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

The applicant in application no. 22555/09, Mr Victor Atanase Stănculescu, is a Romanian national who was born in 1928 and lives in Bucharest. He was represented before the Court by Mr C. R. Dancu, a lawyer practising in Bucharest.

The applicant in application no. 42204/09, Mr Mihai Chiţac, was a Romanian national who was born in 1928 and lived in Bucharest. He died on 1 November 2010. His wife Naila Chiţac expressed the wish to continue these proceedings. In its decision of 3 July 2014, the Court granted locus standi to his heir. The Court will continue to refer to Mr Chiţac as “the applicant”. The applicant and subsequently his heir were represented before the Court by Mr S. Andon, a lawyer practising in Bucharest.

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

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

The cases concern the events of 16-22 December 1989 in Timişoara, when a popular revolt that started in that city led eventually to the fall of the totalitarian regime in Romania. At the time in question, the applicants were high-ranking military officers who were sent to Timişoara to suppress the revolt. Orders were given by the then Head of State to kill the protesters. Seventy-two people were killed and two hundred and fifty sustained gunshot wounds. More details of these events are given in Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, 24 May 2011 and Şandru and Others v. Romania, no. 22465/03, 8 December 2009.

After the change of regime, the applicants took up appointments in the newly-formed government, since the general perception at that time was that during the December 1989 events they had played a significant role in bringing the army onto the side of the insurgents. They remained in power in the first few governments formed after the revolution.

On 14 February 1990 the Government established a truth commission in Timişoara ‒ consisting of military personnel, civil and military prosecutors, members of civil society and specialists (including lawyers and a doctor) ‒ with a view to investigating the events of 1989.

On 6 March 1990 twenty-seven written statements about the events were gathered. Mr. Chiţac stated that R.B., a prosecutor and member of the truth commission, had assembled in one room all the army conscripts who had participated in the events and had ordered them to describe the nature of the applicant’s participation in the repression. He claimed that later on, in 1996, R.B. had used these extra-judicial declarations in the criminal proceedings against the applicants.

In the same year, the truth commission recommended that criminal investigations be opened in respect of several high-ranking officers, including the applicants, in order to establish the extent of their responsibility for the repression of the revolution in Timişoara.

On 12 January 1990, the military prosecutor’s office opened investigations in respect of several officers identified by the commission, as well as various other suspects. Some high-ranking officers of the former regime were convicted over the course of time for their role in the repression and some servicemen were found guilty of having killed or injured individual victims.

On an unspecified date, criminal proceedings were instituted against the applicants. On 29 March 1996 the Military Prosecutor’s Office decided not to bring criminal proceedings against a number of high-ranking officers of the former regime, including the applicants, for alleged crimes committed during the 1989 events in Timişoara. On 28 October 1997 that decision was quashed and the prosecution continued.

On 30 December 1997 the applicants were informed of the accusations against them and were given access to the prosecution file. On the same day they were committed for trial by the Military Prosecutor’s Office on charges of aggravated murder in the context of the repression of the popular revolt of December 1989.

The bill of indictment was some fifty pages long and the prosecution file consisted of several volumes of several hundred pages each, comprising witness testimonies and documents from the time of the revolt – shorthand records of meetings, military logs and medical certificates. Thirty witnesses were summoned by the prosecutor and sixty-five civil parties joined the proceedings.

The trial took place before the Supreme Court of Justice, first before the Military Section and then before the Criminal Section, which gave judgment in the case. Mr Stănculescu complained about alleged irregularities in the proceedings, but his requests were dismissed by the court on 29 April 1998.

The Supreme Court examined the prosecution file and heard testimonies from several witnesses for both the prosecution and the defence. The applicants also made statements before the court.

On 14 June 1998 the defence lodged a constitutional complaint alleging an interference with the applicants’ right to two levels of jurisdiction; on the same day it was rejected by the Supreme Court, which then proceeded with its examination of the merits.

On 15 July 1999 the Supreme Court of Justice, sitting as a threejudge bench, convicted the applicants of aggravated murder and attempted aggravated murder and sentenced each of them to fifteen years’ imprisonment, restriction of the exercise of certain civil rights, and demotion. It also ordered the applicants, together with the Ministry of Defence, to pay damages to 217 victims who had suffered injuries while the two applicants were in command of the military forces.

On 25 February 2000 the Supreme Court of Justice dismissed appeals that had been lodged by the applicants, the Ministry of Defence and some of the civil parties. The judgment thus became final.

The Ministry of Defence paid the compensation to the victims. The two applicants were imprisoned.

On 7 August 2001 the Procurator General lodged an extraordinary appeal, seeking to have the previous decisions set aside (recurs în anulare), on four grounds:

(i) that the courts had failed to order a psychiatric evaluation of Mr Stănculescu to be conducted, even though that requirement was mandatory for murder trials;

(ii) that the first-instance court had dismissed the constitutional complaint raised by the defence instead of allowing the Constitutional Court to examine its merits;

(iii) that Mr Stănculescu’s right to be assisted by counsel had been infringed by the appeal court; and

(iv) that the acts committed by the applicants had not constituted crimes.

On 22 March 2004 the extraordinary appeal was allowed by the two Chambers of the Supreme Court of Justice sitting together.

The Supreme Court also nullified the execution of the sentences. The applicants were thus released from prison.

A three-judge bench of the High Court of Cassation and Justice (formerly the Supreme Court of Justice) took over the case. On 18 January 2005 it also referred to the Constitutional Court the constitutional complaint which Mr Stănculescu had reiterated before it. The Constitutional Court dismissed it on 7 June 2005. The High Court granted requests for new evidence made by the applicants, in particular requests to adduce documents and to summon fourteen witnesses; it heard statements from the applicants and some of the witnesses and re-examined the whole body of evidence administered during the criminal prosecution and in the first set of proceedings.

Mr Stănculescu complained of alleged irregularities in the prosecution proceedings. On 15 February 2006 his complaints were dismissed in a thoroughly reasoned interlocutory judgment.

With regard to the merits of the case, the applicants denied committing the crimes of which they had been accused.

In a judgment of 3 April 2007 the High Court found the applicants guilty of aggravated murder and attempted aggravated murder and imposed a final sentence of fifteen years’ imprisonment each, together with an additional penalty restricting the exercise of certain civil rights, and demotion. It also granted the compensation claims on the same terms as in the judgment of 15 July 1999 (see paragraph 14 above). It noted that the Ministry of Defence had already paid those damages.

The applicants appealed and in a final decision of 15 October 2008 a nine-judge bench of the High Court dismissed the appeal and upheld the judgment delivered by the three-judge bench.

The applicants were imprisoned once again in execution of their sentence.


Jon Fridrik Kjølbro;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant, Ms İmihan Öz, is a Turkish national who was born in 1960 and lives in Malatya. She was represented before the Court by Mr M. Eryaman, a lawyer practising in Ankara.

On 13 March 2007 the applicant’s son Murat Öz, a construction worker, fell from a scaffold while working on a private construction site and died shortly afterwards as a result of the injuries he had sustained.

Right after the incident, an investigation into the death of the applicant’s son was initiated. Accordingly, a report on the scene of the incident was prepared, witnesses were interviewed and the applicant’s son’s employers were questioned as possible suspects. The Ankara public prosecutor’s office also commissioned an expert report to establish the causes of the applicant’s son’s death, in particular to determine whether his employers bore any responsibility for the fall.

The expert report submitted to the Ankara public prosecutor’s office on 21 March 2007 found that the applicant’s son had been primarily responsible for his fall, on account of his failure to take the necessary precautions to ensure his safety on the scaffold, which he would have been expected to do as an experienced construction worker. It added, however, that the construction site managers and the civil engineer in charge were also responsible for the accident, as they had not set up a system of checks to ensure work safety on the construction site, and had not provided the deceased with sufficient training on safety measures, contrary to the requirements of the relevant legislation.

On 22 March 2007 the Ankara public prosecutor’s office filed with the Ankara Criminal Court of First Instance a bill of indictment against four people in charge of the construction site in question, for causing the applicant’s son’s death by negligence. The applicant joined the proceedings as a civil party.

On an unspecified date the Ankara Criminal Court of First Instance appointed a panel of three experts, with a view to determining liability for the death of the applicant’ s son. The expert report submitted to the criminal court on 15 February 2009 found that the scaffold from which the applicant’s son had fallen had not been sufficiently secured, and this was the responsibility of the construction site manager, L.K. Accordingly, the expert report established that L.K. bore the main responsibility for Murat Öz’s death.

Relying on that second expert report, on 14 October 2009 the Ankara Criminal Court of First Instance convicted L.K. of causing the applicant’s son’s death by negligence. However, it decided to suspend the pronouncement of the judgment, in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271).

Following the death of her son, the Social Security Institution started paying the applicant a monthly “survivor’s pension” in the amount of 424.95 Turkish liras (TRY – approximately 227 euros (EUR)) as of 1 April 2007, in accordance with the Social Security Act (Law no. 506).

In the meantime, an investigation had been initiated into the death of Murat Öz by the Social Security Institution, which concluded on 12 June 2008 that the accident which had claimed his life had been a “work-related accident”.

Following that decision, the Social Security Institution allocated the applicant a monthly “work-related accident pension” as of 13 March 2007 in the amount of TRY 175.22 (approximately EUR 90), in addition to the survivor’s pension she was already receiving. However, relying on sections 92(2) and 96(5) of the Social Security Act, which concerned the calculation of payments to persons entitled to several different types of pension, it recalculated the amount of the applicant’s survivor’s pension and reduced it to TRY 63.10 (approximately EUR 32). Moreover, the Social Security Institution asked the applicant to pay back the excess from the survivor’s pension she had been receiving up to that date.

On 16 March 2009 the applicant filed an action with the Ankara Labour Court against the Social Security Institution, arguing that the latter had erroneously interpreted the relevant sections of the Social Security Act on the calculation of benefits, and had thus miscalculated her survivor’s pension.

On 17 February 2010 the Ankara Labour Court allowed the applicant’s claim and ordered the Social Security Institution to pay her the benefits she was due retrospectively, together with interest.

On 3 June 2010 the Court of Cassation upheld the judgment of the Ankara Labour Court.

Below is a table of the monthly payments received by the applicant from the Social Security Institution following the death of her son, based on the documents she submitted to the Court:

In addition to the amounts noted above, the applicant received a lump sum payment of TRY 8,937.5 (approximately EUR 4,335 in December 2010) on an unspecified date in 2010, in accordance with the judgment of the Ankara Labour Court, to cover the past benefits of which she had been deprived owing to the erroneous calculations of the Social Security Institution.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest;Prompt information);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in 1970 and lives in Gaziantep.

In 2010 the applicant and his family left Uzbekistan to escape the oppression they faced on account of their religious beliefs. After spending some time in Kazakhstan, in 2010 they entered Turkey by legal means.

Subsequent to their arrival in Turkey, the applicant and his wife made a request for asylum. The applicant’s wife was granted a residence permit in the city of Gaziantep pending her asylum request, but the applicant was not able to obtain one as he could not pay the requisite fee for the permit. The applicant, therefore, resided illegally in Gaziantep.

On 5 April 2011 the applicant and his family travelled from Turkey to Ukraine to seek medical treatment for his wife. The applicant was subjected to a fine of 900 Turkish liras (TRY) by the Turkish border police on account of his illegal residence in Turkey. He was also banned from entering the country for five years.

On 4 May 2012 the applicant and his family attempted to re-enter Turkey through Sabiha Gökçen Airport in Istanbul. The applicant, however, was not permitted entry, and he was placed in the detention facility at the airport for “inadmissible passengers” pending his repatriation to Ukraine.

On 5 May 2012 the applicant lodged an objection to his repatriation and lodged a new asylum request.

On 13 May 2012 the Ministry of the Interior (“the Ministry”) requested the offices of the Istanbul and Gaziantep governors to notify the applicant that he would be accommodated at the airport detention facility pending a decision on his asylum request. According to a note dated 21 May 2012 addressed by the Istanbul governor’s office to the Ministry, the applicant was notified as requested. The note did not, however, indicate when the relevant notification had been made.

On 30 May 2012 the Ministry rejected the applicant’s asylum request. The applicant was notified of this decision on 31 May 2012. He was also informed on that date that he could lodge an objection to the Ministry’s decision within seventy-two hours, that he would be deported in the event of the dismissal of his objection and that he would continue to be accommodated in the airport detention facility in the meantime.

On 1 June 2012 the applicant lodged an objection to the Ministry’s decision.

On 10 July 2012 the applicant was transferred from Sabiha Gökçen Airport to the Kumkapı Foreigners’ Removal Centre in Istanbul (“the Kumkapı Removal Centre”).

The applicant was kept in the Kumkapı Removal Centre until 15 August 2012. On that date, he was granted a temporary residence permit pending his asylum request.

There is no information in the case file regarding the outcome of the applicant’s asylum request.

The applicant claimed that the detention facility at Sabiha Gökçen Airport where he had been kept for sixty-eight days between 4 May and 10 July 2012 had been a room of about 20 square metres and that, while the numbers had fluctuated, the room had accommodated up to fifteen people at times. There had been no furniture in the room suitable for sleeping on, but only five chaises longues, which had been impossible to rest on. The applicant further claimed that throughout his detention, he had not been allowed to leave that room, nor had he had any contact with the outside world, including with a lawyer. He had also been denied any access to natural light and fresh air, as the room in question had had no windows. According to the applicant, the detention facility had been designed for holding inadmissible passengers for short periods and had been unsuitable for long-term detention. All other passengers in his situation had either been released or repatriated after one or two days of detention at most.

The applicant claimed that the Kumkapı Removal Centre had been severely overcrowded at the time of his detention. He had had to share a dormitory room of approximately 35 square metres with thirty to forty-five other people, who had been provided with only fifteen bunk beds to sleep on. He had had to spend all his time in that humid and smoke-filled room without being able to engage in any social activities and had not been allowed access to outdoor exercise throughout his detention. The applicant further alleged that the overcrowding of the removal centre had led to hygiene problems. The building had been infested with insects and there had been frequent outbreaks of contagious diseases. The quality and quantity of the food provided had also been fairly poor.

The Government claimed that the room in which the applicant had been held at Sabiha Gökçen Airport had measured 53.73 square metres. The room had been equipped with five beds for men, as well as a ventilation system, a television, a toilet and a shower. The room had had a padded sitting area for rest and sleep, and had been cleaned every day. The Government submitted that during the applicant’s stay between 4 May and 10 July 2012, the number of detainees had never exceeded five. They did not, however, submit any documents in support of that submission, such as a list of the detainees kept in the detention facility during the relevant period. Nor did they submit any photographs of the detention facility, despite the Court’s request to that effect.

The Government stated that the Kumkapı Removal Centre’s capacity had been reduced from 560 to 300, in line with recommendations made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”), following its visit in June 2009. Accordingly, the number of detainees during the period of the applicant’s detention had never exceeded 300. They did not, however, submit the registers recording the occupation rates during the period in question.

The Government stated that the detainees had been accommodated on three floors at the removal centre: the first two floors had been reserved for male detainees, and the third floor for females. The information provided as to the number and size of the rooms was, however, inconsistent. While the Government claimed in their observations that there had been five dormitory rooms on each floor, measuring 50, 69, 76 and 84 square metres respectively, the information note prepared by the Ministry and appended to their observations indicated that there had been only four rooms on the first floor, measuring 50, 58, 76 and 84 square metres, and five rooms on both the second and third floors, measuring 50, 58, 69, 76 and 84 square metres. The Government stated that they were not able to provide information as to the exact number of people that the applicant had shared a room with, because detainees had been left to make their own choice of rooms. They submitted, however, that there had been fifteen to twenty beds in each room.

The Government further submitted that there had been a cafeteria measuring 69 square metres on each floor, where breakfast, lunch and dinner had been served daily. The detainees had had the right to outdoor exercise in suitable weather conditions, as well as the right to engage in sports and watch television. The detainees had had access to medical care in cases of emergency and a doctor had visited the removal centre once a week. As for hygiene standards in the facility, there had been six cleaning staff working full time at the removal centre, and the building had been disinfected at certain times.

In support of their claims, the Government submitted, inter alia, photographs of two of the dormitory rooms, both of which appeared well-lit and fairly clean, as well as of the hallway and the cafeteria on one of the floors reserved for male detainees. Although the total number of beds cannot be ascertained from the photos, it can be determined that there were at least twentytwo beds (that is to say eleven bunk beds) in both rooms. It is further observed that there were two rows of bunk beds positioned against the walls in both rooms, leaving a narrow corridor in the middle of the room. While some of the bunks were touching each other, others were separated by big metal lockers. No other furniture, such as tables and chairs, was present in the rooms; there were blankets on the beds in only one of the rooms and the other room had no bedding at all. A television was available on each floor in the cafeteria. Moreover, a metal situp bench and an exercise bike were shown in the photograph of the hallway. No photos of the toilets or the showers were provided.

The Government also submitted an outdoor photo of some detainees in the removal centre’s courtyard. There were no men amongst these detainees – only women and children.


Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Mr Robert Alasippola, is a Finnish national, who was born in 1966 and lives in Leppävesi. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The applicant’s business was declared bankrupt in 2003 and he was subject to a tax inspection for the years 2003 and 2004. The tax inspection report was completed on 4 June 2004. At the same time, the applicant’s wife was also subject to a tax inspection. She has lodged a separate application with the Court (no. 39771/12 Hanna Riikka Alasippola v. Finland).

On 3 September 2004 the tax authorities imposed additional valueadded tax on the applicant as well as tax surcharges (veronkorotus, skatteförhöjning) for the tax years 2001, 2002 and 2003.

On 9 September 2004 the tax authorities imposed additional income tax and tax surcharges on the applicant for the tax years 2000, 2001, 2002 and 2003. The amount of tax surcharges varied between 800 and 900 euros.

By letters dated 20 October 2004 and 1 February 2005 the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden), requesting it to quash the decisions of 9 September 2004.

On 21 February 2005 the Tax Rectification Committee rejected the applicant’s applications concerning the income tax imposed for the tax years 2000, 2001, 2002 and 2003.

The applicant appealed against both the decisions of 3 September 2004 and the rectification decisions of 21 February 2005 to the Hämeenlinna Administrative Court (hallinto-oikeus, förvaltnings-domstolen).

On 26 June 2006 the Hämeenlinna Administrative Court rejected the applicant’s appeals concerning the income tax imposed for the tax years 2000, 2001, 2002 and 2003.

The applicant appealed against the decision of 26 June 2006 by the Hämeenlinna Administrative Court to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) but later withdrew his application. On 15 March 2007 the case was considered by the Supreme Administrative Court as lapsed.

On 4 October 2006 the Hämeenlinna Administrative Court rejected the applicant’s appeals concerning the value-added tax imposed in respect of the tax years 2001, 2002 and 2003. It appears that no appeal was made against this decision.

On 27 March 2009 the public prosecutor brought charges against the applicant, inter alia, for aggravated dishonesty by a debtor (törkeä velallisen epärehellisyys, grovt oredlighet som gäldenär), false accounting (kirjanpitorikos, bokföringsbrott) and aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning the tax years 1999 to 2003. According to the charges, the applicant was accused of aggravated dishonesty by a debtor as, between 1999 and 2002, he had transferred income to his wife to the detriment of his creditors. He was accused of false accounting between 1999 and 2003 as he had failed to make entries into the accounts. He was accused of aggravated tax fraud between 1999 and 2003 as he had failed to declare income and consequently, inter alia, the income tax and value-added tax imposed on him had been too low. The tax authorities joined the charges and presented a compensation claim totalling approximately the amount of avoided taxes.

On 26 February 2010 the Keski-Suomi District Court (käräjäoikeus, tingsrätten) convicted the applicant of aggravated dishonesty by a debtor, false accounting and of aggravated tax fraud, and imposed a prison sentence of 1 year and 10 months. He was ordered to pay the tax authorities 135,417 euros (EUR) plus interest in compensation.

By letter dated 6 April 2010 the applicant appealed to the Vaasa Appeal Court (hovioikeus, hovrätten), requesting that the District Court judgment be quashed and the charges dismissed. He referred to the ne bis in idem principle and to the Court’s case-law in that respect.

On 31 October 2011 the Vaasa Appeal Court, after having held an oral hearing, upheld the District Court judgment. The court found that the mere fact that the same issues had been assessed in the administrative proceedings did not necessarily prevent the examination of the charges pressed. After having compared the charges of aggravated tax fraud to the facts on the basis of which the tax surcharges had been imposed, by the type of tax imposed and the tax year concerned, the court found that the facts on which these charges were based were substantially different from those on which the tax surcharges had been based. There was thus no impediment to examining the charges against the applicant.

By letter dated 29 December 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. He emphasised that matters which had already been examined by the tax authorities could not be examined again in criminal proceedings.

On 31 January 2012 the Supreme Court refused the applicant leave to appeal except in respect of the charges concerning aggravated tax fraud.

On 19 December 2012 the Supreme Court dismissed the charge of aggravated tax fraud without examining the merits as far as the charge concerned income tax from the tax years 2000 to 2003 and value-added tax from the tax years 2001 to 2003, and withheld the relevant taxes. The applicant was convicted for the remaining part of the charge of aggravated tax fraud and sentenced, together with the earlier convictions, to imprisonment for 1 year and 4 months. The court found that, when considering the ne bis in idem prohibition, the similarity of the facts should be examined by the type of tax imposed and separately for each tax year. As concerned the tax year 1999, there was no impediment to examining the charge as the tax inspection did not concern the tax year 1999. However, concerning the tax year 2000, the charge could not be examined, except in respect of value-added tax, as the same matter had already been subject to an assessment by the tax authorities. In respect of the tax year 2001 the charge could not be examined at all. The same applied for the tax years 2002 and 2003. The taxation decisions had all become final before the charge of aggravated tax fraud, which concerned the same matter, was pressed. Therefore, the charge could only be examined in respect of the tax year 1999 and in respect of the valueadded tax imposed during the tax year 2000. This judgment has been published under number KKO 2012:106.

Section 57, subsection 1, of the Tax Assessment Procedure Act (laki verotusmenettelystä, lagen om beskattningsförfarande, Act no. 1558/1995, as amended by Act no. 1079/2005) provides that if a person has failed to make the required tax returns or has given incomplete, misleading or false information to the tax authorities and tax has therefore been incompletely or partially levied, the taxpayer shall be ordered to pay unpaid taxes together with additional tax and a tax surcharge.

According to Chapter 29, sections 1 and 2, of the Penal Code (rikoslaki, strafflagen, as amended by Acts no. 1228/1997 and no. 769/1990), a person who (1) gives a tax authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently and thereby causes or attempts to cause a tax not to be assessed, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years.

According to Chapter 39, sections 1 and 1a, of the Penal Code (as amended by Acts no. 61/2003 and no. 317/1994), a debtor who (1) destroys his or her property, (2) gives away or otherwise surrenders his or her property without acceptable reason, (3) transfers his or her property abroad in order to place it beyond the reach of his or her creditors or (4) increases his or her liabilities without basis and thus causes his or her insolvency or essentially worsens his or her state of insolvency, shall be sentenced for dishonesty by a debtor to a fine or to imprisonment for at most two years. If by the dishonesty by a debtor (1) considerable benefit is sought, (2) considerable or particularly substantial damage is caused to the creditors, or (3) the offence is committed in a particularly methodical manner and the dishonesty by a debtor is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated dishonesty by a debtor to imprisonment for at least four months and at most four years.

The Supreme Court has taken a stand on the ne bis in idem principle in its precedent case KKO 2010:46 which concerned tax surcharges and aggravated tax fraud. In that case it found, inter alia, that even though a final judgment in a taxation case, in which tax surcharges had been imposed, prevented criminal charges being brought about the same matter, such preventive effect could not be applied to pending cases (lis pendens) crossing from administrative proceedings to criminal proceedings or vice versa. However, in July 2013 the Supreme Court reversed its line of interpretation, finding that charges for tax fraud could no longer be brought if there was already a decision to order or not to order tax surcharges in the same matter (KKO 2013:59).

The Act on Tax Surcharges and Customs Duty Surcharges Imposed by a Separate Decision (laki erillisellä päätöksellä määrättävästä veron- tai tullinkorotuksesta, lagen om skatteförhöjning och tullhöjning som påförs genom ett särskilt beslut, Act no. 781/2013) entered into force on 1 December 2013. According to the Act, the tax authorities can, when making a tax decision, assess whether to impose a tax surcharge or to report the matter to the police. The tax authorities can decide not to impose a tax surcharge. If they have not reported the matter to the police, a tax surcharge can be imposed by a separate decision by the end of the calendar year following the actual tax decision. If the tax authorities have imposed tax surcharges, they can no longer report the same matter to the police unless, after imposing the tax surcharges, they have received evidence of new or recently revealed facts. If the tax authorities have reported the matter to the police tax surcharges can, as a rule, no longer be imposed. The purpose of the Act is thus to ensure that a tax or a customs duty matter is processed and possibly punished in only one set of proceedings. The Act does not, however, contain any transitional provisions extending its scope retroactively.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1952 and lives in Sarajevo.

In 1999 the applicant instituted civil proceedings against his employer, the local police, seeking his reinstatement and damages. His claim was eventually rejected.

The first-instance judgment was rendered by the Sarajevo Municipal Court on 17 April 2006.

The second-instance judgment was rendered by the Sarajevo Cantonal Court on 27 March 2008.

The third-instance judgment was rendered by the Supreme Court of the Federation of Bosnia and Herzegovina on 26 January 2010.

On 19 April 2010 the applicant filed a constitutional appeal with the Constitutional Court of Bosnia and Herzegovina complaining under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the outcome and length of his labour dispute.

On 10 April 2013 the Constitutional Court found a breach of the applicant’s right to a trial within a reasonable time and rejected the remainder of the case. It did not award any damages.


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

The case originated in an application (no. 35807/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Grygoriy Denysovych Chosta (“the applicant”), on 5 August 2005.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy, of the Ministry of Justice.

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

The applicant was born in 1943 and lives in Kramatorsk.

At the material time the applicant worked at a steel factory owned by a company in which the State held about 25% of the share capital. The company operated under its articles of association and was managed by a director appointed by the general meeting of shareholders, which was the highest authority deemed competent since shareholders represented over 60% of the votes. The company’s supervisory board included one representative of the State Property Fund.

On 13 February 2002 the director of the company, noting an increase in instances of staff members presenting for work under the influence of alcohol, and relying on paragraph 23 of the company’s internal regulations, which “forbade attendance at work in a state of intoxication and ... drinking at work”, instructed the departmental factory guards (“the guards”) – who were employees of the company – to “apprehend, in compliance with the legislation of Ukraine, anyone appearing to be in a state of alcoholic (narcotic) intoxication and take them to [the guards’] office for a report subsequently to be drawn up”. Employees who disagreed with the report were to be escorted to a local clinic for an alcohol test.

At about 10 p.m. on 3 August 2002, a guard at the factory gate suspected that the applicant, who was on his way out after working two shifts in succession, was drunk and asked him whether he had drunk alcohol. Following the applicant’s reply that he had drunk “a glass of vodka”, guards S. and P. seized the applicant’s badge and would not allow him to leave the premises of the factory. After about half an hour the senior guard, N. arrived, questioned the applicant and drew up a report indicating that the applicant was drunk and “looked untidy”, and that “there was a strong smell of alcohol on his breath”. The applicant, who disagreed with those conclusions and refused to sign the report, was then taken to the office of the chief guard, M., for further questioning. M. asked several factory workers to smell the applicant’s breathe and say whether he was drunk. Eventually, the applicant was escorted to a local clinic where at 11.30 p.m. he was given an alcohol test and was found to be sober. Subsequently, at an unspecified time, the applicant was allowed to leave, his badge having been returned to him.

On an unspecified date, upon the applicant’s complaint, the head of the company’s trade union initiated an internal investigation into the incident. The investigation established that the report drawn up by guard M. on 3 August 2002 had been based on the statements of S. and P., “external signs of the applicant’s alcoholic intoxication”, and the applicant’s behavior after he had been stopped by S. and P. It was also noted that the applicant had consented to undergo an alcohol test at the clinic.

On 22 August 2002, the chief guard of the factory, referring to the findings of that investigation, issued an instruction indicating a number of shortcomings in the conduct of the guards involved in the incident on 3 August 2002. In particular, it was noted that guard M. had failed to describe the signs of alcoholic intoxication which the applicant had allegedly displayed or to record the statements given by S. and P. The chief guard also noted that the guards had failed to draw up a separate report on the applicant’s refusal to cooperate.

On 4 February 2003 the applicant instituted proceedings before the Kramatorsk Court against the company, seeking 12,000 Ukrainian hryvnias (UAH) in compensation for non-pecuniary damage allegedly caused to him by the unlawful actions of the guards on 3 August 2002.

On 3 June 2003 the court rejected the applicant’s claim. It found that the guards had acted in line with the company’s internal regulations and therefore their actions had been lawful. Having heard all the eyewitnesses of the incident on 3 August 2002, the court concluded that there was no evidence that the guards’ conduct caused damage to the applicant’s reputation, health, lifestyle or working relationships. The court relied on the report of 3 August 2002 and the internal investigation report, plus the records of the applicant’s alcohol test on that date and statements by S. and P. The court invoked Articles 440-1 and 441 of the Civil Code of 1963.

On 26 August 2003 the Donetsk Regional Court of Appeal rejected an appeal by the applicant.

The applicant appealed in cassation, stating, in particular, that the Court of Appeal had failed to verify whether his detention had been compatible with the requirements of the Convention. According to the applicant, his detention on 3 August 2002 had not been justified by any of the grounds in Article 5 § 1 of the Convention but no compensation had been available to him, contrary to Article 5 § 5 of the Convention. On 4 April 2005 the Supreme Court refused the applicant leave to appeal in cassation on the ground that there was no evidence suggesting that the decisions of the lower courts were unlawful or inaccurate.

Meanwhile, on 6 February 2003 at 11.20 p.m., guards P. and I., suspecting the applicant of being drunk, had stopped him as he was leaving the factory. The guards took the applicant to their office and questioned him. The senior guard L. drew up a report stating that the applicant was drunk and noting that the latter disagreed with that conclusion. According to the applicant, the guards refused to take him to a clinic for an alcohol test and did not allow him to leave until 2.30 a.m. on 7 February 2003. From 11.20 on 6 February to 2.30 a.m on 7 February 2003 the guards allegedly pressured and threatened the applicant. According to the Government, the applicant was kept in the guards’ office for only twenty minutes on 6 February 2003.

On 7 February 2003 at about 2.30 a.m. the applicant, who wished to prove that he was sober, went to a local clinic and at 3.50 a.m. on that day took an alcohol test. There were two reports drawn up following the test, which came to opposite conclusions; the disparity between the conclusions was explained by the different techniques that had been used.

The company carried out an internal investigation into the incident of 6 February 2003 and found no fault in the guards’ conduct. The investigation report mentioned, inter alia, that the guards had not taken the applicant to a clinic for an alcohol test because of poor weather conditions.

On 21 April 2003 the applicant instituted proceedings before the Kramatorsk Court against the company, seeking UAH 35,000 in compensation for the non-pecuniary damage allegedly caused to him by his unlawful detention on 6 February 2003.

On 1 October 2003 the court rejected the applicant’s claim, relying on essentially the same grounds as in its judgment of 3 June 2003 (see above). The court also noted that according to the statements of guards P. and I., the applicant had been released within twenty minutes of his apprehension.

On 18 March 2004 and 12 October 2006 the Donetsk Regional Court of Appeal and the Supreme Court, respectively, rejected appeals by the applicant and upheld the first-instance court’s judgment.

According to the applicant, the judges of the courts dealing with his complaints were biased and corrupt.

Article 440-1 of the Civil Code of 1963, in force up to 1 September 2005, provided that non-pecuniary damage caused to a person or an organization was to be compensated by the person who had caused it unless the latter proved not to be responsible for the damage. Article 441 provided that an employer was liable for harm caused by an employee, in the performance of his or her work duties, to a third person.

Article 146 of the Criminal Code of 2001 provided that unlawful deprivation of liberty or abduction of an individual were punishable by restriction of liberty or imprisonment for up to five years.


CASE OF ZORNIĆ v. BOSNIA AND HERZEGOVINA

Violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Stand for election;Right to free elections-{general});Violation of Article 1 of Protocol No. 12 - General prohibition of discrimination;Violation of Article 1 of Protocol No. 12 - General prohibition of discrimination

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1957 and lives in Sarajevo.

She actively participates in the political life of the country. Among other things, in 2002 she stood as a candidate of the Social Democratic Party of Bosnia and Herzegovina for election to the parliament of one of the Entities.

As the applicant does not declare affiliation with any of the “constituent people” (namely, Bosniacs, Croats and Serbs), but simply as a citizen of Bosnia and Herzegovina, she is ineligible to stand for election to the second chamber of the State parliament (the House of Peoples) and to the collective Head of State (the Presidency).


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The first applicant was born in 1958 and lives in Vranje.

On 19 January 2004 the Vladičin Han Municipal Court ordered a socially-owned company DP PK Delišes (hereinafter “the debtor company”), based in Vladičin Han, to pay the first applicant specified amounts on account of debt, plus the costs of the civil proceedings. This judgment became final on 15 March 2004.

On 27 May 2004, upon the first applicant’s request to that effect, the Vladičin Han Municipal Court ordered the enforcement of the said judgment and further ordered the debtor company to pay the first applicant the enforcement costs.

On 30 January 2014 the Leskovac Commercial Court opened insolvency proceedings in respect of the debtor company (St. 1/14).

As a result, the ongoing enforcement proceedings against the debtor company were stayed by the Municipal Court’s decision of 12 March 2014.

The first applicant duly submitted his respective claim.

The insolvency proceedings against the debtor company are still ongoing.

On 23 January 2013 the first applicant lodged a constitutional appeal.

On 28 May 2015 the Constitutional Court found a violation of the first applicant’s right to a hearing within a reasonable time. It further awarded him 500 euros (EUR) as just satisfaction for non-pecuniary damage. The Constitutional Court dismissed the first applicant’s complaint concerning his right to the peaceful enjoyment of his possessions as well as his request for pecuniary damages, since the insolvency proceedings were still pending. That decision was delivered to the first applicant on 13 July 2015.

The second applicant was born in 1956 and lives in Niš.

He was employed by DOO EI-7 Oktobar, a socially-owned company based in Niš (hereinafter “the debtor company”).

On 22 December 2005 the second applicant concluded the settlement with the debtor company before the Niš Municipal Court, by which the debtor company was obliged to pay the second applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This settlement became final on an unspecified date.

On 17 December 2010, upon the second applicant’s request to that effect, the Niš Municipal Court ordered the enforcement of the said settlement and further ordered the debtor company to pay the second applicant the enforcement costs.

On 5 September 2008 the Niš Municipal Court ordered the debtor company to pay the second applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final by 23 December 2008.

On 28 December 2010, upon the second applicant’s request to that effect, the Niš Municipal Court ordered the enforcement of the said judgment and further ordered the debtor company to pay the second applicant the enforcement costs.

On 30 June 2007 and 15 October 2007 respectively, the Republic Agency for Peaceful Settlement of Labour Disputes ordered the debtor company to pay the second applicant specified amounts on account of salary arrears and social insurance contributions. These decisions became final on unspecified dates.

On 27 December 2010 and 28 December 2010 respectively, upon the second applicant’s request to that effect, the Niš Municipal Court ordered the enforcement of the said decisions and further ordered the debtor company to pay the second applicant the enforcement costs.

On 23 May 2012 the Niš Commercial Court opened insolvency proceedings in respect of the debtor company (St. 115/12). As a result, the ongoing enforcement proceedings against the debtor company were stayed.

The second applicant duly submitted his respective claims.

On 24 December 2015 the second applicant’s claims were formally recognised.

On 11 February 2013 the second applicant lodged a constitutional appeal.

On 18 June 2015 the Constitutional Court dismissed his appeal as lodged out of time. It found that the second applicant failed to lodge his appeal within thirty days as of the date when the decisions on the staying of the enforcement proceedings as a result of opening of the insolvency proceedings had been delivered to him. That decision was delivered to the second applicant after 16 July 2015.

The third applicant was born in 1953 and lives in Kragujevac.

He was employed by DP Industrija Filip Kljajić, a socially-owned company based in Kragujevac (hereinafter “the debtor company”).

On 13 May 2002 the third applicant concluded the settlement with the debtor company before the Kragujevac Municipal Court, by which the debtor company was obliged to pay the third applicant specified amounts on account of salary arrears, plus the costs of the civil proceedings. This settlement became final on an unspecified date.

On 27 August 2002, upon the third applicant’s request to that effect, the Kragujevac Municipal Court ordered the enforcement of the said settlement and further ordered the debtor company to pay the third applicant the enforcement costs.

On 5 March 2010 the Kragujevac Commercial Court opened insolvency proceedings in respect of the debtor company (St. 45/10).

The third applicant duly submitted his respective claim.

On 25 October 2010 the third applicant’s claim was formally recognised.

On 2 August 2012 the third applicant was paid 13.12 % of his recognized claim.

On 10 May 2013 the third applicant lodged a constitutional appeal.

On 28 December 2015 the Constitutional Court dismissed his appeal as lodged out of time. It found that the third applicant failed to lodge his appeal within thirty days as of the date when the decision on opening of the insolvency proceedings had been rendered or as of the date when he had submitted his claim in the insolvency proceedings. That decision was delivered to the third applicant on 29 January 2016.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1951 and lives in Nova Kakhovka.

On 4 July 2001 the applicant’s wife, Mrs Yelena Fukleva, was admitted to the gynaecological ward of the Kherson Regional Clinical Hospital (Херсонська обласна клінична лікарня – “the hospital”) with metrofibroma. An operation was scheduled for 5 July 2001. According to the medical file, she signed a written consent to undergo the operation. On that date she underwent an unsuccessful intubation of the trachea for the purpose of anesthetisation. The operation was therefore postponed to 9 July 2001. The applicant’s wife was discharged until that date.

On 9 July 2001 the applicant’s wife underwent an operation for metrofibroma in the hospital. According to the medical file, she signed a written consent to undergo that operation.

After the operation her condition started to deteriorate rapidly.

On 15 July 2001 a panel of doctors found that the applicant’s wife was suffering from post-operative peritonitis. Although she was then treated for peritonitis, she died of peritonitis and sepsis on 18 July 2001.

An autopsy was carried out shortly after her death and confirmed that Mrs Fukleva had died of post-operative peritonitis complicated by sepsis.

Following the incident, the local health-care authorities set up a commission consisting of three members to investigate the quality of the medical treatment provided to the applicant’s wife by the hospital. Having examined the case, the commission found that the medical staff had committed no errors which could have aggravated the patient’s state of health or accelerated her death. The commission concluded that the patient’s death had not been caused by the medical staff.

On 8 August 2001 the hospital commission examined the case and found that the surgical treatment had been carried out correctly; that post-surgical treatment had been fully provided to the patient; and that, despite appropriate treatment, the fatal outcome had been inevitable.

Following a complaint by the applicant, on 7 September 2001 the Ministry of Health set up a commission to investigate the adequacy of Mrs Fukleva’s treatment at the hospital.

The ministerial commission found that (i) the applicant’s wife had not been properly prepared for the planned operation and had been operated on urgently on 9 July 2001; (ii) the antibacterial and infusion treatment for the peritonitis and sepsis had been insufficient; (iii) the peritonitis had developed due to the decline of the patient’s immune system; and (iv) the difficulties in the early diagnosis of the peritonitis had been caused by the vague clinical symptomatology (namely, subdiaphragmatic and subhepatic abscesses) and, as a result, a relaparotomy had been conducted only on the sixth day.

On 24 September 2001 the Health Department of the Kherson Region State Administration (“the Health Department”), having regard to the conclusions of the ministerial commission, ordered that (i) an inspection of the gynaecological ward of the hospital be carried out; (ii) the obstetrician-gynaecologist S. undergo training on the medical treatment for sepsis in obstetrics and gynaecology; and (iii) the case of the applicant’s wife be discussed at the meeting of the regional association of obstetrician-gynaecologists.

In a letter of 8 October 2001 the Ministry of Health recommended to the Health Department that it consider disciplinary measures in respect of the doctors involved in the treatment of the applicant’s wife, and advised an early reassessment of the doctors by the qualification commission as to their suitability for the categories that had been granted to them. The Ministry noted that the ministerial commission had found substantial errors in the treatment of the applicant’s wife. The Ministry specified that the death of the applicant’s wife had been caused by the aftereffects of the operation performed on 9 July 2001 in the hospital; the medical file suggested that on 5 July 2001 the patient had not undergone the necessary supplementary examinations and had not been provided with antianaemic treatment; after the unsuccessful anesthetisation procedure on 5 July 2001 the patient had been discharged from the hospital, a measure that had been contraindicated; on 9 July 2001 the patient had been operated upon without having been tested for the most important indicators of homeostasis and correction of anaemic status; the peritonitis had been diagnosed and treated too late; and during the post-operative period the antibacterial and infusion therapy had been insufficient and the antianaemic treatment miserable. The Ministry concluded that the medical treatment afforded to the applicant’s wife had been unsatisfactory.

On 30 October 2001 the Health Department informed the Ministry of Health that a thorough inspection of the gynaecological ward of the hospital had been carried out and that it had not revealed any substantial deficiencies in the functioning of the ward. However, the head of the ward had been reprimanded. As to the doctors who had treated the applicant’s wife, it was noted that they would be sent for an extraordinary assessment by the qualification commission. The Health Department further noted that the doctor who had been in charge of the applicant’s wife had resigned of his own volition.

On 30 November 2001 the Health Department informed the applicant that the circumstances of his wife’s death had been investigated by the health-care institutions and that it had not been found that his wife had been provided with inappropriate medical treatment.

On 27 July 2001 the Suvorivsky District Prosecutor’s Office of Kherson (“the District Prosecutor’s Office”) decided not to institute criminal proceedings, finding, in the light of the results of the autopsy and the medical specialists’ opinions, that there had been no element of criminal negligence in the conduct of the medical staff.

On 1 August 2001, at the applicant’s request, the Kherson Regional Prosecutor’s Office (“the Regional Prosecutor’s Office”) quashed that decision as unfounded and ordered further pre-investigation enquiries.

On 22 August 2001 the District Prosecutor’s Office decided not to institute criminal proceedings, finding that the death of the applicant’s wife had not resulted from the actions of the medical staff.

On 18 September 2001 the Regional Prosecutor’s Office, at the applicant’s request, quashed the decision of 22 August 2001 on the ground that the pre-investigation enquiries had been inadequate. It noted in particular that the file did not contain any final conclusions with regard to the cause of the applicant’s wife’s death, the reasons for the development of the peritonitis or the adequacy of the medical treatment. The Regional Prosecutor’s Office further noted that the impugned decision had been based essentially on the statements of the medical staff whose actions had been complained of, while the other specialists, as well as the applicant and his relatives, had not been questioned. It therefore instituted criminal proceedings for medical malpractice and remitted the case to the District Prosecutor’s Office for the investigation.

On 24 September 2001 the investigator ordered a forensic expert opinion on the quality of the medical treatment provided to the applicant’s wife. In reply, the Bureau of Forensic Medical Examinations at the Mykolayiv Regional Health Department provided a report suggesting that the applicant’s wife had been properly treated in the hospital.

On 1 October 2001 the applicant was granted the status of victim in the criminal proceedings.

On 3 January 2002 the District Prosecutor’s Office, having obtained further evidence, decided to discontinue the criminal proceedings into the death of the applicant’s wife on the ground that there had been no corpus delicti in the conduct of the medical staff. The applicant challenged that decision in court.

On 31 January 2002 the Suvorovsky District Court of Kherson (“the District Court”) quashed the decision of 3 January 2002 as unfounded and ordered a further investigation. The District Court noted that it was necessary to investigate allegations of forgery in respect of the medical file and, in particular, in relation to the signature of the applicant’s wife indicating her consent to the operation of 9 July 2001. It also found it necessary to question witnesses, and to take other measures.

On 26 March 2002 the Kherson Regional Court of Appeal (“the Court of Appeal”) quashed the District Court’s decision of 31 January 2002 as unfounded and remitted the case to the District Court for fresh consideration.

On 28 August 2002 the District Court upheld the decision of 3 January 2002 discontinuing the criminal investigation. It considered that the District Prosecutor’s decision was well founded and supported by the available evidence. The applicant appealed.

On 12 November 2002 the Court of Appeal upheld the decision of 28 August 2002. The applicant appealed on points of law to the Supreme Court.

On 19 December 2002 the Supreme Court dismissed the applicant’s appeal as inadmissible.

On 11 March 2003, following a complaint by the applicant, the General Prosecutor’s Office quashed the District Prosecutor’s decision of 3 January 2002 and ordered a further investigation, noting that additional measures had to be taken in order to determine all the relevant circumstances in the case. In particular, it had to be determined whether or not the signatures of the applicant’s wife had been forged in her medical file, certain pieces of evidence had to be enclosed in the investigation file, and contradictions in the medical evidence had to be resolved.

On 29 October 2003 the Main Bureau of Forensic Medical Examinations at the Ministry of Health issued a report concluding, inter alia, that the applicant’s wife had been properly and fully diagnosed in the gynaecological ward of the hospital; it had been necessary to operate on the applicant’s wife; however, she should have undergone supplementary examinations and measures to control the bleeding should have been taken; the correct surgical method had been chosen and the operation had been conducted correctly. According to the report, the death of the applicant’s wife had been caused by several factors: (i) a weak immune system which had led to the development of post-operative peritonitis; (ii) the failure by the gynaecologists to use all possible means to control the bleeding without resorting to urgent surgical intervention; and (iii) belated treatment for the peritonitis. It was specified that if the peritonitis had been diagnosed and treated in time it was possible that the patient’s life would have been saved.

On 3 January 2004 the investigator ordered an additional forensic medical examination, finding that the report of 29 October 2003 was incomplete and contradictory.

On 31 March 2005 the Main Bureau of Forensic Medical Examinations at the Ministry of Health issued another report concluding, inter alia, that the applicant’s wife’s death had been caused by several factors, including the gravity of the pathology, the patient’s obesity, which had diminished her immunity and contributed to the development of post-operative complications, and the shortcomings in the medical treatment of the patient. It concluded that there was an “indirect relationship” between the shortcomings in the medical treatment in the gynaecological ward of the hospital and the death of the patient.

On 11 July 2005 the senior investigator of the Regional Prosecutor’s Office discontinued the criminal proceedings for lack of corpus delicti in the conduct of the medical staff. He found that the death of the applicant’s wife had been caused by the cumulative effect of several factors and it could not be argued that there was a direct relationship between the shortcomings in the medical treatment and the fatal outcome.

On 5 August 2005 the Deputy Prosecutor of the Kherson Region quashed the decision of 11 July 2005 as unfounded and ordered a further investigation. He specified that additional measures were necessary to investigate the cause of the applicant’s wife’s death and the alleged forgery of her signatures in the medical file.

In the course of the subsequent proceedings, the investigator ordered further expert inquiries on various aspects of the treatment of applicant’s wife. Apart from these issues, the experts concluded that the signatures in the medical file were indeed those of the applicant’s wife.

On 11 October 2007 the Regional Prosecutor’s Office decided to discontinue the criminal proceedings into the death of the applicant’s wife on the ground that there had been no corpus delicti in the conduct of the medical staff. On the basis of the expert examination reports and other evidence, the investigator found that the death of the applicant’s wife had been caused by the cumulative effect of several factors, including shortcomings in the medical treatment in the gynaecological ward of the hospital; however, there was no direct causal link between those shortcomings and the death of the patient.

At the material time the applicant owned a shop in Nova Kakhovka.

On 2 October 2003 a tax police squad visited the applicant’s shop in order to carry out an unscheduled inspection due to the applicant’s alleged failure to submit tax returns.

The inspection was not conducted, as the applicant, his relatives and his employees prevented the officers from accessing the store’s tax records. It led to a fracas.

As was later established by the investigation, at some point the applicant switched off the light and one of the employees screamed that she had been punched in her face by tax officer K. This escalated the scuffle and K. tried to leave the scene in his car. The applicant tried to prevent K. from leaving and jumped on the bonnet of the car, then broke a side window and tried to pull officer K. out of the car.

According to the applicant, during the incident he was injured by the officers.

On 3 October 2003 the applicant lodged a complaint with the law-enforcement authorities, arguing that on 2 October 2003 he had been ill-treated by the tax police.

On the same day the applicant was examined by a doctor, who documented injuries on the applicant’s forearm and lip.

On 15 October 2003 a forensic medical expert, relying on the results of the medical examination of 3 October 2003, reported that the applicant had sustained numerous scratches to the right forearm and a bruise to the lower lip. The expert classified the injuries as light and stated that they could have been sustained on 2 October 2003.

On 27 October 2003 the investigator of Nova Kakhovka Prosecutor’s Office (“the Town Prosecutor’s Office”) decided not to open criminal proceedings against the officers as their conduct did not disclose any elements of a criminal offence. He found that the scratches on the applicant’s forearm had been caused by the applicant himself, when he had attempted to pull the officer out of the car through the broken window. Similarly, the bruise on his lip could have been caused by the applicant himself at any time during the incident, including the moment when he had jumped on or off the car or broken the window. No evidence had been found which suggested that the bruise had been inflicted by the officers.

On 11 February 2004, at the applicant’s request, the Regional Prosecutor’s Office quashed the decision of 27 October 2003, finding that further enquiries were necessary. In particular, the Regional Prosecutor’s Office instructed the investigator to question the applicant and officer K.

Subsequently, in the course of additional enquiries on 4 March, 7 June, 4 and 30 December 2004 and 16 December 2005, the investigator of the Town Prosecutor’s Office decided not to institute criminal proceedings for similar reasons to those set out in the decision of 27 October 2003. Those decisions were quashed by the supervising authorities and additional measures were ordered.

On 2 February 2006 the Deputy Prosecutor of Nova Kakhovka refused to open criminal proceedings against the officers, finding that their conduct disclosed no elements of a criminal offence. On the basis of the additional evidence gathered, he gave similar reasons for that decision to those set out in the decision of 27 October 2003.


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

The applicants, Mr Ion Oancea and Ms Doina-Ligia Oancea, are Romanian nationals, who were born in 1952 and 1955 respectively and live in Ciulniţa, Argeş County. They were represented before the Court by Mr G.A. Vasile, a lawyer practising in Piteşti.

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

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

M.C., the applicants’ thirty-year-old son, was HIV-positive and was registered as such by Matei Balş Hospital, where he received monthly treatment.

On 14 August 2007 M.C. was arrested together with his two brothers and his brother-in-law and placed in Argeş Police detention facilities. He was in good shape at that time, but the tests run after his arrest showed that he had had a slow reaction to his retroviral treatment (aderență scazută la tratament). He spent most of his pre-trial detention in Colibaşi Prison Hospital.

During his pre-trial detention, M.C. received treatment for his illness, except for three periods of respectively four, two and one, days when the medicine did not reach the prison hospitals on time. As his health deteriorated and he started complaining of severe back pain, he was taken for a consultation in a civilian hospital. The doctor recommended treatment with ointments and, if the pain did not subside, surgery. According to the statements made by his cellmates, including his brothers, the treatment was delayed by a few days and had to be administered by the inmates, who took turns in applying the ointments and hot water to the painful areas. As the treatment proved to be ineffective, M.C. requested an operation, which took place on 21 October 2008 in Bagdazar Arsenie Civilian Hospital.

M.C.’s official prison record submitted by the Government does not contain any complaint by M.C. to the post-sentencing judge about the medical treatment.

On 22 October 2008 M.C. was released from prison, based on a decision rendered by the Piteşti Court of Appeal. On 11 November 2008 he was admitted to a civilian hospital with similar symptoms as before (severe back pain and generally deteriorating health). He remained in the hospital until 22 December when he was declared incurable and released at the family’s request. He died on 23 December 2008.

On 3 August 2009 the applicants lodged a criminal complaint with the Prosecutor’s Office attached to the High Court of Cassation and Justice, against the administration and the medical personnel of Colibaşi Prison, accusing them of having intentionally postponed their son’s surgical operation, which led to his death. They argued that the operation was delayed intentionally by the prison authorities, who received significant financial benefits as additional bonuses to their salaries while dealing with an HIV-positive inmate: a 75 % salary increase for prison administrators and a 100 % salary increase for medical personnel.

From the records submitted by the Government, it appears that, at the applicants’ request, the prosecutor’s office informed them on 30 September 2009 that an investigation into the matter was pending.

According to the information provided by the Government, the complaint was examined by the Prosecutor’s Office attached to the Piteşti Court of Appeal which, based on the evidence gathered, in particular statements by the applicants and the patient’s medical record, decided not to prosecute the medical personnel and the prison director. The decision was rendered on 22 March 2010 and communicated to the applicants on 1 April 2010. The applicants did not appeal against the prosecutor’s decision before the criminal courts.

In paragraphs 43-45 of the judgment Dumitru Popescu (no. 1) v. Romania (no. 49234/99, 26 April 2007) there is a description of the law concerning complaints against decisions of the prosecutor lodged under Article 2781 of the Code of Criminal Procedure applicable at the date of the facts of the present case.

The judgment delivered in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010) describes in detail the relevant domestic law and practice concerning the civil liability of medical staff.

Excerpts from Law no. 275/2006 on the execution of sentences concerning the rights of detainees and the remedies provided therein are summarised in Iacov Stanciu v. Romania (no. 35972/05, §§ 113119, 24 July 2012).