilometres from the applicant’s village. The applicant, who was a wheelchair user at the time, objected without success.

In those proceedings the plaintiffs (the applicant and his relatives) amended their claims. In particular, they claimed that damages should be paid by the State, because P. had been a police officer at the time of the events.

The applicant formulated his claims in respect of pecuniary damage as follows. The accident and resulting injuries had deprived him of the ability to work. Although the applicant, who was a qualified naval operator mechanic, had had no actual work at the time, he had been promised an offer of employment overseas on a cargo ship, and had been on a waiting list for a job. If he had accepted that job, his salary would have amounted to USD 2,500 per month. Consequently, he asked to be compensated the three years’ salary he would have earned but for the accident (USD 82,500). Further, he asked for reimbursement of various medical expenses, including several operations and consultations in Rostov and Moscow, and legal costs related to his participation in the proceedings against P. (RUB 1,031,120). He also claimed reimbursement of his expenses related to a special diet he had to follow, and the personal assistance he had required during his periods of complete disability. Lastly, the applicant claimed that he still needed further surgery, which could only be done at a clinic in Germany because he had developed several brain cysts as a result of the previous operations (EUR 200,000). Lastly, he claimed compensation for his expenses for having to retrain in another field, which would enable him to work again (RUB 970,000).

As to non-pecuniary damages, the applicant claimed RUB 4,320,000 under this head, referring mostly to the same facts and the suffering caused by the accident, the subsequent surgery, his participation in the proceedings, and lost opportunities related to his disability.

The representative of the State claimed that the State could not be held responsible for the accident. In their words, liability would arise when two conditions were met: if the damage was caused in the course of realisation of the State’s public functions, and if the State’s acts were unlawful. Where damage was caused in the context of an economic activity, it should be compensated in the ordinary way, by the immediate wrongdoer. P. had injured the applicant while driving his own car, and had not been on duty at the time. He had therefore had to be the defendant in the civil proceedings, not the State.

On an unspecified date the court obtained (through the applicant or otherwise) a letter from an employment assistance agency, Panigo, dated 28 March 2003. It said that the agency had an opening for the applicant on an overseas voyage on a six-month contract basis, with a salary of USD 2,500. A letter from another shipping company, Valmars Ltd, which had the applicant’s name on a waiting list for an offer of employment at the time of the accident, said that he could have earned USD 550 working as an operator mechanic on a ship in 2003. It also indicated that on overseas voyages on foreign ships, the pay of operator mechanics varied between USD 700 and 2,300.

On 5 June 2006 the Verkhnedonskoy District Court gave judgment in the civil case. The court’s findings of fact were almost identical to the findings of the criminal court. It concluded that P. had been fully responsible for the injuries caused to the applicant. As to the amount of pecuniary damages, the court noted that the applicant had only been on a waiting list for future employment and had not received an actual job offer. At the time of the accident he had been unemployed. Moreover, it could be seen from the material in the case file that he could not have obtained a job as a naval operator mechanic on overseas voyages in 2002 owing to a lack of previous work experience and his poor English. Furthermore, the applicant had a chronic kidney problem, which would have prevented him from going overseas. As a result, the court calculated the applicant’s loss of earnings as five times the minimum wage and took into consideration the “minimum subsistence level” which existed at the relevant time in the area where the applicant lived. The resulting amount for loss of earnings for the period under consideration was RUB 117,645 (approximately EUR 3,415). The court also ordered that the defendant pay him RUB 2,690 (approximately EUR 80) every month until the next expert examination of his health. The court also partially satisfied the applicant’s claims concerning the reimbursement of his medical expenses (RUB 5,321) and his and his father’s travel expenses connected to consultations in Moscow clinics (RUB 4,070) and the cost of those consultations (RUB 23,265). The part of the applicant’s claim related to his special diet, treatments, legal and postal expenses and so forth were dismissed by the court as unnecessary, unsubstantiated, or not actually incurred. In particular, the court held that further treatment in Germany had not been proven necessary by the plaintiff.

The court ordered P. to pay non-pecuniary damages, dismissing the claims against the State. The court fixed the amount of compensation referring to, inter alia, the defendant’s financial situation, at RUB 50,000 (approximately EUR 1,460). The overall amount to be recovered from P. was RUB 200,301 (approximately EUR 5,850). The court dismissed the claims of the applicant’s relatives as unsubstantiated.

The applicant lodged an appeal, but it appears to have been dismissed by the Rostov Regional Court on 12 July 2006.

The amount of compensation awarded by the Verkhnedonskoy District Court was paid in full by 2008.

According to the applicant, during the trial P. made repeated death threats towards him and other members of his family. As a result of that stressful situation, the health of some his relatives worsened and they have since died. The applicant asked the prosecutor to initiate criminal proceedings against P. in respect of the death threats but his request was refused for lack of evidence. The applicant tried to challenge the refusals in the courts but to no avail.

The applicant also sought to initiate a criminal investigation into the alleged falsification of the results of the blood tests by M. However, the prosecutor decided not to open a case, a decision which was upheld by the courts.

The applicant tried to initiate a criminal investigation into the actions of the surgeon Dr Zh., but the investigator did not find any grounds on which to prosecute him.


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in 1955 and lives in Pirna.

The applicant had been employed as head of the sub-division in charge of sanctioning misuse of housing property (Zweckentfremdung) in the Housing Office of the Municipality of Dresden since 1993.

On 9 December 1998 a meeting of the staff of the Housing Office took place in the presence of the Deputy Mayor for Economy and Housing, W., an elected official who, inter alia, governed the Housing Office, and of a number of staff and trade union representatives. Following a short address on the issue of the expiry of the regulation on misuse of housing property by 31 December 1998 given by W., the applicant took the floor and accused W. of having committed perversion of justice (Rechtsbeugung) by ordering the issue of an unlawful demolition permit for a block of flats in 1995/1996.

On 11 December 1998 the applicant’s head of division requested the applicant to substantiate his allegations in writing.

On 17 December 1998 the applicant submitted several pages of written comments, in which he repeated several times (using bold characters) his allegations that W. had committed perversion of justice by ordering the issue of a demolition permit in 1995/1996 without, at the same time, imposing compensation payments for the loss of housing space caused by the demolition. According to the applicant, W. had “ruthlessly pursued politico-economic interests”. He further submitted that all staff members of his sub-division considered that W. had deliberately discredited their work. Furthermore, W. had unlawfully attempted to dissolve the sub-division, thus putting at risk its staff’s employment. The statement made by W. during the staff meeting had been degrading and cynical and had contained halftruths and lies. W. had not assumed any personal responsibility and did not show any concern for finding a socially acceptable solution to the problems arising from the dissolution of the sub-division.

By letter of 24 March 1999 the Municipality of Dresden dismissed the applicant with effect from 30 June 1999. The dismissal was primarily based on the applicant’s statement during the staff meeting. According to the letter of dismissal, the applicant’s accusations against W. had been unjustified. By making these accusations in front of a large number of staff members and representatives of the staff committee and of the trade union, the applicant had damaged his superior’s reputation and thus irrevocably destroyed the mutual trust which was necessary for effective cooperation. It was further observed that the applicant had not availed himself of the possibility of submitting his concerns to his superior or to the Mayor. Finally, it was noted that the applicant had been reprimanded for disloyal conduct on two previous occasions.

On 17 July 1999 a local newspaper published a letter to the editor in which the applicant expressed the opinion that the Deputy Mayor W. lacked any competence for resolving problems relating to housing issues.

By judgment of 24 May 2000 the Dresden Labour Court (Arbeitsgericht) established that the employment contract had not been terminated by the dismissal since this could not be justified under section 1 of the Unfair Dismissal Act (Kündigungsschutzgesetz, see relevant domestic law, below). The Labour Court did not find it necessary to decide whether the applicant’s allegations had been correct, as they were, in any event, covered by the applicant’s right to freedom of expression.

On 8 January 2002 the Saxon Labour Court of Appeal (Landesarbeitsgericht) dismissed the appeal lodged by the Municipality of Dresden.

On 6 November 2003 the Federal Labour Court (Bundesarbeitsgericht), upon the Municipality’s appeal on points of law, quashed the judgment of 8 January 2002 and remitted the case to the Labour Court of Appeal (no. 2 AZR 177/02). Under the case-law of the Federal Labour Court, gross insults directed against the employer or the employer’s representative, which constituted a serious violation of the concerned person’s honour, could justify dismissal on grounds relating to the employee’s conduct. In order to establish the seriousness of the violation of honour, it had to be established whether the applicant’s allegations were based on objective facts. Account also had to be taken of whether the criticism had been made among staff members or whether other persons had been present. Finally it had to be considered that employees of the public service had to respect specific obligations under their Code of Conduct.

The Federal Labour Court confirmed that the right to freedom of expression always had to be taken into account when assessing inappropriate language in a workplace context and that the applicant’s allegations fell within the scope of his right to freedom of expression. Accordingly, the court had to weigh this right against the protected legal interest with which there had been an interference.

The Federal Labour Court considered that the Court of Appeal, when weighing the competing interests, had failed to establish correctly the seriousness of the applicant’s allegations and of the violation of the Deputy Mayor’s personality rights. Under the Criminal Code, perversion of justice was a crime subject to up to five years’ imprisonment. In case of a criminal conviction under this provision, a deputy mayor would automatically lose his office. The conduct of a public service employee had to be measured against a stricter yardstick than that of an employee in the private sector. In particular, the employee was under an obligation to behave in such a way as not to interfere with his public employer’s reputation. Under the Professional Code of Conduct, the employee had to exercise special restraint when openly criticising a superior’s decisions. A public allegation of perversion of justice directed against a superior, in particular if it was unfounded, very seriously violated the superior’s personality rights and interfered, as a rule, with the employee’s professional duties.

Accordingly, in order duly to weigh the competing interests in the light of the right to freedom of expression, the Court of Appeal would have to examine whether the applicant’s allegations had been justified or not. It had further to be taken into account that the allegations had been made during a staff meeting. While it was true that criticism made in this context could occasionally be exaggerated or polemic without giving the employer a ground for dismissal, this right was limited by the obligation not to disturb peace in the office. It had to be taken into account in the applicant’s favour that the staff meeting concerned the suppression of the applicant’s field of work and that the atmosphere had been rather tense. However, this did not justify neglecting the fact that the allegation of perversion of justice did not concern the subject matter of the staff meeting, but a single incident which dated back several years and had not been mentioned by the applicant since 1997. The applicant did not make use of the possibility of informing the Mayor about his legal concerns regarding the Deputy Mayor’s decision. At the time of the staff meeting, the decision dated back such a long time that an attempt to put the decision into question must have lacked the prospect of success. Accordingly, it appeared that the applicant’s statement was rather aimed at attacking the Deputy Mayor.

It had also to be taken into account that the statement was made in the presence of persons who were not necessarily bound by confidentiality. Accordingly, there was the risk that the applicant’s allegations would leak out of this close circle and be made known to a wider public. The Federal Labour Court finally observed that the applicant’s statement had to be seen in the wider context of his conduct and that the applicant had further exacerbated the conflict by the content of his written comments.

On 16 November 2004 the Saxon Labour Court of Appeal quashed the judgment of the Labour Court dated 24 May 2000 and dismissed the applicant’s action.

The Labour Court of Appeal considered that the applicant’s dismissal had been justified because the applicant, in his statement at the staff meeting and in his subsequent written submissions, had seriously insulted and slandered the Deputy Mayor by accusing him of perversion of justice. Based on a detailed examination of the factual and legal situation in 1995/1996, the Labour Court of Appeal considered that the decision taken by the Deputy Mayor at that time had been lawful. The applicant’s written submissions of 17 December 1998 demonstrated that he was not willing to accept and implement politically legitimate decisions, if they concerned sanctions for misuse of property by house owners. The content of the letter to the editor (see paragraph 11, above) contained value judgments which did not amount to insult. However, the Deputy Mayor could not be expected to maintain daily co-operation with the applicant after reading this letter in which he had been described as incompetent. The Labour Court of Appeal further observed that the applicant had not revised his opinion during the proceedings.

The Labour Court of Appeal further considered that the employer did not have any milder means at its disposal. In particular, it would not have been sufficient to reprimand the applicant and to transfer him to another working position. The court observed that the applicant was currently working in the Public Procurement Office and that there was no negative information about his conduct. This was temporary employment which the applicant had obtained by court order in separate proceedings. The applicant had expressed his readiness to accept employment even at a lower level. However, the Labour Court of Appeal considered that the applicant would not have changed his attitude without his dismissal from office. The Municipality could reasonably expect that the applicant would have carried on with his self-righteous attitude if he had not been dismissed. The Labour Court of Appeal finally considered that the applicant’s chances of finding new employment were low. Nevertheless, the employer’s interest in terminating the employment outweighed the applicant’s interests.

On 15 March 2005 the Federal Labour Court dismissed the applicant’s request to be granted leave to appeal on points of law.

On 25 August 2010 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint (no. 1 BvR 947/05), without providing reasons.