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

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Sergiy Goncharenko;Síofra O’Leary;Yonko Grozev

The applicant was born in 1963 and lives in the town of Shargorod, Ukraine.

According to the applicant, at around 1.30 p.m. on 30 December 2002, while working in the backyard of his home, he saw three young men on the premises of the nearby Shargorodskiy Food Products Factory (“the factory”). Since there had previously been thefts at the factory premises, during which scrap metal had been thrown over the fence into the applicant’s yard, the latter decided to enter the factory yard to chase after the young men. However, having climbed over the fence and realising the young men were no longer there, the applicant went to look inside the building, entering “through an opening in the wall”. The factory premises were empty but the applicant claimed to have heard adult voices. He did not want to meet anybody and so he crawled out through the same opening and quickly returned home.

Five to ten minutes later a police officer, L., arrived at the applicant’s house. According to the applicant, he had a gun in his hand, swore at the applicant, grabbed him by his collar and hit him on the head with the gun handle. The applicant fell to the ground and the police officer started kicking him. The applicant’s mother-in-law appeared and asked the police officer not to beat the applicant, whereupon he grabbed the applicant by the sleeve and took him to the police station. The applicant was accused of stealing aluminium sheets from the factory.

The applicant also submitted that, at the police station, L., in the presence of two other police officers, had kicked him in the kidneys, at which point the applicant fell to the ground. After he got up, one of the police officers gave him some water. L. then took the applicant into one of the offices, where he and another police officer, P., beat the applicant about the head and kicked him on various parts of his body for 15-20 minutes. Another police officer, G., arrived and L. and P. continued to beat the applicant, wanting him to confess to theft. After a while the applicant was placed in a cell.

That night the applicant complained of a headache and general sickness. He was told by the duty police officer that a doctor would come. After some time a man wearing a white coat arrived, emptied two ampules labelled “Analgin” and “Dimedrol” (diphenylhydamine) into a plastic water bottle and gave it to the applicant.

On the morning of 31 December 2002 the applicant was taken to court, where he was fined in administrative proceedings for disobeying a police officer’s order to stop. According to the applicant, he had wanted to show the judge his injuries but the latter refused, advising the applicant to go to a hospital and file a complaint.

The applicant was brought back to the police station, where he signed a paper stating that nobody had ill-treated him and that his personal belongings had been returned to him. The material in the case-file includes a note, allegedly signed by the applicant and dated 31 December 2002, stating that he had no complaints about the police officers and that no physical force had been used against him.

On the same day a decision not to institute criminal proceedings against the applicant for stealing aluminium was adopted. It was noted that the applicant had not had any intention of stealing the aluminium sheets and that he had entered the factory premises out of curiosity.

The applicant came home and told his family what had happened. The applicant’s sister-in-law, who is a nurse, gave him an injection but the applicant did not feel any better. He was suffering from headache, nausea and fever which he claimed continued for eight months.

The Government did not provide a detailed description of the events of 30-31 December 2002 but it appears from their observations that they agreed with the findings of the national investigation authorities (see paragraphs 48-50 below).

On 2 January 2003 the applicant was examined at a hospital and was hospitalised the next day. The applicant stayed in hospital until 11 February 2003. According to the applicant’s medical records, upon arrival at the hospital, his condition was of “medium seriousness”. He had bruises mostly on the left side of his body and some scratches on his back. On his left thigh there was a large bruise measuring 12 by 6 centimetres. The applicant was suffering from headache and nausea. He told the doctors that he had been beaten by police officer L.

In a medical certificate dated 11 February 2003, issued by the hospital, the applicant was diagnosed with multitrauma, closed brain injury, brain contusion of medium severity causing numerous neurological problems, two broken ribs, post-traumatic pneumonia and injuries to his kidneys, face and body.

On 10 February 2003 the applicant requested the Vinnytsya Regional Prosecutor that criminal proceedings be instituted against the police officers. In support of his complaint the applicant outlined his version of the events which took place on 30-31 December 2002 (see paragraphs 613 above).

On 18 February and 3 March 2003 several factory employees (F., S., Lo. – the wife of police officer L. –, V. and A.) testified before the investigation authorities that a noise had been heard in one of the factory buildings. V. had asked a police officer, L., to check the origin of this noise. All of the above persons had approached the building and had seen footprints in the snow leading to a conveyor belt opening in the wall. Two of them had stayed outside while the others, accompanied by L., had entered the building and had seen aluminium sheets from the ceiling piled on the floor and a man trying to escape through the conveyor belt opening. V., who had stayed outside, had tried to catch the man, but the latter had broken free. When jumping from the conveyor belt, the man had slipped and fallen onto the asphalt and had then run away. The police officer had chased after the man. The latter had climbed over the 2.5 metre high fence but had lost his balance and fallen onto the other side. The witnesses had heard a thud and a shriek.

L. gave similar testimony. He added that the applicant had also fallen when jumping over the fence of his house. L. had found the applicant in a coal bunker in the backyard of the applicant’s house and said that he had taken him to a police station.

On 3 March 2003 the applicant’s mother-in-law, M., testified that L. had arrived at her house and had said that he was looking for a criminal. Later she had heard a noise behind the barn and had seen L. aiming a blow with the handle of his gun at the applicant, who was lying on the ground. M. had begged L. not to beat the applicant. After that L. had taken the applicant to a police station.

On the same day the Vinnytsya Regional Police Department (Управління МВС України у Вінницькій області) approved the results of an internal investigation in response to the applicant’s complaint. The investigation found that on 30 December 2002 around 2 p.m. the factory employees had asked L. to check the origin of a suspicious noise that had been coming out of one of the factory’s abandoned halls. L., accompanied by five factory employees, checked the hall and found aluminium sheets, which had been torn from the ceiling and piled up on the floor. He also saw the applicant, who tried to escape. While running away, the applicant fell twice – once when climbing through a conveyor belt opening in the wall and a second time when climbing over the fence. He fell for a third time when jumping over the fence of his house. In the yard of his house the applicant hid in a coal bunker, where he was found and taken to a police station. The police officers testified that they had not ill-treated the applicant. The applicant’s mother-in-law testified that a police officer L. had aimed a blow at the applicant as he was lying on the ground but she had not seen the applicant being beaten. Although summoned by a prosecutor, the applicant did not appear for questioning and neighbours ‒ who did not want their names to be cited ‒ described him as an alcoholic inclined to involvement in scandalous conduct, theft and fraud. The internal police investigation concluded that since the submissions of the applicant, the police officers and the witnesses were contradictory, the case-file of material should be sent to a prosecutor’s office.

On 7 March 2003 the deputy prosecutor of the Shargorodskiy District (заступник прокурора Шаргородського району) refused to institute criminal proceedings following the applicant’s complaint. The deputy prosecutor noted that the applicant had stated that he had not intended to steal aluminium but had entered the factory premises out of curiosity and had run away out of fear of being accused of theft, that L. and P. had denied using physical force on the applicant and that the factory employees said that they had not seen L. beat the applicant. It was also noted that the applicant had not appeared for the forensic medical examination. The deputy prosecutor concluded that the applicant had sustained his injuries when trying to run away from L.

On 10 April 2003 this decision was quashed by a higher prosecutor since it had not been established how the applicant’s injuries had been inflicted.

According to a forensic medical conclusion of 12 May 2003, the applicant had sustained the following injuries: closed concussion, two broken ribs on the left and one on the right, post-traumatic pneumonia and a kidney injury. He had numerous bruises: on the chest (20x15 cm), left shoulder (3x3 cm and 4x3 cm), left hip (12x6 cm), under the right knee (2x2 cm), left shoulder blade (5x4 cm) and scratches on the back. Those injuries were of medium severity and had been inflicted by a blunt, hard object possibly on 30 December 2002.

Between 15 June 2003 and 27 October 2004 the Shargorodskyy District Prosecutor’s Office (прокуратура Шаргородського району) twice refused to institute criminal proceedings in response to the complaint from the applicant. Those decisions were quashed by higher prosecutors for reasons similar to those mentioned in the decision of 10 April 2003 and the case was referred for additional investigation.

Between 15 June 2003 and 27 October 2004 the following investigative steps were taken:

on 30 August 2004 the applicant’s mother-in-law testified that she had seen L. kicking the applicant whilst he was lying on the ground;

on 30 August-1 September 2004 the applicant, his wife and the factory employees were questioned;

on 30 August 2004 a forensic expert concluded that the applicant had sustained bodily injuries of medium seriousness and that those injuries could have been inflicted by blunt objects or by several falls from different heights;

on 6-8 September 2004 police officers P. and L. were questioned;

on 27 September 2004 the factory premises were examined;

according to a forensic medical report dated 6 October 2004, the applicant could have sustained his injuries between 30 December 2002 and 2 January 2003 by being beaten or by falling from a height.

On 27 October 2004 the Vinnytsya Regional Prosecutor’s Office (прокуратура Вінницької області) instituted criminal proceedings on suspicion of abuse of power.

On 30 November 2004 the applicant was questioned and he reiterated his version of events (see paragraphs 6-10 above), submitting, in particular, that in the police station ‒ in the presence of two police officers ‒ L. had struck him on the chest; P. had hit him several times on the head; P. and L. had kicked him on various parts of his body and P. had struck him on the chest and on the abdomen and had then beaten him in the presence of a police officer.

On 10 January 2005 the forensic medical commission confirmed the previous expert conclusions and added that the applicant had been able to move after the injuries had been inflicted.

Between February and June 2005 the applicant, his family members, factory employees and police officers were again questioned and a reconstruction of events was staged in the police station. The applicant’s mother-in-law testified that she had seen L. kicking the applicant as he lay on the ground. She also stated that L. had hit the applicant on the head with his gun handle. The factory employees F. and A. testified that they had seen the applicant running away and falling over on his way to the fence and again when climbing over the fence. Face-to-face confrontations between the applicant and police officers P., L. and G., and between the applicant and the factory employees were conducted.

On 19 April 2005 the police officers P. and L. were charged with abuse of power accompanied by violence.

By a letter of 5 May 2005 the Vinnytsya Regional Prosecutor’s Office informed the applicant that investigating officers K. and T. had been disciplined for delaying the investigation.

On 18 May 2005 P. and L. were questioned as witnesses.

On 26 May 2005 the Vinnytsya Regional Prosecutor’s Office asked the Head of the Internal Security Department of the Vinnytsya Region, which is part of the Ministry of the Internal Affairs of Ukraine (начальник УВБ у Вінницькій області ДВБ ГУБОЗ МВС України), to identify and question witnesses who had seen or talked to the applicant at the time of the events in question. On an unspecified date the police stated that it had not been possible to find any witnesses. Similar requests were also submitted on 16 May 2006 and 11 January 2007. The answers to those requests were also negative.

On 2 June 2005 the Shargorod Territorial Medical Unit (Шаргородське територіальне медичне об’єднання), in reply to a request from Vinnytsya Regional Prosecutor’s Office, submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team.

On the same day, judge Tr. was questioned. He submitted that when he had seen the applicant in court on 31 December 2002 the applicant had had no injuries to his head or hands, nor had he complained about any health problems. The applicant also did not complain that he had been beaten.

On 10 June 2005 the investigating officer from the Vinnytsya Regional Prosecutor’s Office terminated the proceedings against the police officers for absence of corpus delicti. On 16 August 2005 this decision was upheld by the Leninskyy District Court of Vinnytsya. On 22 September 2005 the Vinnytsya Regional Court of Appeal quashed these decisions and remitted the case for a fresh investigation. The court found that the investigating officer had failed to check whether an ambulance had been called for the applicant when he had been at the police station, and had failed to question the witnesses to the applicant’s arrest. It was also unclear whether the applicant’s injuries could have occurred as a result of his falls.

On 28 October 2005 the Shargorod Territorial Medical Unit again submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team while at the police station.

In November 2005 L., A. and S. were again questioned.

On 22 December 2005 the forensic experts concluded that the applicant’s injuries could have occurred as a result of several falls.

On 28 December 2005 the investigating officer of the Vinnytsya Regional Prosecutor’s Office again terminated the proceedings for absence of corpus delicti.

On 20 February 2006 the Leninskyy District Court of Vinnytsya quashed that decision because witnesses to the applicant’s arrest had not been sought and the hospital doctors had not been questioned. The applicant’s family members and some factory employees were to be additionally questioned and the evidential material from the administrative case-file against the applicant was to be included in the file. The case was remitted for further investigation.

On 13 April 2006 the Vinnytsya Regional Court of Appeal rejected the prosecutor’s appeal against the decision of 20 February 2006.

Between 13 April 2006 and 19 October 2008 the proceedings were terminated three times for absence of corpus delicti and re-opened, in particular, in the light of the failure to obtain the applicant’s medical file from the hospital or to conduct a reconstruction of events with the participation of L., witnesses and a forensic medical expert in order to establish where the applicant had fallen and the circumstances in which the applicant had suffered his injuries.

By letters of 7 July 2006 and 7 February 2007 the Shargorodskyy District Prosecutor’s Office informed the Vinnytsya Regional Prosecutor’s Office, inter alia, that the applicant’s mother-in-law, wife and sister-in-law had refused to testify, that a factory guard who had been on duty on 30 December 2002 had moved to Russia, and that “it had been impossible to question doctors at Shargorod Hospital since there was no information about any medical assistance that might have been provided to the applicant”.

On 14 October 2008 a reconstruction of events at the factory had been conducted with the participation of L. and a forensic medical expert. The expert had also been asked additional questions on the same day.

On 19 October 2008 an investigating officer of the Tomashpilskyy District Prosecutor’s Office terminated the criminal proceedings against the police officers for absence of evidence of a crime.

It was found that on 30 December 2002 at around 1 p.m. employees of the Shargorodskiy Food Products Factory had asked a police officer L., who had been present at that time on the factory premises, to check the origin of noises coming from inside one of the locked factory buildings. L. together with V., F., A., Lo. and S. went to the premises in question. Inside the building, L. and the factory employees found aluminium sheets torn from the ceiling and piled up against a wall. They also saw the applicant, who ran away after tripping up several times. The applicant was later apprehended at his home and taken to a police station.

After being questioned on 30 August and 30 November 2004 (see paragraphs 26 and 28 above), the applicant admitted that whilst running away he had heard people shouting behind him but had not paid any attention to them. The applicant also submitted that he had climbed over the fence having stepped on a manure pile on another side. However, the applicant’s neighbours testified that the manure pile was located 1.5 metres away from the wall. The prosecutor also referred to the testimonies given by the police officer L., factory workers, other police officers and a judge Tr. during the investigation. Numerous forensic medical experts concluded that the applicant’s injuries could have been caused by having fallen onto hard objects several times. The forensic medical expert who participated in the reconstruction of events testified that the applicant’s injuries had most probably been caused as a result of his having fallen down several times, bearing in mind the frozen ground, the height of the conveyor belt and the fence, and the body’s acceleration when running.

In view of the above the Tomashpilskyy District Prosecutor’s Office concluded that there was no evidence of any crime and, since the events in question had taken place six years earlier, that there was no possibility of finding such evidence.

On 22 September 2010 the Leninskyy District Court authorised a search of premises at K. Street 54/1. This search was the result of criminal proceedings instituted the previous day following the placement of pornographic material on an Internet page which allegedly belonged to the applicant’s representative.

On 15 October 2010 Ya., who was using the premises at K. Street 54/3, allowed the police to inspect those premises after receiving authorisation from the owner. She confirmed that the items of property in the room at that address belonged to the applicant’s representative.

On the same day the police officers inspected the premises at K. Street 54/3 and seized, inter alia, three computers. According to the applicant’s representative, the office of a human rights organisation was located at that address, which was where he worked.

The applicant’s representative complained about the seizure to a prosecutor indicating that one of the seized computers contained part of confidential correspondence with the Court in the present case.

On 5 November 2010, in response to complaints by the applicant’s representative about alleged breaches of the law in the course of the search and seizure, the Vinnytsya City Prosecutor’s Office issued a decision refusing to institute criminal proceedings. According to the applicant’s representative, he appealed against that decision but to no avail.

According to reports in the media, in August 2013 the applicant’s representative was acquitted.


Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Inhuman treatment;Prohibition of torture)

The relevant details of the application are set out in the appended table.

The applicant complained of the inadequate conditions of his detention and the lack of medical care in custody. Relying on Article 13 of the Convention he also alleged that no effective domestic remedies for his grievances had been available to him.


CASE OF DZHABAROV AND OTHERS v. BULGARIA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev

Mr Dzhabarov was born in 1975 and lives in Burgas.

Mr Petkov was born in 1981 and lived in Burgas. He died on 31 May 2014. On 4 September 2014 his mother, who is his only heir, expressed the wish to pursue the application on his behalf.

Ms Nikolova was born in 1962 and lives in Sandanski.

On 20 December 2007 Mr Dzhabarov, Mr Petkov and a friend of theirs were travelling in a car in Stara Zagora. At about 3 a.m. they were stopped by a police patrol, arrested, and, at approximately 3.10 a.m., taken to a local police station.

The police issued an order for Mr Dzhabarov’s detention for twenty-four hours at 12 noon. The order said that he was being detained under section 63(1)(1) of the Ministry of Internal Affairs Act 2006 (“the MIAA” – see paragraph 41 below) in conjunction with Article 195 § 1 (3) and (4) of the Criminal Code 1968, which criminalise burglary and theft committed by using a motor vehicle, technical means or a special technique.

The police issued an order for Mr Petkov’s detention for twenty-four hours at 1.30 p.m. That order likewise said that he was being detained under section 63(1)(1) of the MIAA, but in his case in conjunction with 198 § 1 of the Criminal Code 1968, which criminalises robbery.

Neither of the two orders mentioned the factual grounds on which they had been issued.

The applicants were released at 12 noon on 21 December 2007.

In the beginning of 2008 Mr Dzhabarov sought judicial review of the order for his detention.

On 16 April 2008 the Stara Zagora Administrative Court quashed the order. It noted that Mr Dzhabarov had been detained under section 63(1)(1) of the MIAA. However, the order had not specified the offence of which he was suspected. That was both a breach of the rules of procedure and an indication that there did not exist a reasonable suspicion that Mr Dzhabarov had committed an offence. The lack of such suspicion was also demonstrated by the absence of any evidence in the police file. Two police reports, drawn up later and suggesting that Mr Dzhabarov had been detained with a view to elucidating whether he was implicated in the robbery of a petrol station and a number of burglaries, could not ex post facto justify his detention; they moreover contained discrepancies and were based on investigative steps carried out after Mr Dzhabarov’s arrest. The court went on to say that the order had been issued more than nine hours after Mr Dzhabarov’s de facto arrest, which was out of line with the object and purpose of the law. The court partly allowed Mr Dzhabarov’s claim for costs, awarding him 200 Bulgarian levs (BGN) (102 euros (EUR)) in lawyers’ fees and BGN 10 (EUR 5) in court fees.

The police appealed on points of law. Mr Dzhabarov did not ask the Stara Zagora Administrative Court to vary its ruling in relation to costs, as was possible under the applicable rules of procedure. He did however ask the Supreme Administrative Court to award him the costs incurred in the appeal proceedings.

In a judgment of 2 December 2008 (реш. № 13157 от 02.12.2008 г. по адм. д. № 7441/2008 г., ВАС, ІІІ о.), the Supreme Administrative Court upheld the lower court’s judgment. It held that the detention order, which had been issued at 12 noon on 20 December 2007, was chiefly tainted by the undisputed lack of contemporaneous evidence that Mr Dzhabarov might have been implicated in an offence. The court did not mention Mr Dzhabarov’s claim in respect of the costs incurred in the appeal proceedings. Mr Dzhabarov did not ask it to supplement its judgment by doing so, as provided under the applicable rules of procedure.

In January 2009 Mr Dzhabarov brought a claim under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 47 below) against the Stara Zagora Regional Directorate of the Ministry of Internal Affairs. He alleged, inter alia, that his detention had been unlawful and had caused him psychological trauma. He sought BGN 2,000 (EUR 1,023) in non-pecuniary damages and, under the head of pecuniary damages, reimbursement of the remainder of the costs that he had allegedly incurred in the judicial review proceedings: BGN 206 (EUR 105).

On 27 November 2009 the Burgas Administrative Court dismissed the claim. It held that Mr Dzhabarov had failed to prove that he had suffered non-pecuniary damage – such as negative emotions, stress or discomfort – as a result of his detention. He had not provided any evidence, in particular medical expert reports, on that point. The statement of Mr Petkov, who had been called by Mr Dzhabarov to testify, only contained information about the events surrounding their arrest and detention. The court went on to say that it was not possible to seek costs incurred in proceedings for judicial review of a detention order by way of a claim for damages under section 1(1) of the 1988 Act.

Mr Dzhabarov appealed on points of law. He argued, inter alia, that it was logical to presume that a person who had been unlawfully detained had endured mental suffering on account of that, and that he was entitled to compensation because his detention had been in breach of his fundamental rights.

In a judgment of 15 June 2010 (реш. № 7954 от 15.06.2010 г. по адм. д. № 753/2010 г., ВАС, III о.), the Supreme Administrative Court upheld the lower court’s judgment. It held that claimants in proceedings under section 1(1) of the 1988 Act bore the burden of making out all elements of the tort, including the existence of damage, and that the only evidence that could be used to prove non-pecuniary damage in the form of mental suffering was medical expert evidence, not witness evidence. The court went on to agree fully with the lower court’s ruling in relation to the claim for costs in the judicial review proceedings.

In January 2008 Mr Petkov sought judicial review of the order for his detention.

On 10 March 2008 the Stara Zagora Administrative Court quashed the order. It noted that Mr Petkov had been detained under section 63(1)(1) of the MIAA. However, the order for his detention, while formally valid, was out of line with the object and purpose of the law. The police were given the power to detain persons suspected of offences with a view to being able to investigate those offences. That is why the law did not require conclusive evidence of an offence but simply information enabling the police to form a reasonable suspicion in that regard. The police detention log showed that Mr Petkov had been brought to the police station at 3.10 a.m. on 20 December 2007, whereas the three witness statements submitted by the police in the judicial review proceedings in support of their contention that Mr Petkov was suspected of an offence spoke of a robbery of a petrol station committed at 4.50 a.m. This showed that, at the time of Mr Petkov’s arrest, the police did not have a reasonable suspicion of him committing an offence. It was also striking that although Mr Petkov had in fact been arrested at 3.10 a.m. on 20 December 2007, the order for his detention said that his detention had started at 1.30 p.m. that day. The court partly allowed Mr Petkov’s claim for costs, awarding him BGN 200 (EUR 102) in lawyers’ fees and BGN 10 (EUR 5) in court fees.

On 30 September 2008 the police appealed on points of law against that judgment. Mr Petkov did not ask the Stara Zagora Administrative Court to vary its ruling in relation to costs, as was possible under the applicable rules of procedure. He did however ask the Supreme Administrative Court to award him the costs incurred in the appeal proceedings.

In a bench ruling of 18 November 2009 (опр. от 18.11.2009 г. по адм. д. № 14761/2008 г., ВАС, ІІІ о.), the Supreme Administrative Court declared the appeal inadmissible, finding that the time-limit for the police to lodge an appeal had expired as early as 25 March 2008. The court did not mention Mr Petkov’s claim in respect of the costs incurred in the appeal proceedings. On 3 December 2009 Mr Petkov asked the court to supplement its decision by doing so. In a decision of 7 January 2010 (опр. № 162 от 07.01.2010 г. по адм. д. № 14761/2008 г., ВАС, ІІІ о.), the Supreme Administrative Court refused the request, finding that it had been made out of the applicable seven-day time-limit, which had started to run on 18 November 2009. Mr Petkov appealed, but a five-member panel of the court dismissed the appeal in a decision of 3 February 2010 (опр. № 1399 от 03.02.2010 г. по адм. д. № 1511/2010 г., ВАС, петчл. с-в).

In July 2008 Mr Petkov brought a claim under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 47 below) against the Stara Zagora Regional Directorate of the Ministry of Internal Affairs. He alleged, inter alia, that his detention had been unlawful and had caused him psychological trauma. He sought BGN 2,000 (EUR 1,023) in non-pecuniary damages and, under the head of pecuniary damages, reimbursement of the remainder of the costs that he had allegedly incurred in the judicial review proceedings: BGN 206 (EUR 105).

On 6 October 2008 the proceedings were stayed pending the determination of the appeal against the Stara Zagora Administrative Court’s judgment of 10 March 2008 (see paragraph 25 above). On 12 April 2010 the proceedings were resumed.

On 29 September 2010 the Burgas Administrative Court dismissed the claim. It held that Mr Petkov, who bore the burden of proof in that respect, had failed to show that he had suffered non-pecuniary damage – such as negative emotions, stress or discomfort – as a result of his detention. He had not provided any evidence, in particular medical expert evidence, on that point. The evidence of Mr Dzhabarov and the other person with whom Mr Petkov had been detained, who had been called by Mr Petkov to testify, and the expert evidence on the lawfulness of those conditions adduced in the course of the proceedings, gave information about the material conditions in the detention facility but not about Mr Petkov’s state of mind or subjective perceptions. These could only be established on the basis of medical expert evidence, which had not been provided. The court went on to say that it was not possible to seek costs incurred in proceedings for judicial review of a detention order by way of a claim for damages under section 1(1) of the 1988 Act.

Mr Petkov appealed on points of law. He argued, inter alia, that it was absurd to hold that the mental suffering flowing from unlawful detention could only be established on the basis of medical expert evidence. It was natural to presume that a person unlawfully deprived of his liberty for more than thirty hours would endure such suffering.

In a judgment of 11 April 2011 (реш. № 5046 от 11.04.2011 г. по адм. д. № 13852/2010 г., ВАС, III о.), the Supreme Administrative Court upheld the lower court’s judgment. It held that claimants in proceedings under section 1 of the 1988 Act bore the burden of proving all elements of the tort, including the existence of damage, and that the only evidence that could be used to prove non-pecuniary damage in the form of mental suffering was medical expert evidence, not witness evidence. The statements of the witnesses called by Mr Petkov had established the conditions in the detention facility and the attitude of the police officers towards him, but could not serve as proof of negative changes in his physical, psychological or neurological status.

In 2006 Ms Nikolova was working as head of the audit unit of the Blagoevgrad division of the National Revenue Agency. She was in charge of, among others, the towns of Petrich and Sandanski.

At about 11 a.m. on Saturday 9 September 2006, Ms Nikolova went to the Sandanski office of the National Revenue Agency, according to her to practise filling in tests on the ethical duties of tax officials. She said that, on her way there, she ran into an acquaintance of hers, Mr B.T., who asked her whether she could run a check on the identities of certain persons that he needed for court papers that he was about to file in connection with the registration of the United Macedonian Organisation Ilinden-PIRIN as a political party. Ms Nikolova decided that there was no legal impediment to that and together with Mr B.T. went inside the Agency’s office. However, their entry set off the alarm and shortly after that three police officers came to the office and found Ms Nikolova and Mr B.T. inside, checking the personal data of certain individuals in the Agency’s computer database. The officers asked the two of them to produce their identification papers and to accompany them to the local police station.

Ms Nikolova and Mr B.T., under police escort, arrived at the police station at about 11.15 a.m. Ms Nikolova was asked to draw up a written explanation of her presence in the Agency’s office. In the meantime, two plain-clothes officers arrived at the station; it later transpired that they were officers of the National Security Agency. They interviewed Ms Nikolova without identifying themselves and without explaining the reasons why she was detained. Ms Nikolova was released at about 3.40 p.m. It appears that, in the meantime, at about 1.50 p.m., she was briefly taken by the police back to the office of National Revenue Agency to be present while the police drew up a record, and then returned to the police station.

Following this incident, the prosecuting authorities opened criminal proceedings against Ms Nikolova on charges that she had knowingly divulged confidential information to which she had access by virtue of her position as a tax administration official, contrary to Article 248 § 1 of the Criminal Code 1968. However, on 22 May 2007 the Sandanski District Prosecutor’s Office decided to discontinue those proceedings. It noted that while Ms Nikolova had indeed misused her office to divulge confidential information – the personal data of two persons – to which she had access by virtue of her position, Article 248 § 1 required, in addition, that this divulgation give rise to prejudice for the State or a private person. There was no evidence, however, that the applicant’s act had prejudiced the State or those two persons, both of whom, when interviewed, had stated that they had not suffered any negative consequences as a result of the applicant’s divulging their personal data to Mr B.T.

Shortly after the incident, Ms Nikolova and Mr B.T. complained to the military prosecuting authorities about the actions of the police officers who had detained them. On 29 November 2007 the Sofia Military Prosecutor’s Office refused to open criminal proceedings pursuant to those complaints. Its decision was upheld by the Appellate Military Prosecutor’s Office on 19 February 2008 and by the Supreme Cassation Prosecutor’s Office on 4 June 2008.

In January 2010 Ms Nikolova brought a claim under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 47 below) against the Blagoevgrad Regional Directorate of the Ministry of Internal Affairs and the National Security Agency. She alleged that her detention had been unlawful because it had not been based on a written order as required under section 65(1) of the MIAA. She also alleged that the deprivation of liberty and the pressure to which she had been subjected by the police had caused her stress and humiliation and had aggravated her health, and sought BGN 10,000 (EUR 5,113) in nonpecuniary damages.

On 29 July 2010 the Blagoevgrad Administrative Court dismissed the claim. It noted that it was not disputed that between about 11 a.m. and about 3.30 p.m. on 9 September 2006 Ms Nikolova had been detained by officers of the Sandanski police. That was further proved by the register of detainees kept by the Sandanski police station and the statements of the officers concerned. However, a claimant in proceedings under section 1(1) of the 1988 Act (see paragraph 47 below) had to make out all elements of the tort under that provision: a wrongful act or omission by officials, damage, and a sufficient causal link between the two. The claimant bore the full burden of proof in relation to each of those, and the lack of any element meant that the claim should fail. However, Ms Nikolova had not categorically shown that she had suffered non-pecuniary damage as a result of her arrest and detention. There was no evidence that the officers concerned had done anything to hurt her dignity. Their testimony, which was internally consistent and matched the rest of the evidence, showed that Ms Nikolova had not been subjected to any physical or psychological abuse. Ms Nikolova’s evidence that one of the officers had acted rudely was contradicted by the evidence of all officers and was vague; it could not therefore be credited. It was not supported by the statement of Mr B.T. either. Ms Nikolova’s assertions in respect of the damage that she had allegedly suffered were in addition very general and could not be upheld. The police had been apprised of a possible offence and had detained her for less than twenty-four hours to elucidate the case, as possible under section 64 of the MIAA (see paragraph 42 below). Had the detention lasted more than twenty-four hours, the outcome of the case would probably have been different.

Ms Nikolova appealed on points of law. She argued, inter alia, that the court had not clarified under which point of section 63(1) of the MIAA she had been detained, or commented on the fact that her detention had not been sanctioned by a written order. She also argued, by reference to Article 5 § 5 of the Convention, that the mere fact of unlawful detention gave rise to non-pecuniary damage because it was an infringement of the fundamental right to liberty, guaranteed by, inter alia, Article 5 § 1 of the Convention. Since she had been detained unlawfully, she was entitled to non-pecuniary damages in relation to that.

In a judgment of 19 May 2011 (реш. № 7036 от 19.05.2011 г. по адм. д. № 245/2011 г., ВАС, ІІІ о.), the Supreme Administrative Court dismissed the appeal. It fully agreed with all of the lower court’s findings, including that Ms Nikolova had been placed under police detention within the meaning of section 63 of the MIAA, but did not mention Article 5 §§ 1 or 5 of the Convention.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Kristina Pardalos

The applicants, Ms Anna Maria Francisca Berkvens and Mr Johannes Cornelius Berkvens, are Netherlands nationals, who were born in 1932 and 1963 respectively and live in Asten.

The second applicant is the administrator (bewindvoerder) of the first applicant’s property.

On 2 July 2009 Mr A.L. Berkvens died. He left an estate worth EUR 451,168. His heirs included the applicants. It would appear that the first applicant is his widow.

The first applicant enjoyed an exemption from inheritance tax up to a maximum of EUR 532,570. Since her part of the estate was worth only EUR 66,584 she owed no inheritance tax.

The second applicant’s inheritance was subject to inheritance tax. His portion of the estate was worth EUR 64,453; the inheritance tax due on it was EUR 5,187. The facility for enterprise succession (see paragraph 12 and the judgment of the Supreme Court (Hoge Raad), paragraph 13, below) did not apply.

On 22 December 2009 the first applicant made a gift worth EUR 50,000 to the second applicant.

The gift tax on this owed by the second applicant came to EUR 2,952. The facility for enterprise succession did not apply.

On 18 November 2012 the second applicant lodged an objection with the Tax Inspector on his own behalf and on that of the first applicant. He complained of discrimination in that the exemption applicable to estates and gifts worth up to one million euros which was enjoyed by those entitled to the facility for enterprise succession did not apply to them.

The applicants have not submitted any individual decision on their objection.

As relevant to the case before the Court, the Succession Act 1956 (Successiewet 1956) provides that inheritance tax (formerly successierecht; since the fiscal year 2010, erfbelasting) shall be levied on the value of everything obtained under inheritance law consequent on the death of a person who at the time of the death was resident in the Netherlands, and gift tax (formerly schenkingsrecht; since the fiscal year 2010, schenkbelasting) on the value of everything obtained by gift from a person who at the time the gift was made was resident in the Netherlands (section 1 of that Act). The tax shall be levied from the recipient (verkrijger) (section 36).

Exemptions from these taxes applied, conditionally, to assets belonging to an enterprise owned by the de cuius or the giver, referred to hereafter as “enterprise assets” (ondernemingsvermogen), as distinct from assets that did not belong to an enterprise. In 2005 and 2006 the exemption was 60% of the value of the estate or the gift; from 2007 until 2009 it was 75% (sections 35b and 35c(2) of the Succession Act, as in force at the relevant time). In 2010 the exemption was raised to 100% of the value of the estate or the gift up to 1,000,000 euros (EUR) and 83% of the value beyond that sum (section 35b(1)).

On 22 November 2013 the Supreme Court gave decisions in five separate cases (European Case Law Identifier (ECLI):NL:HR2013:1206; ECLI:NL:HR2013:1209 ECLI:NL:HR2013:1210; ECLI:NL:HR2013:1211; and ECLI:NL:HR2013:1212). As relevant to the case before the Court, these decisions were in the following terms, identical in their reasoning for all five. The following is quoted from ECLI:NL:HR2013:1206:

“3.1.1. On 1 July 2011 [A.] (hereafter: the de cuius) died. His heirs are his two children, one of them the interested party (belanghebbende), and his spouse.

3.1.2. The estate does not include enterprise assets (ondernemingsvermogen) within the meaning of the facility for enterprise succession (hereafter: the facility) within the meaning of chapter IIIA of the Succession Act.

3.2.1. Before the Regional Court (rechtbank) the issue was whether the interested party could nonetheless invoke the facility on the ground of a violation of the prohibition of discrimination contained in Article 26 of the International Covenant on Civil and Political Rights (‘the Covenant’) and Article 14 of the Convention, or the right to the peaceful enjoyment of possessions as laid down in Article 1 of Protocol No. 1 to the Convention.

3.2.2. The Regional Court held that it was plainly apparent from the drafting history of the facility that its intention was to forestall liquidity problems in enterprises as a result of the imposition of inheritance or gift tax (recht van successie of schenking) and that, in view of this intention, enterprise assets and non-enterprise assets were not to be seen as similar cases. In addition, the Regional Court held that, if similar cases or disproportionate unequal treatment of unequal cases there be, the interested party could not rely on the principle of equality (gelijkheidsbeginsel) because there existed an objective and reasonable justification for the distinction made by the legislature, namely the encouragement of entrepreneurship, so that according to the Regional Court the legislature has not overstepped its wide margin of appreciation.

3.3.1. In considering the points of appeal directed against the Regional Court’s ruling the points of departure must be the following. Article 26 of the Covenant and Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 to the Convention, do not forbid each and every unequal treatment of equal cases, but only those which must be considered discrimination because a reasonable and objective justification is absent. This means that there is discrimination only if the distinction made lacks a legitimate aim or if there is no reasonable relationship of proportionality between the measure making the distinction and the aim sought to be realised thereby (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). In this connection it is worth noting that, for the purpose of applying the said treaty provisions, in the field of taxation the Contracting States enjoy a wide margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, and in the affirmative, whether an objective and reasonable justificiation exists nonetheless to make different provision for those cases (see, inter alia, Giuliana Galeotti Ottieri Della Ciaja and six others v. Italy (dec.), no. 46757/99, 22 June 1999, and Burden, cited above, § 60). If it does not concern a distinction based on a person’s inborn characteristics such as sex, race and ethnic origin then the legislature’s decision should be respected, unless it is without reasonable foundation (compare, inter alia, Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006VI, and Carson and Others v. the United Kingdom, no. 42184/05, §§ 73 and 80, 4 November 2008). The latter eventuality cannot readily be assumed to exist. The distinction must be of such a nature that the legislature’s choice is manifestly without reasonable foundation (see Stummer v. Austria [GC], no. 37452/02, § 89, ECHR 2011, with further references).

The same applies with regard to the prohibition of discrimination enshrined in Article 1 of Protocol No. 12 to the Convention. It appears from the Explanatory Report to this Protocol (paragraph 18) that its drafters intended the meaning of the term discrimination used therein to be the same as that of the identical expression used in Article 14 (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009).

The case-law of the European Court of Human Rights referred to above will guide the Supreme Court. Article 53 of the Convention leaves to the domestic legislature the freedom to offer a more far-reaching protection of human rights than that given by the provisions of the Convention and its Protocols. In contrast, it follows from the provisions of the Netherlands Constitution, in particular Article 94, that the Netherlands legislature may decline to apply statutory provisions on the ground of discrimination only if such application is irreconcilable with provisions of treaties prohibiting discrimination that are binding on all persons. As regards the prohibition of discrimination enshrined in Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention the Netherlands courts cannot assume such irreconcilability to exist based on an interpretation of the term discrimination as used therein that would lead to more far-reaching protection than may be assumed based on the case-law of the European Corut of Human Rights on those provisions (see the Supreme Court’s judgment of 10 August 2001, no. R00/132R, ECLI:NL:HR:2001:ZC3598, Netherlands Law Reports (Nederlandse Jurisprudentie, ‘NJ’ 2002, no. 278).

3.3.2. Pursuant to the Succession Act a tax is levied on everything obtained by inheritance or gift, the goods in issue being assessed according to the value attributable to them in economic interaction (economisch verkeer). These characteristics of obtention and value in economic interaction, which are relevant to the imposition of gift and inheritance tax, are found in the case of obtention of assets (vermogensbestanddelen) belonging to the de cuius’s or giver’s [enterprise assets, defined in terms of domestic tax law] as they are in the case of obtention of other assets. In the context of the levying of gift and inheritance tax, the obtention of assets having a value in economic interaction must therefore be considered, for the purpose of the application of the above-mentioned treaty provisions, as similar situations, regardless of whether these assets are to be considered enterprise assets or not. A difference in treatment between the obtention of enterprise assets and assets of a different nature therefore requires justification.

3.3.3. In view of the above, the question arises whether there is an objective and reasonable justification for the difference in treatment found.

3.3.4. Initially a measure had been taken within the framework of enterprise succession issues consisting only of a settlement in cases where the continued existence of an enterprise was jeopardised by payment of gift or inheritance tax consequent on the obtention of assets of that enterprise. Starting in 1998 an arrangement has additionally been made in the Tax Collection Act 1990 (Invorderingswet 1990) providing for a conditional exoneration in an amount of 25 per cent of the tax relating to any enterprise assets obtained. This was done within the framework of the tax reduction operation (lastenverlichting) of 1998 aimed at strengthening the structure of the economy. In justification of this facility, which amounted in effect to a partial exemption, the Government pointed out that ‘the inheritance tax due [could] lead to financial problems capable of affecting the continuity of the enterprise. ... From the standpoint of the general socioeconomic interest (een algemeen social-economisch belang) ... it is undesirable that an enterprise transferred by inheritance should be forced to close down or forcibly sold even though the operating results do not so necessitate, resulting in a loss of employment opportunity and economic diversity.’ It is remarked in addition that the arrangement proposed was intended to ‘contribute to the continuity of family-owned businesses’ (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1997-98, 25 688, no. 3, p. 7).

3.3.5. Starting from 2002 this arrangement was made part of the Succession Act 1956 in slightly changed form, based also on a report by the Moltmaker working party [a working party set up to make proposals for the modernisation of inheritance tax law] (...). In addition, starting in that year it was provided in section 21(4) of the Succession Act 1956 that the value of enterprise assets should henceforth be determined including transferable goodwill. ... At the same time the facility was raised to 30 per cent of the tax relating to the enterprise assets obtained. In connection with this raise, it was also pointed at the time that ‘the financial means that can be liberated ... in accordance with the priorities of Cabinet policy [are] used to stimulate entrepreneurship’ (Parliamentary Documents, Lower House of Parliament 2001-02, 28 015, no. A, p. 20). The Government observed in addition: ‘The existence of a facility for enterprise succession, with the attendant inherent unequal treatment of assets, finds its justification in the general interest involved in the continuity of enterprises (Parliamentary Documents, Lower House of Parliament 2001-02, 28 015, no. 6, p. 22).

3.3.6. In 2004 the Minister of Finance commissioned a report entitled ‘The transfer of enterprises, continuity through the tax system’ (Bedrijfsoverdracht, continuiteit door fiscaliteit), in which it was reported, among other things, that the existing exemption in the enterprise succession facility of 30 per cent of the enterprise assets was felt to be insufficient to prevent liquidity problems. This led to a bill to raise the facility to 50 per cent. In the course of the parliamentary discussions of that bill the Government remarked: ‘The existence of a facility for enterprise succession, with the attendant inherent unequal treatment of assets, finds its justification in the general interest involved in the continuity of enterprises. There is no violation of the principle of equality provided that the form in which the facility is cast is appropriate to the intended aim and the facility is no greater than necessary to achieve the aim chosen. It cannot be determined precisely how generous the facility may be in this connection, already because it is a generic facility and the enterprises to which it will apply are diverse in nature’ (Parliamentary Documents, Lower House of Parliament 2004-05, 29 767, no. 14, p. 38). Legislative amendments raised the exemption percentage to 60 per cent starting in 2005 and 75 per cent starting in 2007.

3.3.7. Starting in 2010 the enterprise succession facility was altered on a number of points. Not only was the percentage of the exemption raised, but a number of provisions were adopted to limit the facility to ‘genuine cases of enterprise succession’ (reële bedrijfsoverdrachten). In order to justify the change in the percentage of the exemption, the Government pointed out ‘the importance of unimpeded continuation of economic activity’ (het belang van de onbelemmerde voortzetting van de economische bedrijvigheid) (Parliamentary Documents, Lower House of Parliament 2008-09, 31 930, no. 3, p. 5). ... As to the proposed increase [of the facility] to 90 per cent, the Deputy Minister of Finance remarked, among other things: ‘We have received signals indicating that there are bottlenecks (knelpunten). These are caused by the fact that the value of commercial goodwill is taken into account in calculating the value of enterprise assets. Succession tax is to be paid on future profits. ... Enterprises have indicated several times in my direction, but also in the media that this really caused problems. ... The fact remains, however, that enterprises can encounter liquidity problems, as a result of which certain parts of a family enterprise that have been in the hands of the enterprise for decades might have to be sold off. The Cabinet considers that undesirable, because family-owned businesses contribute to stability and increased employment opportunity. ... It is true that the criterion 90 per cent is an arbitrary choice to meet a need of family-owned businesses that is generally felt in society (maatschappelijk gevoeld belang van familiebedrijven).’ (Parliamentary Documents, Lower House of Parliament 2008-09, 31 930, no. 40, p. 46).

A legislative amendment raised the percentage of the exemption to 100 per cent for an obtention valued at up to one million euros per objective enterprise and 83 per cent for enterprise assets over and above that amount. The intention was to allow small and medium-sized businesses to profit from the exemption more than big business.

3.3.8. It follows from the legislative history set out in paragraphs 3.3.4 through 3.3.7 above that the legislator called the facility into existence because, among other reasons, the levying of inheritance and gift tax consequent on the obtention of enterprise assets can cause liquidity problems, in particular also as a result of the taxation of (non-liquid) goodwill, which may endanger the continuity of enterprises. The legislature has, in so doing, had particular regard to the interest of unimpeded continuation of the activities of family-owned businesses within entrepreneurial circles (binnen de kring van de ondernemer). Such continuation would be capable of contributing to the maintenance and increase of employment opportunity, the conservation of economic diversity, and stability.

In creating and developing the facility the legislature has also intended to stimulate entrepreneurship.

These are legitimate aims as referred to above in paragraph 3.3.1.

3.3.9. The next question is whether the measures taken go no further than is necessary to achieve these in themselves justified aims, that is, to the point that there is no longer a reasonable relationship of proportionality between these measures (the facility) and the aim sought to be realised thereby. In this connection it is argued in particular that the repeated increase of the percentage of the exemption is not supported by any proper investigation of the need therefor.

3.3.10. In the legislative drafting history set out in paragraphs 3.3.4 through 3.3.7 reference is made several times to reports submitted in which it is urged to raise the percentages of the exemption because the existing facility was felt not to be sufficient. In so far as the argument is that the distinction is not based on proper investigations it therefore fails.

3.3.11 The reports referred to admittedly contain signals and desires expressed in practice, but they do not demonstrate any thorough empirical investigation into the extent of the problems posited. Neither do those reports and the legislature’s other arguments give any clear indications as to why precisely an increase of the percentage of the exemption would solve those problems. It does not follow, however, that the facility as applicable in the year here in issue lacks reasonable foundation. The prohibition of discrimination does not go so far as to permit a measure that differentiates between equal or relevantly similar situations in view of a problem experienced in practice only if the existence and the extent of that problem and the effectiveness of the solution chosen have been empirically established. In view of its margin of appreciation, the tax legislature (fiscale wetgever) may also base such a distinction on assumptions regarding the problem and the effectiveness of the solution chosen for it, unless these assumptions are so far-fetched that it is manifestly unreasonable to base the distinction on them (see the Supreme Court’s judgment of 7 June 2000, no. 34793, ECLI:NL:HR:2000:AA6124, Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases, “BNB”) 2000, no. 374).

3.3.12 By providing the facility here in issue the legislature has wished to offer a solution for the bottlenecks in enterprise succession cases noted in practice. In as much as the legislature has based itself on assumptions regarding the need and effectiveness of the measures to be taken it cannot be said that these assumptions are so far-fetched that they are manifestly unreasonable. There are indications that in a considerable proportion of cases in which the facility applies there are no liquidity problems. That is not to say, however, that the legislature could not base itself on the assumption that in cases of inheritance and gift of enterprise assets without the facility here in issue an impediment to the unchanged continuation of economic activity within the circle of the de cuius or the giver might arise. Also in other respects there is no reason to hold that that assumption is manifestly unreasonable. The legislature has chosen, also for reasons of practicability, to adopt a generic measure in the form of the facility here in issue. It cannot be denied that the facility contributes to a solution of the liquidity problems referred to in the cases in which they arise, and therefore contributes to the intended continuation of business activity. Moreover, the facility is not intended solely for that, but is also intended to stimulate entrepreneurship more generally.

3.3.13 The considerations set out in paragraph 3.3.12 above lead the Supreme Court to conclude that the facility as applicable in the year here in issue and also in other years is based on a choice of the tax legislature that cannot be said to be manifestly without reasonable foundation. Accordingly, [by creating the facility] the legislature has not overstepped the limits, referred to in paragraph 3.3.1 above, of its margin of appreciation. Consequently, the obtention of enterprise assets is not favoured above the obtention of other assets in such a way as to constitute discrimination as described in paragraph 3.3.1 above.”

On 4 December 2013 the Tax Inspector gave the following decision:

“In his decision of 23 October 2012, no. BLKB2012/1665M, the Deputy Minister of Finance (Staatssecretaris van Financiën) has decided to designate as a mass objection (massaal bezwaar) the objections (bezwaarschriften) against inheritance and gift tax assessments (aanslagen erf- en schenkbelasting) in which no enterprise succession facility is granted in respect of non-enterprise assets.

The following objections are designated as mass objections:

Objections not yet decided on as of 23 October 2013;

Objections submitted up to and including the day preceding the date of this collective decision.

The above objections relate to the question whether the application of the principle of equality enshrined in Article 26 of the International Covenant on Civil and Political Rights or Article 14 of the Convention requires the (conditional) untaxed conserved value (onbelaste geconserveerde waarde) of the arrangement for succession in enterprises (bedrijfsopvolgingsregeling) in the Succession Act 1956 (of 75%) (redaction for the years 2007 through 2009) or the (conditional) exemption of the arrangement for succession in enterprises in the Succession Act 1956 (of 83%) (redaction for the years 2010 and following) should apply to assets (vermogen) other than enterprise assets (ondernemingsvermogen).

A number of objections have been selected in order for the above question to be answered by the administrative court in tax matters.

Within this framework, the Supreme Court gave decision on Friday 22 November 2013 in five selected test cases:


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant was born in 1974 and lives in İzmir.

At the time of the events giving rise to this application, the applicant was working as a watchman on a construction site located in the vicinity of a military compound housing the 7th Gendarmerie Commando Regiment in Foça, İzmir.

On 14 October 2008, sometime between 8 p.m. and 9 p.m., the applicant left the construction site to meet three friends, M.K., N.V., and F.T., who worked on nearby farms. While walking towards his friends, the applicant suddenly collapsed for an unknown reason; his friends immediately took him to hospital. The applicant’s initial medical examination at the Foça State Hospital did not reveal any findings other than a cut measuring 0.5 cm on his back between the tenth and eleventh ribs. However, a lung X-ray taken subsequently showed that a foreign object, which appeared to be a bullet, was lodged between his eleventh and twelfth ribs. The applicant was transferred to the Karşıyaka State Hospital to receive further treatment for serious injuries sustained to his lungs and liver. After undergoing various operations, on 23 October 2008 he was discharged from the hospital. According to a medical report issued on 30 December 2008 by the Karşıyaka State Hospital, it had been decided for medical reasons to leave the bullet inside the applicant’s body, to be extracted only in the event of deterioration in the applicant’s condition. The report also noted that the injuries sustained by the applicant had been life-threatening.

At 2.30 a.m. on 15 October 2008 two gendarme officers from the crime scene investigation unit of the Menemen Provincial Gendarmerie Command arrived at the site of the incident, which was located by a farm by the name of “Dürüs” (“the Dürüs farm”), to carry out a preliminary investigation and to prepare a scene-of-incident report (on the instructions of the Foça public prosecutor). After photographing the site of the incident, they talked to the witnesses and the gendarmerie patrol unit on duty. According to the information they obtained, the applicant had collapsed abruptly while he was walking to meet his friends. No gunshots had been heard at the site of the incident, but a firing practice had been underway at the relevant time at the nearby military compound housing the 7th Gendarmerie Commando Regiment. The gendarme officers indicated in their report that there were two shooting ranges within the said military compound: one located 1,780 metres to the north of the Dürüs farm, at an altitude of fifty metres (“the first shooting range”); and the other 1,050 metres to the east, at an altitude of ninety metres (“the second shooting range”). The altitude of the Dürüs farm was forty metres. There were three hills between the Dürüs farm and the first shooting range; the first two hills had an altitude of fifty-five metres, and the third hill had an altitude of ninety metres. No information was provided regarding the terrain between the farm and the second shooting range. Firing practice was carried out with G3 rifles at the first shooting range and with 5.56 mm rifles at the second shooting range. According to a sketch map prepared by the gendarme officers, the site of the incident was approximately 15 degrees to the east of the assumed trajectory of bullets fired from the first shooting range. In the gendarme officers’ opinion, the applicant had been hit by a stray bullet that had ricocheted during firing practice, particularly in view of the fact that no evidence of criminal conduct had been found at the site of the incident. The only evidence collected by the gendarme officers was the jacket that the applicant had been wearing at the time of his shooting, which was handed to the İzmir Gürçeşme Criminal Police Laboratory for examination.

The gendarme officers visited the site of the incident once again at approximately 9.45 a.m. on the morning of 15 October 2008 to make further investigations, but did not discover any new evidence. It appears that on the same morning they also went – on the instructions of the Foça public prosecutor – to the military compound to photograph the shooting ranges.

At approximately 10.15 a.m. on 15 October 2008 the Foça public prosecutor visited the site of the incident together with a police expert, H.Ö. The public prosecutor noted that the investigation had not thus far revealed any spent cartridges, bullet shells, arms or any other such material on or around the site of the incident, nor had any suspects who might have shot at the applicant been identified. According to the information provided by the applicant’s three friends to the public prosecutor, the applicant had collapsed right before their eyes and there had been no one else present at the relevant time. They also told the public prosecutor that they often heard gunfire coming from the military compound during shooting practice and that gunfire had also been audible at the time of the incident, although they had not heard gun shots emanating from anywhere nearby.

According to the information in the case file, the applicant was still in a critical condition on the morning of 15 October 2008. Nevertheless, at 3 p.m. on that day, he was interviewed by two gendarme officers in the office of the security team commander (Asayiş Tim Komutanı) of the local gendarmerie. It is not clear whether this office was located inside the hospital or outside. Prior to the commencement of the interview, the applicant was informed of his right to request the appointment of a lawyer from the local bar association to assist him, but it appears that he did not exercise that right. The applicant told the gendarme officers that at approximately 8.45 p.m. on 14 October 2008, he had left his house to check up on the construction site where he worked as a watchman. As he had been walking towards the site, he had heard whizzing sounds above his head. He had continued to hear the same sounds on his way out of the construction site, along with the sound of gunfire from the military compound located nearby. Then, all of a sudden, he had felt a sharp pain in his back and had collapsed to the ground. He had not known what had happened until he had been told in the hospital that he had been shot in the back with a firearm. When the gendarme officers asked the applicant whether he had been in ongoing conflict with anyone and whether he had heard any gunshots at the time of the incident, he replied that he had not been in any conflict and that the only shots he had heard had been those coming from the military compound, which he had been hearing for the past week. The applicant also stated that he did not wish to press charges against anyone regarding the incident.

On 16 October 2008 H.Ö., the police expert who had accompanied the Foça public prosecutor during his examination of the site of the incident, issued a report of his findings. He indicated in his report that the distance between the site of the incident and the military shooting ranges, which were spread over hilly terrain, was approximately one and a half kilometres. Having regard to the witness statements, and to the absence of any other factors that might explain the applicant’s injury, the police expert opined that the injury had probably been caused by a bullet that had ricocheted during the firing practice at the military compound. He submitted a simple sketch map of the site of the incident along with his report.

On 23 October 2008 the applicant was discharged from the hospital.

On 12 November 2008 two gendarme officers visited the applicant at his home on the instructions of the Foça public prosecutor to enquire about the bullet that had wounded him. The applicant informed the gendarme officers that the bullet had still not been extracted from his body and that the doctors would re-evaluate the situation once he had fully recovered from the earlier operations. The applicant was requested to inform the authorities in the event that the doctors decided to remove the bullet.

On 13 November 2008 the İzmir Criminal Police Laboratory issued a report on the analysis carried out on the applicant’s jacket. According to the report, a hole measuring 0.5 cm in diameter was found in the back of the jacket, but no gunshot residue was found around that hole. Having regard to the shape and other characteristics of the hole, it was decided that it had been caused by a firearm and that the shot had been fired from a long distance.

On 14 November 2008 the Foça public prosecutor took the applicant’s statement for the first time. The applicant was reminded of his right to request the assistance of a lawyer, which he once again declined to do. The applicant largely reiterated the statement he had made to the gendarme officers earlier. He also repeated that he did not want to press charges against any particular person, as he did not believe that he had been shot intentionally. He did, however, reserve his right to claim compensation.

On 24 November 2008 the Foça public prosecutor delivered a decision not to prosecute. The public prosecutor found firstly that, in view of the statements of the applicant and of the witnesses and the manner in which the incident had occurred, the applicant had not been shot intentionally. He noted secondly that the forensic examination conducted on the applicant’s jacket had revealed that the shot had been fired from a long distance; however, the source of the shot had not been identified, as the bullet had for medical reasons not yet been extracted from the applicant’s body. Nevertheless, having regard to all the information in the case file and to the fact that a military firing practice had been underway a few kilometres away at the time of the incident, the public prosecutor found that the applicant had probably been hit by a stray bullet that had ricocheted during the firing practice. According to the public prosecutor, this offence was to be classified as one of causing bodily harm through negligence (taksir), as opposed to recklessness (bilinçli taksir), in view of the significant distance of the shooting range from the site of the incident. Since the prosecution of the offence of causing bodily harm through negligence required a formal complaint to be made by the victim (which was lacking in the instant case), the Foça public prosecutor decided to close the investigation.

On 12 January 2009, after medical complications had arisen, the bullet was extracted from the applicant’s body and handed over to the hospital police. On 6 February 2009 it was registered in the custody of the Foça public prosecutor’s office.

In the meantime, on 16 January 2009 the applicant lodged an objection against the decision of the Foça public prosecutor, with the assistance of his lawyer. The applicant’s lawyer stated that the decision to close the investigation had been taken prematurely, before the investigation process had been completed and the gun from which the bullet had been fired and the identity of the shooter had been identified. There had also not been an attempt to establish whether the bodily harm had been caused through negligence, recklessness, lack of experience or breach of duty or with intent. Moreover, requesting the victim to indicate whether he wanted to press charges without first having established the perpetrator and the nature of the offence did not comply with due procedure.

The applicant’s objection was rejected by the İzmir Assize Court on 24 April 2009. The assize court did not provide any justification for its decision, apart from stating that the Foça public prosecutor’s decision had been in compliance with the law. This decision was served on the applicant on 20 May 2009.

On 3 March 2009 the applicant lodged a request with the Ministry of the Interior (“the Ministry”) for pecuniary and non-pecuniary damages in respect of his wounding. The Ministry refused the request; the applicant then brought an action for compensation before the İzmir Administrative Court.

On 22 February 2012 the İzmir Administrative Court dismissed the applicant’s action. It held that while it was not disputed that the applicant had been wounded by a bullet, there was no tangible evidence to prove that the bullet in question had in any way been connected to the firing practice held by the 7th Gendarmerie Commando Regiment in Foça on the date in question. The criminal investigation into the incident had been closed on account of the applicant’s decision not to bring an official complaint, and the bullet extracted from his body after the closing of the investigation had therefore not been subjected to a ballistic examination. In these circumstances, by not pursuing his complaints the applicant had hindered the collecting of evidence that could have proved a causal link between the administrative act (idari eylem) and the damage sustained. In the administrative court’s opinion, the applicant had thus not proved his allegations.

On 22 October 2015 the Supreme Administrative Court upheld the judgment of the İzmir Administrative Court.

An internal administrative inquiry was also conducted by the military authorities into the applicant’s shooting. During the course of that inquiry thirteen gendarme officers of various ranks who had attended the firing practice in question were interviewed on 15 October 2008 by a lieutenant-colonel. The officers stated, in virtually identical words, that a firing practice had been held on 14 October 2008 between 7 p.m. and 10 p.m. with G3 rifles, that all necessary security measures had been taken at the shooting range prior to the commencement of the practice, in line with the applicable laws and instructions, that all rifles had been fired under the supervision of senior officers, that no firing had been permitted outside the designated shooting areas, and that, in view of the security measures in place and the distance of the applicant from the shooting range, the applicant should not have been affected by bullets fired during the practice.

On 22 October 2008 a report was issued on the findings of the administrative inquiry. According to this report, all requisite safety measures had been implemented at the shooting range on the date in question, in compliance with the relevant security regulations, and no fault or negligence had been found on the part of the military officers who had participated in the firing practice. The report indicated that additional security precautions had nevertheless been taken on the shooting range in the aftermath of the incident, such as adding to the sand bags and barrels behind the target boards, and building barriers in order to reduce the incidence of ricochets, and surrounding the gun-target line with additional barrels.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant was born in 1952 and lives in Bucharest.

In August 2001, the applicant started going to the dental practice of Dr A.D. in order to have dental bridges fitted. The treatment involved work on about twenty teeth, fitting bridges and crowns and adapting the adjacent teeth.

The treatment started in September 2001. When the first part of the bridgework was ready, the applicant noticed that it did not fit well. The dentist told her that she could still use it in order to eat and that he would rectify the problem. When the rest of the bridgework was ready, she again noticed that she could not close her mouth and that when she tried to eat it caused her great pain. The bridges were fitted provisionally and it was agreed that they would be permanently fixed at a later stage after being further adapted. Nevertheless, while wearing them she realised that her gums were affected. During the following days, she went to the dental surgery several times in order to have the bridges adapted, but the dentist told her that they were perfect and that all that remained was for them to be fixed permanently, even though she showed him that she could not close her mouth and that her gums were bleeding.

The applicant alleged that she had attempted to make a new appointment with Dr A.D. on several occasions prior to the end of January 2002, but to no avail. During this period, her state of health worsened and she had no money to pay for further dental treatment.

On 30 January 2002 the dentist issued her with a certificate of guarantee for the dental work that he had carried out and he kept the bridges with a view to adapting them. The applicant only received them back one and a half months later, without any change having been made to them.

She insisted that she could not use the bridgework, she could not eat while wearing it and that it hurt her gums and caused them to become infected.

In a complaint of 18 July 2002 addressed to the Ministry of Health, the applicant asked to undergo a medical expert examination in order to determine whether the bridgework was functional, to what extent it affected her teeth and how long she could wear bridges which were only fitted provisionally without this affecting her teeth and gums or causing irreversible speech problems.

On 6 August 2002 she was informed that her complaint would be reviewed by the Bucharest College of Doctors.

At the end of September 2002, she had a consultation with another dentist, Dr A.B. According to the applicant, she was told that the bridgework had not been correctly done and, given all the problems that it had caused her (infected gums, cuts, pain), it was not recommended that the bridges be fixed permanently.

A few days later, she was asked to undergo an examination by a panel of experts attached to the Faculty of Dentistry.

The second examination took place on 8 October 2002. She submitted that she had been told that there had been no need to perform an overly detailed examination, as it could be easily seen that the bridges should not be worn.

In a letter of 14 January 2003 addressed to the Bucharest College of Doctors, she asked to be informed of the findings in the medical expert report. On the same date, the Bucharest College of Doctors replied that the findings of the medical examination that they had carried out were only for the internal use of the Disciplinary Panel of the College of Doctors. If she wished to obtain an expert report, she had to request one from the National Institute of Forensic Medicine (hereafter, “the Institute”).

She contacted the Institute, but was informed that a medical expert report could only be requested in the context of judicial proceedings.

On 10 March 2003 the applicant lodged a criminal complaint, asking that a detailed medical expert report be ordered to determine whether there had been medical negligence. In the same complaint, she sought the reimbursement of the cost of the remaining dental treatment, which had not been returned to her, as well as compensation for non-pecuniary damage arising from the suffering and health problems that the treatment in question had caused her. Her complaint was registered with the competent police department on 9 May 2003.

In a letter of 11 August 2003, the police department asked the Institute to draw up a medical expert report in order to determine whether the dental work performed by Dr A.D. had caused injuries which required medical treatment.

The Institute, having received a request by the applicant for the examination not to be conducted by the University of Bucharest, where Dr A.D. had studied, asked the Iași Dental Hospital to examine the applicant.

The Iași Dental Hospital issued its report on 4 September 2003, after having examined the applicant. The applicant took the report and handed it over to the Institute, which issued a forensic expert report on 4 December 2003.

Its findings were as follows:

“ after having examined S.B. and reviewing the medical papers, it appears that in September 2001 she underwent treatment to fit a variety of bridges and crowns, which proved to have been carried out incorrectly and inadequately. The attempt to wear the bridges and the subsequent absence of them led to complications and functional disorders (dental abrasion, chronic marginal periodontitis) [made] very widespread and severe by the dental bridgework, which is currently not correctly adapted to the cervical and axial margins [of the interproximal surfaces].

We underline that her current state is not completely the fault of the doctor who performed the work, but is also a result of the lack of dental treatment in the period September 2001 to August 2003, a period of time during which the functional disorders [outlined above were] aggravated because the bridges were not correctly adapted to the cervical and axial margins [of the interproximal surfaces].

In order to redo the treatment and put in place correct bridges, it is estimated that S.B. would have to undergo around thirty to thirty-five days of medical treatment.....”

The applicant tried to obtain a copy of that report, but she was told that she could only obtain one once the case had been referred to a court. In the end, she obtained a copy from the investigating officer on 12 October 2004.

The applicant contested the findings of this medical expert report, submitting that it had played down the negative findings of the report issued by the Iași Dental Hospital following that hospital’s examination of her. She also complained that there was no opportunity to have the conclusions reviewed by a medical review board.

On 23 September 2004 the prosecutor attached to the Bucharest District Court opened a criminal investigation against Dr A.D. on charges of causing bodily harm, for which criminal liability was established by Article 181 of the Criminal Code, as in force at the material time.

On 29 January 2005 the same prosecutor put an end to the criminal investigation, reasoning that the applicant’s failure to go to A.D.’s dental surgery in order to have the bridges permanently fixed had led to the deterioration of her state of health.

That decision was communicated to the applicant on 8 May 2008.

The applicant lodged a complaint against the decision. The complaint was allowed by a prosecutor’s decision of 23 May 2008. The prosecutor held that the case had been investigated on the basis of a crime punishable under Article 184 of the Criminal Code (causing unintentional bodily harm), whereas the decision to terminate the proceedings had concerned a crime punishable under Article 181 of the Criminal Code (causing bodily harm).

The case was referred back to the prosecutor.

By a decision of 27 May 2008, the prosecutor terminated the criminal investigation against Dr A.D. on the basis that the applicant had failed to lodge a criminal complaint against him within the twomonth timelimit set by the Criminal Code. A criminal action for unintentional bodily harm could only be started on the basis of a preliminary complaint by the victim, which had to be lodged within two months from the date on which the victim had become aware of who the perpetrator was. As the applicant had known who had carried out the dental treatment since August/September 2001 but had only lodged her complaint with the prosecutor on 9 May 2003, it followed that her complaint was out of time. This decision was upheld by the supervising prosecutor on 20 August 2008.

The applicant’s application for judicial review of those decisions was dismissed by the Bucharest District Court on 21 November 2008.

Her subsequent appeal was allowed by the Bucharest County Court in a final decision of 3 February 2009, by which it was established that the prosecutor and the district court had wrongly assessed the evidence. The County Court noted that the criminal investigation had not been completed within a reasonable time. It was further established that the evidence in the case file had been sufficient to support the allegation that Dr A.D. had committed an act punishable by Article 184 §§ 2 and 4 of the Criminal Code, a crime in respect of which a criminal investigation could be automatically started by a public prosecutor. The County Court drew attention to the findings of the medical expert report in respect of the complications caused by the bridgework. It therefore considered that these complications (the destruction of bone supporting the teeth) amounted to a permanent physical disability.

The County Court remitted the case to the Bucharest Sector 1 District Court, instructing that court to consider the case in the light of the crimes punishable under Article 184 §§ 2 and 4 of the Criminal Code.

The district court ordered a new expert report from the Institute. The report could not be produced mainly because all the medical documentation from Dr A.D.’s consulting room, consisting of medical records, xrays, dental prints, and so forth, could not be found. The applicant refused to undergo a new medical examination on the ground that the new report should have been based not only on her examination in 2010 but also on the documents existent in her medical file.

In its judgment of 8 March 2011 the District Court found, on the one hand, that the applicable statute of limitation had expired. On the other hand, examining the merits of the case it acquitted the defendant on the basis of the expert report of 2003, finding that “the subsequent behaviour of the injured party, who chose to ignore the medical advice of the defendant, refused the completion of the treatment, in particular the permanent fixing of the dental prosthetics, only wore the prosthetics when eating, as she had personally testified before the court, [and failed to maintain] proper oral hygiene, [as] underlined by the expert report, ... led to complications, [which] cannot be blamed on the defendant but on the injured party herself.”

The applicant lodged an appeal on points of law with the Bucharest Court of Appeal. She sought a requalification of the charges from Article 184 (causing unintentional bodily harm) to Article 182 (causing intentional bodily harm) of the Criminal Code.

By a decision of 4 October 2011 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law. It held, inter alia, that the additional evidence requested by the applicant such as the contract, order and invoice for the manufacture of the bridges, as well as dental xrays, was irrelevant. Furthermore, it held that no causal link could be established between the treatment and the injuries sustained by the applicant, which were attributable exclusively to her conduct, that is, ignoring medical advice.