No violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion) (Syria);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

George Nicolaou;Guido Raimondi;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

The applicant was born in 1982. His current whereabouts are unknown.

On 29 December 2012 the applicant fled Syria and on an unspecified date entered the Russian Federation. It appears that he applied for asylum, but on 4 May 2013 he left the country before his application was examined.

On 4-5 May 2013 the applicant crossed the Latvian border on foot. On 5 May 2013 the State Border Guard Service (Valsts roberžsardze) stopped him near the border.

On 7 May 2013 the State Border Guard Service completed an asylum application form and the applicant signed it in the presence of an Arabic-speaking interpreter.

On 7 May 2013 an initial interview (sākotnējā aptauja) with the applicant was conducted with the assistance of an Arab-speaking interpreter. The applicant explained that he could speak, read and write in English and Arabic.

On 16 May 2013 a personal interview (pārrunas) with the applicant took place. The applicant was assisted by an Arab-speaking interpreter.

On 22 May 2013 the closed facility in which the applicant was being held (see paragraph 23 below) received a parcel addressed to him. The sender was unknown. The parcel contained the applicant’s identity card and military service certificate in Arabic. Their translation was requested and on 24 May 2013 it was received.

On 28 May 2013 those documents, together with their translations into Latvian, were sent to the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvalde). The latter was also informed that it would receive certified translations as soon as possible. On 21 June 2013 the State Border Guard Service received the certified translations and, on the same date, sent them to the Office of Citizenship and Migration Affairs.

On 31 May 2013 authenticity of the applicant’s identity card was confirmed by two forensic experts. On 21 June 2013 the State Border Guard Service received their report and, on the same date, sent it to the Office of Citizenship and Migration Affairs.

On 28 June 2013 the applicant appointed a lawyer to assist him in the administrative proceedings. The same lawyer continued to represent him before the Court (see paragraph 2 above).

On 4 July 2013 the Asylum Affairs Division (Patvēruma lietu nodaļa) of the Office of Citizenship and Migration Affairs informed the applicant that they had received his application for asylum and would examine it within three months.

On 3 October 2013 the Asylum Affairs Division decided to refuse the applicant’s asylum application. However, they granted him subsidiary protection status (alternatīvais statuss) and issued a temporary residence permit for one year. It was noted that that decision would take effect from the time the applicant had been informed of it. A reference was made to section 70(1) of the Administrative Procedure Law and section 8(3) of the Notification Law (see paragraph 38 below).

On 4 October 2013, which was a Friday, a letter was sent to the State Border Guard Service in Daugavpils informing them of the decision and stating that the applicant was to be informed of it immediately. They also asked that one copy of the decision be handed over to the applicant and that the second copy be sent back to the Asylum Affairs Division with the applicant’s signature confirming that he had been informed of it. The letter, together with two copies of the decision, was received in Daugavpils on Monday 7 October 2013 (see paragraphs 29-30 below) and the applicant was informed of it. Accordingly, the decision took effect on 7 October 2013.

The applicant lodged an appeal against the decision with the administrative courts, as he wished to be granted asylum; he considered that the subsidiary protection status was not sufficient.

On 6 November 2013 administrative proceedings were instituted.

On 19 December 2013 the Administrative District Court issued summonses and scheduled a hearing for 27 January 2014. That hearing was postponed as the applicant did not appear. Another hearing was scheduled for 25 February 2014, but the applicant failed to appear again.

On 26 February 2014 the Administrative District Court left the applicant’s appeal without examination for repeated failure to appear without good reason.

On 5 May 2013 the applicant was detained under section 51(2)(1) of the Immigration Law (see paragraph 35 below), but he refused to sign the detention record. At that time, he had no personal identification or valid travel document. He identified himself as “Adnan Haiiak”, born on 20 October 1983. He was informed (in English) of his rights to appeal against the detention order, receive legal aid, acquaint himself with the detention records and communicate in a language understood by him. The following day several documents were found in the place where he had been arrested: a document testifying that an application for short-term asylum had been made by a Syrian national, Mr Nassr Allah, born on 18 September 1982, and was being examined in Russia; a torn train ticket; and other documents in Arabic. The applicant explained that he had hidden those documents in order to avoid being sent back to Russia.

On 7 May 2013 the applicant was detained under section 9(1)(1) (undetermined identity) and 9(1)(2) (misuse of the asylum procedure) of the Asylum Law, but he refused to sign the detention record. He was informed (in Arabic) of his rights to appeal against the detention order, receive legal aid and communicate in a language understood by him. He was also informed about the reasons for his detention. He was placed in a closed facility in Daugavpils – an accommodation centre for foreign detainees and asylum seekers (Aizturēto ārzemnieku un patvēruma meklētāju izmitināšanas centrs – “the Daugavpils accommodation centre”).

On 10 May 2013, following a hearing in the applicant’s presence, a judge of the Daugavpils (City) Court (Dauvgavpils tiesa) ordered his detention for two months. The judge examined the material brought before him and, with the assistance of an Arab-speaking interpreter, heard evidence from the applicant. The applicant explained that he had applied for asylum in Russia, but had left as he realised that he would not receive it. He had crossed the border illegally and had identified himself by giving another name in order not to be deported back to Russia. The applicant was not assisted by a lawyer. The judge concluded that there were grounds to detain him as his identity had not been determined and there were reasons to consider that he had misused the asylum procedure. He had arrived in Latvia from a country, where his life had not been endangered and where he had applied for asylum; these facts evidenced that he misused the asylum procedure. On the same date, the applicant lodged an appeal (one page) against that decision in English, stating in simple terms that he had received the court’s decision and wished to appeal against it. He submitted that he had been in danger in Russia and had been ill; he expressed the wish to be granted refugee status in Latvia and undertook to provide all his documents as soon as possible. On 13 May 2013 his appeal was sent for translation; on 7 June 2013 a translation was received. On the same date, the appeal, its translation and the case file were forwarded to the Latgale Regional Court (Latgales apgabaltiesa) and the applicant was informed that a single judge would examine his appeal following a written procedure; the applicant could submit further observations within forty-eight hours. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of it on 13 June 2013. On 25 June 2013 the applicant was informed that examination of his case had been rescheduled to 5 July 2013; it would be decided by a single judge following a written procedure. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of its translation on 25 June 2013.

On 5 July 2013 a judge of the Latgale Regional Court examined and dismissed the applicant’s appeal. He relied on largely the same factual and legal grounds for detaining the applicant as the first-instance court judge. The judge concluded that there were grounds to consider that the applicant attempted to misuse the asylum procedure. It was evidenced by the facts surrounding his arrival and application for asylum in Latvia. He had crossed the border illegally. He had not arrived directly from the country where his life or liberty was endangered. He had spent several months in Russia, where he had applied for asylum, but had left illegally; without awaiting for a final decision. It was impossible to predict his further actions in case of release. The decision was drafted in Latvian, but its contents were explained to the applicant, for which he signed on the same date.

On 8 July 2013, following a hearing in the applicant’s presence, the judge of the Daugavpils (City) Court authorised the extension of his detention for a further two months; the applicant was assisted by an interpreter. The applicant’s lawyer was not present, but the judge examined her written request to release the applicant on account of the fact that he had provided his identity documents and had not misused the asylum procedure. She argued that the applicant could be placed in an open and specialised institution – an accommodation centre for asylum seekers in Mucenieki. The judge disagreed and concluded that there were grounds to detain the applicant under section 9(1)(2) of the Asylum Law. The fact that his application for asylum was accepted for examination did not indicate that he would comply with the requirements arising from the asylum procedure as he testified that he would again apply for an asylum in another European country in case he received a negative decision in Latvia, which was contrary to the applicable procedure. In such circumstances, it was impossible to predict his further actions if placed in an open accommodation centre; there was a possibility that he might leave Latvia and thereby obstruct the asylum procedure as he had already done in a safe third country (see paragraph 6 above). On the same date, the applicant lodged an appeal (one page) against that decision in Latvian, stating that there was no evidence that he had misused the asylum procedure, might leave the country or obstruct the asylum procedure. He disputed the relevance of the fact that he had applied for asylum in Russia as it was not a safe third country. His appeal was forwarded to the Latgale Regional Court together with the case file. On 15 July 2013 the applicant was informed that his case would be examined on 30 July 2013 by a single judge following a written procedure; it was explained that the applicant could submit further observations within forty-eight hours. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of its translation on 18 July 2013.

On 30 July 2013 another judge of the Latgale Regional Court examined and dismissed the applicant’s appeal, upholding the decision to detain him under section 9(1)(2) of the Asylum Law. She referred to the findings of the city court to the effect that there were grounds to believe that the applicant might misuse the asylum procedure. There was evidence that he had left Russia after several months and without awaiting a final decision in response to his application for asylum. Upon arrival in Latvia, he had withheld his real identity. It was due to diligent work of border guards that his identity could be established. Moreover, the applicant admitted that he had left Russia because he believed that his application for asylum would be refused; he also admitted that he would attempt to obtain asylum in another European country if it was refused in Latvia. Therefore, the judge upheld the conclusion of the lower court that it was impossible to predict the applicant’s further actions upon release. The decision was drafted in Latvian, but its contents were explained to the applicant. On 6 August 2013 he signed the decision, confirming that it had been explained to him in English; he respected the decision and agreed with it.

On 6 September 2013 the judge of the Daugavpils (City) Court authorised the applicant’s detention for a further two months, again on the grounds of section 9(1)(2) of the Asylum Law. During the hearing, the applicant explained that he would continue to pursue the asylum proceedings; he was aware of the relevant procedures and duties, he would not leave Latvia until the end of the asylum procedure. The judge concluded that the applicant misused the asylum procedure on the same grounds as indicated in the previous decisions and that he should remain in detention. With reference to section 9 (3) of the Asylum Law, the judge noted that the time-limit for his detention had not yet expired. The applicant did not lodge an appeal against that decision, as the Asylum Affairs Division was due to make a decision in less than one month and his previous experience had shown that detention appeals took about one month to be examined.

On 4 October 2013 the State Border Guard Service informed the applicant that he had been granted subsidiary protection status but that they could not release him until they received the original version of that decision; the relevant authority had sent it by post (see paragraph 17 above).

The State Boarder Guard Service ordered the applicant’s release at around 4 p.m. on 7 October 2013. In the release order, a reference was made to the fact that the applicant had been granted subsidiary protection status and that grounds for his detention had ceased to exist.

On 13 August 2013 the applicant complained to the Ombudsman about his prolonged detention.

On 21 August 2013 the Ombudsman replied [in English] as follows:

“In your complaint you request Ombudsman’s assistance in obtaining order for your release as well as assistance with contacting your family in Syria.

In the process of examining your complaint I have contacted the centre for detained foreigners and asylum seekers ‘Daugavpils’ (hereinafter – the Centre). According to information provided by the Centre, your application for asylum is currently under examination in the Office of Citizenship and Migration Affairs. The expected date of decision is 4 October 2013.

According to the decision of Daugavpils (City) Court from 8 July 2013, as well as Latgale Regional Court you are currently detained on the basis of [section 9(1)(2)] of the Asylum Law. The next periodical review of your detention is due before 6 September 2013. [Section 9(1)(2)] of the Asylum Law states that ‘the State Border Guard [Service] has the right to detain an asylum seeker for a period up to seven days and nights if there are reasons to believe that the asylum seeker is attempting to use the asylum procedure in bad faith.’

The decision of Daugavpils (City) Court is based on the fact that you have crossed the Latvian border under the name of Adnan Haiik having previously requested temporary asylum in the Russian Federation with your established identity as Aladdin Nassr Allah. In the court hearing you have also indicated that in case of a negative decision you will proceed to seek asylum in another European country, which would be contrary to the procedure and regulations of requesting asylum in the European Union. Thus the court has established reasons to believe that you are attempting to use asylum procedure contrary to its objective and purpose.

Having reviewed the decision of Daugavpils (City) Court and Latgale Regional Court, it is established that you have been detained according to the procedures prescribed by law. Your rights to periodical review of detention have also been observed according to Latvian law. Furthermore, the decisions ordering your detention contain sufficient motivation to establish legal and factual grounds for such detention. Therefore, there has been no violation of your right to liberty and security under the [Convention] and Article 94 of the Constitution of Latvia.

With regard to the possibility to contact your family from the detention facility, I would like to inform you that upon your request, you have the right to contact your family on your own expense. The Latvian law does not grant detained asylum seekers a possibility to contact their families free of charge.”


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;Obtain attendance of witnesses);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo

On 7 October 2000 S.M. was stabbed by two persons during an event in a café in the town of Kostanay, Kazakhstan. He died on the way to hospital.

The following day the authorities of Kazakhstan started an investigation into the incident, the applicant and his friend, B.M., being the main suspects.

A number of eyewitnesses were questioned. In particular, witness Kh.H., the owner of the café, stated that he had seen the applicant and B.M. having a conversation with the victim and his nephew, G.T. At the time of the incident he had been outside the café and went back in when he heard the noise. Thereafter he learnt from those present that B.M. and the applicant had stabbed the victim and escaped.

Witness K.H., Kh.H.’s son, stated that he had been in the kitchen when he heard the noise and came out into the hall. He then saw the applicant with a knife in his hands going towards the victim.

Witness G.T. stated that he had been with his uncle, the victim, in the café and had witnessed the applicant and B.M. stabbing him.

Witness O.D., the cook who worked in the café at the relevant time, stated that she had seen the applicant and B.M. having an argument with the victim and stabbing him, after which both of them had fled.

Witness V.H., Kh.H.’s brother, who had also been in the café that night, stated that he had seen B.M. and the victim having an argument, after which the former had stabbed the victim, and then the applicant had also stabbed him.

Witness G.A. submitted that he had been in the café with his wife on the day of the incident and had witnessed B.M. and the applicant attacking the victim and that he had seen a knife in the applicant’s hands.

A number of other persons, namely A.O. and A.G., singers, V.K. and E.B., guests, and L.T., the camera person in charge of filming the event, were also questioned. These witnesses did not provide any concrete details or mention any names and stated that they had either been far away from those fighting or for some other reason had not seen exactly what happened. Witness L.T. had recognised the applicant in a photograph shown to him during the investigation.

On 21 January 2004 the investigative authorities of Kazakhstan brought charges against the applicant and his detention was ordered. Since his whereabouts were unknown, a search was initiated for him.

On 5 November 2004 the applicant was arrested in Armenia.

In May 2005 the applicant was released after no agreement was reached between the law enforcement authorities of Armenia and Kazakhstan as regards his extradition.

On 29 May 2006 the Kostanay Regional Court found B.M. guilty of murder and sentenced him to seventeen years’ imprisonment.

As regards the applicant, the case was sent to Armenia for him to be prosecuted in his country of nationality.

On 8 July 2008 the Vagharshapat Police investigation unit took over the case and the charges against the applicant were brought into conformity with the relevant provisions of the Criminal Code of Armenia. The applicant was charged with premeditated murder.

On 21 August 2008 the applicant was arrested. He was questioned on the same day and refused to make any statement in respect of the events of 7 October 2000.

In the course of the investigation the applicant requested a confrontation with witnesses V.H., G.A., G.T., K.H., L.T. and O.D. The investigator dismissed his motion on the ground that both in the course of the investigation and at B.M.’s trial those witnesses had reinstated their statements against him.

On 20 October 2008 the case file, including the finalised indictment, was transmitted to the Southern Criminal Court (one of the first instance criminal courts before the relevant amendments to the Code of Criminal Procedure) to be set down for trial.

On an unspecified date the applicant’s lawyer filed a motion seeking to remit the case for further investigation on the ground that, inter alia, it was necessary to carry out several confrontations given that there were substantial contradictions between the applicant’s statements and the statements of witnesses V.H., G.A., G.T., K.H., L.T. and O. D. It appears that the Southern Criminal Court never examined this request.

Following the amendments to the Code of Criminal Procedure the case was taken over by the Armavir Regional Court.

According to the applicant, the eleven witnesses residing in Kazakhstan (see paragraph 7 above), who had made statements against him, were not properly summoned and the Regional Court did not obtain any proof that they had been notified about the trial. The applicant further claimed that at the preparatory hearing the victim’s legal heir, S.M.’s wife, had submitted declarations from five out of the eleven witnesses stating their reasons for being unable to attend the hearings. The declarations, drafted in Russian, were not properly examined by the Regional Court but were included in the case file and it was decided to continue the examination of the case in the absence of all the witnesses.

The Government argued that all eleven witnesses were properly summoned to the applicant’s trial. However, it had not been possible to locate all of them, while eight of the witnesses submitted to the trial court declarations certified by a notary in Kazakhstan stating their inability to attend the trial for financial, family or work-related issues.

The applicant pleaded not guilty at the trial and contested the veracity of the statements of the witnesses made during the investigation of the case in Kazakhstan.

The victim’s legal heir testified before the trial court that on 7 October 2000 her husband, S.M., had attended an event in the café together with G.T. She had then been told by relatives that her husband had been stabbed during a fight.

At the hearing of 26 May 2009 the applicant filed a motion seeking to have examined in court the video recordings from the crime scene included in the case file. He claimed that it was necessary to identify other witnesses of the incident and clarify the colour of his outerwear on the day of the crime. The Regional Court dismissed this motion.

On 19 June 2009 the Regional Court convicted the applicant of murder and sentenced him to fourteen years’ imprisonment. In doing so, the Regional Court stated, in particular, the following:

“The Court, taking into account and having assessed the evidence supporting the accusation, finds that [the applicant’s] guilt in the offence was established by the following evidence that has been collected in the course of the investigation and examined in the court proceedings:

The [trial] statement of the victim’s legal heir ... according to which at around 8 p.m. on 7 October 2000 her husband S.M. attended an event in ... the café together with G.T. She was told ... by the relatives that during a fight in the café Armenian men [B.M.] and [the applicant] had stabbed her husband...

The statement of witness Kh.H. ... (witness Kh.H.’s pre-trial statement was read out)

The statement of witness K.H. ... (witness K.H.’s pre-trial statement was read out).

The statement of witness G.T. ... (witness G.T.’s pre-trial statement was read out).

The statement of witness O.D. ... (witness O.D.’s pre-trial statement was read out).

The statement of witness V.H. ... (witness V.H.’s pre-trial statement was read out).

The statement of witness G.A. ... (witness G.A.’s pre-trial statement was read out).

The statement of witness A.O. ... (witness A.O.’s pre-trial statement was read out).

The statement of witness A.G. ... (witness A.G.’s pre-trial statement was read out).

The statement of witness V.K. ... (witness V.K.’s pre-trial statement was read out).

The statement of witness L.T. ... (witness L.T.’s pre-trial statement was read out).

The statement of witness E.B. ... (witness E.B.’s pre-trial statement was read out).

[The applicant’s] guilt ... has been substantiated also by:

The judgment of 29.05.2006 of Kostanay Regional Court ...

... clarifications provided by expert ... during the above-mentioned court proceedings that there were two penetrating knife injuries on the body ... each one of the injuries could by itself have caused the death.

The statement of technical expert [during the proceedings before the Kostanay Regional Court] ...

The conclusion of the forensic medical examination of 31.10.2000 ... S.M.’s death had been caused by extensive haemorrhage as a result of liver wounds.

The statement of forensic medical expert [during the proceedings before the Kostanay Regional Court] ... Each stab wounded the liver.

The conclusion of technical forensic examination of 21.10.2005 ... according to which ... the traces of two penetrating wounds ... discovered on S.M.’s vest could have been inflicted by a ... knife.

The records of examination of the crime scene, records of ... examination of victim S.M.’s clothes, two video recordings of the event, the video recording of the examination of the body during the examination of the crime scene and forensic medical examination.”

The applicant lodged an appeal claiming, inter alia, that there had been no confrontation between him, B.M. and the witnesses against him during the investigation of the case, either in Kazakhstan or in Armenia. He further complained that the Regional Court had failed to summon properly the witnesses and relied on their pre-trial statements without good reason. He also complained about the fact that the video recordings from the crime scene had not been examined during the trial, although the Regional Court relied on them as evidence against him.

On 31 August 2009 the Criminal Court of Appeal upheld the applicant’s conviction with reliance on the same evidence. As regards the non-attendance of witnesses the Court of Appeal stated that, according to the materials of the case, the witnesses had been properly summoned but had submitted statements about their inability to appear before the court due to lack of funds or reasons relating to family or work and reinstated their statements made during the pre-trial investigation.

The applicant lodged an appeal on points of law raising arguments similar to those submitted in his previous appeal.

On 12 November 2009 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit stating, inter alia, that the Court of Appeal had reached the correct conclusion as regards the applicant’s complaints about his inability to examine the witnesses against him.


Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonably necessary to prevent fleeing;Reasonably necessary to prevent offence)

The applicant worked as a deputy chief guard in “Lviv Railways”, a State-owned company.

On 26 October 2009 the police instituted criminal proceedings against the applicant suspecting that he, against bribes, had covered up thefts from the company’s premises in conspiracy with S. and D.

On 3 November 2009 the Galytskyy District Court of Lviv ordered the applicant’s pre-trial detention stating that “[The applicant] committed serious crimes, he does not admit his guilt, if at liberty [he] will influence witnesses and other persons involved in the criminal case. [As the applicant] works as a policeman, [he] is well aware of how to obstruct the investigation and justice”. There is no evidence in the case-file that the applicant worked as a policemen prior to or during the events described in the present application. It remains unknown whether S. and D. were also arrested or remained at liberty.

On 9 November 2009 the Lviv Regional Court of Appeal upheld this decision.

On 25 December 2009 the Galytskyy Court extended the applicant’s detention until 26 February 2010 on the grounds that “not all the applicant’s accomplices were detained ... [the investigative authorities] keep receiving complaints [from persons who gave bribes to the applicant]. If at liberty the applicant will have an opportunity to obstruct the investigation or abscond”. On 30 December 2009 the Court of Appeal upheld this decision.

On 22 February 2010 the Galytskyy Court extended the applicant’s detention until 26 April 2010 stating that “the accused committed serious crimes, he does not admit his guilt and refuses to testify, while if at liberty [the applicant], who has higher education and extensive work experience [as a guard], might influence witnesses, obstruct the investigation and abscond”.

On 22 April 2010 the Lviv Regional Court of Appeal prolonged the applicant’s detention until 26 July 2010 stating that there was a need to carry out a number of investigative measures in the case, the applicant was charged with serious crimes, he might abscond, obstruct the investigation, or continue his criminal activities.

On an unspecified date the preliminary investigations in the applicant’s case were completed and the case was submitted to the Sykhiv District Court of Lviv for trial.

On 17 August 2010 the Sykhiv District Court, holding a preliminary hearing in the criminal case against the applicant, upheld the applicant’s preventive measure without providing any reasons for doing so or fixing a time-limit for the applicant’s detention.

On 16 February 2012 the Sykhiv Court allowed the applicant’s request for change of a preventive measure on health grounds. On the same date the applicant was released against an undertaking not to abscond.


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Effective investigation)

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

The applicants are thirty-seven Romanian nationals of Roma origin. They all live in the Apalina neighbourhood in the town of Reghin, Romania.

On 7 September 2006 at around 2.30 p.m. the applicant Augustin Biga and his friend C.A had a quarrel in a bar with R.O., a policeman who worked for the Mureş County police. Consequently, R.O. filed a criminal complaint against the two men, accusing them of insulting behaviour.

In the context of the investigation of the above-mentioned complaint, at around 4 p.m. the same day, the chief of the Mureş County police gave the order by telephone for several police officers to go to Apalina, the neighbourhood where Augustin Biga and C.A lived, in order to summon them before the prosecutor. He advised them to exercise particular caution, mentioning on the phone that it would be difficult to get there owing to a large number of people (several hundred) blocking the way armed with bats, pitchforks, axes and scythes, and that the law-enforcement authorities had been unable to secure the area. He also requested the assistance of officers from the local special forces police (Detaşamentul de Intervenţie şi Acţiuni Speciale Mureş – DIAS). According to the operation order completed by the chief of the local special forces unit on 7 September 2006, the reason for the request was “to ensure the protection of the policemen conducting an investigation for insulting behaviour towards policeman R.O.”

Immediately afterwards, seven special forces officers (P.Ş., C.I., V.M., M.F., H.D.M., S.P. and G.P.J.) wearing special uniforms and masks covering their faces, together with two local police officers from the Reghin Police (B.M. and M.V.) and four plain-clothes officers from the investigations department of the Mureş County police (A.M., M.M., C.R.R. and S.C.L.) left for Apalina, taking a van and two cars.

On 7 September 2006 around 5 p.m., on seeing the police vehicles, the applicants and other inhabitants of the neighbourhood, mostly women and children, started gathering in the street out of curiosity.

In order to disperse the crowd, the special forces officers threw several tear gas grenades, which sent everyone into a panic, pushing each other and running around in all directions. At that point the police officers started shooting at the running crowd while backing up their vehicles and leaving the neighbourhood.

According to the prosecutor’s decision of 16 July 2007 (see paragraph 51 below), shortly after the police officers arrived in the neighbourhood, the local residents started gathering and a fight broke out between them and the special forces officers, who were forced to use their weapons. The prosecutor gave details about the incident, noting that shortly after all the State agents (except the one driving the van) got out of their vehicles, they found themselves surrounded by eighty to a hundred people, who began to jostle against them and pull at their equipment. In the meantime, the police officers recognised the mother of Augustin Biga and told her they were going to summon her son for a hearing before the prosecutor. As this discussion was taking place, some of the policemen heard shouting and noticed that about a hundred Roma were attacking the special forces officers with bats, pitchforks, empty bottles and stones.

According to statements made by the special forces officers to the prosecutor, they initially used three defensive tear gas sprays. This only infuriated the crowd, who got even more aggressive and started to throw stones and bricks. Two of the officers then fired shots into the air. V.M. stated that since the Roma would not stop, he had fired his hunting weapon twice into the air. He was then attacked by ten people, who pulled at his clothes and hit him with sharp objects until he fell to his knees, at which point he fired rubber bullets into the crowd. The crowd then partially retreated.

The incident, as presented in the prosecutor’s decision, continued with the State agents attempting to retreat while the Roma, hidden behind the houses, continued to throw stones, glass bottles and other objects at them.

As a result of the clash, six State agents suffered injuries which required medical treatment lasting between five and fourteen days (see paragraph 53 below).

More than twenty-five Roma were reportedly injured and/or shot. Some of them were issued medical certificates confirming their injuries, which were considered to need between eight and forty-five days of medical treatment.

Ms Susana Ciorcan as well as the following twelve applicants suffered injuries confirmed by medical certificates:

According to her hospital observation sheet, Ms Ciorcan was shot in the stomach and was diagnosed with the following conditions: haemorrhagic shock, peritonitis, rupture of the iliac vein, rupture of the ureter, four traumatic lesions of the small intestine, and a lesion of the terminal ileum and colon. Following the incident, she underwent surgery and remained in hospital for eight days. Her forensic medical certificate issued on 11 October 2006 stated that the shooting had endangered her life, that she required forty to forty-five days of medical treatment, and that she and her aggressor had been face-to-face. Neither of the medical documents contained information about the type of bullet which might have caused her injuries.

According to his forensic medical certificate issued on 11 September 2006, he had several gunshot wounds in the right arm, left knee and left thigh, with six bullets remaining in his body. He underwent surgery on 8 September 2006 and six bullets were extracted from his wounds. He remained in hospital for three days. His injuries were considered to have been caused by rubber bullets and to require twelve to fourteen days of medical treatment.

According to his forensic medical certificate issued on 19 September 2006, he had an excoriation wound on the right cheek and a gunshot wound on the right elbow, with the bullet remaining in his body. His injuries were considered to have been caused by a rubber bullet and to require eight to nine days of medical treatment.

According to her forensic medical certificate issued on 19 September 2006, she was shot in the left side of the thorax and also had a gunshot wound on her back in the left thorax area. Her wounds were considered to have been caused by rubber bullets and to require eight to nine days of medical treatment.

According to his forensic medical certificate issued on 5 October 2006, he was shot in the right arm and the back right side of the chest, with several bullets remaining in his body. His injuries were considered to require twenty-two to twenty-four days of medical treatment. According to his hospital observation sheet, he underwent surgery on 22 September 2006, but the doctors only managed to take out five rubber bullets from his chest.

According to her forensic medical certificate issued on 8 September 2006 and hospital notes, she had multiple gunshot wounds in the right leg, with one bullet remaining in her body. Her injuries were considered to require sixteen to eighteen days of medical treatment. On 7 September 2006, she underwent surgery to have the bullet extracted. Neither of the medical documents contained information about the type of bullet which might have caused her injuries.

According to his medical certificate issued by the hospital on 14 September 2006, he had gunshot wounds in the left chest and on the back of his thigh, with the bullets remaining in his body, and excoriation wounds on his right chest and arm. He underwent surgery on 13 September 2006 and several bullets were extracted. The medical document contained no information about the type of bullet which might have caused his injuries.

According to her forensic medical certificate issued on 11 September 2006, she had a gunshot wound in the left side of the chest and three gunshot wounds in the left thigh, with two rubber bullets remaining in her body, and two contusions in the umbilical region. She was considered to require eleven to twelve days of medical treatment. On 8 September 2006, she underwent surgery to have the bullets extracted.

According to his forensic medical certificate issued on 11 September 2006, he had a wound beneath the left eye which could have been caused by being hit with a hard object. He was considered to require three to four days of medical treatment.

According to his forensic medical certificate issued on 19 September 2006, he had an excoriation wound in the left zygomatic region and several wounds and ecchymosis on the right side of the thorax and on the abdomen which could have been caused by being shot with rubber bullets. He was considered to require eight to nine days of medical treatment.

According to his forensic medical certificate issued on 19 September 2006, he had a gunshot wound in the right side of the thorax, with a rubber bullet remaining in his body. He was considered to require eight to nine days of medical treatment.

According to her forensic medical certificate issued on 19 September 2006, she had a gunshot wound and an excoriation wound on the interior side of the lower part of the right leg, which may have been caused by a rubber bullet. She was considered to require eight to nine days of medical treatment.

According to the certificate issued by the hospital on 9 September 2006 he had a contusion on the left shoulder.

The following twenty-two applicants: Ştefan Bidi, Margareta Biga, Iosif Biga Snr, Iosif Biga Jr, Liviu Bucunea Jr, Etelka Capo, Agneta Csiki, Edith Csiki (Biga), Lia Gabor, Ana-Narcisa Gorcs, Ladislau Horvath, Ildiko Kalanyos (Biga), Susana Kalanyos, Petru Kalanyos Snr, Ana Lingurar, Ancuţa Maria Moldovan, Violeta Pusuc, Edith Racz (Biga), Cornelia Simion (Biga), Ianos Ştefan, Ana Tina Snr and Ana Tina Jr declared to the national prosecutor that they had suffered various injuries, but did not produce any medical certificates to corroborate their claims. The remaining three applicants: Sonia Biga, Augustin Biga and Sorin Ciorcan, only complained about the injuries suffered by their mother, Susana Ciorcan.

On 7 September 2006 the Prosecutor’s Office of the Mureş County Court (“the Mureş prosecutor’s office”) launched a criminal investigation against the special force officers for the attempted first degree murder of Susana Ciorcan, under Article 20 in conjunction with Articles 174 and 175(i) of the Criminal Code.

The investigation began with an examination of the crime scene the next day. In the prosecutor’s report it was noted that:

“The crime scene has suffered numerous alterations, namely the removal of the damaged vehicles, the bullets and bullet cases used by the State agents, as well as their other weapons, the transport of all of the victims to hospital ... finding the area has been cleaned to some extent compared to the rest of the street.”

The report further stated that several traces of blood and holes were found on the ground, doors and walls of the houses surrounding the crime scene. The holes found on the houses were between 28 and 60 cm from the ground. Several clothes and other items stained with blood or presenting possible bullet holes were seized as evidence. According to the same report, the following materials were handed over to the investigators by the victims: three tear gas sprays, eleven STAR-70mm-RB-15 cartridge cases and nineteen 9x19-86-325 cartridge cases. Four other unidentified cartridge cases and two metal bullets were also collected. The objects allegedly used by the crowd to attack the policemen could not be found. In addition, a pitchfork and a 12 mm hunting gun were seized from the headquarters of the Reghin police. Fingerprints were also collected from the vehicles used by the police officers.

On 11 and 19 September 2006 the prosecutor ordered expert examinations of the guns used by the State agents during the incident, their cartridge cases and bullets, as well as the clothes and other items gathered from the crime scene. A first report issued on 14 September 2006 concluded that the eleven STAR-70mm-RB-15 cartridge cases had been fired from the hunting gun. The report did not state whether the eleven cartridge cases came from rubber bullets, but indicated that the bullets used in order to perform the tests had been hunting bullets. A second expert report issued on 10 October 2006 concluded that the other twenty-three cartridge cases had been fired from three of the pistols belonging to the special forces officers. However, with respect to the two metal bullets found at the scene of the incident it was noted that no resources were available to establish from which gun they had been fired.

Medical documents were also collected from the local hospital and requested from the Forensic Institute in respect of some of the Roma victims and all the police officers involved.

On 3 October 2006 twenty-seven victims of the incident filed a criminal complaint against the special forces officers for abusive conduct and causing bodily harm, a complaint which was joined to the pre-existing investigation. They were the applicants Liviu Bucunea Jr, Ancuţa Maria Moldovan, Mihai Moldovan Jr, Ana Tina Snr, Ana Tina Jr, Agneta Csiki, Lia Gabor, Ana-Narcisa Gorcs, Traian Kovacs, Costel Ciorcan, Lajos Panta, Ştefan Bidi, Etelka Capo, Violeta Pusuc, Ildiko Kalanyos (Biga), Susana Kalanyos, Edith Csiki (Biga), Cornelia Simion (Biga), Margareta Biga and eight other victims.

A report drafted on 6 October 2006 by an officer from the Mureş County police contained a list of the steps undertaken in the investigation to that date as well as a list of “questions to ask the Roma”. The relevant parts read as follows:

“Did the gypsies know that the police officers and DIAS forces were coming to Apalina and why?

Were the gypsies gathered near the houses of the two wanted criminals before the police officers arrived?

How many gypsies were there?”

The report also mentioned that, following a check of the census, it had been possible to identify the inhabitants of the neighbourhood who took part in the incident, some of whom had a criminal record.

On an unspecified date the criminal records of the Roma who had made statements to the prosecutor (see paragraph 25 below) were checked and the information was adduced to the investigation file. One of them had two previous convictions for theft and another had two convictions for robbery.

On 17 October 2006 eighteen of the applicants, Susana Ciorcan and three other victims made statements to the prosecutor. Their statements were consistent, in that they all said that on seeing the police vehicles they had come out of their houses with their spouses and children out of curiosity. While normal discussions had been taking place between Susana Ciorcan and the policemen, the special forces officers had started to spray the crowd with tear gas and throw tear gas grenades at them and as everybody ran around trying to protect their children and go back inside their houses, the same officers had started to shoot at them.

In her statement, Susana Ciorcan said that while she had been in her courtyard giving information to the plain-clothes officers about the whereabouts of her son, a “fight broke out between the masked men and the Roma” and a tear gas grenade had fallen by her feet. The five officers that she had been talking to ran away and one of them had shouted “Do not shoot!” and she had turned to run and hide inside her house. At that moment she had been shot in the back and lost consciousness.

In their statements, the applicants Ana Maria-Paula Bidi, Denes Biga, Erika Biga, Iosif Biga Snr, Iosif Biga Jr, Ladislau Biga, Rozalia Bucunea, Carol Ciorcan, Edith Csiki (Biga), Ladislau Horvath, Petru Kalanyos Snr, Petru Kalanyos Jr, Ana Lingurar and Lela Potra declared that they were thereby submitting complaints against the special force officers who ill-treated them and claiming compensation from them.

On 23 October 2006 the four officers from the investigations department of the Mureş County police were questioned by the prosecutor as witnesses. Their statements were practically identical, saying that while they had been talking to Susana Ciorcan, they had heard noise coming from where they had left their vehicles and when they had turned round they had seen: “...several armed individuals (around 100-150 ethnic Roma), attacking the DIAS fighters with bats, pitchforks, bottles, stones and other objects”.

A.M., M.M. and C.R.R. declared that when they had left for the Apalina neighbourhood, they had not been aware that the “Roma from this neighbourhood might commit violent acts”.

M.M., C.R.R. and S.C.L. further declared that they had neither assaulted nor been physically assaulted by the “ethnic Roma”.

On 10 January 2007 the special forces officers made statements to the prosecutor. They all declared that they had been forced to use their guns in order to defend themselves and their colleagues.

Officer P.Ş., head of the special forces unit, stated:

“Immediately upon our arrival in the neighbourhood, a large number of Roma ethnic people started to gather in their yards, on the side of the road and behind us; they headed towards us after we parked our vehicles ... These people initially only verbally attacked [us]... Shortly afterwards, [they] started to push our colleagues from the judiciary [investigations department], who were in plain clothes and were not carrying weapons. At that moment, seeing that [the officers] could not fulfil the purpose of their operation ... I considered that we must immediately ensure their protection and then leave the neighbourhood ... Because the use of sprays and sticks had no effect on the people in the area, who, on the contrary, became more aggressive and continued attacking us and throwing stones and bricks, me and two colleagues fired warning shots in the air with our pistols ... V.M., who had a rifle with rubber bullets, started using it. I did not see when he started shooting, I just heard the first shots.”

Officer V.M. stated in his testimony:

“Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by a few furious gypsies, who started assaulting us ... I was equipped with the following: a tear gas spray, a double-barrel hunting rifle which had rubber bullets, and a 9 mm Glock pistol with nineteen rounds of live ammunition, which I didn’t use ... I loaded my hunting rifle with two bullets and shouted ‘Freeze, police! We will use firearms!’ The shouting had no effect so I fired two shots in the air. These also had no effect on the furious crowd. My colleagues also fired their pistols with live ammunition in the air ... At one point, on hearing shouting coming from the upper side of the street, and seeing that stones were being thrown from that direction, I went to the crossroads and I saw a big crowd of gypsies coming towards us. I reloaded the gun with the intention of firing another shot in the air. At that moment, I was attacked by a group of around ten people, who were coming towards me. They started hitting me ... I was then hit in the head by a stone thrown by the group of people coming down the street ... After being hit, I fell to my knees and pulled the trigger of the gun, firing in the direction of the crowd.”

Officer C.I. said in his statement that:

“... I saw my colleague P.J., who appeared to have been wounded, lying on a fence. Because I had heard my colleagues warn the assaulters to back up or weapons would be used, I took out the pistol and in order to ensure that I had enough space and time to help my injured colleague, I fired four shots in the air ... I personally only saw our commander Mr P.Ş. fire several shots in the air ... As far as I noticed, all shots had been fired in the air.”

Officer S.P. stated that he did not fire his gun saying that:

“Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by some angry gypsies, who started assaulting us ... The gypsies were becoming more and more nervous ... We started defending ourselves, first using tear gas spray ... We then threw one or two grenades, also filled with tear gas ... We used our sticks ... I also had a Makarov pistol on me with live ammunition, but I did not manage to pull it out ... As far as I understood it, our boss and two other colleagues took out their guns and fired some shots in the air, in order to discourage the aggressors ... One of our colleagues, V.M., had a “hunting” type rifle with rubber bullets. This gun was used to fire several shots into the crowd ... After around three minutes, I managed to regroup with my colleagues in formation and make way for the two Logans [cars], which managed to retreat from the street ... I got behind the wheel of our vehicle and turned to leave the area.”

Officer H.D.M. also stated that he did not use his gun declaring:

“Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by some angry gypsies, who started assaulting us ... The gypsies were becoming more and more nervous ... We started defending ourselves, first using the tear gas spray ... We then threw one or two grenades, also filled with tear gas ... We used our sticks ... I also had a Glock pistol on me with live ammunition, but I did not manage to pull it out ... As far as I understood it, our boss and two other colleagues took out their guns and fired some shots in the air, in order to discourage the aggressors ... One of our colleagues, V.M., had a “hunting” type rifle with rubber bullets. This gun was used to fire several shots into the crowd. After around four minutes, I managed to regroup with my colleagues in formation and make way for the two Logans [cars], which managed to retreat from the street ... ”

From officer G.P.J.’s testimony, it appeared that he too did not fire his gun:

“Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by some angry gypsies, who started assaulting us ... I was immediately hit with a bat in the legs and then with a stone or brick in the head ... I fell to the ground ... A few moments later, I effectively lost consciousness and I cannot say what happened to my colleagues next ...”

Officer M.F. similarly declared that he did not use his gun. He further stated that:

“Because our warnings had no effect and we continued to be attacked, I heard several gunshots and I saw my colleague C.I. next to me, firing a few shots in the air with his pistol ... I saw my other colleague, V.M., the only one of us carrying a rifle and he also fired shots in the air ... As far as I noticed, all the shots had been fired in the air.”

On 16 January 2007 the prosecutor decided to terminate the attempted first-degree murder investigation, with a decision not to bring charges against the State agents. He held that upon the arrival of the police officers in the neighbourhood, people started gathering in the street and “... a fight broke out between them and the DIAS unit”. The decision mentioned that according to the agents’ statements, on 7 September 2006 they had used “paralysing sprays and grenades, bats and firearms, discharged into the air in order to discourage the crowd”; V.M. had used a hunting gun with rubber bullets, shooting both into the air and at the crowd. Several people had been injured, both agents and local residents, but the injuries had not been very serious, with the exception of those sustained by Susana Ciorcan. Comparing the conclusions of Susana Ciorcan’s forensic medical certificate with the statements of the individuals involved in the incident, the prosecutor concluded that the officers under investigation did not intend to take the victim’s life, stating that “the agents’ intention had obviously been to discourage the large number of people gathered there, not to kill them”. The prosecutor’s decision also stated that:

“This lack [of intent] may also be deduced from the approach taken – the person concerned was not targeted, we are dealing with a random shooting ...The acts of the above-mentioned [individuals] might constitute the offence of causing serious bodily harm ... with respect to Susana Ciorcan.”

The person who shot Susana Ciorcan or the type of bullet which cause her injuries were not identified and no explanation was given in this regard. The officers who fired their guns were not clearly identified in the decision either.

The Mureş prosecutor also acknowledged that twenty-seven victims had filed a criminal complaint requesting the investigation of the special force officers for the crimes of abusive conduct and causing serious bodily harm. Therefore, he ultimately decided that the investigation for the crimes of abusive conduct and causing serious bodily harm under Articles 180 and 182 of the Criminal Code should be continued by the Prosecutor’s Office of the Reghin District Court (“the Reghin prosecutor’s office”).

Susana Ciorcan’s representative lodged an appeal with the hierarchically superior prosecutor against the Mureş prosecutor’s decision of 16 January 2007. The core of his complaint was that the perpetrator had not been identified and that the evidence (expert reports) adduced to the file, which proved that there had been guns there that day which had not only used rubber bullets but also live ammunition, had been completely ignored. The State agents should have been aware that the use of such ammunition could have resulted in the death or fatal injury of the people they had shot at. Furthermore, not only had the perpetrator not been identified, no steps had been taken to establish whether Susana Ciorcan had been shot by a rubber bullet or a regular one.

On 29 June 2007 the appeal was dismissed as ill-founded by the Prosecutor’s Office of the Târgu Mureş Court of Appeal. The investigation was considered to have been properly conducted.

Susana Ciorcan’s representative also lodged a complaint with the Mureş County Court, stating that the prosecutor had not considered all the evidence in the file and had mainly relied on the version of events as presented by the State agents. He then reiterated the argument that the use of live ammunition shot at random should have made identifying those who had fired the shots a necessity. A ballistic report was also required in this regard. Attention was brought to two of the agents’ statements, one of them made by Mureş County police officer S.C.L., who said that “neither I nor any of my colleagues in our vehicle attacked the Roma or were attacked by them”. This was confirmed by M.M., who admitted that he had not been hurt at all. In another piece of evidence it was mentioned that none of the blunt objects allegedly used to damage the State agents’ vehicles had been found at the scene of the incident. In such circumstances, the conclusions drawn by the prosecutor appeared unfounded.

The complaint also claimed that there had been racist motives behind the ill-treatment Ms Ciorcan and the rest of the victims had been subjected to, with a request that this allegation be clarified. In this respect, relying on the Court’s case-law in Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR 2005VII) Ms Ciorcan’s representative complained that the disproportionate reaction of the State agents towards Ms Ciorcan and the rest of the victims constituted discrimination and together with the subsequent ineffective investigation were in breach of Articles 2 and 14 of the Convention.

On 3 July 2008 the Mureş County Court, basing its decision on the documents in the prosecutor’s investigation file, dismissed the complaint, holding that the prosecutor’s decision of 16 January 2007 had been correct. The existence of possible racist motives behind the victims’ ill-treatment had not been analysed by the court.

The applicants’ representative lodged an appeal on points of law against this decision, reiterating all the complaints submitted before the firstinstance court, and requesting that a further investigation for serious first-degree murder also be conducted, under Article 176 of the Criminal Code.

On 26 July 2008 Susana Ciorcan died at the age of fifty-six, two years after the incident. The proceedings were continued by her sons and daughters: Costel Ciorcan, Sorin Ciorcan, Carol Ciorcan, Sonia Biga, Ildiko Kalanyos (Biga), Augustin Biga and Edith Csiki (Biga).

The Târgu Mureş Court of Appeal dismissed the appeal by final decision of 19 November 2008, holding that the first-instance court had meticulously analysed the file and correctly concluded that there had been no intention to commit the offences under investigation, the agents having acted in accordance with the standard procedure regulating that kind of intervention.

Following the Mureş prosecutor’s decision to relinquish jurisdiction, a criminal investigation was launched by the Reghin prosecutor’s office for abusive conduct, under Article 250 of the Criminal Code.

The prosecutor questioned the State agents, who reiterated their previous statements. Eleven of the applicants amongst the twenty-seven victims who had filed the complaint on 3 October 2006 also made statements. Two of them had also made a statement to the Mureş prosecutor. The applicants Ancuţa-Maria Moldovan and Liviu Bucunea Jr alleged that the special forces officers had shouted: “go inside your house or I will kill you” and “go inside your house or I will blow your brains out” respectively.

The prosecutor also questioned eight other Roma victims, who had not made statements to the Mureş prosecutor’s office. They expressed their wish for the individuals who assaulted them to be held liable for their actions and declared that they would be claiming compensation in that regard.

On 16 July 2007, upholding the same facts as established in the decision issued by the Mureş prosecutor’s office, the Reghin prosecutor issued a decision not to bring charges against the seven officers under investigation, concluding that they had acted in self-defence, which under Article 10(1)(e) of the Code of Criminal Procedure eliminated the criminal element of the acts committed. In connection with the course of events, the decision started by repeating the Mureş prosecutor’s office findings that:

“... superior officers from the Mureş County police ... pointed out that the scene could not be reached because there were a large number of people (several hundred) armed with bats, pitchforks, axes and scythes and the law-enforcement authorities could not secure the area ...

Almost immediately upon arriving at the scene, several local residents started to gather and a fight broke out between them and members of the DIAS.”

Also referring to the facts, the decision mentioned that the special forces officers declared they had been grouped together during the incident, while quoting in support of this finding the statement made by H.D.M., who stated that they had initially been grouped together but had disbanded on being attacked by fifteen to twenty Roma each.

In order to substantiate the decision, the prosecutor first listed the injuries suffered by the State agents as follows:

“H.D.M. was hit in the legs and the face, and according to the medical certificate ... suffered injuries which required eight to nine days of medical care;

M.F. was hit in the right shoulder, in both cheeks, above the left temple, the right leg above the knee and all fingers, and according to his medical certificate ... suffered injuries which required eight to nine days of medical care;

G.P.J. was hit with a stick in the legs and then immediately with a stone or a brick in the head, and according to his medical certificate ... suffered injuries which required seven to eight days of medical care;

V.M. was hit with a stone in the head, and according to his medical certificate ... suffered injuries which required five to six days of medical care;

C.I. was hit in the ribs, the right ankle, the tibia and calf of the right leg and the left shoulder area, and according to his medical certificate ... suffered injuries which required twelve to fourteen days of medical care;

S.P. was hit in the legs, the head, the back and the hands, and according to his medical certificate ... suffered injuries which required eight to nine days of medical care.”

The prosecutor then gave details of the gunshot injuries suffered by thirteen Roma victims, including Susana Ciorcan, who was held to have been shot in the back.

Further on, the prosecutor listed the damage sustained by the vehicles used by the police officers to get to the Apalina neighbourhood on the day of the incident, namely cracks in the windscreen or side windows, scratches and bumps.

In view of the above elements and citing parts of the statements made by the special forces officers, the prosecutor concluded that the State agents could not be held liable for abusive behaviour as they had acted in self-defence.

Neither the officers who fired their guns nor the person who shot Susana Ciorcan were identified, nor was any explanation given in this regard.

The applicants’ representative complained against the 16 July 2007 decision on behalf of the same twenty-seven victims who had joined the criminal proceedings on 3 October 2006 (see paragraph 22 above). He alleged that the incident had been caused by the authorities’ lack of adequate preparation for their operation, the purpose of which had been to summon two individuals to appear before the prosecutor for the investigation of an alleged non-violent offence. He further complained that only the alleged perpetrators’ statements had been used as a basis for the prosecutor’s decision, and had disproportionately referred to the evidence favourable to them, without making the slightest attempt to try and identify who had fired their guns or the type of ammunition used. In addition, he complained that the prosecutor’s decision had completely failed to mention certain crucial elements, in particular the severity of the injuries inflicted by the State agents on the victims. Furthermore, the number of days of recommended medical treatment in the medical reports could not be relied on when determining the seriousness of the injuries suffered by the victims. For example, several applicants who were shot were considered to require the same number of days of medical care as State agents whose injuries had been visibly less serious.

On 31 August 2007 the complaint was rejected and the decision not to bring charges was upheld by the chief prosecutor.

The applicants’ representative contested the prosecutor’s decision before the Reghin District Court on behalf of the same twenty-seven victims who had joined the criminal proceedings on 3 October 2006 (see paragraph 22 above). He asked the court to order a reopening of the criminal investigation in order to efficiently identify the perpetrators and bring them to justice. He drew the court’s attention to the extraordinary and urgent deployment of police forces (two hours after the commission of the alleged offence) in order to serve two summonses which are normally sent by post, a situation which would never happen in cases involving non-Roma people.

On 16 July 2008 the Reghin District Court, basing its decision on the documents in the prosecutor’s investigation file, dismissed the complaint, holding that the prosecutor’s decision of 16 July 2007 had been correct. In dismissing the complaint, the court briefly stated that even if guilt had been established, the application of Article 44 of the Criminal Code (selfdefence) made it necessary for the prosecutor to adopt the decision not to bring charges.

The applicants lodged an appeal on points of law with the Mureş County Court, but it was dismissed on 12 February 2009.

Meanwhile, on 3 November 2008 the representative of the applicants Ana Maria-Paula Bidi (Beica), Denes Biga, Erika Biga, Iosif Biga Snr, Iosif Biga Jr, Ladislau Biga, Rozalia Bucunea, Carol Ciorcan, Edith Csiki (Biga), Ladislau Horvath, Petru Kalanyos Snr, Petru Kalanyos Jr, Ana Lingurar and Lela Potra, whose names were not mentioned by the prosecutor in the 16 January 2007 decision, submitted a request to the Mureş prosecutor’s office seeking information concerning the progress of their complaints against the special forces officers. On 10 December 2008 they were informed that the file concerning the death of Susana Ciorcan had been terminated with a decision not to bring charges, and that the investigation for the alleged abusive conduct on the occasion of the incident of 7 September 2006 was currently under way with the Reghin prosecutor’s office. They were informed that the statements they had made to the Mureş prosecutor had also been forwarded to the Reghin prosecutor’s office. Following this reply, the fourteen applicants submitted a request to the Reghin prosecutor’s office detailing their situation and seeking information about the current status of their complaints. On 31 July 2009 they received a reply, informing them that they had failed to quote the correct case number. They were asked to provide this information in order to receive a response.

On 21 December 2006 the Disciplinary Council held a meeting to assess whether A.M., the officer who ran the operations on behalf of the Mureş County police, had breached police disciplinary rules when fulfilling the order of 7 September 2006 given by his chief.

According to the minutes of the meeting, the Council heard evidence from A.M., as well as a witness in his defence, A.A., the prosecutor in charge of the investigation of the complaint for insulting behaviour filed by R.O.

In his statement A.M. first described the circumstances leading up to the incident. He stated that:

“After a discussion with officer R.O., during which he told me about the incident that took place on the terrace of the “Ceres” bar in Reghin, I asked him to prepare a written report. Because it was not clear whether a crime had been committed, I decided that a team of officers should go to the bar in order to find witnesses and take statements from them, while I, together with another team, should go to the Apalina neighbourhood to take statements from the two suspects ...”

He further described how the special forces agents were attacked by the “Roma”, while A.A. told the Council:

“I consider that it was the strange reaction that Roma people have on seeing police cars or policemen that led to the clash that day.”

The Disciplinary Council unanimously decided that the policeman under investigation was innocent.

The complaint for insulting behaviour filed by R.O. on 7 September 2006 was dismissed at a later date by the prosecutor, since at the time of the incident R.O. had been off-duty and had not been acting in his official capacity, and there had been no physical violence between the parties.

The two summonses which justified the police operation of that day were never served on the two suspects, who were never questioned by the prosecutor in connection with the complaint filed by R.O.


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

The first applicant, Mr Semoun Qasem Mohammad Abulail, is a Jordanian national who was born in 1976 and lives in Al Ramtha in Jordan. The second applicant, Ms Tsveta Ivanova Ludneva, is a Bulgarian national who was born in 1951 and lives in Plovdiv, Bulgaria. The two applicants were represented by Ms N. Markova, a lawyer practising in Plovdiv.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Stancheva-Chinova, from the Ministry of Justice.

In 2000 the first applicant set up a limited liability company in Bulgaria. The second applicant was employed by the company. Between 2000 and 2003 the first applicant visited Bulgaria on several occasions. On 2 July 2003 the two applicants married. After that the first applicant started living permanently in Bulgaria and in 2005 was granted a permanent residence permit.

On 25 September 2006 the Director of the National Security Service (“the NSS”), at the time a department of the Ministry of Internal Affairs, issued an order revoking the first applicant’s residence permit, ordering his expulsion and barring him from entering Bulgaria for ten years. The order relied on sections 42 and 44(1) of the Aliens Act of 1998. It indicated that it was based on the reasons set out in a classified document named “proposal” (“предложение”) and bearing the number RB2020001-001-03/Пд/C3533/25.09.2006, and on the fact that the first applicant represented a threat to national security. It was also indicated that the order was subject to immediate execution.

After communication of the present application, the Government provided the Court with an excerpt from proposal RB2020001-001-03/Пд/C3533/25.09.2006, which had been declassified on 24 August 2012. The excerpt, in which the names of the other persons are concealed, was shown to the first applicant in the proceedings concerning the judicial review of the order of 25 September 2006 (see below), and was included in the case file. The document refers to “operational intelligence data” showing that the first applicant was involved in drug trafficking. In particular, it is alleged that he was in contact with persons known to be involved in such activities, and used his company’s trucks to transport drugs to Russia and Turkey. It is also stated that in April 2005 a truck belonging to the first applicant’s company was caught in the area of Dobrich carrying 200 kg of amphetamines.

The Government submitted an excerpt from another document entitled “information document” (“справка”) bearing the number RB2020001-001-03/Пд/C3532/25.09.2006, also declassified on 24 August 2012, which contained the same statements and alleged, in addition, that the first applicant was involved in “unlawful drug trafficking, under the control of the Syrian secret services, who provide logistical support to the terrorist organisation Hezbollah”. This excerpt was also presented to the first applicant and included in the case file in the judicial-review proceedings he instigated (see below).

The first applicant was expelled to Jordan on 26 January 2007.

On 19 October 2006 the first applicant filed an administrative appeal against the order of 25 September 2006. On 24 October 2006 the Minister of Internal Affairs dismissed his appeal, finding that the proposal and the information document drawn up by the NSS contained data leading to the conclusion that the first applicant posed a threat to national security. The Minister went on to say that there had been sufficient grounds to justify the order; by law, when issuing such orders the authorities had to refrain from setting out in them the facts justifying their conclusion that the respective person represented a national security risk.

In November 2006 the first applicant sought judicial review of the expulsion order by the Sofia City Court. He argued that it was unclear on what factual circumstances the expulsion order had been based and that he had not been given an opportunity “to defend himself against arbitrary action”. The first applicant also sought a stay of the enforcement of the expulsion order pending the outcome of the proceedings.

The Sofia City Court accepted the application for judicial review for examination. In decisions issued on 7 December 2006 and 8 February 2007 it refused to stay the enforcement of the expulsion order.

Following amendments to the Aliens Act 1998 that made expulsion orders subject to review by the Supreme Administrative Court (“the SAC”), the case was transferred to that court on an unspecified date. In the proceedings before it, the first applicant had legal representation.

In his submissions to the SAC the first applicant disputed the allegations ‒ made in the proposal and the information document referred to in paragraphs 5 and 6 above ‒ that he had been involved in drug trafficking. He also disputed the claim that in 2005 in the region of Dobrich the authorities had discovered drugs in a truck belonging to his company. He pointed out that at the time in question he had not sent trucks into that area and argued that if the allegation were true he would have been under investigation. He presented additional documents issued by the prosecution authorities, stating that he had no criminal convictions and that there were no ongoing investigations concerning him in the regions of Dobrich or Plovdiv. The first applicant also contested the allegations that he had worked for the Syrian secret services and Hezbollah, pointing out that he was a Jordanian and a Sunnite, and that Hezbollah was a Shia militant group. He stated that his expulsion had disrupted his commercial activities in Bulgaria. Lastly, he said the following:

“[I]t should be noted that my personal rights have been unlawfully encroached upon, which is unjustified. My family has been separated for more than a year.”

In a judgment of 9 January 2008, which was final, the SAC found that the order of 25 September 2006 was lawful and disallowed the first applicant’s application for judicial review. Its decisive reasoning was as follows:

“The disputed order was made by a competent body, no material breaches of the rules of administrative procedure have been committed, and it does not contradict the applicable law and its intent. The argument raised in the application for judicial review that the disputed administrative act did not contain any reasoning and was not based on the law is ill-founded. The disputed order refers to the legal provisions it is based on and ‒ given that it concerns compulsory measures under section 46(2) of the [Aliens Act] ‒ pursuant to section 46(3) of the same Act it should not disclose the factual grounds justifying it. Moreover, those factual grounds are set out in detail in [proposal RB2020001-001-03/Пд/C3533/25.09.2006] and are indicated in the disputed order as the factual basis, as can be seen from the [excerpt from the document] included in the case file. On the basis of the information contained in the proposal, the administrative body has reached a reasoned conclusion that the [applicant’s] presence in the country amounts to a serious threat to national security, and that the preconditions have been satisfied for the imposition of the compulsory measure ‘expulsion’ [...], together with the compulsory measures ‘revocation of residence permit’ and ‘bar on entering the [Republic of Bulgaria]’ which accompany it on a mandatory basis. [...] As can be seen from the proposal and the information document [RB2020001-001-03/Пд/C3532/25.09.2006], an excerpt of which [...] has also been included in the case file, the operational investigative activities carried out have established the grounds for imposing the compulsory measure ‘extradition’, together with the remaining [compulsory measures taken]. Contrary to the applicant’s arguments, the excerpts presented in the case ‒ prepared in accordance with the [law on classified information] ‒ are official attestation documents, which have binding force for the court as regards the contents of the proposal and the information document, on the basis of which ‒ in accordance with the applicable substantive rules ‒ the disputed order has been made.”

With the order of 25 September 2006 the Director of the NSS ordered the first applicant’s detention pending expulsion. On 26 September 2006 the Director of the Plovdiv Regional Police Directorate, relying on section 44(6) and (8) of the Aliens Act, also ordered his detention pending enforcement of the expulsion order. On the same day the first applicant was detained and placed in the Centre for Interim Detention of Aliens (“the CIDA”) in Busmantsi, where he remained until his expulsion on 26 January 2007.

The order of 26 September 2006 stated that it was subject to judicial review. It does not appear that the first applicant sought such review.

Around 6 p.m. on 30 December 2006 the first applicant was beaten by a codetainee, an Iraqi national, with whom he had been accommodated in the same room in the CIDA. Immediately after the accident the Iraqi was placed in another room.

In the early hours of 31 December 2006 the first applicant was transferred to a hospital where it was established that he had a broken nose. On 3 January 2007 he underwent surgery. He was discharged from hospital on 8 January 2007.

On 19 January 2007 the first applicant complained to the prosecution authorities and requested them to investigate his beating. On 1 February 2007 a prosecutor from the Sofia District Public Prosecutor’s Office instructed the police to carry out a check-up. After this had been done, in a decision of 27 March 2007 the prosecutor found that the injury suffered by the applicant was considered by the Criminal Code to be one of a minor severity, which meant that its infliction was a privately prosecutable offence. Thus, the prosecutor discontinued the criminal proceedings.

The above decision, which was served on the first applicant’s lawyer, was appealable to a higher-ranking prosecutor. The first applicant did not appeal. Nor did he lodge a private criminal complaint against his attacker, who was likewise expelled from Bulgaria on an unspecified date.

The relevant domestic law concerning the expulsion of aliens on grounds of national security, as in force at the time, has been set out in detail in the Court’s judgments in the cases of C.G. and Others v. Bulgaria (no. 1365/07, §§ 18-26, 24 April 2008) and Raza v. Bulgaria (no. 31465/08, §§ 3035, 11 February 2010).