ITEMID: 001-87836
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF VLADIMIR ROMANOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objections partially dismissed (non-exhaustion of domestic remedies);Preliminary objections partially joined to merits and dismissed (victim);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1+6-3-d;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1973 and lived until his arrest in the town of Ivanovo.
7. On 27 October 2000 four individuals attacked Mr I. near his flat, beat him up and attempted to rob him. Mr I. fought back and the attackers ran away.
8. Three days later the applicant was arrested on suspicion of having attempted to rob Mr I. in conspiracy with Mr B. and Mr V. The arrest record indicated that he had been arrested for disorderly conduct. The applicant was placed in detention facility no. IZ-37/1.
9. An investigator interviewed Mr B. and Mr V. who were drug addicts and were suffering from drug withdrawal syndrome. They confessed to robbery, committed with the applicant. According to the applicant, they had confessed because policemen had promised to supply them with drugs. The applicant insisted that in October and November 2000 Mr B. and Mr V. had written statements confessing to the robbery after the policemen had given them drugs.
10. On 30 October 2000 emergency doctors visited Mr V. The medical report of 30 October 2000 showed that Mr V. was a drug addict and that he had been provided with medical assistance. On 5 and 6 November 2000 the emergency doctors examined Mr B. He was diagnosed with drug addiction and withdrawal syndrome. Medical assistance was provided.
11. On 2 November 2000 the applicant had a confrontation interview with Mr I. who stated that four men wearing balaclava masks had attempted to rob him on 27 October 2000. Mr I. noted that the applicant was of the same height as one of the attackers. The applicant did not dispute Mr I.’s submissions and did not ask any questions.
12. While being questioned by the investigator the applicant admitted that he had intended to beat Mr I. up because a friend had asked him to do it. He denied that he had ever attempted to rob Mr I. The applicant maintained that testimony at the trial.
13. On 26 October 2001 the applicant was committed to stand trial before the Frunzenskiy District Court of Ivanovo.
14. A lawyer representing Mr V. successfully asked the District Court to examine the medical report of 30 October 2000 indicating that Mr V. was a drug addict.
15. At the trial Mr V. and Mr B. retracted their confessions made during the pre-trial investigation. They claimed that they had confessed to the robbery under the influence of drugs and in the absence of a lawyer. They insisted that on 27 October 2000 they had met Mr I. but had merely intended to beat him up and had had no intention of robbing him.
16. Mr I. did not attend the trial and the District Court found that there were “good reasons” for his absence. The Government, relying on a written statement by a District Court secretary, submitted that on 29 November 2001 Mr I. had notified the secretary by telephone that he had not been able to attend the trial hearings as he had been in another country. Mr I. had confirmed his statements made during the pre-trial investigation. The Government also produced a written statement issued on 28 November 2001 by a lay assessor who had sat in the applicant’s case. According to the lay assessor, Mr I.’s wife informed her by telephone that Mr I. had left Russia and had been unable to come back before 3 December 2001.
17. At the hearing on 29 November 2001 the District Court read out depositions made by Mr I. on 23 April and 8 May 2001. The court record indicated that the District Court had not asked the applicant or his lawyer whether they had agreed to the reading of the depositions. According to the depositions, on 27 October 2000 Mr I. opened the entrance door and saw four men wearing balaclava masks. One of them hit him in the face. Mr I. attempted to close the door but an attacker followed him into the flat. The entrance door of the flat accidentally closed and other perpetrators could not enter. Mr I. fought the attacker, opened the entrance door and was able to push the attacker out of the flat. After he had opened the door, he saw another man, whom he identified as the applicant. The applicant hit Mr I. with the handle of a gun and ran away. Mr I. claimed that the attackers had intended to rob him.
18. The District Court summonsed three witnesses, Mr L., Mr S. and Mr T. Mr L. and Mr S. attended the trial and testified that on 27 October 2000, the day of the alleged robbery, they had seen four men running but had not been able to identify them. Mr T., who lived in Israel, did not appear at the trial and his depositions made during the pre-trial investigation were read out. His statements were identical to those given by Mr L. and Mr S.
19. On 9 January 2002 the Frunzenskiy District Court of Ivanovo found the applicant guilty of aggravated robbery and sentenced him to eleven years and three months’ imprisonment. The court issued a confiscation order in respect of the applicant’s property.
20. The District Court based its judgment on the depositions by Mr I. made during the pre-trial investigation, the testimony by Mr L. and Mr S., the deposition by Mr T. made during the pre-trial investigation, the confession statements made by Mr V. and Mr B. during the pre-trial investigation, and the applicant’s statements in which he had admitted that on 27 October 2000 he had visited Mr I. but had not robbed him. The District Court noted that it had not been established of what property the defendants had intended to rob Mr I.
21. The District Court rejected the co-defendants’ arguments that they had confessed in a state of drug intoxication. It noted that there was no indication that Mr V. and Mr B. had been forced to confess or that they had been administered drugs to induce them to admit their guilt. Throughout the pre-trial investigation they had given consistent and detailed statements in the presence of attesting witnesses and their interviews had been recorded on video. The District Court watched those video recordings. The defendants had appeared to be in a normal state of health and had no longer claimed that they had been drugged.
22. On 16 and 22 January 2002 the applicant and his lawyer filed appeal statements against the judgment of 9 January 2002. They complained, inter alia, that the District Court had based the conviction on the depositions by Mr I. and Mr T. given during the pre-trial investigation.
23. On 23 April 2002 the Ivanovo Regional Court upheld the judgment of 9 January 2002, endorsing the reasons given by the District Court. In particular, it noted that the District Court had rightfully convicted the applicant on the basis of the statements given by Mr I. and Mr T.
24. On 18 October 2002 the Presidium of the Ivanovo Regional Court, on a supervisory review, reduced the applicant’s sentence to nine years and three months’ imprisonment, having regard to the fact that the gravity of the offence did not correspond to the severity of the sentence.
25. The applicant submitted that on 22 June 2001, on an order of the director of detention facility no. IZ-37/1, warders had entered cell no. 81 where he had been detained. The warders, hitting the inmates with rubber truncheons, forced them to leave the cell. In the corridor they continued hitting the applicant with rubber truncheons. The applicant fell on the floor and the beatings continued. After the beatings stopped, he crawled into his cell. Several hours later he felt extreme pain and his fellow inmates asked for a prison doctor. The applicant was taken to a hospital where doctors removed his spleen.
26. According to the Government, on 22 June 2001 the applicant took part in a prison disobedience action. They relied on written statements by warders, including the warder Mr Ye., and a report issued on 23 June 2001 by the head of the task unit of detention facility no. IZ-37/1. The report, in its relevant part, read as follows:
“On 22 June 2001, at 8.05 a.m., a junior inspector, senior sergeant of the internal service Mr P., who was on duty,... raised the alarm and informed a senior lieutenant of the internal service Mr La... that detainees in cell no. 81 were attempting to kick the cell door out, banging on it with boots, metal plates and cups. On an order of the senior lieutenant of the internal service Mr La., a group of off-duty warders... went to cell no. 81... Upon their arrival, a senior lieutenant of the internal service Mr Pa... ordered the detainees to stop their unlawful actions and warned them that force might be used if they did not comply with the lawful order. However, the inmates ignored the order of the facility administration and continued their collective disobedience actions. Moreover, [inmates] in certain other cells... supported the actions of the inmates of cell no. 81 [and] also started knocking on the doors, which could have turned into a prison riot.
The facility director, who by 8.15 a.m. had received full information on the incident involving inmates in cell no. 81, raised a general alarm and ordered that the senior lieutenant of the internal service Mr La. repeat his orders and warn the detainees of special means and consequences if they did not comply.
After the repetition of the administration’s orders and the warning of the possible use of force had no effect on the detainees, the facility director decided to carry out a special operation in respect of the detainees in cell no. 81. In the presence of a group of medical staff members, the group of off-duty warders, other staff members who had gathered on an alarm signal and had been equipped accordingly, the cell door was opened and the detainees were requested to stop their active demonstration of discontent, to leave the cell [and] go into the corridor. In response to that lawful order the inmates climbed on to the upper bunks, refusing to leave the cell. They accompanied their actions with obscene and defamatory language towards the representatives of the facility administration. After rubber truncheons PR-73 had been applied to certain detainees who had clearly refused to comply, all the inmates went into the corridor. In the course of a discussion they did not raise any complaints nor did they substantiate claims against the facility administration which could serve as objective justification for confrontation... Inmates who had been allowed to return to the cell stopped their disorderly actions. Detainees in other cells followed their lead.
It was established in the course of the investigation pertaining to that incident that the majority of the inmates in cell no. 81 had not known the real reasons for the disorderly actions when those actions had started, assuming that the flame of discontent had been fanned by the appalling (according to them) conditions of detention in the cell and [they] had taken part in those actions obeying exclusively the feeling of corporate solidarity. Secret operative measures taken with the purpose of establishing the true reason for the conflict allowed the conclusion that a voice message from an inmate of a cell on the lower floor about beatings of another inmate, Mr D., by warders, which took place at the same time... served as an incentive for the beginning of the collective disobedience....
As it follows from the inmates’ explanations, most of them heard orders addressed to them to stop disorderly actions and warnings that special measures would be used, but they did not react in any way.
As a result of the selective application of rubber truncheons by the warders injuries were sustained by... and Mr Romanov Vladimir Anatolyevich... who were examined and received the necessary assistance from medical personnel of the facility.
The investigation showed that the facility personnel in that situation had acted firmly, without compromise, taking the special measures promptly, without delay and in compliance with requirements of paragraph 2 of Section 45 [of the Custody Act]..., that is as it was required in the situation at hand, which was of a complicated nature since the actions of the detainees from cell no. 81 had been supported by detainees from other cells and other preventive measures of a non-violent nature had appeared to be ineffective.”
27. The Government submitted a record of the applicant’s medical examination drawn up on 22 June 2001 by the prison dermatologist. The record stated that the applicant had had bruises on his legs and four linear bruises on the back and the left side of the small of his back. The bruises measured 3.5 centimetres in width and 4 to 10 centimetres in length.
28. The Government, relying on an extract from the applicant’s medical record, further stated that on the evening of 22 June 2001 the applicant had been taken to the surgical division of the prison hospital and had been diagnosed with “a blunt chest injury, a splenic rupture, hemoperitoneum, first-degree shock, and an injury to the small of the back”. Doctors discovered signs of internal bleeding and decided to remove the spleen. Later in the evening the applicant underwent surgery. He remained in the hospital until 16 July 2001 and was transferred to the medical department of detention facility no. IZ-37/1 in “a satisfactory state of health”.
29. On 25 June 2001 the facility administration informed the Ivanovo regional prosecutor’s office that on 22 June 2001 force had been used against inmates, including the applicant.
30. An assistant of the Ivanovo Regional Prosecutor carried out an inquiry. On 3 July 2001 he issued a report, refusing to institute criminal proceedings as there had been nothing criminal in the warders’ actions. The relevant part of the report read as follows:
“On 22 June 2001, at 7.45 a.m., before placement in a punishment cell, warders of the detention facility searched a detainee, Mr D. [He] resisted and as a result, force was used against him and forbidden correspondence was seized. Mr D. shouted loudly that the warders were beating him up, urging inmates to knock on their cell doors and protest. Detainees supported him, thus violating the detention rules, and [inmates] in cell no. 81, in particular, started banging hard on the cell door. At 8.05 a.m. a junior inspector of the task and guard unit, Mr P., sounded the general alarm in the facility.
As follows from statements of staff members of the detention facility, ... on 22 June 2001, after the general alarm signal at 8.10 a.m. they arrived in cell no. 81, whose inmates were banging hard on the door. The detainees did not comply with repeated orders to stop their unlawful actions. The same orders and warnings of the possible use of special measures made by Mr P. through the door grille also had no result. On an order of the director of the detention facility, Mr Lu., the cell door was opened at 8.15 a.m. and the detainees were requested to go into the corridor. That order was lawful, taking into account the aggressive state of the inmates, the possibility of their attacking the warders, taking possession of cell keys and weapons, and taking hostages. Furthermore, the detention regime required a morning roll-call of the detainees. The inmates refused to comply with the order. In that situation [the warders] decided to force the inmates into the corridor. Four inmates, including Mr Romanov, urged their fellow detainees not to leave the cell, [he] actively disobeyed, swinging his arms and pushing warders Mr Ye. and Mr Zh., away, and did not respond to repeated orders to stop those unlawful actions. Following Mr Ye.’s repeated warnings about the possible use of special measures, [Mr Romanov] continued his actions. Mr Ye. hit Mr Romanov with a rubber truncheon three to four times on the back and legs, after which Mr Romanov was taken out of the cell into the corridor.
The fact that the special measures were used is confirmed by statements of facility warders and their reports, as well as an official record of the use of special measures and an official record of the medical examination of Mr Romanov by a medical committee consisting of three persons. According to that record, Mr Romanov had injuries to his knees and feet and four red linear bruises on the back and the left side of the small of the back.
The head of the medical department of the detention facility, Mr M., and a dermatologist, Mr Bo., stated that at about 3.00 p.m. on 22 June 2001 Mr Romanov had asked for medical assistance, complaining of pain in the left subcostal area. After a consultation with a surgeon from the prison hospital Mr Romanov was transferred to the hospital.
According to statements by the head of the surgical division of the prison hospital Mr Ti. and the medical record, on the same day, at 8.10 p.m., Mr Romanov underwent surgery and his injured spleen was removed.
In an interview Mr Romanov stated that on 22 June 2001 he had been woken up at 8.00 a.m. before the morning roll-call... He heard his inmates banging on the cell door. Soon afterwards warders entered the cell and forced everyone into the corridor. At that time he was near his sleeping place. A warder hit him several times with a rubber truncheon on the back and forced him into the corridor, where other warders also hit him numerous times on his back with rubber truncheons. He did not resist in any way and did not urge [inmates] to resist the warders.
As a result of the investigation, Mr Romanov’s statements were not confirmed and they are of a contradictory nature. In particular, Mr Romanov could not explain the discrepancies between his arguments about the numerous blows and the results of the medical examination. Moreover, he was examined in the course of the prosecutor’s investigation on 27 June 2001, and no other injuries, save for those recorded in the report of the medical examination, were discovered.
The detainees, Mr Bl., Mr Ve.... and Mr Y. did not see how the special measures were applied to Mr Romanov, stating that on 22 June 2001, before the morning roll-call, they had knocked at the cell door. [They] did not comply with the warders’ orders [and] did not stop their actions. [They] were warned about the possible use of special measures.
Thus, taking into account the facts and the results of the investigation, it is necessary to note that a special measure, namely a rubber truncheon, was applied by Mr Ye. to Mr Romanov lawfully and in accordance with the requirements of Section 45 [of the Custody Act]...”
31. Following the prosecutor’s refusal to institute criminal proceedings, the applicant lodged an action against the Ministry of Justice and the Ministry of Finance seeking compensation for damage caused by the use of force on 22 June 2001. He also argued that the prosecutor’s office had unlawfully refused to institute criminal proceedings against the warders.
32. On 11 June 2002 the Oktyabrskiy District Court of Ivanovo accepted the applicant’s action in part and awarded him 10,000 Russian roubles (RUB, approximately 330 euros). The District Court cited the assistant prosecutor’s decision of 3 July 2001 in support of its finding that the use of force against the applicant had been lawful. The District Court further noted that the applicant had sustained serious damage which threatened his life. It observed that while using special measures such as rubber truncheons and physical force, warders should have ensured that the applicant sustained minimal damage. The District Court concluded that the detention facility, as a legal person, did not have sufficient control over whether the staff members performed their work safely. The applicant had sustained physical and moral suffering and compensation should therefore be paid.
33. On 14 October 2002 the Ivanovo Regional Court confirmed the District Court’s findings. However, it increased the amount of compensation to RUB 30,000 (960 euros).
34. Detainees and the premises where they live may be searched (Article 82 §§ 5 and 6).
35. Physical force, special means or weapons may be used against detainees if they offer resistance to the officers, persistently disobey lawful demands of the officers, engage in riotous conduct, take part in mass disorders, take hostages, attack individuals or commit other publicly dangerous acts, escape from the penitentiary institution or attempt to harm themselves or others (Article 86 § 1). The procedure for application of these security measures is determined in Russian legislation (Article 86 § 2).
36. When using physical force, special means or weapons, the penitentiary officers must:
(1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees;
(2) ensure the least possible harm to detainees and provide medical assistance;
(3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28).
37. Rubber truncheons may be used to
(1) stop assaults on officers, detainees or civilians;
(2) repress mass disorder or group violations of public order by detainees, as well as to apprehend (задержание) offenders who persistently disobey or resist the officers (section 30).
38. Rubber truncheons may be used in the following cases:
- to repel an attack on a staff member of a detention facility or on other persons;
- to repress mass disorder or put an end to collective violations of the detention regime;
- to put an end to a refusal to comply with lawful orders of facility administration and warders;
- to release hostages and liberate buildings, rooms and vehicles taken over by a detainee;
- to prevent an escape;
- to prevent a detainee from hurting himself (section 45).
39. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage.
40. Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years’ imprisonment. Pursuant to Article 286 § 3 (a) and (в) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment.
41. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction (Article 113).
42. Article 77 of the RSFSR Code of Criminal Procedure provided that a conviction could not rest solely on the admission of the accused.
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-100693
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DEYANOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1956 and lives in Sofia.
6. On an unspecified date he married Ms Y.C. Their son, Savestin Todorov Deyanov, was born on 22 September 1988. In 1992 the applicant and Ms Y.C. divorced. The custody of Savestin was allocated to the applicant.
7. In the afternoon of 6 May 1997 Savestin went out to play with another boy, B. However, in the evening he did not return home. The applicant called the police and later visited a police station to report that his son had gone missing.
8. On 7 May 1997 several police officers visited Savestin's school and found B. The boy explained that in the afternoon of the previous day he and Savestin had played with a ball by a small lake in the neighbourhood and Savestin had fallen in the water. However, when the police visited the place, they found that there was very little water in the lake. After they questioned B. again, he explained that in fact he and Savestin had taken a bus and had gone to the city centre, in the area where a large market was located. There they had played with a ball alongside a small canal dividing the two carriageways of a busy main road. Savestin had dropped the ball into the water and, in trying to retrieve it, had fallen into the water too. B. had tried to help, but Savestin had been carried away by the water current. B. had returned home.
9. A passer-by questioned subsequently said that in the evening of 6 May 1997 he had seen a ball floating in the canal.
10. On 7 or 8 May 1997 the police searched the canal, which, at the place indicated by B., was 60-70 centimetres deep. The reservoir into which the canal emptied was searched by divers. All alluviums along the canal were also searched. No trace of Savestin's body was found.
11. Hospital emergencies were also checked but Savestin had not been admitted to any of them.
12. On 9 and 12 May 1997 Savestin was officially declared missing. On 15 May 1997 and the following days a photograph of him was shown on national television and published in other media.
13. In the following days the police gathered information on Savestin's parents and on B.'s family. They visited Savestin's mother, who was at the time living in Targovishte. On 15 May 1997 they questioned Ms O., a friend of the family, who alleged to have received an anonymous telephone call concerning Savestin. Later on, the police investigated at least five other anonymous calls, which did not reveal anything as to Savestin's whereabouts and were most likely hoaxes provoked by the wide publicity which the case had attracted.
14. On 23 July 1997 a friend of B.'s explained that the latter had told him that Savestin had not drowned but had in fact been taken away by two men in a yellow car. Apparently, B. had also mentioned this version earlier but it is unclear in what circumstances.
15. In 1998 or early 1999 B. was questioned in the presence of psychiatrists and psychologists from the Ministry of Internal Affairs' Institute of Psychiatry. The Court has not been provided with the experts' conclusions, which apparently stated that B. had lied when he had said that Savestin had fallen in the canal. However, on other occasions B. was examined in the presence of other experts who considered that he was telling the truth.
16. On 17 January and 21 December 2000 and on 6 December 2001 B. was questioned in relation to the criminal proceedings concerning Savestin's disappearance (see paragraphs 25-26 below). He repeated that Savestin had fallen in the canal and admitted to having lied when he had said that his friend had been taken away by two men in a yellow car.
17. On unspecified dates the police questioned B.'s mother and grandmother and the parents of other friends of Savestin. Apparently, B.'s mother and grandmother explained that everything the boy had shared with them indicated that Savestin had indeed fallen in the canal. Also, the police investigated but found untenable a theory that Savestin had been abducted by mistake, instead of B., whose stepfather had had unpaid debts.
18. In November 1997 the Bulgarian bureau of Interpol initiated an international search for the applicant's son and issued a description and photos of the boy. In 2000, at the applicant's request, the description was amended.
19. On an unspecified date in 1998 the police carried out an experiment aiming at establishing whether B.'s version that Savestin had fallen in the canal was tenable. Apparently, the experiment corroborated that version.
20. In 1999, by order of the Minister of Internal Affairs, the National Service for Combating Organised Crime also investigated the case. Like the police initially, it considered that Savestin had most likely fallen in the canal.
21. Through the intermediary of the Ministry of Internal Affairs' Research Institute of Forensic Science and Criminology, an age-progression portrait of Savestin was prepared by the United States Department of Justice in 2003. It was published on the website of Interpol. Through the intermediary of the Ministry of Foreign Affairs, it was also published in some foreign media, apparently free of charge. However, other media refused to publish the image without payment.
22. On several occasions in 2004 the applicant requested the Government to pay for the dissemination of the portrait by the foreign media. Although the Ministry of Justice and the State Agency for Child Protection considered that the finances could be provided as Savestin was “a child in risk”, in a letter of the Ministry of Foreign Affairs dated 18 January 2005 the applicant was informed that “it was not practice” for the Ministry to finance such campaigns. On an unspecified date a Government press officer also informed the applicant that it was not their practice to finance media campaigns and that, as concerns expenditure, the Government had to comply with their budget, which was set by Parliament.
23. In 2005 the police provided to the prosecuting authorities information concerning boys born between 1987 and 1989 who had left Bulgaria between 6 May and 31 December 1997 and had not returned. Apparently, the data contained no clue as to Savestin's whereabouts. On an unspecified date the police examined data concerning unidentified bodies found in Bulgaria and abroad, but concluded that none of them had been Savestin's. They investigated uncorroborated data that Savestin had been sighted in Iraq.
24. The Court has not been informed in more detail about the efforts of the police to establish Savestin's fate. The boy has never been found.
25. A criminal investigation against unknown perpetrators for abduction was opened on 8 June 1998 by the Sofia city public prosecutor's office. The prosecuting authorities questioned the applicant and some witnesses who had already been examined by the police.
26. In November 2001 the criminal proceedings were stayed. They were resumed in October 2004 for the questioning of a new witness and stayed again in December 2005, apparently because the police investigation had not yielded any particular results.
27. In relation to the disappearance of his son, the applicant initiated several sets of civil proceedings.
28. On 25 January 2002 the applicant brought an action before the Sofia City Court seeking damages from the prosecuting authorities, the police and the Ministry of Internal Affairs for failing to react in an adequate, timely and effective manner to his son's disappearance.
29. Between 2002 and 2006 the Sofia City Court held ten hearings, scheduled at intervals of three to nine months. It examined several witnesses and admitted written evidence. On 12 March 2003 it decided that the examination of the case was to continue behind closed doors, as it concerned classified information about operative methods of the police. However, this decision led to the almost complete blocking of the case because the applicant and the other parties' representatives experienced difficulties in obtaining the relevant authorisations allowing them access to classified information; most of the hearings scheduled after 12 March 2003 were adjourned for that reason.
30. On 21 September 2005 the applicant lodged a complaint about delays (see paragraph 44 below), arguing that the proceedings had been unnecessarily protracted. In a decision of 13 October 2005 the Sofia Court of Appeal, finding that the proceedings had indeed lasted too long, instructed the Sofia City Court to accelerate them.
31. On 24 March 2006, finding that it was not competent to examine the case, the Sofia City Court transferred it to the Sofia District Court. At the District Court the case was separated into two. It appears that at least some of the evidence gathered by the City Court was joined to the two new cases. They were registered under nos. 7150/06 and 11664/06.
32. In those proceedings the Sofia District Court examined under sections 45 and 49 of the Obligations and Contracts Act (see paragraph 43 below) a claim by the applicant against the Sofia Investigation Service and the Chief Public Prosecutor's Office. According to the applicant, the Sofia Investigation Service had failed to take timely action to investigate the disappearance of his son, had failed to identify any suspects and to gather the necessary evidence and had failed to cooperate effectively with the police. As to the Chief Public Prosecutor's Office, the applicant alleged that it had failed to open criminal proceedings immediately upon being informed of Savestin's disappearance and had then failed to supervise duly those proceedings and to inform the applicant of their course.
33. In a judgment of 28 June 2007 the Sofia District Court allowed the applicant's claim and awarded him the full amount of damages sought, which was 700 Bulgarian levs (BGN), the equivalent of approximately 360 euros (EUR). It found that the defendants had failed to cooperate duly with the police and to take timely action to investigate Savestin's disappearance and had not duly notified the applicant of the course of the criminal investigation. It considered that the defendants had not acted in accordance with their obligations under Article 3 of United Nations Convention on the Rights of the Child to have the best interests of the child as their primary consideration.
34. On appeals by the defendants, on 7 November 2008 the Sofia City Court upheld the District Court's judgment. In so far as the judgment concerned those appeals, it was final. Furthermore, the Sofia City Court found inadmissible a request by the applicant to have the value of his claims increased. The applicant appealed on points of law against this part of the judgment but on 23 February 2009 his appeal was dismissed by the Supreme Court of Cassation.
35. In those proceedings the applicant's claims were directed against the National Police Directorate, the Sofia Police Directorate and the Ministry of Internal Affairs. The Sofia District Court examined the claims under section 1 of the State and Municipalities Responsibility for Damage Act (see paragraph 42 below). The applicant alleged that the police had not been sufficiently prepared to work on cases such as Savestin's, had not reacted in a timely manner to the information that the boy had gone missing, and had failed to take necessary measures to find him, whereas the Minister of Internal Affairs had not adopted the secondary legislation necessary for the effective search of abducted children.
36. In a judgment of 17 August 2007 the Sofia District Court dismissed the claim. It found that the applicant had failed to establish that he had suffered damages as a direct result of the actions of the police and the Minister of Internal Affairs; he had suffered as a result of the disappearance of his son, for which the defendants had not been responsible.
37. On an appeal by the applicant, on 12 February 2009 the Sofia City Court upheld the Sofia District Court's judgment, finding, in addition, that the police had done “with very small exceptions, everything within their powers” to find Savestin.
38. In July 2009 the applicant lodged an appeal on points of law. On 5 November 2009 the Supreme Court of Cassation declared the appeal admissible. A hearing on the merits is scheduled for 21 October 2010.
39. In 2004 the applicant brought an action for damages against the Government of Bulgaria, the Ministries of Finance, Justice and Internal Affairs and the State Agency for Child Protection alleging that they had unlawfully failed to finance the publication of Savestin's age-progression portrait in the foreign media (see paragraphs 21-22 above).
40. In 2005 the Sofia District Court allowed the applicant's claim against the Government and dismissed his claims against the remaining defendants. Referring to the State's obligations under the Constitution of Bulgaria and the United Nations Convention on the Rights of the Child, it found that the Government was under an obligation to ensure that Savestin was being afforded the necessary protection and care. Therefore, the Government had had to consider the applicant's request to provide financing and to verify whether it had been possible to allow it. The Government had had the necessary financial resources and the procedural possibility to allot them. They had, moreover, been approached with numerous requests by the applicant. They had failed to react in a meaningful way, which had been unlawful.
41. On 17 August 2006 and 5 November 2007 the judgment of the Sofia District Court was upheld respectively by the Sofia City Court and the Supreme Court of Cassation. The courts awarded the applicant BGN 10,000, the equivalent of approximately EUR 5,100.
42. State liability for damages is provided for in the State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”). Section 1 of that Act provides that the State is liable for damage suffered by private persons as a result of unlawful acts or omissions by State bodies or civil servants, committed in the course of or in connection with the performance of their duties.
43. In certain cases, where the domestic courts consider that the provisions of the SMRDA are inapplicable, they examine claims against State bodies under the general law of tort, laid down in the Obligations and Contracts Act of 1950. Section 45 of that Act provides that everyone is to make good any damage which they have caused to another. By section 49, a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. One of the prerequisites of liability in tort under those provisions is the wrongfulness of the impugned conduct.
44. Complaints about delays were provided for in Article 217a of the Code of Civil Procedure of 1952, in force until 1 March 2008. The provision was introduced in July 1999. Complaints about delays were to be examined by the president of the higher court, who could order specific measures to be taken to speed up the proceedings.
45. Under Articles 255-257 of the Code of Civil Procedure of 2007, in force since 1 March 2008, parties to civil proceedings can lodge a request for fixing a timelimit in the event of delay. The request is to be examined by a judge from the respective higher court.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107156
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2011
DOCNAME: CASE OF NEJDET ŞAHİN AND PERİHAN ŞAHİN v. TURKEY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: András Sajó;Anatoly Kovler;Ann Power-Forde;Christos Rozakis;Corneliu Bîrsan;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;George Nicolaou;Guido Raimondi;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 9. The applicants were born in 1949 and 1950 respectively and live in Ankara.
10. Their son, an army pilot, died on 16 May 2001, when his plane crashed near the village of Malatya (Akçadağ / Güzyurdu) while transporting troops from Diyarbakır to Ankara. Thirty-three other servicemen died in the same accident, five of them also members of the plane’s crew.
11. On 10 May 2002 the applicants applied, through their lawyer, to the Turkish Pension Fund Authority to award them the pension payable under section 21 of Law no. 3713, the Anti-Terrorism Act (hereinafter “Law no. 3713”).
12. In a letter dated 23 May 2002 the Pension Fund Authority noted that the applicants had been awarded, inter alia, a monthly war disability pension under section 64 of Law no. 5434, as well as a lump sum equal to thirty times the highest salary of a public servant. It further noted that their son’s death had not been caused by an act of terrorism within the meaning of Law no. 3713 but by the fact that, for an unknown reason, his plane had crashed. It was therefore not possible to increase their monthly invalidity pension to the level of the monthly salary paid to an equivalent serving member of the military.
13. On 15 July 2002 the applicants appealed, through their lawyer, to the Ankara Administrative Court against that decision. They submitted, in particular, that their son had died while transporting troops engaged in the fight against terrorism from northern Iraq, so his death should be considered to have occurred in the context of the fight against the terrorism.
14. On 1 April 2003 the 4th Chamber of the Ankara Administrative Court rejected their appeal as being outside its jurisdiction, considering that it was rather a matter for the Supreme Military Administrative Court. Referring to a judgment of the Jurisdiction Disputes Court of 14 May 2001 (E.2000/77, K.2001/22), it held:
“... to determine whether the administrative act is “linked to military service” and decide which court has jurisdiction, the object of the act must be examined. If the act was done in keeping with military requirements, procedure and practice, it must be considered to be linked to military service ... Whether or not a non-military authority was at the origin of the act is of no consequence – the Supreme Military Administrative Court is the Court responsible for examining a case [brought by] a member of the armed forces. In the present case the issue is an application for a monthly pension made by the claimants under Law no. 3713 ... To determine whether the claim falls within the scope of that Law, regard must be had to ... the purpose of the military service and the specificity of the locations where it is effected, as well as military aptitude, to show that the impugned act was done in keeping with military needs, procedure and practice.
Where this is the case ... it is for the Supreme Military Administrative Court to examine and resolve the dispute.
This was, moreover, the line of reasoning of the Jurisdiction Disputes Court’s decision no. E: 2000/77, K: 2001/22, published in the Official Gazette ... of 18.06.2001.”
15. On 3 June 2003 the applicants brought their case before the Supreme Military Administrative Court. In their statement of claim they included a decision adopted by the 10th Chamber of the Ankara Administrative Court on 22 January 2003 (E.2002/1059, K.2003/27) in what they considered a similar case (see paragraph 26 below).
16. On 10 June 2004 the Supreme Military Administrative Court rejected their claim. First of all, it observed that the applicants had been awarded a monthly war disability pension as well as a lump sum equal to thirty times the highest salary of a public servant, calculated in accordance with additional section 78 to Law no. 5434 and readjusted in accordance with Law no. 4567. It then noted that their request to have their monthly pension increased to the level of that paid to an equivalent serving member of the military had been rejected by the competent authorities. It pointed out that entitlement under section 21 of Law no. 3713 was restricted to cases where an agent of the State had been directly wounded, disabled or killed as a result of acts of terrorism. It considered that the mere fact that the victim had been employed in work connected with the fight against terrorism did not suffice. As the deceased had not been killed by an act of terrorism, the impugned administrative act was not unlawful.
17. One of the judges expressed a dissenting opinion in which he criticised such a restrictive interpretation of Law no. 3713. Pointing out that it was not disputed that the applicants’ son had died in a plane crash while co-piloting a plane carrying troops returning from an anti-terrorism operation, he considered that the crux of the matter was whether the death fell within the scope of section 21 of Law no. 3713. In his opinion, in view of the purpose of the deceased’
18. On 6 July 2004 the applicants lodged an appeal against the judgment of the Supreme Military Administrative Court. In his pleadings their lawyer explained that in his submissions of 10 June 2004 and at the hearing before the Supreme Military Administrative Court the same day he had produced four decisions adopted by the ordinary administrative courts, namely the 6th, 10th and 11th Chambers of the Ankara Administrative Court, concerning applications similar to the applicants’, lodged by four families of servicemen who had died in the same accident as their son; in those decisions the Courts had found in favour of the claimants. He complained that the Supreme Military Administrative Court had made no reference to those cases, and argued that the solution adopted was contrary to the constitutional principles of equality before the law and consistency of the law.
19. In a judgment of 30 September 2004 the Supreme Military Administrative Court rejected the applicants’ appeal as being ill-founded and found the impugned judgment to be in conformity with the law and the requisite procedure. That judgment was served on the applicants’ lawyer. The postmark on the envelope was dated 11 October 2004.
20. Turkey’s judicial system breaks down into three categories: the ordinary courts, which include civil and criminal courts; the administrative courts and the military courts. These categories in turn break down into subdivisions according to the subject at issue. These three branches of courts are each headed by their own Supreme Court: the Court of Cassation for the ordinary law courts, the Supreme Administrative Court for the administrative courts and the Military Court of Cassation and the Supreme Military Administrative Court for military matters.
21. Under the provisions of Article 157 of the Constitution, the Supreme Military Administrative Court is the body which judicially examines at first and last instance disputes arising from administrative decisions and acts concerning either military personnel or military service, even where they emanate from non-military authorities. Where the dispute concerns compulsory military service, the interested party does not have to be a member of the military.
22. A special court called the Jurisdiction Disputes Court has the power to settle conflicts that may arise between the ordinary, administrative and military courts concerning their jurisdiction and decisions (Article 158 of the Constitution).
23. Section 21 of Law no. 3713 of 12 April 1991 (the Anti-Terrorism Act) reads as follows:
“The provisions of Law no. 2330 on pecuniary compensation and monthly pension rights apply to public employees who are wounded or disabled, or die or are killed as a result of terrorist acts, in the performance of their duties, inside and outside the country, or, if they were no longer in active service, because of their [former] duties. ...”
24. The relevant provisions of Law no. 2247 of 12 June 1979 (which entered into force on 22 June 1979) on the creation and operation of the Jurisdiction Disputes Court, read as follows:
“A conflict of jurisdiction is raised when the Principal State Counsel concerned asks the Jurisdiction Disputes Court to examine a question of jurisdiction following the rejection of an objection of lack of jurisdiction in a dispute before the ordinary, administrative or military courts ...”
“There is a positive conflict of jurisdiction when cases in which the parties, subject and cause of action are the same are lodged with two different types of court – ordinary, administrative or military – and each court adopts a decision whereby it considers that it has jurisdiction to hear the case.”
“There is conflict of judgments when the enforcement of a right is rendered impossible by a divergence between the final decisions adopted by at least two of the courts referred to in section 1, provided that those decisions concern the same subject and the same cause of action – but not matters of jurisdiction – and that at least one of the parties [to the case] is the same...”
“The Jurisdiction Disputes Court immediately gives notice of all the conclusions reached in its decisions to the various Principal State Counsel concerned, the court which applied to it to settle the conflict of jurisdiction, the court or courts awaiting its decision and the persons or bodies that requested settlement of the conflict. The courts concerned, as well as all the authorities, bodies and persons concerned, must abide by the decisions of the Jurisdiction Disputes Court and apply them without delay.”
“The decisions of the sections and the full court are final. Decisions of principle and decisions of the sections deemed pertinent by the President shall be published in the Official Gazette.”
“Conflicts between decisions of the sections of the Jurisdiction Disputes Court shall be settled by decisions of principle of the full court ... decisions of principle in matters of jurisdiction are binding on the Jurisdiction Disputes Court and all judicial bodies; decisions of principle on the substance delivered in cases of conflicting judgments are binding only on the Jurisdiction Disputes Court.”
25. Apart from the action brought by the applicants, seventeen actions under Law no. 3713 were brought before the domestic administrative courts by the families of victims of the plane crash of 16 May 2001 following the rejection of their claims by the Turkish Pension Fund.
In fourteen cases, four of which concerned close relatives of the plane’s crew members, the appeals were heard by the Ankara Administrative Court, which ruled in favour of the victims’ families. On 19 June 2002 (decision E.2002/87, K.2002/870), 22 January 2003 (decision E.2002/1059, K.2003/27), 31 March 2003 (decision E.2003/148, K.2003/522) and 26 June 2003 (decisions E.2002/100, K.2003/1073 and E.2002/101, K.2003/1053), 19 October 2004 (decisions E.2004/3051, K.2004/1535 and E.2004/3055, K.2004/1536), 6 and 14 October 2005 (decisions E.2005/1973, K.2005/1424 and E.2005/1743, K.2005/1011), 8 and 29 March 2006 (decisions E.2006/653, K.2006/594 and E.2006/678, K.2006/551), 27 September 2007 (E.2007/764, K.2007/1849) and 29 and 30 January 2008 (E.2008/82, K.2008/184 and E.2007/1491, K.2008/135), different chambers of the Ankara Administrative Court (the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 10th and 11th Chambers) adopted judgments in which they acknowledged that the circumstances of the plane crash fell within the scope of Law no. 3713.
26. In particular, on 22 January 2003 (decision E.2002/1059, K.2003/27), in response to an appeal to set aside the decision of the pension fund to refuse an application filed by the parents of the deceased pilot to receive the supplementary pension provided for in Law no. 3713, the 10th Chamber of the Ankara Administrative Court pronounced a judgment which included the following passages:
“... After examination of the file, [it appears] that ... the claimants’ son was the pilot of the aircraft ... whose job it was to transport special troops on a mission against the separatist terrorist organisation PKK, together with their weapons and equipment, to the operation zone and also to take troops leaving that zone back to their units. ... He died on 16 May 2001, when his plane crashed during that mission. After the accident the claimants were awarded a monthly war disability pension under section 64 of Law no. 5434 ... Considering that their son’s death fell within the scope of Law no. 3713, they applied for a monthly pension under that Law ... They brought the present action following the authorities’ refusal of that application ...
Examination ... of the above-mentioned legal provisions and the case file reveals that the claimants’ son was killed on 16 May 2001 when the aircraft in which he was transporting troops back from an anti-terrorist mission crashed. The mission in question was clearly part of the fight against terrorism ... accordingly, the impugned administrative act must be set aside ...”
27. Each time an appeal was lodged with it against the above-mentioned judgments of the Ankara Administrative Court, the Supreme Administrative Court upheld the approach of the first-instance court (decisions E.2002/4268, K.2005/333; E.2003/1775, K.2005/5476; E.2003/3110, K.2006/843; E.2003/3860, K.2004/4655; E.2003/3856, K.2004/4656; E.2005/2298, K.2007/8147; E.2005/1399, K.2007/6047; E.2006/1352, K.2009/7096; E.2006/1802, K.2009/7096; E.2007/2275, K.2009/8317; E.2006/9775, K.2009/7138; E.2008/715, K.2010/3868; E.2008/7839, K.2010/3870).
28. On 28 March 2003, referring to the Jurisdiction Disputes Court’s decision of 14 May 2001 (E.2000/77, K.2001/22 – see paragraph 31 below), the 5th Chamber of the Ankara Administrative Court held that it did not have jurisdiction to hear an appeal, lodged by the family of a sergeant who died in the same plane crash, to set aside the pension fund’s decision rejecting their claim for a monthly pension under Law no. 3713 (decision E.2002/754, K.2003/346). The case was brought before the Supreme Military Administrative Court, which, in a judgment of 13 May 2004, dismissed the appeal, finding that the deceased had not been a victim of terrorism (decision E.2003/14, K.2004/754). On 30 September 2004 it dismissed a subsequent appeal against that judgment (decision E.2004/1199, K.2004/1480).
29. On 2 October 2009 the deceased’s widow filed another application with the pension fund for the monthly pension provided for under Law no. 3713, in her own name and on behalf of her son. The application was rejected and an appeal was lodged with the 5th Chamber of the Ankara Administrative Court, which that court rejected on 11 March 2010, finding that it lacked jurisdiction (E.2009/1631, K.2001/343). In its reasoning it referred to a judgment of the Jurisdiction Disputes Court of 11 December 2006 (E.2006/246, K.2006/236 – see paragraph 32 below).
30. On 22 February 1999, in response to a request to settle a conflict between the solutions adopted respectively by the ordinary administrative courts and the Supreme Military Administrative Court, which had reached different conclusions in a matter concerning similar points of fact and law, the Jurisdiction Disputes Court adopted a decision (E.1998/75, K.1999/4) which included the following reasoning:
“The first paragraph of section 24 of Law no. 2247 on the creation and operation of a Jurisdiction Disputes Court, as amended by Law no. 2592, stipulates: “There is conflict of judgments when the enforcement of a right is rendered impossible by a divergence between the final decisions adopted by at least two of the courts referred to in section 1, provided that those decisions concern the same subject and the same cause of action – but not matters of jurisdiction – and that at least one of the parties [to the case] is the same.
By virtue of this provision, in order for there to be conflict of judgments all the following conditions must be met cumulatively: (a) the decisions at the origin of the conflict must have been adopted by at least two [different] courts from among the ordinary, military or administrative courts; (b) the subject matter, the cause of action and at least one of the parties must be the same; (c) the two decisions must be final; (d) the decisions must rule on the merits of the case; and (e) the enforcement of the right must have been made impossible by the divergence between the decisions.
Examination of the decisions alleged to be in conflict reveals that they are judgments pronounced by the ordinary administrative courts and the military administrative court, in which, objectively, the subject matter and the cause of action, while based on different material facts, are identical, and at least one of the parties (the respondent administrative authority) is the same; the judgments in question have become final after the exhaustion of the appeals process, and they both rule on the merits. That being so, it is established that the first four conditions required under section 24 in order for there to be conflict of judgments have been met.
As to whether the result in the instant case has been to render impossible the enforcement of a right ..., in situations where it is impossible for a person to secure the enforcement of a right because of conflicting judgments delivered by two different courts, section 24 leaves it to the Jurisdiction Disputes Court to settle the matter ...
... the administrative court’s judgment setting aside the earlier decision does not affect the judgment of the Supreme Military Administrative Court dismissing the application; the respondent administrative authority, which had to annul the measure in the light of the administrative court judgment in favour of H. and F.G., is under no obligation to execute that judgment in respect of N.T., who was not party to those proceedings. As the action brought by N.T. was dismissed, N.T. cannot be considered to have a right recognised by a judicial decision.
... the claimant cannot claim to have a right recognised by a judicial decision, so her application must be dismissed pursuant to section 24 of Law no. 2247, as the condition that it is “impossible to enforce the judgment”, required for there to be a conflict of judgments, has not been established.
31. On 14 May 2001 the Jurisdiction Disputes Court adopted a decision (no. E.2000/77, K.2001/22), the relevant passages of which read as follows:
“... Summary: The application to set aside the pension fund’s decision rejecting a claim for a disability pension ... filed by a person declared by a medical report to be unfit for military service, who considered that his health problem had been caused by his military service, is a matter for the Supreme Military Administrative Court to resolve.
...
The merits: ... Under Article 157 of the Constitution, the Supreme Military Administrative Court, although instituted by non-military authorities, is the court of first and final jurisdiction for the judicial review of disputes arising from administrative acts or conduct linked to military service and concerning military personnel. However, it has been established that for disputes arising out of military obligations, it is not necessary to determine whether the person concerned was a member of the armed forces. ... In order for the Supreme Military Administrative Court to be able to examine a case, the impugned administrative act must concern a “member of the armed forces” and be “linked to military service ...”
To determine whether the administrative act is “linked to military service” and decide which court has jurisdiction, the subject matter of the act must be examined. If the act was adopted in keeping with military traditions, principles and practice, it must be considered to be linked to military service ... More specifically, administrative acts linked to military service are those related to the capabilities ... of military personnel, their attitude and conduct, their military career, their rights and obligations as members of the military, the purpose of the military service and the specificity of the locations in which they serve. Whether or not a non-military authority was at the origin of the act is of no consequence – the Supreme Military Administrative Court is the court responsible for examining a case [brought by] a member of the armed forces who has been deprived of an advantage.
... where the administrative act concerns a member of the military and is linked to military service, it is for the Supreme Military Administrative Court to examine and settle the dispute.”
32. On 11 December 2006 the Jurisdiction Disputes Court adopted a decision (E.2006/246, K.2006/236) in which it determined which court had jurisdiction to hear disputes concerning pecuniary compensation under Law no. 3713. The relevant passages read as follows:
“The facts: The claimants’ son ... died on 16 May 2001 in the accident at MalatyaAkçadağ-Güzyurdu, when the troop transport plane flying him from Diyarbakır to Ankara after a mission in the state of emergency region crashed ...
In the proceedings lodged by the claimants following the pension fund’s refusal to award them a pension [although] they alleged that the death had occurred in the course of duties that fell within the scope of Laws nos. 2330 and 3713, the 3rd Chamber of the Ankara Administrative Court dismissed the application in a decision of 27/06/2002 (E. 2001/1616, K. 2002/1095), considering that what had happened had not been the result of terrorist acts. On appeal, the 11th Division of the Supreme Administrative Court, in a judgment of 30/01/2003 (E: 2002/3971, K: 2003/495), set aside the lower court’s decision, considering that the court should have acknowledged the claimant’s entitlement to the rights governed by Laws nos. 2330 and 3713, his son’s death having been attributable to terrorist acts. The case was referred back to the lower court, which persisted in its decision, following which the Administrative Divisions of the Supreme Administrative Court, sitting in plenary, upheld the decision of the 11th Division of the Supreme Administrative Court in a judgment of 01/04/2004 (E: 2003/774, K: 2004/409) and again set aside the lower court’s decision ...
Although the claimants applied to ... the respondent administrative authority for pecuniary compensation after the Supreme Administrative Court, sitting in plenary, confirmed that their son’s death fell within the scope of Laws nos. 2330 and 3713, they received no reply.
... on 25 July 2005 the interested parties appealed to the ordinary administrative courts to set aside the administrative authority’s implicit rejection ... The respondent administrative authority filed an objection for lack of jurisdiction, alleging that the Supreme Military Administrative Court had jurisdiction ... In a decision of 2 March 2006 the Ankara Administrative Court dismissed that objection and declared that it did have jurisdiction. ... The respondent administrative authority filed an application to have the matter of jurisdiction settled ...
Principal State Counsel at the Supreme Military Administrative Court ... considers that the dispute ... lies within the jurisdiction of the Supreme Military Administrative Court, and that the decision of the 4th Chamber of the Ankara Administrative Court concerning jurisdiction should be set aside ... Principal State Counsel at the Supreme Administrative Court ... argues that the dispute ... is a matter for the ordinary administrative courts ...
... [in so far as], when it examined whether the death of the claimants’ son, a serviceman, occurred because he was a victim of terrorist acts within the meaning of Law no. 3713, or in the course of duties covered by Law no. 2330 or as a result of such duties, or, as in this case ... when it reviewed the [rejection] measure, the pecuniary compensation board took into account the serviceman’s military aptitudes ..., his conduct ..., his military career, his rights and duties as a serviceman, the purpose of the military service, the specificities of the locations of the military missions, and military regulations and traditions; and [in so far as,] in the present case, the condition that the administrative act must be linked to military service is fulfilled, the Supreme Military Administrative Court has jurisdiction in the matter at the origin of the dispute ...”
33. In some European countries there is only one Supreme Court. This approach is found in “common law” countries like Cyprus, Ireland and the United Kingdom, but also in Albania, Azerbaijan, Croatia, Denmark, Estonia, Georgia, Hungary, Iceland, Latvia, Moldova, Norway, Romania, San Marino, Serbia, Slovakia and Switzerland. Other countries, like Germany, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Finland, France, Italy, Lithuania, Luxembourg, “the Former Yugoslav Republic of Macedonia”, Monaco, the Netherlands, Poland, Portugal, the Czech Republic, Sweden and Ukraine, have two or more supreme courts.
34. In many of these countries the law does not provide for any means of settling possible conflicts of case-law between the supreme courts, but only for means of resolving possible conflicts of jurisdiction. The authority responsible for settling such conflicts may be a court or a division of a court specially vested with this power (France, Luxembourg, Bulgaria, Lithuania, the Czech Republic). In Italy the law confers this power on the Court of Cassation; in Austria and Andorra, on the Constitutional Court, and in Monaco, on the Supreme Court. In Poland there is no judicial authority responsible for settling conflicts of jurisdiction. Lastly, only a small number of countries have courts tasked with resolving conflicts of case-law between supreme courts (Germany, Ukraine and Greece). In Bulgaria the legislation provides for an a posteriori means of resolving conflicts.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101981
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KRSTEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: The applicants, Mr Dragi Krstev (“the first applicant”), Mr Vidoje Ivanovski (“the second applicant”), Mrs Jadranka Ivanovska (“the third applicant”), Mrs Marijana Petruševska (“the fourth applicant”), Mr Arso Stojmanovski (“the fifth applicant”), Mr Trajče Mirčev (“the sixth applicant”), Mr Trajče Stojkov (“the seventh applicant”), Mr Dimče Pop Iliev (“the eighth applicant”), Mr Mile Trajkov (“the ninth applicant”), Mr Aca Janevski (“the tenth applicant”) and Mr Saša Stanojkovik (“the eleventh applicant”) are all Macedonian nationals (for personal details see the Annex). The first and ninth applicants are represented before the Court by Ms D. Veljanovska; the second, third and fourth applicants by Mr R. Aleksovski; the fifth, tenth and eleventh applicants by Mr S. Mladenovski and the sixth, seventh and eighth applicants by Mr V. Trajkovski, lawyers practising in Skopje, Kriva Palanka and Kumanovo respectively. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were all members of the Government security forces either as police officers or reservists, with the exception of the second, third and fourth applicants, who are the next of kin of a deceased police officer.
Following the armed conflict that took place in the former Yugoslav Republic of Macedonia in 2001, the applicants brought civil proceedings against the State seeking compensation for injuries (or death, in case of the second, third and fourth applicants) sustained in the conflict. All the applicants were successful at first and second instance, receiving final decisions in which the courts ordered the State to pay damages under sections 166 and 189 of the Obligations Act (see “Relevant domestic law” below). Only the eleventh applicant had his claim dismissed at both levels.
These decisions were reviewed by the Supreme Court by way of an appeal on points of law (ревизија) in respect of the tenth and eleventh applicants or by way of a request by the public prosecutor for the protection of legality (барање за заштита на законитоста), in respect of the remaining applicants.
As to the outcome of the proceedings before the Supreme Court:
a) the Supreme Court accepted the public prosecutor’s request for the protection of legality, overturned the lower courts’ decisions and dismissed the compensation claims submitted by the following applicants:
i) the first applicant (Гзз.бр.15/2005 of 18 January 2006). The introductory part of this decision stated that it was taken after the court had heard oral evidence from the public prosecutor;
ii) the second, third and fourth applicants (Гзз.бр. 53/2005 and Рев.бр. 138/2005 of 26 April 2006). According to the introductory part of this decision, it was taken in the absence of the public prosecutor;
iii) the fifth applicant (Гзз.бр. 45/2005 of 29 March 2006).The decision was taken in the presence of the public prosecutor; and
iv) the ninth applicant (Гзз.бр.89/2005 of 21 June 2006).
b) In respect of the sixth, seventh and eighth applicants, the Supreme Court partly upheld the public prosecutor’s request for the protection of legality and significantly reduced the award (Гзз.бр. 203/2005 of 7 June 2006). The introductory part of this decision stated that it was taken after the public prosecutor had presented his arguments.
c) In respect of the tenth applicant, the court allowed the appeal on points of law by the State, overturned the lower courts’ decisions and dismissed his claim (Рев.бр. 61/2006 of 14 March 2007) and
d) dismissed the eleventh applicant’s appeal on points of law submitted against the first- and second-instance courts’ decisions of 30 June 2006 and 7 February 2007, respectively (Рев.бр. 532/2007 of 29 May 2008). In these latter decisions, the lower courts had ruled that no responsibility could be attributed to the State for the injuries sustained by the eleventh applicant.
As established by the domestic courts, the first, fifth, ninth, tenth and eleventh applicants were injured, under different circumstances, in a fight while on duty as members of the Government security forces. The second, third and fourth applicants’ next of kin was killed in the fight.
The Supreme Court found that under section 16 of the Obligations Act (see “Relevant domestic law” below) the Act on special rights of the members of security forces and their families (“the 2002 Act”, see “Relevant domestic law” below), as the lex specialis, applied to the relations between the State and the applicants. The 2002 Act therefore suspended the application of the Obligations Act. However, since section 7 of the 2002 Act did not provide for a right to compensation, the general rules of compensation set forth in the Obligations Act should have applied to the applicants’ cases. The court ruled that the State could not, under those rules, be held responsible for the injuries which the applicants had sustained in a fight, unless it could be proved that this was not the case. Furthermore, no objective responsibility could be attributed to the State for the injuries which the applicants had sustained while on duty. Consequently, section 166 of the Obligations Act could not apply to the applicants, as members of the security forces.
As regards the sixth, seventh and eighth applicants, the courts established that they had been injured while being transported in a military helicopter that had crashed after it had hit flagpoles while landing. The Supreme Court found the State responsible, under section 189 of the Obligations Act, for the injuries that these applicants sustained in “the accident”.
Under Article 101 of the Constitution, the Supreme Court is the highest court that provides for the uniform application of laws by courts.
Section 16 of the Obligations Act of 2001 states that it applies to relations regulated by other laws in respect of issues not covered by those laws.
Section 141 of the Obligations Act defines the different grounds for claiming civil compensation.
Section 166 provides for the State’s responsibility for any damage caused, inter alia, by a bodily injury sustained as a result of acts of violence or terror.
Under section 189, in the event, inter alia, of physical pain, mental anguish, disability, disfigurement or death of next of kin or fear, the court may award monetary compensation.
The 2002 Act defines the persons concerned, the special rights they are entitled to and procedures under which those rights may be attained. Section 7 of the 2002 Act provides the following special rights: the right to be employed; the right to rent an apartment; special rights regarding education; the right to be exempted from paying medical services; the right to a one-off pecuniary allowance; and the right to obtain a family pension.
The applicants submitted copies of final decisions in which the domestic courts, at two levels of jurisdiction, had granted identical claims brought by colleagues of the applicants for injuries (or death) sustained in the armed conflict in 2001. According to the applicants, these decisions were not challenged by the public prosecutor and accordingly were not reviewed by the Supreme Court. They pre-dated the applicants’ cases (Гж.бр.3548/02; Гж.бр.6122/02; Гж.бр.1849/03; Гж.бр.4515/03; Гж.бр.284/04; Гж.бр.2939/04; Гж.бр.6066/04 and Гж.бр.4572/05).
They further submitted two separate decisions by which the Supreme Court had dismissed the request of the public prosecutor for the protection of legality and ruled in favour of the applicants’ colleagues. In these cases, the Supreme Court held that an award should be made under the Obligations Act and not under the 2002 Act, given that the latter did not provide for a right to compensation. The first decision concerned colleagues of the sixth, seventh and eighth applicants who had been injured in the same helicopter accident (Гзз.бр.118/2005 of 2 November 2005). The second decision concerned a compensation claim by Army reservists who, while being transported in civilian vehicles, had been attacked in 2001. Relying on the facts established by the lower courts, namely, that the convoy had not been properly guarded, the Supreme Court upheld the lower courts’ decisions awarding them compensation (Гзз.бр.106/05 and Рев.бр.282/2005 of 7 September 2005). In this latter decision, the Supreme Court excluded section 166 of the Obligations Act from the list of provisions under which it established the State’s responsibility.