CASE OF KILYEN v. ROMANIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Non-pecuniary damage - award
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos
5. The applicant, Mr Laszlo Kilyen, was born in 1972 and lives in Murgeşti. 6. On 10 May 2003 police officers T.M. and L.C.V. were carrying out an investigation into the theft of two cars in the village of Murgeşti. The applicant, who lived alone in a house with a yard, was away from home on a trip abroad. On the same day at around 4 p.m., the two officers entered the applicant’s yard by breaking the main gate which had a closing system made by the applicant from metal wires. The officers took note of the chassis series of two cars found in the applicant’s shed. They also looked in several boxes which contained spare parts for cars. 7. After a certain period of time, the applicant’s neighbour, K.M., entered the yard and questioned the two officers about the reason for their presence there. T.M. and L.C.V. disclosed their identities and informed K.M. that they were carrying out an investigation into the theft of two cars. Before leaving the yard, the officers informed K.M. that the two cars found in the applicant’s shed were not the ones reported stolen and left him a summons ordering the applicant to report to the police station as soon as possible. 8. On 15 May 2003, upon his return home, the applicant lodged a complaint with the Prosecutor’s Office of the Mureş County Court against the two police officers for the crime of trespassing under Article 192 of the Criminal Code. He alleged that the officers had entered his yard in his absence and without his consent. He also sought civil damages from the two alleged perpetrators. 9. In his statement given before the prosecutor on 1 July 2003, the applicant mentioned that he was a car mechanic and that he often travelled to Hungary to buy spare parts. He alleged that he felt harassed by local police officers working in the Car Theft Department who, on several occasions, had entered his yard in his absence in order to check whether he was hiding stolen cars. The applicant also alleged that, although the police never found stolen cars in his possession, the frequent police checks gave him a reputation in the village of being a car thief. 10. The two officers declared before the prosecutor that they had found K.M. in the applicant’s yard and had entered believing that he was the owner and assuming that they had his permission. 11. On 8 July 2003 the Prosecutor’s Office of the Târgu Mureş Court of Appeal decided to discontinue the proceedings against T.M. and L.C.V. The prosecutor investigating the case noted that the two officers had entered the applicant’s yard in his absence and without his permission. However, when K.M. had arrived at the scene, they had immediately disclosed their identities. Moreover, they had been on duty and had only noted the chassis series of the applicant’s cars. The prosecutor therefore concluded that the officers had had no intention of committing a crime. On 29 October 2003 a complaint by the applicant against this decision was rejected by the superior Prosecutor from the Prosecutor’s Office of the Târgu Mureş Court of Appeal. 12. On 27 January 2004 the applicant appealed against the prosecutors’ decisions before the Târgu Mureş Court of Appeal. He alleged that the two officers had illegally entered his home in his absence, without his consent and without a search warrant. He also complained that his rights as guaranteed by Article 8 of the Convention had been breached by the unlawful search carried out by the two police officers. 13. The Court of Appeal rejected the applicant’s appeal on 27 February 2004 holding that T.M. and L.C.V. had acted in accordance with their duties as provided for by articles 41, 42 and 43 of Law no. 360/2002 on the Status of Police Officers. The court underlined that the officers had disclosed their identities and the purpose of their presence on the premises as soon as the applicant’s neighbour enquired. It was further held that they had been on duty and carrying out an investigation, and therefore it could not be held that they had intended to commit a crime. 14. The appeal by the applicant on points of law (recurs) against this decision was dismissed on 28 May 2004 by a final judgment of the High Court of Cassation and Justice which held that the officers had acted in accordance with the provisions of the Law no. 218/2002 on the Organisation of the Romanian Police. The court held that the officers had been in the presence of a witness and that they had disclosed their identities, and therefore had no intention of illegally entering the applicant’s home.