Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Alcoholics);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1939 and lives in Liepāja.

It appears that in 1983 the applicant was certified as being Category 3 disabled (the least severe level of disability).

On 28 April 2004 the applicant was certified as being Category 2 disabled (the medium level of disability) on the grounds of an unspecified illness. His disability was to be reassessed on a further occasion.

According to the applicant, on 29 April 2008 his Category 2 disability status was certified as permanent.

On 19 August 2003 the applicant was administratively detained by the municipal police. The circumstances are disputed between the parties.

According to the Government, at 8 p.m. on 19 August 2003 the fire and rescue services received a call about a man who was lying on the ground near an apartment building. A municipal police patrol was dispatched to the address given. Police officers I.L. and N.M. arrived there at 8.18 p.m. and found no one there. However, they were approached by an unidentified woman who indicated that somebody was lying on the stairs inside the building. They found the applicant lying face-down on the stairs between the ground and 1st floor. He appeared to be in a state of heavy alcohol intoxication, was unable to communicate or identify himself, and was unable to move. He had several bruises and grazes on his face – cheeks, eyebrows and forehead. The officers carried him by his arms and legs to a municipal police van and took him to the municipal police station. They arrived there approximately one hour later, on the way having picked up another person who had been lying on the ground unconscious somewhere else.

At the municipal police station, a medical orderly visually examined the applicant and treated and recorded his facial injuries. The officers then carried him to a “sobering-up room” and placed him on a wooden plank bed. Several hours later the applicant was able to reveal his identity. According to the Government, reports (protokoli) in respect of administrative detention (administratīvā aizturēšana) and the administrative offence of “indecent public behaviour while being in a state of alcohol intoxication” were being drawn up. The Government could not provide the Court with copies of these procedural documents since they were destroyed in 2008 upon the expiry of their archival period.

Later, at some point during the night of 19 to 20 August 2003, the applicant complained of pain in his left leg. The medical orderly called an ambulance and the applicant was taken to a hospital in Liepāja.

The applicant did not agree with the Government’s version of the events. According to the applicant, on 19 August 2003, between 6 p.m. and 7 p.m., he was sitting on a bench by the apartment building he lived in with a bottle of beer in his hand, when the municipal police arrived and two officers approached him with a view to taking him to the municipal police station. They did not inform him of the reasons for his detention; he got into the police van by himself and was taken to the municipal police station, where at 8.55 p.m. an administrative detention report was drawn up.

At the station, he was briefly examined to determine his state of health and level of intoxication. Following an examination, an officer instructed him to stand up immediately. The applicant replied that he was capable of doing so by himself, but slowly. Then another officer, who was standing behind him, ordered him to do as requested and then took him by the shoulders and pushed him against a wall. His left eye was hurt to the extent that he later required several stiches. The officer then grabbed the applicant by his clothes and dragged him on to the floor and down the stairs to the sobering-up room. The applicant tried to turn onto his left side as he had had an operation on his right leg and he was trying to spare it. While he was being dragged down the stairs, he felt a sharp pain in his left leg and started to scream. The officer did not stop; he dragged him into a cell and left him there. The applicant was unable to move. After some time, three persons entered the cell, took off his trousers, causing him more pain, and injected him with some substances. Then an unidentified officer approached him with a view to getting him to sign another report. He refused, protesting that he had already signed one. At about 5 a.m. an ambulance arrived and took him to a hospital in Liepāja.

The contents of the applicant’s administrative detention report were partly reproduced in expert report no. 352 of 13 November 2003 and read as follows:

“This report has been drawn up by ... N.H. on 19 August 2003, at 8.55 p.m., in Liepāja in respect of the applicant [date of birth and address][, who] was administratively detained and taken to the sobering-up room of the municipal police station on 19 August 2003, at 8.55 p.m. Reason for detention: to sober up. In the presence of witnesses [the applicant’s] keys were confiscated. Detainee’s clothes: blue blazer, dark shirt, blue trousers and dark shoes. In a check-up [the following] injuries were discovered: a bruise on the face, a bruise on the left eyebrow. The applicant was released on 20 August 2003, at 5.25 a.m. Reason for release: sobered up. Upon release: received keys. No complaints.”

According to the ambulance log, a call was recorded at 5 a.m. on 20 August 2003. At 5.13 a.m. an ambulance arrived at the municipal police station. In the field “diagnoses” it was noted that the applicant’s left hip and head were injured, there were bruises on his face, and he was in a state of alcohol intoxication. In the field “additional findings” it was noted that the applicant had bruises on his face and the lower part of his body. He was taken to hospital, where at 5.45 a.m. his blood alcohol level was measured (0.25 ‰).

From 20 August to 2 September 2003 the applicant remained in hospital. Following an X-ray examination he was diagnosed with a fracture to his left hip (kreisā augšstilba kakla kauliņa lūzums). On 22 August 2003 an operation (endo-prosthesis) was performed and over the next few days the applicant received post-operative treatment.

On 2 September 2003 the applicant was issued with an extract from his medical file at the hospital. The extract did not contain any mention of the applicant’s own description of the circumstances relating to his hip fracture.

On 8 September 2003 the applicant made a complaint to the prosecutor’s office which was for the most part similar to his allegations before the Court. The municipal police were requested to prepare an internal report; on 23 September 2003 they issued report no. 9, the contents of which were later for the most part reproduced in the first decision (see paragraph 23 below).

On 16 September 2003 the applicant’s complaint was forwarded for examination to the Liepāja police, a branch of the State Police.

On 1 October 2003 an expert examined the applicant’s medical records and drew up report no. 407. Reference was made to a statement the applicant had made in the hospital that “he had fallen down somewhere on the street”. The expert concluded that the applicant had sustained a bodily injury – a fracture of the left hip – which was classified as moderately severe (vidēja smaguma miesas bojājumi). This injury could have been sustained as a result of being hit by blunt objects or bumping into such objects.

On 13 October 2003 the Liepāja police decided not to institute criminal proceedings with regard to the injuries suffered by the applicant (“the first decision”). Reference was made to the internal report of 23 September 2003. According to the report, the events developed as follows.

At 8.18 p.m. on 19 August 2003, the municipal police received a call from the fire and rescue services informing them that a man was lying near an apartment building. Upon their arrival the officers found the applicant lying inside the apartment building on the stairs between the ground and 1st floor. He was too intoxicated to give any explanation; the police officers carried him out of the apartment building, placed him in the van and took him to the police station. He was placed in the sobering-up area, which was located in the basement. The officers carried the applicant into a cell as he was unable to move. After about three hours the applicant was able to reveal his identity. He then complained about pain in his leg and a medical orderly called an ambulance to the police station. No injections were given to the applicant. He was detained on the basis of paragraph one of section 171 of the Code of Administrative Violations. On the basis of the case-file materials in their entirety, it was concluded that the applicant “could have sustained” injuries by falling on the stairs in the apartment building. There were no grounds to believe that the applicant’s injuries had been wilfully inflicted in the sobering-up room or that excessive physical force had been used on him. There were no indications that the officers had exceeded their authority.

On 27 October 2003 the applicant lodged a complaint, noting that two witnesses had seen him getting into the police van by himself when being taken to the police station.

On 7 November 2003 the supervising prosecutor quashed the first decision and the case was remitted to the Liepāja police for additional investigation. The quashing order was issued on the ground that the applicant had not been questioned on the facts, nor had his neighbours been questioned; the person who had called the fire and rescue services had not been identified or questioned; the witnesses identified by the applicant had not been questioned; and lastly, the ambulance personnel had not been questioned.

During additional investigation the Liepāja police received information from the fire and rescue services and questioned the applicant’s neighbours, including V.S., who had been identified by the applicant as a witness, and a doctor from the hospital. Another medico-legal examination was also ordered.

On 13 November 2003 an expert examined the applicant and his administrative detention report and drew up report no. 352 in addition to report no. 407. The background to the report was described as follows:

“On 19 August 2003 police officers [allegedly] inflicted bodily injuries on the applicant at the police station. On 1 October 2003 an expert examined the applicant’s medical records (report no. 407). The applicant ... alleged that he had suffered additional injuries to different parts of his body (eyebrow, lower body), [which were] not documented in the medical records”.

The expert concluded that the applicant had the following injuries: “a scar on his left eyebrow that could be due to a cicatrised wound that had been stitched” and “scars on the back of the applicant’s torso and on the buttock area that could have appeared after bruises had healed”. They were both classified as minor bodily injuries (viegli miesas bojājumi).

On 25 November 2003 the Liepāja police again refused to institute criminal proceedings (“the second decision”). In addition to the grounds of the first decision, the second decision was based on the grounds that the fire and rescue services did not hold information about incoming calls concerning alcohol intoxication. Such calls were transferred to the municipal police.

According to the second decision, an acquaintance of the applicant, V.S., stated that he had seen him sitting on a bench and consuming beer at about 6.30 or 7 p.m., and then the municipal police had arrived. Other statements were taken from neighbours, but they only indicated that the applicant often sat on the bench by the apartment building consuming alcohol. One neighbour, B.K., stated that the applicant had a “difficult” personality and that “he often started fights”. Further, it was noted that “it was not possible to identify direct witnesses who could provide objective information about [the applicant’s] arrest”. The ambulance record indicated that the applicant had been taken from the municipal police station to the hospital with injuries to his left hip and head, bruises on his face and in a state of alcohol intoxication. Finally, the doctor’s statement indicated that he had examined the applicant at 10 a.m., when he had sobered up; the doctor had inquired about the circumstances of the injury and the applicant had replied that he had fallen down somewhere on the street. A note was made that the conclusions drawn following the internal inquiry were confirmed by other case-file materials and that the statements made by the applicant and V.S. should be evaluated with caution. On the basis of the case-file materials in their entirety, it was concluded that the applicant “could have sustained” the injuries by falling on the stairs in the apartment building. There were no grounds for finding that the applicant’s injuries had been wilfully inflicted in the sobering-up room, or that excessive physical force had been used on him. There were no indications that the officers had exceeded their authority.

On 26 January 2004 the supervising prosecutor examined the case-file materials and dismissed a complaint by the applicant about the second decision. She noted that the Liepāja police, even after her instructions, could not find any witness to his detention. It appears that she herself questioned V.S. for a second time. He clarified that he had only seen the applicant sitting on the bench; when the municipal police had arrived, he could not see the bench any more, as the van blocked the scene from his view. He testified that the police had been there for three to four minutes. In response to the applicant’s allegations as to the location, nature and probable cause of his injuries in the circumstances, the prosecutor stated that the expert’s observation that they could have been sustained as a result of being hit with blunt objects or bumping into such objects was only a probability and not an assertion. Moreover, she considered that there were no grounds to disregard the hospital doctor’s remark that the circumstances of the applicant’s injuries had been taken down in his own words. The prosecutor noted that his injuries, as detected upon his admission to the police station (bruises on the face and left eyebrow), were confirmed by the statement of N.M; his alcohol intoxication was confirmed by the ambulance and hospital medical records and the statements of the police officers, the watch officer (N.H.), and the medical orderly (A.B.). She concluded that her previous instructions (issued on 7 November 2003) had been complied with and that on the basis of the case-file materials in their entirety “it [could] not be precluded” that the applicant sustained the injuries before his detention as he had been admitted to the station in an intoxicated state with visible injuries on his face.

On 17 March 2004 and 21 May 2004 two higher-ranking prosecutors dismissed the applicant’s complaints against the second decision. The first prosecutor considered that the review of the applicant’s complaints had been comprehensive and objective; no evidence had been found that the officers had exceeded their authority. Referring to the medico-legal examination report, the prosecutor considered that the applicant “could have sustained” injuries by falling from his own height, as he had indicated to the hospital doctor, whose testimony was to be given more weight as he was not an interested party. The second prosecutor also found the second decision justified. He referred to the administrative detention “documentation” and the officers’ statements to demonstrate that the applicant had been lying on the stairs in the apartment building and not sitting on the bench next to it; V.S.’s statements did not corroborate these facts. The officers had taken the applicant to the sobering-up room because he had been unable to move by himself because of either his intoxicated state or his injuries. He concluded:

“It follows from the foregoing that [the applicant] must have sustained the injuries before the arrival of the municipal police officers. [The applicant’s] blood alcohol level after more than eleven hours of detention only further demonstrates that prior to detention [the applicant] was intoxicated with alcohol. This does not exclude the possibility that [the applicant] sustained injuries by falling from [his own] height.”

On 20 July 2004 a prosecutor at the Office of the Prosecutor General dismissed the applicant’s complaint. She examined the case-file materials and found that there were no grounds to quash the second decision. Among other things, she noted that section 171 of the Code of Administrative Violations provided for administrative liability for the use of alcoholic beverages or other intoxicating substances in public places or for appearing in public places in an intoxicated state, which was an affront to human dignity. For that reason, notwithstanding the discrepancy between the submissions of the officers, who had stated that the applicant had been lying inside the apartment building, and the applicant, who had stated that he had been sitting on a bench outside the building, the officers had had grounds to take him to the municipal police station to sober up and to draw up an administrative offence report.

On 4 August 2004 the applicant, in a complaint to a higher-ranking prosecutor, specified that his complaints did not relate to unjustified placement (nepamatota nogādāšana) in the sobering-up room or to being taken there by force. Rather, they related to the failure to institute criminal proceedings in connection with bodily injuries inflicted on him while there.

On 19 August 2004 the higher-ranking prosecutor at the Office of the Prosecutor General dismissed the applicant’s complaint. It appears that he obtained additional statements from officers I.L. and N.M., and the watch officer N.H. The prosecutor found that the applicant’s allegation that the injury on his left eyebrow had been inflicted by officers pushing him against the wall in the police station were not corroborated by the officers’ statements and the medical orderly’s indication that the applicant had been admitted with the injury. Nor was the applicant’s allegation that his left hip had been broken by the officers dragging him down the stairs at the police station confirmed. The officers had explained that they had carried him into the station as he had not been able to walk by himself. The prosecutor concluded that the applicant had sustained the injuries before his administrative detention.

A final decision, negative in respect of the applicant, was adopted by the Prosecutor General on 13 October 2004. He found that the applicant’s allegations concerning contradictions and discrepancies in the case-file materials were unfounded. He noted, among other things, that the applicant’s detention record and the medical record drawn up upon his admission to the police station confirmed that he already had injuries on his face and left eyebrow, thus his allegations about sustaining the injuries in the station were not confirmed. The applicant had been carried into the station because he had not been able to walk by himself and he had complained about pain in his hip only after sobering up, after which the medical orderly had called an ambulance.

The applicant received the decision on 15 October 2004.


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

The applicant is a Rwandan national who has born in 1978. She is currently in Sweden. She is represented by Mr P. A. Hultman, residing in Grebbestad.

On 20 October 2008, the applicant applied for asylum and a residence permit in Sweden. She was provided with legal counsel to represent her during the asylum proceedings. Before the Migration Board (Migrationsverket), she claimed the following. She originated from Kigali. In 1996, her family had disappeared after being arrested by the police. In August 2008, she had been requested by two men to testify against her neighbour in a Gacaca trial (see below paragraph 28). The men had told her what to say before the court. She had not known her neighbour or of what crime he had been accused. The general public had received a lot of information about the Gacaca court proceedings. According to the law, all villagers had to attend the trials. There had been approximately a hundred persons at the trial in question. Just when she had raised her hand to testify it had started to rain, and the trial had been discontinued. She had therefore not testified. However, everyone present had seen her and observed that she had not testified. Three other persons had testified against the neighbour and she had no information about what had happened to him later. The following day she had been arrested and imprisoned by the local police. She had been repeatedly raped and ill-treated while in detention. In her view, the ill-treatment had been a way to force her to testify. When she had promised to do so, she had been released. Shortly thereafter she had been summoned. She had gone into hiding and with the help of a priest she had managed to leave the country. She would risk being killed by the local authorities or by the police if returned since she had refused to commit perjury. The applicant submitted a copy of her identity card and a summons issued by the local police station to substantiate her claims.

On 28 May 2009, the Migration Board rejected the application. It found that the identity card produced was insufficient to substantiate the applicant’s identity. However, the Board found that she, through her asylum story, had made it plausible that she originated from Rwanda. Turning to the documentary evidence, the Board found that the submitted summons was of simple quality and thus had low evidential value. Further, the Board found the asylum story vague and lacking in detail. For example, the applicant had not known why she had been requested to testify, who the accused person was, who the other witnesses were or if witnesses were usually summoned in these types of proceedings. Further, she had not known what punishment she risked for not testifying. The Board found it remarkable that the asylum story was so vague, given that the applicant had stated that the general public had received a lot of information about these trials before they were initiated and that she had attended several trials previously. Further, the Board found that the asylum story was inconsistent with relevant country information, which suggested that participation in the proceedings was voluntary. Consequently, the Board found that the applicant had failed to make plausible that she risked persecution or ill-treatment if returned.

The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining her claims.

On 2 July 2010, the Migration Court, after having held an oral hearing, rejected the appeal. It agreed with the Board that the asylum story was vague and lacked credibility. In any event it noted that, according to country information, the majority of the Gacaca court proceedings had been terminated and that although there had been problems of threats and violence against witnesses, essentially taking place locally, there existed a certain witness protection and the authorities investigated and indicted such crimes committed by private actors. Consequently, the court found that the applicant had failed to exhaust the possibilities of obtaining domestic protection.

On 23 September 2010, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. Hence, the expulsion order became enforceable.

In November 2010, the applicant claimed that there were impediments to enforcement of the deportation order for medical reasons and on grounds of family ties to her cohabiting partner, X, as well as the general security situation and severe living conditions in her home country.

On 20 November 2010, the Migration Board rejected the request since no reasons had emerged to deviate from the general rule that a residence permit, based on family ties, should be lodged with the Swedish authorities abroad. This was in particular so when the family ties had been established after a final decision on expulsion had been rendered. Further, it found that the applicant had not raised any new circumstances in the case.

Another request for re-examination of the case, on the basis of circumstances already mentioned and the general situation in Rwanda, was rejected by the Migration Board on 17 January 2011.

Thereafter the Migration Board was informed that the applicant had travelled to Belgium and, on 8 July 2011, she was registered as having left Sweden. On 21 September 2011, the applicant re-entered Sweden.

In January 2012, the applicant again requested a stay on removal to her home country and a re-examination of the case, relying on family ties to X and their son, Y, who had been born in October 2011. The applicant submitted a copy of the paternity certificate to the Board.

On 28 January 2012, the Migration Board rejected the request. It pointed out that the applicant had not produced a passport and thus had failed to prove her identity. It followed already from that that she did not fulfil one of the basic requirements to be granted a temporary residence permit in Sweden. The Board also noted that, since 23 September 2010 when the decision to reject her asylum application became final, the applicant had no legal right to stay in Sweden. Consequently, it found no reason to deviate from its previous position.

The applicant again requested a stay of removal and a reexamination of the case based on family ties to X and Y, and submitted, inter alia, a decision from the Swedish Tax Authority.

On 7 July 2012, the Migration Board rejected the application. It reiterated that the applicant had not submitted a passport to the Swedish authorities to prove her identity and fulfil one of the basic requirements to be granted a temporary residence permit. It further considered that she had failed to make plausible that she had strong family ties to X and Y. The circumstance that X was her cohabiting partner and that they had Y together led to no other conclusion. Thus, it found that the applicant had not fulfilled the basic requirements for a residence permit.

The applicant then made yet another request for re-examination and stated that it would be in violation of the UN Convention on the Rights of the Child, applicable EU directives and the Migration Board’s own regulations, if she were forced to return to her home country, and consequently separated from her child, in order to submit her application from there.

On 25 May 2013, the Migration Board rejected also this request on the same grounds as its previous decisions.

Upon appeal, the Migration Court, on 5 June 2013, upheld the Board’s decision in full and considered that the applicant had not invoked any new circumstances.

On 2 July 2013, the Migration Court of Appeal refused leave to appeal.

In October 2003, X applied for asylum and a residence permit in Sweden. Before the Migration Board he stated that he was Rwandan of Hutu ethnicity and had been involved in the 2003 presidential election campaign, responsible for youth activities in his municipality, and had arranged illicit meetings which had come to the authorities’ attention.

On 20 March 2006, the Migration Board rejected the application. It found no reason to question X’s claim of political activity in connection to the election but considered that he had merely been politically active at a low level and it was thus unlikely that the authorities would have any interest in him.

On 17 January 2012, Y applied for asylum and a residence permit on the grounds that he risked persecution in Rwanda, with reference to the applicant’s and X’s asylum claims. Furthermore, family ties to X were relied on. Supporting documents, inter alia, a copy of the paternity investigation and certificates were submitted to the Board.

On 13 April 2012, the Migration Board granted Y refugee status, a permanent residence permit and travel documents, valid in relation to all countries except Rwanda for the period 2012 to 2017. The Board noted that it was undisputed in the case that X was the father of Y. Since X had been granted a residence permit in Sweden as a refugee this should also apply to Y, in accordance with the principle of family unity.

The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. See Imamovic v. Sweden ([dec.], no. 57633/10, 13 November 2012) for a substantive account of the relevant provisions of this Act.

On 1 July 2010 Chapter 5, section 18, was amended by the following addition: “When assessing what is reasonable under the second paragraph, point 5, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted if the application had been examined before entry into Sweden.” According to the preparatory works, this means that the alien should fulfil all requirements for a residence permit such as, inter alia, holding a valid passport, verified identity and strong family ties (Government Bill 2009/10:137, p. 17).

Chapter 12, section 18, was also amended on 1 July 2010 by the following addition: “When assessing under the first paragraph, point 3, if there is another special reason for a decision not to be executed, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted ... if the application had been examined before entry into Sweden.”

According to Human Rights Watch, World report 2013 –Rwanda, the community-based Gacaca courts, set up to try cases related to the 1994 genocide, closed in June 2012. Moreover, the trial of Jean Bosco Uwinkindi, the first case transferred to Rwanda by the International Criminal Tribunal for Rwanda (ICTR), opened in Kigali. The ICTR has agreed to transfer seven other cases to Rwanda. Human Rights Watch also noted that Rwanda had made important economic and development gains but that the government had continued to impose tight restrictions on freedom of expression and association. Opposition parties were unable to operate.


CASE OF IURCOVSCHI AND OTHERS v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

The applicants were born in 1969, 1977 and 1980, respectively, and are currently absconding from the Moldovan authorities.

At the time of the events, the applicants were police officers. According to the materials of the domestic judgments, the applicants found out that a person from the Transdniestrian region of Moldova, P., intended to come to Chișinău on 8 December 2010, carrying a large amount of cash money, in order to conclude a transaction concerning immovable property. On 8 December 2010, the applicants attempted to apprehend P. in the staircase of an apartment block building. P. managed to escape, however he was chased and apprehended by the applicants, was thrown to the ground and severely beaten up until he lost consciousness. After that, he was carried by the applicants and put into a car. Several persons witnessed P.’s apprehension and beating. P. was never seen alive after that and several years later his body was found in a well.

The applicants claimed that they believed P. to be a criminal and intended to take him to the police station for questioning. After chasing him, they arrested him and drove him to the police station. However, P. managed to escape from their car at a busy road crossing and ran away after having waded across a small river. They submitted that they did not chase him again because the traffic light turned green and because they did not want to soil their cloths chasing P. across the river.

On 7 February 2011 the applicants were arrested and charged with kidnapping, murder and abuse of their authority as police officers.

The same day the public prosecutor applied to the Centru District Court for a warrant for the applicants’ detention in custody. The reasons relied upon by the public prosecutor were that the applicants could abscond from prosecution, interfere with the criminal investigation and re-offend. The applicants’ representative sought access to the materials submitted by the public prosecutor in support of his requests but to no avail.

The same day the Centru District Court issued a detention order for thirty days. In court the applicants argued that the allegations presented by the public prosecutor were not supported by any facts or materials and that no materials whatsoever were presented by the prosecution. The court found that in view of the gravity of the accusations against the applicants, of the fact that the investigation was at its initial stage and of the applicants’ position in the Ministry of Internal Affairs, there was a serious risk of absconding and of interfering with the investigation by influencing witnesses, misleading the investigation and increasing the volume of work.

On 9 February 2011 the applicants appealed and argued, inter alia, that the orders for detention lacked reasoning and that the court had relied only on suppositions. The applicants further noted that the court had refused to provide their representative with any materials from the file other than the prosecutor’s requests.

On 17 February 2011 the Chișinău Court of Appeal dismissed the applicants’ appeals. The court found that the materials in the file provided sufficient grounds for a reasonable suspicion that the applicants had committed the crimes they were charged with. The risk of interference with the investigation was determined by the fact that the investigation had just started and the risk of absconding resulted from the fact that the applicants were police officers and thus knew how the investigating authorities operated. The Court of Appeal did not answer the applicants’ complaint about the alleged lack of access to the materials in the case-file, relied upon by the first instance court to order their detention.

On 5 March 2011 the Centru District Court extended the applicants’ detention by thirty days for the same reasons as it had done earlier. The court noted that on this occasion the applicants’ representative had been given access to the materials in the file.

The applicants appealed and argued, inter alia, that the investigation was not advancing as claimed by the public prosecutor and that the risk of interference could just as well be mitigated by the applicants’ house arrest. On 14 March 2011 the Chișinău Court of Appeal upheld the decision of the Centru District Court of 5 March 2011 for the same reasons as it had done earlier.

On 16 March 2011 the charges of murder were dropped in respect of all applicants because the victim’s body was not yet found. On 29 March 2011 the case was committed for trial.

On 29 March 2011 the prosecutor applied for the extension of the applicants’ detention by ninety days. The prosecutor cited the same reasons as before: risk of absconding, of interfering with the investigation and of reoffending.

On 7 April 2011 the applicants lodged a habeas corpus request, arguing that the risk of interfering with the investigation was no longer valid because the criminal investigation had been concluded and that there had not been any evidence indicating that the applicants might abscond.

The same day, judge V. of the Rîșcani District Court extended the applicants’ detention by ninety days considering that the three risks invoked by the public prosecutor resulted from the character of the charges against the applicants.

The applicants appealed and argued, inter alia, that the court had failed to refer to any evidence in support of the alleged risks justifying their detention.

On 20 April 2011 the Chișinău Court of Appeal upheld the decision of the Rîșcani District Court of 7 April 2011. The court relied on the fact that the applicants were police officers and considered that they could influence the witnesses or destroy evidence. The court also cited the risk of absconding.

On 10 May 2011 the applicants lodged a habeas corpus request, arguing that there were no grounds to assume that the applicants would abscond, re-offend or interfere with the trial.

On 25 May 2011 judge V. had withdrawn from the case because he had previously worked together with the third applicant. It is not clear from the materials of the case-file in which manner that fact affected judge V.’s impartiality and when did he realise that.

On 6 June 2011 the applicants lodged another habeas corpus request, noting that their previous request had still not been examined. They argued that, on 25 May 2011, judge V. had withdrawn from the case, whereas his ineligibility had existed on 7 April 2011, when he had ordered the extension of their detention and thus affected the lawfulness of that order.

On 5 July 2011 judge M. from the Rîșcani District Court extended the applicants’ detention by ninety days for the same reasons as had been done earlier. The court rejected the applicants’ habeas corpus request of 6 June 2011 by noting that none of the previous grounds for detention had lost their validity because the trial had not yet started. The court did not make any reference to the habeas corpus request of 10 May 2011.

On 6 July 2011 the applicants appealed and argued, inter alia, that the court had not examined their habeas corpus requests “speedily” as required under Article 5 § 4 of the Convention and had not replied to their contention that the detention order of 7 April 2011 had been unlawful because it had been ordered by judge V. who lacked impartiality.

On 15 July 2011 the Chișinău Court of Appeal upheld the decision of the Rîșcani District Court of 5 July 2011 for the same reasons as it had done before.

On 30 September 2011 the Rîșcani District Court acquitted the applicants of all charges and released them in the court room.

On 11 March 2013 the Chișinău Court of Appeal quashed that judgment, convicted the applicants of kidnapping and abuse of office and sentenced them to seven years of imprisonment. On 12 November 2013 the Supreme Court of Justice upheld that judgment in absentia.

It appears that on an unspecified date after the victim’s body was found, a new set of criminal proceedings based on murder charges was initiated against the applicants. The parties did not inform the Court about the outcome of those proceedings.


Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Florin Istrățoiu, is a Romanian national, who was born in 1975 and lives in Tilbury, the United Kingdom. He was represented before the Court by Mr C. J. Barnett, a lawyer practising in London.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

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

On 12 May 2005, the applicant’s son, aged five years and six months at that time, underwent a tonsillectomy – an operation to remove his tonsils – performed by Dr O.L.T. in a private clinic. After the surgery the child’s condition was stable and the first medical check-up was scheduled for 21 May 2005.

During the medical check-up, which took place on the scheduled date, Dr O.L.T. assured the parents that the post-surgical recovery was going well and recommended that they continue caring for their child in the same way.

In the morning of 23 May 2005 the child suffered a haemorrhage, causing blood to flood his mouth and nose. The applicant’s mother-in-law called an ambulance and his wife went outside to wait for it. Before the ambulance arrived, she and L.S., a neighbour she had met on her way out, took a taxi and rushed the child to the emergency unit of the Bacău County Hospital.

According to the applicant, at the emergency unit of the Bacău County Hospital his wife and son encountered a member of the medical staff who, without examining his son, advised his wife to take the child to the paediatric unit of the same hospital for medical care.

The child did not receive any medical treatment at the emergency unit of the Bacău County Hospital because the applicant’s wife had immediately taken the child to the paediatric unit of the hospital.

Upon arrival at the paediatric unit, the doctors tried to resuscitate the child and clear his respiratory channels, but without any success. The child had died.

On 23 May 2005, the Bacău Police Department initiated of its own motion a criminal investigation into the death of the applicant’s son. On the following day, it carried out an investigation on the premises of the Bacău County Hospital (cercetare la fața locului) and at the applicant’s home.

On the same date the Bacău Police Department asked the Bacău Forensic Service to produce an autopsy report in respect of the applicant’s son.

On the same date the Bacău Forensic Service issued a death certificate which concluded that the applicant’s son had died of acute respiratory failure as a result of the blood that had blocked his airways.

On 28 and 29 May as well as 16 and 23 June 2005 the Bacău Police Department heard the applicant and his wife.

On 2 June 2005 the applicant lodged a criminal complaint with the Bacău Prosecutor’s Office for aggravated involuntary manslaughter against Dr O.L.T. and the unidentified staff member who had been working at the Bacău County Hospital emergency unit on the morning of 23 May 2005. He alleged that the faulty surgical and post-surgical treatment received by his son from Dr O.L.T., as well as the refusal of the unidentified staff member of the Bacău County Hospital emergency unit to urgently treat his son, had resulted in his death. In addition, he asked the investigating authorities to identify all the medical personnel working at the emergency unit of the Bacău County Hospital on the morning of 23 May 2005 because their identities were unknown to him. Furthermore, he informed the investigating authorities that he reserved his right to join the criminal proceedings as a civil party and his right to request that the private clinic where the surgery had taken place and the Bacău County Hospital be held jointly liable with their staff for their negligence while on duty under the relevant provisions of the criminal procedure law and civil law. Lastly, he asked the domestic authorities to order the Bucharest Forensic Service to carry out a forensic expert report that would answer his questions about the cause and circumstances of his son’s death.

On 21 June 2005, the Bacău Forensic Service produced the autopsy report requested by the Bacău Police Department on 24 May 2005. The report, signed by three forensic experts, relied amongst other things on a histological examination of tissue collected from the applicant’s son after his death. It noted the opening of a very small blood vessel in the cavity of the upper left tonsil. It concluded that the child’s death had been violent and had been caused by severe respiratory failure resulting from the aspiration of blood into his airways. The bleeding had originated from a small damaged arterial blood vessel located in the cavity of the left tonsil and had lasted for a few hours. Blood had accumulated in the stomach cavity, which had resulted in vomiting and subsequently in the blocking of the child’s airways. The blood vessel had been damaged by local acute inflammation – also confirmed by the histological examination – which had happened on the eleventh day after the surgery. The report noted that although those circumstances were rare, they occurred in 4% to 8% of cases. It excluded the possibility that the bleeding had been caused by the severing of a larger blood vessel or an artery during surgery. Had that been the case, the bleeding would have happened faster and more abundantly. Lastly, it recommended that the report be submitted for approval by the forensic review board of the Iaşi Forensic Service, which could also assess, among other things, the medical conduct in the case.

On 1 July 2005, further to the applicant’s request, the Bacău Police Department provided him with a copy of the autopsy report produced by the Bacău Forensic Service and of the surgery report produced by the private clinic where his son’s surgery had been performed.

On an unspecified date, the autopsy report was sent for approval to the review board of the Iaşi Forensic Service and the higher forensic review board of the Bucharest Forensic Service.

On 11, 18 and 21 July 2005 the Bacău Police Department heard the medical personnel of the private clinic where the applicant’s son had undergone surgery and who had been involved in his pre- and post-surgical care, as well as Dr O.L.T.

On 28 July 2005, the applicant lodged a request with the Bacău Police Department for a new forensic expert report to be produced in his son’s case. He requested that a forensic expert chosen by him and an otolaryngologist be allowed to take part in the process.

On 30 July 2005, the Iaşi Forensic Service review board approved the autopsy report of 21 June 2005. The board included an otolaryngologist. It concluded, among other things, that the surgical operation and the postsurgical examinations had been appropriate and that the applicant’s son had not been treated negligently. The delayed haemorrhage had not been caused by the surgery, but by a secondary inflammation. The last medical examination of the applicant’s son could not have identified a microscopic infection. However, the medical personnel of the Bacău County Hospital emergency unit had to explain their conduct given that their statements had not been attached to the examined file.

On 27 October 2005 the higher forensic review board of the Bucharest Forensic Service examined and approved the findings of the autopsy report and of the Iaşi Forensic Service review board. The board, which also included an otolaryngologist, concluded that Dr O.L.T. had not committed any medical errors and that the cause of death established by the autopsy report was correct. The death of the applicant’s son was not a consequence of the surgery. No one could be blamed for his haemorrhage, because it had been caused by a necrosis of the wall of the carotid artery which had subsequently spontaneously broken. The choices made by the medical personnel of the Bacău County Hospital emergency unit had been based on the equipment available in the emergency unit and the seriousness of the condition of the applicant’s son. Although it was clear that the applicant’s son had died by the time he had reached the paediatric unit, there were no medical records to show whether he had still been alive when he had arrived at the emergency unit of the hospital. Given the circumstances and the seriousness of his condition, there was little hope that he could have been saved.

On 4 November 2005, the Bacău Prosecutor’s Office authorised a new forensic expert report, deemed necessary by the applicant. However, the report was never produced because on 6 December 2005 the higher forensic review board of the Bucharest Forensic Service communicated its report of 27 October 2005 to the Bacău Police Department.

From 28 November 2005 to 16 May 2007 the Bacău Police Department and the prosecutor’s office repeatedly questioned the medical personnel of the Bacău County Hospital emergency unit who had been on duty when the applicant’s son had arrived at the hospital, namely doctors S.C., L.E. and H.S.; the orderly, L.L.; nurse S.M. and head nurse N.L.O. The investigators also questioned R.D.M., the taxi driver who had transported the applicant’s wife and son to the hospital, and L.S., the applicant’s neighbour who had accompanied them.

On 21 December 2005, at the request of the Bacău Police Department, the Bacău County Hospital notified the police that their internal inquiry had been unable to identify the individual who had directed the applicant’s wife and her son to a different unit of the hospital, because all those questioned had stated that they did not know who had done so.

On 4 January 2006, the applicant submitted before the Bacău Prosecutor’s Office an opinion drafted by a forensic medical expert chosen by him. It criticised the conclusions of the medical forensic documents produced in the case and recommended that a new forensic expert report be produced.

On 6 January 2006 the Bacău Medical Council informed the Bacău Police Department that in accordance with the Deontology Code and their professional duties, the medical personnel of the Bacău County Hospital emergency unit had been under an obligation to provide medical assistance in cases similar to that of the applicant’s son. However, only a doctor had had the power to decide on the situation and the medical procedure that needed to be followed in respect of the applicant’s son after a medical examination. The applicant’s son had not been provided with the required medical assistance because the child’s mother had rushed him out of the emergency unit once she had been directed by an unidentified individual, without having entered a doctor’s office. Therefore the child had never been examined by one of the doctors on duty that day. Although the medical personnel who had been on duty in the hospital reception area that day had been questioned, the inquiry carried out by the disciplinary board of the Bacău Medical Council had been unable to identify the person who had redirected the applicant’s wife.

On the same date the Bacău Medical Council informed the Bacău Police Department that in their opinion, given the serious condition of the applicant’s son, had he been seen by one of the on-duty doctors, they could have treated him in the emergency unit. Moreover, the child’s condition did not warrant a decision to direct him elsewhere for treatment.

On 8 February 2006, the applicant reiterated his request for a new forensic expert report.

On 28 April 2006, the higher forensic review board of the Bucharest Forensic Service notified the Bacău Prosecutor’s Office that under the relevant domestic legislation, a new forensic expert report could not be ordered unless there were new medical and factual elements, given that the review board had already issued its opinion on 27 October 2005.

By an order of 21 July 2006 the Bacău Prosecutor’s Office instituted criminal proceedings (a ȋnceput urmărirea penală) against the head nurse, N.L.O., for negligence while on duty because he had failed to notify the head doctor and had not taken measures to stabilise the condition of the applicant’s child, who had been brought to the hospital in a critical condition. At the same time, the prosecutor’s office continued to investigate Dr O.L.T. for aggravated involuntary manslaughter and Dr H.S. and nurse S.M. for negligence while on duty.

On 23 May 2007 the Bacău Council of Nurses informed the Bacău Police Department that under the relevant domestic legislation it was competent to organise and control the nursing profession. However, the applicant had failed to lodge a formal complaint about the events of 23 May 2005. Although, following press reports, the organisation had carried out a preliminary inquiry into the death of the applicant’s son, it appeared from the available evidence and the inquiry already launched by the organisation into the case that the accusations had been targeted at doctors. The Council of Nurses was not competent to institute disciplinary proceedings against doctors.

On 26 March and 21 June 2007, the applicant again reiterated his request for a new forensic expert report. He also requested that Dr O.L.T. and the nurses who had assisted him during the surgery be subjected to a polygraph test.

On 25 and 29 May 2007, the authorities investigating the case confronted head nurse N.L.O. with witnesses L.L., L.S. and Dr H.S.

On 2 July 2007, the Bacău Prosecutor’s Office dismissed the applicant’s request for a new forensic expert report on the grounds that the autopsy report prepared by the Bacău Forensic Service had been approved by the Iaşi Forensic Service review board and the higher forensic review board of the Bucharest Forensic Service. The latter board had confirmed the accuracy of both the methodology used and the conclusions of the autopsy report. The inconsistencies claimed by the applicant between the autopsy report and the board’s report had been irrelevant in determining the cause of death and whether the doctor who had performed the surgery had committed any medical errors. The prosecutor’s order of 4 November 2005 for a new forensic expert report had not been carried out and was no longer required in the case for the reasons outlined above. Polygraph testing as a means of establishing evidence was not regulated by the Criminal Procedure Code and therefore was not required for the case.

By order of 12 March 2008, the Bacău Prosecutor’s Office, relying on Article 10 (d) of the Romanian Criminal Procedure Code, decided to discontinue the criminal proceedings (scoaterea de sub urmărire penală) against head nurse N.L.O. for negligence while on duty and not to institute criminal proceedings (neînceperea urmăririi penale) against Dr O.L.T., for aggravated involuntary manslaughter, and against Dr H.S. and nurse M.S. for negligence while on duty, on the grounds that their actions lacked the elements of an offence. The prosecutor’s office held that the clinical and medical investigation, as well as the tonsillectomy performed by Dr O.L.T., had been adequate and that no omissions or negligence could be established in his conduct towards the victim. In addition, none of the medical personnel of the Bacău County Hospital emergency unit had spoken with the applicant’s wife in order to direct her to the paediatric unit, and the professional duties of head nurse N.L.O. did not include the required power of decision. The applicant challenged the order before the superior prosecutor.

By a final order of 16 June 2008, the superior prosecutor rejected the applicant’s challenge, holding that the available evidence proved that the accused could not be held liable for directly causing the death of the applicant’s son. Dr O.L.T. had observed all the lawful procedures when he had performed the surgery, and the medical community accepted that the severe inflammation which had led to the child’s death had been a rare case. As regards the medical staff of the Bacău County Hospital emergency unit, it could not be established without any doubt whether the child had been alive on his arrival at the hospital. The applicant challenged the order before the domestic courts, arguing that the investigating authorities had failed to produce all the necessary evidence, in particular a new expert report.

By a judgment of 27 January 2009, the Bacău District Court dismissed the applicant’s complaint as lodged outside the statutory timelimit. The applicant appealed on points of law (recurs) against the judgment.

On 16 June 2009, the Bacău County Court allowed the applicant’s appeal on points of law, quashed the judgment and remitted the case to the first-instance court.

By a judgment of 14 December 2009, the Bacău District Court dismissed the applicant’s challenge on the basis of the available testimonial, documentary and forensic evidence by relying on Article 10 (d) of the Romanian Criminal Procedure Code. It held that none of the defendants who had been on duty at the Bacău County Hospital emergency unit when the applicant’s wife had arrived with her son had had a direct conversation with her or directed her to the paediatric unit. The job description of the head nurse, N.L.O., did not give him the power to make such a decision. In addition, a new forensic expert report was not necessary for the case. The higher forensic review board of the Bucharest Forensic Service appealed on points of law against the judgment. He argued that a new forensic expert report had been needed in order to clarify the causes and circumstances of his son’s death.

By a final judgment of 27 April 2010, the Bacău County Court dismissed the applicant’s appeal on points of law. It held that in spite of the efforts made by the criminal investigators and the court itself, it could not be established beyond any doubt that the person who had directed the applicant’s wife to the paediatric unit was a staff member of the emergency unit of the Bacău County Hospital on duty at the time of the death of the applicant’s son. There had been no evidence in the file that the applicant’s wife had spoken to a doctor and that the doctor had decided to direct her to the paediatric unit. As for the medical papers, which the court considered to be the actual object of the applicant’

The applicant instituted disciplinary proceedings against Dr O.L.T. before the disciplinary board of the Bacău Medical Council.

By a decision of 1 August 2005, the medical council concluded that there were no elements of medical fault.

The applicant challenged that decision before the higher disciplinary board of the Romanian Medical Council (“the Higher Board”), arguing that not only had Dr O.L.T. been exonerated, but none of the medical personnel on duty at the Bacău County Hospital emergency unit had been held accountable.

By a decision of 10 November 2006, the Higher Board dismissed the applicant’s challenge. It held that, on the basis of the available forensic evidence, otolaryngologists’ opinions and the medical doctrine, the death of the applicant’s son had been caused by a slow haemorrhage located in the cavity of the tonsils. This had been triggered by a local acute inflammatory lesion, which had resulted in the rupture of a small blood vessel, probably after the child had swallowed hard food without chewing it sufficiently. The vascular necrosis which caused the haemorrhage was the result of local inflammation and could not have been diagnosed prior to the time at which it had occurred. It could not have been foreseen by a post-surgical examination of the area operated on. Consequently, the doctor had not breached the rules of good medical conduct.

The Higher Board also upheld the outcome of the internal inquiry carried out by the Bacău County Hospital. It noted that the inquiry had been unable to identify the person who had directed the applicant’s wife to the paediatric unit and therefore no administrative sanction could be applied. The applicant did not appeal against the decision of the Higher Board before the domestic courts.

The relevant domestic legal provisions concerning the delivery of expert forensic medical reports and the authorities competent for issuing them, as well as the relevant domestic law and practice concerning the civil liability of doctors and hospitals for medical errors, are described in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-53, 16 February 2010) and Codarcea v. Romania (no. 31675/04, § 62, 2 June 2009).

The relevant provisions on civil liability for tort of the former Romanian Civil Code read as follows:

“Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”

“Everyone shall be liable for damage he has caused not only through his own actions but also through his failure to act or his negligence.”

The provisions of the former Romanian Code of Criminal Procedure regarding the instituting of civil proceedings alone or in conjunction with criminal proceedings read as follows:

“(1) If a victim has not joined criminal proceedings as a civil party, he or she may bring separate proceedings for damages caused as a result of the offence before the civil courts.

(2) Civil proceedings shall be suspended pending a final judgment of the criminal courts ...”

Articles 1000(3) and 1003 of the former Romanian Civil Code provide that those responsible for the supervision and control of a person whom they have appointed to perform a duty are liable for any damage caused by the appointed person in the performance of his or her functions. If several persons are responsible for the damage caused, they are jointly liable for redress.

Law no. 95/2006 on health-care reform, in force as from 1 May 2006, introduced the notion of medical negligence and created an obligation for medical personnel to obtain insurance for any civil liability resulting from their work. Its relevant provisions read as follows:

“(1) Medical personnel ... who provide medical assistance, within the public and/or private system, in a place specifically designated for this purpose or outside such a place further to an express request from the person/s requiring the medical assistance or from a third party requesting assistance for one or more persons who, for no fault of their own, are unable to request such assistance, shall be insured against medical negligence covering professional civil liability for damage caused through a medical act.

(2) A copy of the insurance policy shall be presented before the conclusion of an employment contract, being a mandatory condition for employment.”

“(1) The insurer shall grant compensation for damage for which the insured person is liable, in accordance with the law, to third parties who are ascertained to have been subjected to an act of medical negligence, as well as for the legal fees of the person damaged through the medical act.

(2) Damages shall be awarded irrespective of the place where the medical assistance was provided.

(3) The mandatory insurance ... shall comprise all types of medical treatment provided within the specialty and medical competency of the insured person and within the whole range of medical services offered by the relevant units.”

“(1) Damages shall be awarded for the amounts the insured person is obliged to pay as indemnification and legal fees to the person/s damaged through the provision of inadequate medical assistance, which may have triggered bodily injury or death.

(2) In the event of death, damages shall be awarded to the patient’s legal successors who have requested them.

(3) Damages shall be awarded also in the event that medical assistance was not granted even though the condition of the person/s who requested it or for whom medical assistance was requested required such intervention.

(4) Damages shall include potential expenses incurred by a lawsuit in which the insured person is ordered to pay them; the maximum liability for legal fees shall be set out in the insurance policy.”

“Acts of medical negligence within the medical activities of prevention, diagnostic and treatment shall be time-barred three years from the occurrence of the damage, except for acts that constitute criminal offences”.

The relevant provisions of Decree no. 167/1958 on the statute of limitation in force at the relevant time read as follows:

“The right to lodge an action with a pecuniary scope shall be time-barred, if it was not used within the prescribed period.”

“The term of the statute of limitation is three years.”

The Government submitted several final court judgments concerning proceedings instituted by victims or doctors against the disciplinary decisions of medical councils in respect of cases of medical negligence. Two final judgments rendered by the Ploieşti Court of Appeal and the Bucharest Court of Appeal on 7 February 2012 and 11 April 2013, respectively, dismissed the appeals brought by the victims against the decisions of the medical councils not to pursue disciplinary proceedings against the doctors. Nine final judgments delivered by the Piteşti Court of Appeal and the Bacău Court of Appeal from 23 February 2007 to 21 March 2013 dismissed the doctors’ appeals against the decisions of the medical councils whereby sanctions were applied to them.

The Government further submitted one final judgment delivered on 28 May 2013 by the Buzău County Court allowing the victim’s general tortlaw action for joint pecuniary and non-pecuniary damage against the hospital and the doctor who had operated on the victim in 2005 by also relying on Law 95/2006.


Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Georges Ravarani

The applicant company, Vica Ltd, was registered in Sliema, Malta in 1969. It was represented before the Court by Dr S. Grech and Dr I. Refalo, lawyers practising in Valletta.

The applicant company owned six pieces of land which were expropriated by the Government on 16 May 1975. The case before the Court only concerns one of those six (the sixth one).

In so far as relevant, on 5 July 2000 the applicant company was informed, by means of a notice to treat, that it was being offered 10,200 Maltese liri (MTL approximately 23,760 euros (EUR)) for the (sixth) piece of land, which measured 952 sq.m.

By means of a judicial letter of 25 July 2000 the applicant company refused the offer and claimed compensation amounting to MTL 45,210 (EUR 105,311) based on an ex parte architect report which considered that, according to the Government’s architect’s valuation, part of the land was agricultural land.

In the absence of any agreement, in the same year, the applicant company instituted constitutional redress proceedings, complaining under Article 1 of Protocol No.1 to the Convention and Article 6 of the Convention about the delay in the payment of compensation (in respect of all the pieces of land). The applicant company was successful and by a final judgment of 3 February 2012 the Constitutional Court awarded it EUR 10,000 in compensation for non-pecuniary damage. The costs were to be borne by both parties.

Pending the above constitutional proceedings and following action taken by the Commissioner of Lands, on 7 August 2000 proceedings before the Land Arbitration Board (LAB) were commenced to determine the compensation due.

In 2004, pending those proceedings, the Government returned part of the land to the applicant company. In consequence the remaining part of the sixth piece of expropriated land amounted to an area of 485 sq.m.

The LAB were not informed of the return of the property.

During the proceedings, technical experts appointed by the LAB established the value of the (entire) sixth piece of land as EUR 378,435, considering that for the most part, it was to be classified as building land.

By a decision of 18 March 2010 the LAB awarded the applicant company compensation for the six pieces of land mentioned in paragraph 3 above. In connection with the sixth piece of land, the subject of the proceedings before the Court, the LAB awarded EUR 378,435 (for the entire piece of land). It referred to Article 25 of the Land Acquisition (Public Purposes) Ordinance, which provided that where the technical members of the board were unanimously in agreement, the board was bound to award compensation in accordance with the valuation of the technical members. It also awarded interest and ordered that the costs be divided by the parties in proportion.

The Commissioner of Lands appealed, claiming, inter alia, that the Board had wrongly applied the law in determining the compensation, because by means of transitory provisions enacted in 2004 the LAB could now no longer award more than a claimant would have claimed.

During the proceedings the applicant company pleaded that the application of the relevant provisions of Act XVII of 2004 had breached its rights under Article 1 of Protocol No. 1 to the Convention.

By a judgment of 5 December 2014 the Court of Appeal upheld the appeal in so far as Article 25(1) of the Ordinance had retroactive application in terms of the transitory provisions contained in Article 4 of Act XVII of 2004. It followed that the award of compensation could not exceed that claimed by the applicant company. Adjusting the claim to the area of the sixth piece of land which had not been returned and for which the applicant company was owed compensation, the court awarded the applicant company EUR 53,651 and ordered it to pay costs. As to the constitutional plea raised by the applicant company in this regard, the Court of Appeal held that this legal matter had already been examined in two constitutional cases, namely Commissioner of Lands vs Maria Theresa Caruana Gatto et, of 6 September 2010 and Neriku Confectionary Ltd vs Director of Lands of 28 March 2014, in which it was held that there had been no breach of the claimants’ property rights given that they had been awarded the sum they had actually requested in compensation (irrespective of the fact that the independent architects had estimated the land to be worth more).

The applicant company did not institute a new and separate set of constitutional proceedings to complain about the matter, considering that it would be futile given the established case-law.

Before the 2004 amendments described below, in awarding compensation for the value of the land the Chairman of the LAB was bound by the valuations given by two experts (which formed part of the LAB), when these were unanimous in their valuation.

Act XVII of 2004 added a proviso to Article 25 (1) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta, amending it to read as follows:

“(1) The Board shall be competent –

(e) to assess the amount of compensation payable under any of the provisions of this Ordinance and for that purpose to declare whether any area is a building site or agricultural or waste land;

... Provided that the amount of compensation to be assessed by the Board in accordance with the provisions of paragraph (e), shall not exceed the higher amount of compensation as proposed by any of the parties.”

The transitory provision, section 4(2) of the 2004 Act, reads as follows:

“The provisions of Articles 25 and 31 of the Ordinance as amended by this section shall apply to any proceedings relating to any land covered by any declaration issued under Article 3 of the Ordinance, even if issued prior to the date of the coming into force of this section.”

The relevant parts of Article 27(1) of the Ordinance, regarding compensation, read as follows:

“ (1) Without prejudice to any special provision contained in this Ordinance, in assessing compensation the Board shall act in accordance with the following rules:

(a) no allowance shall be made on account of the acquisition being compulsory;

(b) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise: (...)”

In circumstances similar to the present case, the Constitutional Court examined, inter alia, the complaint of the claimants in that case concerning the retroactive application of the 2004 Act, which had allegedly violated their legitimate expectation to compensation as established by the laws in force at the time of the taking, thus denying them part of their compensation.

By a judgment of 6 September 2010 the Constitutional Court – which was bound (by procedural rules) to look into the matter only under Article 1 of Protocol No. 1 – found no violation of the claimants’ property rights.

It considered that before the 2004 Act the LAB could have awarded compensation higher than that requested by the parties, so rather than clarifying the law the Act limited the compensation that could be awarded. Nevertheless, the claimants did not have a “possession” within the meaning of Article 1 of Protocol No. 1, in that they had had no legitimate expectation of receiving an amount higher than that established by their ex parte expert, which they had claimed. Specific to that case the court noted firstly that when the 2004 Act had come into effect the report of the new architects had not yet been included in the case file. Secondly, before the 2004 Act the claimants had not claimed compensation higher than that awarded, and thirdly, when the tribunal architects were appointed the claimants had been aware of the new legislation. Moreover, the claimants had received fair compensation since they had been awarded the entire sum they had asked for. The Constitutional Court noted that it was clear that the valuation made by the experts appointed by the tribunal was in stark contrast to the valuations made by the previous architects and the ex parte experts; their valuation was therefore arbitrary and disproportionate, as no reasons had been given to justify the huge difference. The 2004 Act had therefore not violated the claimants’ rights under Article 1 of Protocol No. 1.

In circumstances similar to those in the present case, the claimants raised a constitutional issue arguing that the application of the relevant proviso of the 2004 Act in their case had breached their right to fair compensation. The issue was raised before the Court of Appeal before which they were appealing against a decision of the LAB awarding them compensation. The Court of Appeal shared the conclusions of the Constitutional Court in the case of Commissioner of Lands vs Maria Theresa Caruana Gatto et of 6 September 2010 and dismissed the claim on the basis that the claimants had obtained the sum they had requested.


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)

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1970 and lives in Zagreb.

On 3 May 1999, at around 8.00 p.m., J.N. lodged a criminal complaint with the Zagreb Police Department (Policijska uprava Zagrebačka – “the police”) alleging that during the previous night the applicant had raped her. He had offered to drive her home from bar A., where she worked, but had then driven into the nearby woods and raped her in his car. She had then asked him to drive her to a night-club, “S.”, where he had dropped her off and left.

The applicant was arrested on the same evening and J.N. identified him as her rapist.

During the night of 4 May 1999 J.N. was examined by a doctor who found no injuries on her body or genitals. The applicant was also taken to a doctor and the doctor found abrasions on his right upper arm and elbow and his right knee.

On 4 May 1999 the applicant was questioned by an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu). He admitted to having had sexual intercourse with J.N. in his car but argued that it had been consensual. He contended that the abrasions on his right arm and leg were the result of friction during the intercourse. After the questioning the applicant was released.

On 31 May and 17 June 1999 J.N.’s lawyer asked the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) to request the investigating judge to have the applicant detained on the grounds that he had been trying to contact J.N., threatening her in order to make her withdraw her criminal complaint. She also argued that J.N. had sought psychiatric help and submitted medical reports in that connection.

On 18 June 1999 the Zagreb County State Attorney’s Office asked the investigating judge of the Zagreb County Court to open an investigation in respect of the applicant on charges of rape and to order his detention on the basis of the information submitted by J.N.

The investigating judge opened the investigation on 6 July 1999 but refused to order the applicant’s detention on the grounds that there was no reliable evidence suggesting that he might influence the witness or reoffend.

On 9 July 1999 J.N., in the presence of her lawyer, gave oral evidence at a hearing before the investigating judge. The applicant and his defence lawyer were not informed of the hearing and were not present during the questioning.

During the questioning, J.N. reiterated her previous allegation that the applicant had raped her.

On 13 July 1999 the Zagreb County State Attorney’s Office lodged an appeal with a three-judge panel of the Zagreb County Court against the investigating judge’s decision refusing the request for the applicant’s detention.

The three-judge panel granted the application and on 16 July 1999 ordered the investigating judge to re-examine the request for detention.

On 27 August 1999 the investigating judge again dismissed the request for the applicant’s detention on the grounds that there were no relevant reasons for his remand in custody. The Zagreb County State Attorney’s Office appealed, but on 2 September 1999 a three-judge panel upheld that decision.

In the course of the investigation the investigating judge heard several witnesses and commissioned medical reports.

On 24 September 1999 S.S., a colleague of J.N., testified before the investigating judge that she had been working with J.N. in bar A. on the day in issue and that when J.N. had wanted to go home, S.S. had asked the applicant to give her a lift. The next day, J.N. had told her that she had been raped by the applicant. S.S. had also seen the applicant later, and he had denied the rape accusation, stating that J.N. had had sex with him voluntarily. S.S. also stressed that she knew the applicant well and she had never heard of him attacking girls or doing anything of that kind.

An expert medical report of 10 November 1999 found that the reports on J.N.’s gynaecological and psychiatric examination showed no objective evidence of any injuries.

On 14 February 2000 the investigating judge heard evidence from K.N., who stated that on the night in issue he had been working as a musician in the night-club “S.” when J.N. had come in. She had bought a drink for the musicians and then he had taken her home. There had been nothing unusual about her; she had appeared normal and had not made any mention of rape.

Another witness, J.M., was questioned on 28 March 2000. She stated that on the morning after the event J.N. had come to a bar where she worked and told her that she had been raped the evening before. She had been very distressed and frightened. J.M. had told her to report the rape to a policeman who had been in a nearby bar.

A forensic report of 23 November 2000 found biological traces from J.N. on the applicant’s underwear.

An expert medical report of 7 February 2001 found that the abrasions on the applicant’s right upper arm could have resulted from finger nail scratches, while the injuries on his elbow and right knee could have been the result of a fall or friction.

On 19 February 2001 the Zagreb County State Attorney’s Office indicted the applicant in the Zagreb County Court on charges of rape.

At a hearing on 19 March 2003 the applicant pleaded not guilty. J.N., although properly summoned, failed to appear.

On 29 April 2003 the Zagreb County Court instructed the police to take J.N. to the hearing, scheduled for 2 June 2003.

On 27 May 2003 J.N., through her lawyer, informed the Zagreb County Court that she was living abroad and asked that the hearing be postponed until September 2003 when she would be in Croatia. The Zagreb County Court agreed to her request and scheduled a hearing for 22 September 2003.

At the hearing on 22 September 2003 J.N., although properly summoned, again failed to appear. Her lawyer, present at the hearing, informed the trial court that meanwhile she had not had any contact with J.N.

On 1 October 2003 the Zagreb County Court again ordered the police to take J.N. to a hearing scheduled for 4 November 2003.

However, that hearing was again adjourned because the police were unable to locate J.N. The only information available was that she had been living in Spain for the last four years.

On 19 December 2003 J.N.’s lawyer informed the trial court that she was no longer representing J.N.

On 19 March 2004 the Zagreb County Court requested the police to establish J.N.’s exact address, and the police informed it that the only information available was that she was living in Spain.

After several adjourned hearings, on 24 May 2005 a hearing was held at which the applicant pleaded not guilty. The Deputy State Attorney asked the trial court to admit in evidence the written record of J.N.’s oral statement given to the investigating judge. The defence opposed that request, arguing that given the gravity of charges against the applicant it was necessary to question J.N. at the hearing. The defence also stressed that she was a Croatian citizen and that her whereabouts in Spain could be established through the relevant police records and the appropriate diplomatic channels.

On 19 July 2005 the police informed the Zagreb County Court that from an interview with J.N.’s mother they had learned that J.N. was living in Madrid, Spain, and that she would be in Croatia for only a couple of days during the summer.

At a hearing on 20 October 2005 the trial court heard evidence from the witness K.N., who reiterated his statement given to the investigating judge (see paragraph 21 above). The Deputy State Attorney again requested the trial court to admit in evidence the record of J.N.’s oral statement to the investigating judge. The defence insisted that she should be questioned and provided an address in the Netherlands where she allegedly resided.

On 21 October 2005 the Zagreb County Court requested that J.N. be summoned to a hearing by means of international legal assistance in criminal matters through the authorities in the Netherlands.

On 24 February 2006 the Zagreb County Court was informed that the authorities in the Netherlands had not been able to serve the court summons on J.N.

At a hearing on 10 April 2006 the trial court heard evidence from the witness S.S., who reiterated her previous statement (see paragraph 19 above). The Deputy State Attorney requested that the record of J.N.’s oral evidence to the investigating judge, as well as the records of the statements of the witness J.M., who had never appeared before the trial court, and the witness K.N., be admitted in evidence without their questioning at the hearing. The defence agreed with regard to admitting the written statements of the other witnesses but insisted on that J.N. should be questioned at the hearing. The trial court agreed to the prosecution’s request and admitted the written record of J.N.’s oral evidence given before the investigating judge as evidence.

On the same day, the Zagreb County Court found the applicant guilty on the charges of rape and sentenced him to one year’s imprisonment.

On 7 June 2006 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the first-instance judgment, complaining that the Zagreb County Court had failed to secure the presence and examination of J.N. at the trial.

On 13 December 2007 the Supreme Court quashed the first-instance judgment and ordered a retrial. The Supreme Court found that the Zagreb County Court had failed to take all reasonable steps to secure the presence of J.N. at the trial even though her evidence was decisive for the case.

During the retrial, on 27 February 2008 the Zagreb County Court requested that J.N.’s whereabouts in Spain be established through contacting the Spanish national authorities by means of international legal assistance in criminal matters.

On 21 April 2008 the police informed the Zagreb County Court that they had obtained J.N.’s address in Spain from her parents, and the trial court summoned J.N. from that address.

On 25 September 2008 the Zagreb County Court received information from the Spanish authorities in respect of J.N.’s exact address and telephone number in Spain.

A hearing scheduled for 29 October 2008 was adjourned because J.N. failed to appear. There was, at the time, no information on whether she had received the court summons.

Another hearing was held on 18 December 2008 at which the trial court found that J.N. had been properly summoned both to that hearing and to the hearing of 29 October 2008.

At the hearing the applicant pleaded not guilty to the charges of rape and the trial court again questioned the witness K.N., who reiterated his previous statements. The Deputy State Attorney asked for all the witness statements to be admitted in evidence without the questioning of the witnesses. The defence agreed to this save for the evidence of J.N., insisting that she should be cross-examined at the trial and pointing out that the defence had been denied the opportunity to question her when she had given her statement to the investigating judge. The trial court accepted the Deputy State Attorney’s proposal and admitted the written record of J.N.’s oral statement to the investigating judge as evidence. However, it adjourned the hearing in order to question another witness on behalf of the defence, I.P.

At a hearing held on 21 January 2009 the Zagreb County Court noted that I.P. had died and concluded the trial. On the same day it found the applicant guilty of the charges of rape and sentenced him to one year’s imprisonment. The trial court relied on the statement given by J.N. and held that it had been corroborated with other evidence. In particular, it noted:

“It follows from the statements given by witnesses S.S. and [J.M.], and the evidence provided by the forensic expert and other medical evidence concerning the victim, that the relevant (so-called control) facts, important for the assessment of contradictory statements of the accused and the victim, support the statement given by the victim.”

On 16 February 2009 the applicant lodged an appeal with the Supreme Court complaining that the first-instance court had failed to take all reasonable steps to secure the presence of J.N. at the trial and that her evidence had been crucial for his case.

On 5 May 2009 the Supreme Court dismissed the applicant’s appeal and upheld the first-instance judgment. The relevant part of the Supreme Court’s judgment reads:

“As can be seen from the case file, after the investigation had been opened on 15 June 1999 ... the victim J.N. was questioned as a witness on 9 July 1999 ... The accused had been legally represented ever since 4 May 1999 ... and the defence counsel did not ask to be present during the questioning of this witness, within the meaning of Article 198 § 4 of the Code of Criminal Procedure, nor did any circumstances at the time suggest that she might be absent from the hearing. Following the investigation, and after the accused had been indicted [in the Zagreb County Court], the victim’s representative informed the court that ‘... the victim is at the moment working abroad and therefore she is unable to appear at the trial, so she has asked if the hearing can be adjourned until September 2003, when she will be in Croatia ...’ ... The victim failed to appear at the hearing of 22 September 2003, although she had been properly summoned ... After that, on 24 November 2003, the Sesvete Police Station informed the court that the they had learned from the victim’s father that she ‘[had] been living in Spain for about four years and he [didn’t] know when she [would] return.’ ... On 1 July 2004 the court was again informed that she ‘... work[ed] in Spain’ ... Following the Sesvete Police Station’s further investigations into J.N.’s whereabouts, on 15 July 2005 the court was informed that she lived in Madrid, Spain, ‘with her husband’ ... However, after her exact address in Spain had been established, as this court had requested in its earlier decision, the court summoned the victim twice to a hearing ... Although she was properly summoned, she failed to appear and did not give any reason for her absence.

Thus, the victim J.N. was questioned during the investigation as required by law, after which it appears she did not want to appear at the hearing, although she did not give reasons for her absence. Since she lived abroad the trial court had no way of securing her presence at the hearing and therefore it rightly decided, under Article 331 § 1(1) of the Code of Criminal Procedure, to read out the written record of her oral statement.”

On 21 July 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), reiterating his previous complaints.

On 7 July 2010 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. The decision of the Constitutional Court was served on the applicant’s representative on 19 July 2010.