Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Georges Ravarani

The applicant in application no. 78135/13, Mr István Gellérthegyi (hereinafter “the first applicant”), is a Hungarian national who was born in 1950 and lives in Budapest. He was represented before the Court by Mr A. Cech, a lawyer practising in Budapest.

The applicants in application no. 429/14, Mr Zoltán Balla and Ms Hajnalka Balláné Gál (hereinafter “the second and third applicant”), are Hungarian nationals who were born in 1956 and live in Budapest.

The applicants were employed as civil servants, notably as an associate professor of administrative law at Eötvös Loránd University and the National University of Public Service (as regards the first applicant), and as associate professors at the National University of Public Service (as regards the second and third applicants).

On a date not specified in the application, the applicants started receiving old-age pensions. It was disbursed to them alongside their salaries until 30 June 2013.

On 1 January 2013 an amendment to Act no. LXXXI of 1997 on Social-Security Pensions (hereinafter “the 1997 Pensions Act”) entered into force, pursuant to which the disbursement of those old-age pensions whose beneficiaries were simultaneously employed in certain categories within the civil service would be suspended from 1 July 2013 onwards for the duration of their employment.

A number of categories of persons in State employment were, however, exempted from the suspension of pension payments, such as members of Parliament and mayors, as well as persons employed in the public sector under the rules of the Labour Code (see Fábián v. Hungary [GC], no. 78117/13, § 23, 5 September 2017). Judges and prosecutors appointed to a stand-by post pursuant to Act no. XX of 2013 (see Baka v. Hungary [GC], no. 20261/12, § 54, ECHR 2016) were also exempted from the prohibition on double compensation (see paragraph 14 below). Although the suspension of pension payments also applied to health-care employees, given the importance of that sector their suspended pension payment could be compensated upon the decision of their employer by means of a salary supplement (see paragraph 15 below).

As of 1 July 2013, the disbursement of the applicants’ pension was suspended.

Partly following an application by the Ombudsman, the Constitutional Court embarked on the review of the impugned legislation’s constitutionality (see Fábián, cited above, § 16).

On 16 October 2017 the Constitutional Court found, in essence, that the rules concerning the ban on simultaneous receipt of a State pension and a salary struck a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights; they therefore did not violate Article XIII of the Fundamental Law enshrining the protection of property.

It further held that old-age pensioners employed, respectively, in the public and in the private sector were not in an analogous or relevantly similar situation. As regards the categories of public servants exempt from the ban on dual payment of State pensions and salaries (see paragraph 7 above), the Constitutional Court was of the view that the exception at issue was based on an objective and reasonable justification, notably on their specific legal status. Accordingly, the impugned legislation did not violate Article XV of the Fundamental Law enshrining the prohibition of discrimination (see paragraph 21 below).

Several elements of the relevant domestic law and practice as well as comparative-law material were set out in paragraphs 19 to 43 of the Fábián judgment (cited above).

Between 1 January 2013 (that is to say, its taking effect) and 1 April 2013, section 83/C of the 1997 Pensions Act read as follows (italics added):

“(1) The disbursement of an old-age pension shall be suspended ... if the pensioner concerned is employed as a civil servant, a government official, a senior State official, a public servant, a judge, an officer of the court, an officer of the prosecutor’s office, a professional member of an armed service, or a professional member or contractor of the Hungarian Defence Forces.”

As of 2 April 2013, section 83/C of the 1997 Pensions Act was amended by Act no. XX of 2013 as follows (see Fábián, cited above, § 24; italics added):

“(1) The disbursement of an old-age pension shall be suspended ... if the pensioner concerned is employed as a civil servant, a government official, a senior State official, a public official, an official in charge of public-service administration, a judge, an officer of the court, an officer of the prosecutor’s office, a professional member of an armed service, or a professional member or contractor of the Hungarian Defence Forces.”

Section 102/J of the 1997 Pensions Act (not quoted in Fábián, cited above) provides as follows:

“... [S]ections 83/C and 102/I are not applicable, as from the entry into force of Act no. XX of 2013 ... until 31 December 2022, to judges and prosecutors appointed to a stand-by post ...”.

Act LXXXIV of 2003 on Certain Questions Related to the Exercise of Health-care Activity, as amended on 29 April 2013, provides as follows:

“(1) An employer may award a salary supplement ... to health-care employees who are employed as civil servants or who are in a Government or State-service relationship; and the disbursement of whose [old-age pension] is suspended pursuant to section 83/C of the [1997 Pensions Act] ... .

(2) The ... net amount of the salary supplement awarded by the employer cannot exceed the [suspended amount of the old-age pension].”

The legal status of members of parliament is governed by the Fundamental Law and by Act no. XXXVI of 2012 on Parliament (hereinafter “the Parliament Act”).

In so far as relevant, the Fundamental Law provides as follows:

“(1) Members of parliament shall have equal rights and obligations, they shall perform their activities in the public interest, and they shall not be given instructions in that respect.”

The Parliament Act provides, in particular:

“(1) The term of office of members of parliament ... shall be considered, for social-security purposes, employment with a working time of forty hours per week and a service period giving rise to a pension entitlement. For the calculation of a service period as a Government official, State official, public servant, civil servant, judge or prosecutor, the duration of the above-mentioned employment shall be counted as service time spent in the relevant legal relationship.”

“(1) Members of parliament are entitled, from their swearing-in until the end of their term of office, to a monthly honorarium, the amount of which equals the salary ... of a deputy State secretary, as it is regulated by the Public Servants Act.”

The legal status of mayors, deputy mayors, presidents and vice-presidents of county assemblies is regulated by Chapter VII/A of Act no. CXCIX of 2011 on Public Servants (hereinafter “the Public Servants Act”), which contains the following passages:

“(1) The employment relationship of full-time mayors is a special public service relationship established between the body of local representatives and the mayor, [in principle] ... on the strength of [the latter’s] election.”

“(1) The term of office of full-time mayors shall be calculated as the service period spent in public service, Government service or armed service and shall give rise to a pension entitlement.”

“(1) If this Act does not stipulate otherwise, any reference to mayors shall be construed as including deputy mayors, presidents and vice-presidents of county assemblies, and the mayor and deputy mayors of Budapest.”

Mayors and local representatives (including members of county assemblies) are elected in accordance with the rules laid down in Act no. L of 2010 on the Election of Local Government Representatives and Mayors. Presidents of county assemblies are elected by the assemblies themselves from among their members, in accordance with Article 33 § 2 of the Fundamental Law. Deputy mayors and vice-presidents of county assemblies are also elected by the respective body of local representatives from among their members, in accordance with section 74 of Act no. CLXXXIX of 2011 on the Local Governments of Hungary.

The Constitutional Court Act (Act no. CLI of 2011) provides as follows:

“Members of the Constitutional Court shall be independent, subordinated only to the Fundamental Law and Acts.”

“(2) Under their term of office and for the purposes of entitlement to social-security benefits, members of the Constitutional Court shall be considered insured employees in public service, and their salary shall be considered income from an activity other than self-employment, comprising part of the contribution base. The term of office of members of the Constitutional Court shall be considered to be the time spent in public-service employment.”

“(1) Members of the Constitutional Court shall not be held accountable in court or by other authorities during or after their term of office for the activities carried out or statements of fact or opinion made while exercising the competences of the Constitutional Court as defined in the Fundamental Law and in this Act, and no proceedings shall be initiated against the Constitutional Court for such statements of fact or opinion in court or before other authorities. This exemption shall not cover abuse of information classified top secret or secret, libel, defamation and the civil law liability of Members of the Constitutional Court.”

“(2) This Act shall be considered a Cardinal Act pursuant to Article 24 (9) of the Fundamental Law.”

In connection with persons employed in the public service under the rules of the Labour Code, the Public Servants Act provides as follows:

“(1) For tasks directly related to the exercise of public powers and powers of guidance, inspection and supervision of a public-service institution, as well as for administrative tasks, persons may be employed only as Government officials or public servants.

(2) No contract for services, works contract or [ordinary labour-law] employment contract may be concluded for the completion of a task which shall exclusively be exercised by a person appointed as a Government official or public servant.

(4) The proportion of persons ... employed by a public-service institution [under the Labour Code] in a given year ... shall not exceed 10% of the average yearly staff number. ...

(9) The rules contained in subsections (1) to (4) above do not apply to the Office of the Parliament and to the Historical Archives of Hungarian State Security.

(10) As an exception to the rule contained in subsection (1) above, procedural tasks at diplomatic or consular representations ... may also be carried out by individuals other than Government officials or public servants.”

The Constitutional Court’s decision of 16 October 2017 (decision no. 29/2017. (X. 31.) AB, see paragraph 10 above) contains the following passages concerning the allegedly unjustified difference in treatment between pensioners employed in different categories within the public sector:

“77. It is apparent from the [impugned] rules of [the 1997 Pensions Act] that they do not apply to every person in State service but only to persons falling under the scope of specific legislative acts governing the status of certain categories of public servants.

For example, they do not apply to certain elected officials or to those who are employed [under the rules of the Labour Code], even if the employer is a budgetary institution. Although the rules could be extended to cover every position and every public servant, the exceptions are reasonably justified, on the one hand, by the fact that they are related to passive electoral rights and, on the other hand, by the specific legal status of certain appointed officials (section 102/J [of the 1997 Pensions Act]).

[Taking into account] the efforts to balance the pension system, the difference in treatment in question has a perceivable, objective and reasonable justification. Therefore it does not violate Article XV § 1 of the Fundamental Law.”


Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant in the first case, Ms Györgyi Gabriella Bárdi (the first applicant), is a Hungarian national who was born in 1951 and lives in Budapest. She was represented before the Court by Mr D. Lázár, a lawyer practising in Budapest.

The applicant in the second case, Mr László Vidovics (the second applicant), is a Hungarian national who was born in 1978 and lives in Budapest. He was represented before the Court also by Mr D. Lázár, acting in that case on behalf PITEE, a consumer protection association.

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

In 2006 both applicants took out mortgages from Hungarian commercial/mortgage banks. Their loan agreements were denominated in Swiss francs. According to the terms of the agreements, the applicants were to bear the risk of any exchange rate fluctuations between the Hungarian forint and the Swiss franc.

The first applicant submitted that her loan agreement had not contained all the information required by law, to be exact, that provisions on a particular cost element, namely that of “currency spreads” (the practice of applying the “sell rate” when granting the loan and the “buy rate” for repayment) were not indicated. Furthermore, no proper reasons had been given in the agreement to justify any unilateral modifications of the costs collected by the banks. She contended that her loan agreement had been invalid because, owing to the above-mentioned defects, it conflicted with mandatory provisions of Hungarian law that had been in force at the time of signing.

In 2011 the first applicant initiated civil proceedings against the banks, urging the court to declare her loan agreements invalid for the reasons stated above. According to the information provided by the applicant, the proceedings are suspended.

Simultaneously, several debtors of foreign-currency-based consumer loan agreements lodged similar actions in Hungary. Due to the large number of those court cases, the Kúria decided to deliver a uniformity decision in respect of the issues concerning such agreements. In its Civil Law Uniformity Decision no. 2/2014 of 16 June 2014, it adopted a position on the unfairness of certain clauses of such consumer loan contracts. It held that the fact that, in such situations, the debtor bore the risk of currency fluctuations (in exchange for the favourable interest rates obtained) did not, in itself, make the agreements invalid. The unfairness of such contractual terms could be assessed and established only if the information provided by the bank on the nature of that risk was unintelligible for the average consumer. It also held that currency spreads, as provided for in the contracts, were invalid. Moreover, clauses enabling the unilateral amendment of the contracts were also invalid unless those clauses complied with certain principles laid down in the earlier no. 2/2012 (XII.10) Uniformity Decision of the Kúria.

In order to ensure that the principles laid down in the Kúria’s Uniformity Decision could be enforced directly, not only in pending litigations but also in connection with potential, non-litigated claims concerning consumer loan contracts, Parliament then adopted three pieces of legislation. Those statutes were enacted also to ensure that all foreign-currency-based loan agreements were converted into Hungarian forints and that settlements between the consumer and the financial institution – in respect of unlawfully collected sums from currency spreads and costs that arose from unilateral amendments – were implemented in accordance with the guidance of the Kúria and with pending court actions being meanwhile put on hold.

In particular, Act no. XXXVIII of 2014 on the resolution of questions relating to the uniformity decision of the Kúria regarding consumer loan agreements drawn up by financial institutions (“Act 1” – see paragraph 16 below), which entered into force on 19 June 2014, provided that currency spreads constituted invalid contractual provisions. Moreover, that there was a presumption – to be potentially refuted by the banks in separate proceedings – that clauses enabling the unilateral amendment of the contract were also invalid. This legislation prescribed that pending proceedings in respect of consumer loan agreements were to be suspended until the measures provided for in the other two relevant pieces of legislation had been taken.

Act no. XL of 2014 on the rules of settlement laid down in Act 1 (“Act 2” – see paragraph 18 below), which entered into force on 1 November 2014, provided, among other things, that if a claimant wished to pursue his or her claim against the financial institution in court, he or she needed to complete the claim by itemising and quantifying the consequences of the alleged invalidity of the contract, otherwise the case would be discontinued except for those claims that related to issues not covered by Act 1.

Act no. LXXVII of 2014 on change of the currency of consumer loan agreements denominated in foreign currency (“Act 3” – see paragraph 19 below), which entered into force on 6 December 2014, provided that all foreign-currency-based loan agreements were to be converted into Hungarian-forint-based loans, using a defined exchange rate.

The first applicant lodged complaints with the Constitutional Court, claiming that certain provisions of Act 1 and Act 2 had violated her right to a fair trial. She argued that Parliament had intervened in private-law matters by adopting the impugned legislation and that this contravened the democratic principle of separation of powers. On 23 February 2015 the Constitutional Court rejected the complaint, without an examination on the merits, holding that it lacked relevant reasoning and as such, was not eligible for a decision.

The first applicant’s pending action against the banks was suspended under section 16 of Act 1; and on 19 November 2015 she was invited by the court to supplement her statement of claim in accordance with section 37 of Act 2 (see paragraph 9 above). She lodged another constitutional complaint, arguing that the court’s decision and section 37 of Act 2 on which it was based were unconstitutional. On 7 March 2016 the Constitutional Court rejected the complaint, without an examination on the merits, holding that it concerned an interim decision rather than a final judgment and, as such, was not eligible for constitutional review.

The second applicant lodged a complaint with the Constitutional Court on 29 July 2015, claiming that certain provisions of Act 3 – those in respect of the conversion of foreign currency into Hungarian forints using a defined exchange rate – were unconstitutional. He argued that Parliament had intervened in private-law matters.

On 1 December 2015, after due examination of the merits of several hundreds of similar complaints, the Constitutional Court dismissed the second applicant’s complaint. It stated that the aims of Act 3 were to eliminate the continuous risk arising from exchange-rate fluctuations and to ensure that the loan agreements could remain in force between the parties. Those aims were in the interests of both debtors, such as the applicants, and creditors with stakes in the financial institutions. It held that when Parliament – in the light of the critically changed situation which had occurred after the execution of the relevant loan agreements (namely the unexpected and dramatic devaluation of the Hungarian forint vis-à-vis the Swiss franc) – had modified the contractual terms ordering the conversion of the agreements, it had acted in the common interest of society, taking into due consideration the interest of consumers as well. The interference was thus proportionate and necessary in a democratic society. Furthermore, the Constitutional Court held that there was no connection between the challenged provisions of Act 3 and the right to a fair trial, because the challenged provisions (namely the conversion of loans from foreigncurrency-based loans into Hungarian-forint loans at a defined exchange rate) had no impact on the pending actions regarding the alleged invalidity of the loan agreements.

The relevant provisions of Act 1 read as follows:

“(1) With the exception of contract terms which have been individually negotiated, any term in a consumer loan agreement where the buying rate stipulated by the financial institution for the granting of the loan ... differs from the selling rate or from the rate ... for the purposes of repayment shall be deemed null and void.

(2) The annulled term referred to in subsection (1) shall be replaced ... by a provision for the application of the official exchange rate of the National Bank of Hungary ...

(5) The financial institution shall settle accounts with the consumer as provided for in another statute.”

“(1) As regards consumer loan agreements allowing for the possibility to alter the terms of the contract unilaterally, any term – with the exception of contract terms which have been individually negotiated – that creates a right to increase the interest rate and other costs and fees unilaterally is deemed to be unfair, given that it does not comply with:

a) the principle of clear and intelligible wording, where the term in question is neither plain nor understandable for the consumer;

b) the principle of detailed specification, where the conditions for amending the terms of the contract unilaterally are not specified in detail, that is to say the reasons are not listed, or the reasons supplied are merely indicative;

c) the principle of objectivity, where the conditions for amending the terms of the contract unilaterally lack objectivity, that is to say the party with whom the consumer is entering into a contract is able to cause such conditions to occur, and has the power to incite such conditions and to influence the extent of any change that may serve as grounds for substantiating the amendment;

d) the principle of effectiveness and proportionality, where the circumstances specified in the list of reasons do not effectively or proportionally influence the interest, costs and/or fees;

e) the principle of transparency, where the consumer was not in a position to foresee what additional burdens would be passed on to him, nor the extent and reasons for such changes;

f) the principle of withdrawability, where the consumer does not have the right to withdraw from the contract if it is amended; or

g) the principle of symmetry, where the contract does not allow any change in the conditions that may occur to the consumer’s benefit to take effect for the consumer’s benefit.

(2) The contract term referred to in subsection (1) hereof shall be deemed null and void if the financial institution has failed to lodge a civil action ... or if the court dismisses the action or terminates the proceedings ...”

“(1) ... The court shall ex officio suspend, until the measure provided for in other specific legislation has been taken, at the latest until 31 December 2014, proceedings in respect of lawsuits having as their object, in part or in whole, the contract terms referred to in [this Act], or proceedings instituted by a financial institution against a consumer for the enforcement of a claim based, inter alia, on such contract term. The court may decide on the suspension of proceedings without a formal hearing. As regards the suspension of proceedings, the provisions of the Code of Civil Proceedings shall apply mutatis mutandis, with the proviso that the court ruling ordering the suspension of proceedings shall not be amenable to appeal.

(2) ... The court shall also ex officio suspend, until the measure provided for in other specific legislation has been taken, at the latest until 31 December 2015, proceedings in respect of lawsuits having as their object, in part or in whole, the contract terms referred to in [this Act], or proceedings instituted by a financial institution against a consumer for the enforcement of a claim based, inter alia, on such contract term, if the ... contract term ... figures in a ... consumer loan contract ...”

The explanatory memorandum attached to Act 1 contains the following passage:

“In order to ensure that those principles are enforced directly, the present Act codifies the principles laid down in the Kúria’s Uniformity Decision. The Act makes the Kúria’s interpretation applicable to everyone. It does not create any new substantive laws or new principles in respect of consumer loan and leasing agreements, but purely codifies the interpretation of the Kúria. This is to ensure that a high number of consumers avoid lengthy and costly litigation that would, in any event, overburden the judicial system.”

The relevant provisions of Act 2 read as follows:

“(1) In respects of contracts to which the present legislation applies, a party may apply to the court – irrespective of the reason for the alleged invalidity – seeking annulment of the contract or of certain terms of the contract (partial annulment) only if the application also includes details of the claims in respect of the consequences of annulment, such as treating the contracts as if they were valid until the date of the court’s judgment. In the absence thereof or if a request for supplementing the statement of claim is unsuccessful, the claim shall not be decided on the merits. If the party requests the court to establish the consequences of full or partial annulment, he shall also indicate the type of legal consequence to be applied. In respect of the consequences, the party shall apply to the court with a defined request, indicating the requested sums and the settlement between the parties.

(2) Under subsection (1) above ... if the conditions set out in this Act are met, in proceedings instituted for the establishment of the full or partial annulment of a contract that are still pending, the statement of claim shall be rejected without examination on the merits or the proceedings shall be terminated. The court shall not dismiss the statement of claim without examination on the merits or terminate the proceedings if the party has further claims pending, apart from the one seeking full or partial annulment of the contract. In this case, the proceedings shall be continued only in respect of this further claim.”

The relevant provisions of Act 3 read as follows:

“(1) Consumer loan agreements shall be amended in accordance with this Act.”

“The financial institution that is the creditor of the foreign-currency-based consumer loan agreement shall convert ... the full debt arising out of the foreign-currency-based loan agreement – including the interest, fees and costs accrued in foreign currency – into Hungarian forints using the exchange rate that is more favourable to the debtor between

a) the average exchange rate applied by the National Bank of Hungary between 16 June 2014 and 7 November 2014, or

b) the exchange rate applied by the National Bank of Hungary on 7 November 2014.”


Remainder inadmissible;Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

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

The applicant was born in 1977 in Uznach and lives in RapperswilJona, in the Canton of St Gallen.

After originally training to be a hairdresser the applicant took up fulltime work as a shop assistant. In June 2002 she was forced to stop work owing to back trouble.

On 24 October 2003 the applicant applied to the Disability Insurance Office of the Canton of St Gallen (“the Office”) for a disability benefit on account of her lower back and spinal pain.

On 6 February 2004 she gave birth to twins. Her back pain had worsened further during the pregnancy.

On 15 March 2005 the Office carried out a household assessment (Abklärung im Haushalt) at the applicant’s home, during which the applicant stated

(i) that she suffered from constant back pain which often extended down to her left foot; that she had particular difficulty standing in the same place for any length of time and could not remain seated for more than ten minutes; that she could walk for half an hour, but not on a daily basis; and that the pain became worse when she was carrying the children;

(ii) that she would have to work half-time for financial reasons since her husband’s net salary was just 3,700 Swiss francs (CHF) (approximately 3,602 euros (EUR)).

The report on the assessment concluded that the applicant’s capacity to perform household tasks was reduced by 44.6%.

In its report dated 2 May 2005 the Office found that the applicant should be classified

(i) as a person in full-time paid employment (Vollerwerbstätige) up to the end of 2003;

(ii) as a housewife (Hausfrau) between January and May 2004;

(iii) as a person theoretically capable of working 50% (zu 50 % hypothetisch Erwerbstätige) as of June 2004.

On 16 June 2005 Dr Ch.A.S. informed the Office that the applicant was unable to work more than half-time in a suitable occupation and that any increase in her working hours appeared to be ruled out.

In a decision of 26 May 2006 the Office found that the applicant should be granted a benefit for the period from 1 June 2003 to 31 August 2004, but did not qualify for any benefit from 1 September 2004 onwards.

The Office arrived at this result by the following means.

With regard to the period from 20 June 2002 until the end of May 2004, it assessed the applicant’s degree of disability at 50% on the basis of a calculation of her income.

As to the subsequent period, the Office considered that the socalled combined method should be applied, taking the view that even if she had not had a disability the applicant would have reduced her working hours following the birth of her children. It based that finding, in particular, on the applicant’s assertion that she felt able to work only half-time and wished to devote the remainder of her time to her household tasks and her children. Furthermore, on the basis of the household assessment referred to above, the Office estimated the applicant’s capacity to perform household tasks at 56% (that is to say, her degree of disability at 44%). When the formula set out below was applied, the degree of disability obtained on the basis of these various factors was only 22%, meaning that the applicant did not reach the minimum 40% degree of disability needed to trigger entitlement to a benefit:

50 % (paid employment): no loss of earnings 0.5 x 0 % = 0 %

50 % (household tasks and childcare): 0.5 x 44 % = 22 %

Total = 22 %

The applicant lodged a complaint with the Office, which was dismissed on 14 July 2006. Following a fresh calculation the Office recognised the applicant as having a 27% disability, still below the minimum required in order to qualify for a benefit.

This figure was obtained by applying the combined method, using the following parameters:

50 % (paid employment): 0.5 x 10 % = 5 %

Total = 27 %

In completing the first line of the formula, the Office took as a basis a hypothetical income (for full-time work) of CHF 48,585 (approximately EUR 47,308), calculated on the basis of the statistical data for the socioprofessional category to which the applicant, as an auxiliary worker (Hilfsarbeiterin), belonged. Working at a rate of 50%, the applicant would therefore have had a salary of CHF 24,293 if she had been able to continue working without any difficulty (Valideneinkommen). The Office estimated that, given her disability, the salary which the applicant would actually be able to earn in a suitable occupation would be CHF 21,863 (Invalideneinkommen). It therefore assessed the applicant’s degree of disability in respect of the “paid employment” component at 10%.

On 14 September 2006 the applicant appealed against that decision.

Relying on Article 14 of the Convention, read in conjunction with Article 8, the applicant argued that

(i) the method applied discriminated against the less well-off, as those persons who could afford not to do paid work were classified simply as housewives and could therefore be recognised as having a higher degree of disability and thus qualify more easily for a benefit;

(ii) the way in which the degree of disability was calculated did not take sufficient account of the interplay (Wechselwirkungen) between the “household” and “paid employment” components;

(iii) in reality, even if she only worked half-time, her degree of disability for the purposes of performing household tasks would increase well beyond 44% as a result.

In support of her appeal the applicant submitted a medical report issued by Dr Ch.A.S. on 28 September 2006, in which the latter stated in substance that, in view of her state of health, the applicant could not engage in paid work on a half-time basis in the same way as someone without a disability, and that if she had to take up paid employment, her capacity to take care of the household and of her children would drop to around 10%.

In a judgment of 30 November 2007 the Insurance Court of the Canton of St Gallen allowed the applicant’s appeal in part.

In a departure from the case-law of the Federal Court ..., it considered that the usual application of the combined method should be disregarded in favour of an “improved” version. In the court’s view, the basis for calculation should be the level of activity which the applicant might reasonably have resumed after the birth of her twins if she had not had health problems.

The Insurance Court found that the “household” component of the combined method, as that method was applied in the Federal Court’s caselaw, did not take sufficient account of the person’s disability.

According to the court, the Office had not taken into consideration the fact that the applicant could only take care of the household on a half-time basis, and had incorrectly calculated her incapacity for work on the basis of a twelve-hour working day.

Instead of taking as a basis the household assessment – which, in the Insurance Court’s view, should be applicable only to individuals who were engaged full-time in caring for the household – the Office should have examined the applicant’s actual capacity to perform household tasks, which had been established by a doctor.

The court also criticised the Office for not examining whether, if she had been in good health, the applicant would have been able to engage in paid work after the birth of her children. In particular, it noted that the report drawn up following the household assessment gave scant information as to the work entailed for the applicant in caring for her children (Betreuungsaufwand) and whether or not any possibilities existed for entrusting part of their care to other persons. As these factors had not been taken into consideration by the Office, the applicant’s degree of disability had been established on the basis of an incomplete set of facts. The court also considered it unlikely that the applicant would have worked only halftime if she had been in good health, given her husband’s modest salary and what she could reasonably expect to earn as a hairdresser or auxiliary worker. The household assessment therefore appeared to be deficient in that respect also.

Consequently, the Insurance Court remitted the case to the Office for further investigation.

The Office lodged an appeal against the Insurance Court judgment.

In a judgment of 28 July 2008 (9C_49/2008) the Federal Court allowed the Office’s appeal, finding that the applicant was not eligible for a benefit.

In its reasoning the Federal Court began by describing the context in which it viewed the case, stating that

(i) the aim of disability insurance was to provide cover for insured persons against the risk of becoming unable, for medical reasons, to carry on a paid occupation or perform household tasks which they had actually been able to carry out before becoming disabled and would still be able to perform if the event triggering the disability had not occurred;

(ii) the aim was not to provide compensation in respect of activities which the insured persons would never have carried out even if they had remained in good health;

(iii) this approach was designed to prevent situations in which, for instance, individuals who were well-off and had never previously worked could be recognised as having a disability if they developed health problems, even though they would probably never have worked had they remained in good health.

Accordingly, the Federal Court considered that the combined method was not discriminatory. It found as follows:

“3.4 ... It is true that the combined method, as applied by the [Federal] Court in its settled case-law, may result in a loss of benefit where the insured person is more than likely – generally on account of the birth of a child – to cease paid employment, at least on a full-time basis. However, it is not the disability that [then] causes the loss of income; many people in good health also suffer a loss of income when they reduce their hours or stop working. The criticism of the combined method is directed at the fact that individuals (mostly women) suffer a drop in earnings when they reduce their working hours after having children. Nevertheless, this sociological reality is not the result of factors linked to the person’s health and should not therefore be covered by the disability insurance scheme. It does not give rise to any discrimination or other breach of the European Convention on Human Rights.”

Nevertheless, the Federal Court conceded that the interplay between the “household” and “paid employment” aspects was not taken sufficiently into account in the combined method. With regard to the applicant, however, it found

(i) that the aggravation of her health problems as a result of her paid work should not be regarded as reducing her capacity to perform household tasks by more than 15%;

(ii) that, accordingly, even taking the interplay in question into account, the applicant’s degree of disability did not reach the 40% minimum required in order to qualify for a benefit:

50 % (household tasks): 0.5 x (44 + 15 %) = 29.5 %

Total = 34.5 %

The argument that her husband was unemployed, which was raised by the applicant for the first time before the Federal Court, was rejected on the grounds that it had not been relied upon in the court below and was not substantiated.

However, the Federal Court granted the applicant legal aid in view of her lack of means.


André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Síofra O’Leary;Yonko Grozev

The applicant, Mr R.S., is a German national who was born in 1979 and lives in Berlin. He was represented before the Court by Mr M. Manzel, a lawyer practising in Berlin.

The applicant was a soldier in the German armed forces from 1 March 2001 until 28 February 2013. On the first day of his service, he was formally instructed that, pursuant to the pertinent internal regulation of the armed forces, the consumption of drugs was prohibited both on duty and off duty and was subject to disciplinary sanctions (see paragraph 25 below). From July 2002 until March 2009, the applicant consumed cannabis in his spare time on several occasions.

After another soldier had informed the applicant’s disciplinary superior (Disziplinarvorgesetzter) about this, the latter confronted the applicant with the accusation on 20 March 2009. The applicant denied having consumed drugs and agreed to have a rapid drug test carried out that same day. As the test turned out to be positive, the applicant was questioned a second time. The disciplinary superior informed the applicant of his right to remain silent by virtue of Section 32 of the Disciplinary Code of the German Armed Forces (see paragraph 26 below), but did not tell him about the possibility of contacting a lawyer, as this right was not laid down in the said provision. The disciplinary superior also told the applicant that, if he chose not to remain silent, he was obliged to make true statements under the Disciplinary Code. The applicant then confessed to having consumed cannabis.

On 26 March 2009 the disciplinary superior informed the Public Prosecutor, who launched preliminary criminal proceedings against the applicant. On 30 June 2009 these proceedings were discontinued because the applicant’s guilt was considered to be of a minor nature and because prosecution was not in the public interest.

On 26 March 2009 the applicant’s disciplinary superior informed the Prosecutor of the armed forces (Wehrdisziplinaranwalt) that he had referred the matter to the Public Prosecutor. On 21 April 2009, in an internal document, the Prosecutor of the armed forces ordered a preliminary investigation.

On 22 April 2009 the applicant, of his own motion, went to see the deputy of the disciplinary superior. He again admitted to having consumed cannabis.

Following the applicant’s second confession, his disciplinary superior advised him to see the Vertrauensperson (“person of confidence”, see paragraph 27 below) so as to give him the opportunity to convince the latter to make a statement that was favourable to him. The disciplinary superior informed the applicant of his right to object to the Vertrauensperson being part of the proceedings. As the applicant did not object, the disciplinary superior also asked the Vertrauensperson to talk to the applicant. Shortly after, the applicant went to see the Vertrauensperson and told him about the background of his drug consumption.

On 28 April 2009, after the Prosecutor of the armed forces had asked the disciplinary superior to do so, the applicant was informed for the first time of his right to contact a lawyer. He was also asked whether he agreed to the Vertrauensperson being given access to the file. The applicant gave his consent without asking a lawyer for advice.

On 11 May 2009 the applicant was formally questioned for the first time. He remained silent. The same day, the Vertrauensperson was questioned and gave evidence about the applicant’s statements during their conversation, as the applicant had not objected to the Vertrauensperson being heard (see paragraph 27 below).

On 27 May 2009 disciplinary court proceedings against the applicant were opened. This decision was served on the applicant on 8 June 2009.

On 7 October 2009 the Prosecutor of the armed forces charged the applicant with the disciplinary offence of having breached his duties with intent by regularly consuming cannabis from 2002 to 2009.

On 29 July 2010 the Northern Military Court found the applicant guilty of a disciplinary offence pursuant to Section 23 § 1 of the Act on the Legal Status of Soldiers (see paragraph 25 below). It ordered that the applicant be banned from promotion for the next thirty months and that his salary be cut by a twentieth (i.e. five per cent) for a period of ten months. It considered the pecuniary fine to be necessary for educational reasons, as the applicant had no realistic prospect of promotion (see paragraph 25 below).

In the proceedings before the Military Court, the applicant remained silent. The court, therefore, based its findings on the result of the drug test and, mainly, on statements made by the applicant’s disciplinary superior. Emphasising the difference between criminal proceedings and disciplinary proceedings, it considered that admitting these pieces of evidence did not violate the applicant’s right to a fair trial. It pointed out that, when the applicant had first confessed his drug consumption to his disciplinary superior on 20 March 2009, after the latter had informed him about his right to remain silent, the proceedings were at the stage of a disciplinary investigation by a soldier’s disciplinary superior; the Prosecutor of the armed forces had not yet opened a preliminary investigation. It considered that a soldier only had to be informed of his right to contact a lawyer once the latter proceedings were opened. Hence, the evidence obtained from the applicant’s first confession of 20 March 2009 could be admitted (see paragraph 4 above). However, the applicant’s second confession of 22 April 2009 (see paragraph 7 above) could not be admitted as evidence because the prosecutor of the armed forces had ordered the initiation of a preliminary investigation prior to that date, which was why the applicant had to be informed of his right to contact a lawyer.

On 28 June 2012, the Federal Administrative Court rejected the applicant’s appeal against the decision of the Northern Military Court. It found that neither the applicant’s first confession of 20 March 2009 nor his second confession of 22 April 2009, nor the statements by his disciplinary superior, respectively the superior’s deputy – to whom he had confessed on those occasions – could be admitted as evidence, because the applicant had not been informed of his right to contact a lawyer in advance. The court reasoned that such instruction, which was not required for minor disciplinary measures imposed by the disciplinary superior himself, was always required for evidence to be admitted in disciplinary court proceedings so as to ensure the fairness of the latter.

However, the court considered that the finding that the applicant had consumed cannabis in his spare time, in breach of his duties as a soldier, could be based on three pieces of evidence. First, the statement of a witness who had known about the applicant’s drug consumption prior to the commencement of any proceedings. Second, the drug test to which the applicant had agreed after the initial questioning by his disciplinary superior on 20 March 2009. The court noted, however, that the examining physician had indicated that the positive result could also have been caused by passive smoking of cannabis and was not in itself sufficient to prove the applicant’s cannabis consumption. Third, the statement of the Vertrauensperson about the conversation he had had with the applicant.

The court found that he did not have a right to refuse to give testimony. The Vertrauensperson did not belong to the persons listed in either Section 53 or Section 53a of the Code of Criminal Procedure (see paragraph 28 below) who could refuse testimony on professional grounds. It was constant case-law of the domestic courts that this provision did not extend to employee representatives or staff council members, and there was no reason to treat the Vertrauensperson more favourably than those persons. A right to refuse testimony did not follow from Section 54 of the Code of Criminal Procedure (see paragraph 28 below) either, as the pertinent internal regulations of the armed forces authorised the Vertrauensperson to testify before Military Courts.

The Federal Administrative Court further found that hearing the Vertrauensperson as a witness did not violate Article 136a of the Code of Criminal Procedure (see paragraph 28 below). The fact that the applicant’s disciplinary superior had advised him to contact the Vertrauensperson did not amount to “deception” within the meaning of Article 136a. When giving this advice, the disciplinary superior had not been aware of the fact that the Vertrauensperson might be heard as a witness in court proceedings against the applicant and had no intention of deceiving the applicant as to the lack of confidentiality of his statements to the Vertrauensperson. No pressure had been exerted on the applicant to confess his drug consumption to the Vertrauensperson. Referring to Section 27 of the Participation of Soldiers Act (see paragraph 27 below), the court took into account that the role of the Vertrauensperson in disciplinary proceedings was a neutral one and not comparable to a defence lawyer acting on behalf of the accused soldier. The intention behind advising the applicant to talk to the Vertrauensperson was, thus, to give him the opportunity to convince the Vertrauensperson to make a statement that was favourable to him.

Moreover, Section 8 of the Participation of Soldiers Act did not prevent hearing the Vertrauensperson as a witness. Noting that the provision obliged him to observe professional secrecy vis-à-vis third parties and that the German legislator, as a rule, distinguished between the obligation to observe secrecy and the right to refuse testimony, the Federal Administrative Court observed that courts were not a third party within the meaning of that provision, which, in addition, did not contain a right to refuse testimony. The term “Vertrauensperson” could not lead to a different result. This formulation reflected the fact that he was elected by the soldiers, hence he had the confidence of the majority of voters, and was entrusted with the task of representing their interests. This did not imply that soldiers accused of wrongdoing could rely, without restriction, on the Vertrauensperson to remain silent in proceedings of which he was made part. Rather, Section 27 § 2 of the Participation of Soldiers Act showed that the Vertrauensperson had an independent role in disciplinary court proceedings and his task was to provide the perspective of a fellow soldier, so as to allow for an informed exercise of discretion. The interests of the accused soldier were sufficiently protected by his right to object to the participation of the Vertrauensperson in the disciplinary court proceedings prior to their opening. Sections 8 and 27 § 2 of the Participation of Soldiers Act did not give the accused soldier the right to object, at a later stage, to the Vertrauensperson being heard with retroactive effect.

Furthermore, the Federal Administrative Court found that admitting the statement of the Vertrauensperson as evidence did not violate constitutional law. The applicant’s right to protection of personality rights and his right to a fair trial had not been violated because, although advised to do so by his disciplinary superior, he had freely chosen to inform the Vertrauensperson about his drug consumption. He had also been aware that he was not legally obliged to talk to the Vertrauensperson. Moreover, neither his disciplinary superior nor the Vertrauensperson had told the applicant that the Vertrauensperson would treat the information as confidential. On the contrary, the applicant had repeatedly been asked whether he objected to the Vertrauensperson being part of the disciplinary proceedings and had decided not to object. He could thus not rely on the content of his statements made to the Vertrauensperson remaining confidential.

The court noted that, prior to making his statement to the Vertrauensperson, the applicant had already confessed his drug consumption to his disciplinary superior and the superior’s deputy without having been instructed about his right to consult a lawyer. It acknowledged that the applicant may thus have decided to talk to the Vertrauensperson because he was under the impression that he could no longer undo his earlier selfincriminatory statements. The Vertrauensperson did not instruct him that none of his earlier confessions could be used as evidence against him (so-called “qualified instruction”). However, the conversation the applicant had had with the Vertrauensperson could not be compared to a situation of questioning an accused, for its purpose was not to further the investigation of the matter. As the Vertrauensperson was, therefore, not obliged to instruct the applicant that he could be heard as a witness in the court proceedings, he was even less obliged to provide a qualified instruction to the applicant.

Finally, the Federal Administrative Court found that admitting the statement of the Vertrauensperson as evidence did not violate the applicant’s right to a fair trial guaranteed by Article 6 of the Convention, noting that it could be left open whether the disciplinary proceedings at issue fell under the criminal or under the civil limb of the provision. Noting that Article 6 of the Convention did not lay down any rules on the admissibility of evidence as such, which was therefore primarily a matter for regulation under national law, the question which had to be answered was whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. Referring to, inter alia, the judgment in the case of Bykov v. Russia [GC] (no. 4378/02, § 92, 10 March 2009), it pointed out that the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures, and the use to which any material so obtained was put had to be assessed when examining whether a procedure had extinguished the very essence of the privilege against selfincrimination. The applicant had talked to the Vertrauensperson voluntarily, his confession had not been elicited through subterfuge and there were no elements of oppression or coercion. The court also noted that the applicant could raise his arguments as to why the statement of the Vertrauensperson should not be admitted as evidence before domestic courts and that he could question him in person at the appeal hearing. Emphasising that the statement of the Vertrauensperson was not the only piece of evidence used and that all three pieces of evidence used were consistent with each other, it concluded that the proceedings, taken as a whole, were not unfair.

On 30 July 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court.

On 15 October 2014 the Federal Constitutional Court declined to consider the applicant’s complaint, without giving reasons. The decision was served on the applicant on 23 October 2014.

Section 23 § 1 of the Act on the Legal Status of Soldiers (Gesetz über die Rechtsstellung der Soldaten) provided that a culpable breach of a soldier’s duties constituted a disciplinary offence. Pursuant to the internal regulation of the German Armed Forces (Zentrale Dienstvorschrift) 10/5, no. 404, the consumption of drugs was prohibited both on duty and off duty and was subject to disciplinary sanctions. According to the constant caselaw of the domestic courts, the consumption of drugs would normally be sanctioned by a promotion ban or, in severe cases, by a demotion (see Federal Administrative Court, 2 WD 44/09, judgment of 12 October 2010). Pursuant to Section 58 § 4 of the Disciplinary Code of the German Armed Forces (Wehrdisziplinarordnung), a salary cut may be imposed in addition to a promotion ban, if it appeared that the promotion ban did not have an impact on the soldier’s career in the armed forces.

Section 32 of the Disciplinary Code of the German Armed Forces provided that, where facts become known that justified the suspicion of a soldier’s breach of duty, the disciplinary superior of that soldier had to establish the facts by conducting the necessary investigations. The soldier was to be informed about the investigation as soon as possible without putting the purpose of the investigation at risk, and had to be informed at the beginning of the first questioning of which breaches of duty he was accused. At the same time, he had to be advised that he was free to remain silent. If he chose to speak, he had to give a truthful account in relation to official matters. If the instruction required was omitted or not properly given, the statement given by the soldier could not be used to his detriment. In cases warranting the opening of disciplinary court proceedings, the disciplinary superior had to refer the matter to the Prosecutor of the armed forces (Section 41). Pursuant to Section 91 § 1 of the same Code, the provisions of the Code of Criminal Procedure were to be applied to disciplinary court proceedings in addition to the provisions of the Disciplinary Code, unless the nature of the proceedings was opposed to this.

The status of the Vertrauensperson, including the mode of his designation, his competencies and powers, and his role within the hierarchy, were laid down in the Participation of Soldiers Act (Soldatenbeteiligungsgesetz). At the material time, that Act, which has since been amended, provided that the Vertrauensperson was elected by groups of soldiers for a period of two years. He was tasked with contributing to the good cooperation between superiors and subordinates and the consolidation of comradely trust. He closely cooperated with the disciplinary superior, both in the interests of the soldiers and those of the armed forces. The Vertrauensperson had to be informed and heard with regard to measures falling within the scope of his mandate and, in certain scenarios, had a right to make suggestions to the disciplinary superior. He had to be heard with regard to day-to-day matters of service and should be heard on a variety of matters concerning staff. Where no agreement could be reached, it was possible to refer certain matters to a more senior level within the hierarchy. The Vertrauensperson was also concerned with staff welfare and offered counselling sessions to fellow soldiers as needed. At the material time, Section 8 § 1, which has since been changed, provided that the Vertrauensperson had to observe professional secrecy vis-à-vis third parties in relation to facts and matters he learned about in the exercise of his functions. Section 27 § 2 provided, at the time, that the Vertrauensperson had to be heard about the soldier concerned and the facts at issue where the opening of court proceedings against a soldier for a disciplinary offence was intended, unless the soldier objected to such hearing. That hearing served the purpose to ensure that the soldier’s interests were taken into account prior to a decision being taken on the opening of court proceedings against him (see Federal Administrative Court, 2 WDB 1/98, decision of 31 August 1998). Section 27 § 4 stated that a transcript of that hearing had to be recorded.

The pertinent provisions of the Code of Criminal Procedure read, in so far as relevant, as follows:

Section 53 [Right to Refuse Testimony on Professional Grounds]

“(1) The following persons may also refuse to testify:

clergymen, concerning information that was entrusted to them or became known to them in their capacity as spiritual advisers;

defence counsel of the accused, concerning information that was entrusted to them or became known to them in this capacity;

attorneys, patent attorneys, notaries, certified public accountants, sworn auditors, tax consultants and tax representatives, doctors, dentists, psychological psychotherapists, psychotherapists specialising in the treatment of children and juveniles, pharmacists and midwives, concerning information that was entrusted to them or became known to them in this capacity. ...

3b. drugs dependency counsellors in a counselling agency recognised or set up by an authority, a body, an institution or a foundation under public law, concerning the information that was entrusted to them or became known to them in this capacity; ...

Section 53a [Right of Professional Assistants to Refuse Testimony]

(1) Persons assisting, and persons involved in the professional activities of those listed in Section 53 subsection (1), numbers 1 to 4, as part of their training, shall be considered equivalent to such persons. ...

Section 54 [Authorisation for Judges and Officials to Testify]

(1) The special provisions of the law concerning public officials shall apply to the examination of judges, officials, and other persons in the public service as witnesses concerning circumstances covered by their official obligation of secrecy, as well as to permission to testify. ...

Section 136a [Prohibited Methods of Examination]

(1) The accused’s freedom to make up his mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis. ...

(3) The prohibition under subsections (1) and (2) shall apply irrespective of the accused’s consent. Statements which were obtained in breach of this prohibition shall not be used, even if the accused consents to their use.”


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Inhuman punishment;Inhuman treatment;Prohibition of torture);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicants are HIV-positive, with a minimum degree of disability of 67%. They are, or were, detained in Aghios Pavlos Hospital (psychiatric section) at Korydallos Prison.

Andreas Martzaklis: imprisoned on 7 May 2011 and detained pursuant to a judgment delivered by the Athens Criminal Court, a decision given by the Indictments Division of the Khalkida Criminal Court in 2010 ordering the execution of a sentence passed by the Athens Criminal Court of Appeal which had been stayed, and a judgment delivered by the Athens Court of Appeal sentencing him to four years’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 8 May 2013 but rearrested the same day and placed in preventive detention.

Christos Sarris: provisionally detained from 5 December 2011 to 14 December 2012, and detained by judgment of 14 December 2012 sentencing him to 6 years’ imprisonment and then by judgment of 19 March 2014 sentencing him to 6 years and 4 months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 9 May 2014 pursuant to section 19 of Act No. 4242/2014.

Christos Efstathiou: imprisoned on 14 February 2011. Detained pursuant to a decision given by the Indictments Division of the Khalkida Criminal Court on 22 December 2008, ordering the execution of the remainder of a sentence with suspensive effect, and pursuant to a judgment delivered by Athens Criminal Court, which merged the sentences into a total of 25 months. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 26 June 2014 pursuant to Article 105 of the Criminal Code.

Efthymios Karatzoglou: imprisoned on 18 July 2011. Detained pursuant to a judgment delivered by the Piraeus Criminal Court of Appel on 12 April 2013 sentencing him to two years and eight months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 15 May 2013 pursuant to section 1 of Act No. 4043/2012.

Achilleas Papadiotis: imprisoned on 17 February 2011. Detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 10 June 2013 sentencing him to 10 years and 4 months’ imprisonment (starting date for serving the sentence: 8 December 2012). Detained as a convicted prisoner at the time of the application to the Court. Transferred to Patras Prison on 6 October 2014.

Dimitrios Nikolopoulos: imprisoned on 20 August 2012 and detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 9 February 2012 sentencing him to 10 years’ imprisonment, and a judgment delivered by the Athens Criminal Court on 1 December 2010 sentencing him to three months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Placed in Aghios Pavlos Hospital.

Spyridon Petrenitis: detained since 18 April 2012 pursuant to a judgment delivered by the Larissa Court of Appeal on 1 April 2013 sentencing him to two years’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 23 May 2013 under section 1 of Act No. 4043/2012.

Chrysafis Chatzikos: imprisoned on 13 July 2012 and detained ever since under the following decisions: 17 March 2010 judgment of the Athens Criminal Court sentencing him to ten months imprisonment; 23 February 2012 judgment of the Athens Criminal Court sentencing him to seven months’ imprisonment; 24 February 2012 judgment of the Athens Criminal Court sentencing him to ten months’ imprisonment; 8 June 2012 decision of the Indictments Division of the Chios Criminal Court ordering the execution of the remainder of a sentence with suspensive effect which had been passed by the Athens Criminal Court on 31 August 2011; and 5 April 2013 judgment of the Athens Criminal Court of Appeal sentencing him to 18 years’ imprisonment (in provisional detention from 16 August 2012 to 5 April 2013).

Christos Dorizas: imprisoned on 21 September 2012 and detained pursuant to a judgment delivered by the Piraeus Criminal Court of Appeal on 11 November 2011, sentencing him to ten years’ imprisonment, followed by a judgment delivered by the same court on 14 December 2012 sentencing him to fifteen months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court and constantly since then.

Panagiotis Kormalis: imprisoned on 25 July 2012 and detained pursuant to a judgment delivered by the Crete Criminal Court of Appeal on 10 June 2013 sentencing him to five years and three months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 17 March 2014 under section 19 of Act No. 4242/2014. His release warrant mentioned that he had contracted AIDS.

Aimilianos Chamitoglou: imprisoned on 5 April 2012 and detained: first of all, under a provisional detention order of 1 October 2013 (on charges of armed robbery); and secondly, pursuant to a judgment delivered by the Athens Court of Appeal on 25 February 2014 sentencing him to six years’ imprisonment (beginning on 27 March 2012). On 10 February 2014 the Athens Criminal Court of Appeal acquitted him of the armed robbery charge. Released on licence on 17 March 2014 under section 19 of Act No. 4242/2014.

Antonios Poulopoulos: imprisoned on 19 August 2011 and detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 20 June 2012 sentencing him to six years’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 13 September 2013 under Article 105 of the Penal Code.

Nikolaos Drosakis: imprisoned on 24 April 2012. Detained pursuant to a decision given by the Indictments Division of the Nafplio Criminal Court on 17 October 2012, and to the judgments of the Nafplio Criminal Court of Appeal and the Athens Criminal Court of Appeal of February and 24 April 2013 respectively, sentencing him to various prison terms. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 26 March 2014 under section 1 of Act No. 4043/2012. Has since returned to prison.

According to the information supplied by the applicants who had been convicted under court judgments, which information was not disputed by the Government, the courts had not granted suspensive effect to their appeals (see Article 497 § 4 of the Code of Criminal Procedure).

In a petition transmitted on 5 October 2012 under Article 572 of the Code of Criminal Procedure to the supervising public prosecutor responsible for Korydallos Prison, forty-five HIV-positive persons detained in the Aghios Pavlos Hospital, including the applicants, complained of their conditions of detention on the second floor of that hospital. They drew attention to the overcrowded premises, the uncontrolled admission of new patients, and the fact that they were held with other detainees suffering from cancer, asthma, hepatitis, venereal diseases, bronchitis, scabies, psoriasis and even tuberculosis, which diseases necessitated confinement to individual cells because several of them were transmissible. A small quantity of cream had been distributed to some of the HIV-positive detainees who were also affected with scabies. They had been advised to change their sheets and underwear every day and to wash them at high temperatures, even though the washing machine was out of order. When they had gone to fetch their medication the nurses had told them not to touch the bars through which they handed over the medicines in order to prevent the risk of infection. The administrative and medical staff had not given the detainees any official information in order to minimise the seriousness of the epidemic.

On 12 October 2012 the supervising public prosecutor had informed the detainees that “only 15 persons” were suffering from scabies.

Relying on Article 6 of the Prison Code the HIV-positive detainees, including the applicants, had also complained to the Prison Hospital Board, but had received no reply.

A delegation of HIV-positive detainees had been received by the supervising public prosecutor to draw attention to the constantly increasing numbers of persons detained in the Aghios Pavlos Hospital and the intolerable conditions of detention.

The applicants submitted that the cells were so overcrowded that the personal space available for each detainee was less than 2 m², including beds and sanitary facilities.

The bathrooms fell short of minimum hygiene standards and cleaning in the premises was left to the discretion of the few HIV-positive persons in receipt of an allowance enabling them to purchase cleaning products.

The food was so poor in nutritional value that HIV-positive detainees risked developing AIDS owing to physical debilitation.

The premises were under-heated, and detainees were exposed to low temperatures, particularly at night.

Nor had the problem of smoking been resolved. Several detainees smoked in the communal areas, the cells and the dormitories, and the non-smokers, especially those with respiratory problems, became passive smokers.

The hospital staff did not include any infectious disease specialists, which placed HIV-positive detainees at risk because they were diagnosed by non-specialists.

During the distribution of medicines the nurse, wearing gloves, left the boxes on the floor outside the cell bars, and the HIV-positive persons had to stretch through the bars to retrieve them, avoiding touching the others, as recommended by the nurse.

The applicants also complained about the fact that diagnoses were conducted automatically and that the doctors always prescribed the same medicines without individually examining each patient. Any requisite transfers to outside hospitals were always carried out after long delays. Distribution of medication prescribed for some of the applicants was often interrupted without explanation for periods of between one week and one month. Other applicants had not yet begun their treatment, which delay the doctors explained by claiming that “the limit [regarding the presence of the virus in the blood] necessitating the initiation of treatment has increased”.

The applicants also complained of a lack of access to the outside world, news programmes and even use of the telephone, and the fact that the detainees were not held separately from the convicted prisoners.

Lastly, the applicants stated that a video on conditions of detention had been leaked in November 2014 and had induced the prosecutor with the Court of Cassation to order an inquiry, which was currently under way.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

Mr Semenov was born in 1959 and lives in Tver.

Ms Bachurina was born on 8 November 1978 and lived before her arrest in the village of Strelnitsa, Voronezh Region.


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The case originated in two applications (nos. 39496/14 and 39727/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Ye. V. Gribanova, on 27 May 2014, on behalf of two Uzbek nationals, N. and M.

Ms Gribanova did not provide any written authority to act on behalf of N. and M.

N. and M. were born in 1972 and 1975 respectively and prior to their alleged disappearance lived in Kaliningrad.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

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

Prior to 2008 N. lived in Uzbekistan. In December 2008 he left Uzbekistan for Russia, and settled in Kaliningrad.

Prior to 2009 M. lived in Uzbekistan. In November 2009 he left Uzbekistan for Russia and settled in Kaliningrad.

Both N. and M. are practising Muslims.

In 2010 the Uzbek authorities charged N. and M. in absentia with being members of banned religious organisations, issued international warrants for their arrest, and ordered that they be placed in detention once arrested. During those criminal proceedings, on two occasions (in December 2008 and August 2010) the Uzbek authorities questioned N.’s relatives about his whereabouts.

In 2011 and 2012 the Russian police arrested N. and M. in Kaliningrad under an international warrant. The Kaliningrad Tsentralnyy District prosecutor’s office ordered their detention pending extradition. This was subsequently extended by the Kaliningrad Tsentralnyy District Court.

N. and M. retained Ms Gribanova to represent them in the extradition proceedings. She applied to the Prosecutor General’s Office of Russia (“the GPO”) with a request for their extradition to Uzbekistan to be refused.

The GPO refused to extradite N. and M. on the grounds that the acts imputed to them by the Uzbek authorities were not regarded as criminal under Russian law.

On 13 March and 12 July 2012 respectively the Kaliningrad regional prosecutor ordered N. and M.’s release. The Government submitted that since their release N. and M. had not informed the relevant authorities of their place of residence on the territory of the Russian Federation.

In April 2012 N. and M. addressed the following statements to Ms Gribanova:

Statement by N.:

“In the event I give any written or oral submissions to the mass media to the effect that I have voluntarily decided to return to Uzbekistan, this should be regarded as a forced return to the Republic of Uzbekistan.”

Statement by M.:

“In the event I give any written or oral submissions to the mass media to the effect that I have voluntarily decided to return to Uzbekistan, this should be regarded as a statement made under pressure and my return to my country of origin, Uzbekistan, should be regarded as a forced return.”

In March 2012 and May 2013 respectively N. and M.’s names were removed from the international wanted list following the prosecutor’s decision not to extradite them to Uzbekistan.

N. and M. applied for refugee status and temporary asylum in Russia. They lodged their applications with the Kaliningrad regional branch of the Russian Federal Migration Service (“the FMS”). They submitted that they had been persecuted in Uzbekistan on the basis of their religious beliefs, and would be subjected to ill-treatment if they returned. They indicated that Ms Gribanova was their point of contact.

In July 2012 and April 2013 respectively the FMS dismissed their requests for refugee status. In 2013 the Russian courts upheld those decisions. M. was represented in the proceedings by Ms Ye. Ryabinina, a lawyer practising in Moscow.

In October 2013 and April 2014 respectively the FMS dismissed their applications for temporary asylum. They lodged appeals against those decisions. The outcome of those proceedings is unknown.

On 11 February 2014 N. was arrested for violating residence regulations for foreign nationals. On 13 February 2014 the court refused to expel him and terminated the administrative proceedings for lack of corpus delicti. N. was represented by Ms Gribanova in those proceedings.

On 22 May 2014 N. was summoned to the FMS and questioned about his place of residence. After being questioned he telephoned Ms Gribanova. According to her, he seemed very scared.

According to Ms Gribanova, on 23 May 2014 N. received a call from the Uzbek security service, which insisted that he return to Uzbekistan.

On the morning of 26 May 2014 N. was again summoned to the FMS and was asked to bring copies of all the appeals he had lodged with the FMS and the courts in connection with the asylum proceedings. Ms Gribanova stated that he seemed scared, and asked her to attend in his place.

At 8 p.m. on 26 May 2014 N. telephoned Ms Gribanova to ask for help. He said that unknown persons had forced him into a car and taken him to the airport. Immediately after this call his mobile telephone was switched off.

That evening Ms Gribanova informed M. that N. had been abducted, and asked him to be extremely careful.

Around 3 p.m. on 27 May 2014 Ms Gribanova received a call from a man who introduced himself as one of M.’s friends. According to him, at around 9 a.m. that day three unidentified men had approached M. in the street. Two of them were wearing camouflage uniforms, while one was in civilian clothes. They forced M. into a yellow minibus and drove him away to an unknown destination.

Ms Gribanova submitted that prior to their abduction N. and M. had given her their passports, which she still held.

On 27 May 2014 Ms Gribanova sought the application of Rule 39 of the Rules of Court. She asked the Court to indicate to the Russian Government that N. and M.’s removal to Uzbekistan should be suspended.

On the same date the Court granted that request, indicating to the Russian Government that N. and M. should not be extradited, expelled or otherwise involuntarily removed from Russia to Uzbekistan or any other country for the duration of the proceedings before the Court. It also asked the Government for information as to N. and M.’s whereabouts.

On 17 June 2014 the Government informed the Court that N. and M. had not been arrested by the Russian authorities on 26 and 27 May, and that since 25 May 2014 they had not passed through any border crossing points in the Kaliningrad region. Their whereabouts were unknown.

On 28 May 2014 Ms Gribanova received a telephone call from N.’s wife, who told her that she and N.’s father had been summoned by the Uzbek security service several times. The Uzbek authorities had insisted that N. return to Uzbekistan voluntarily or else he would be forcibly returned.

On 25 July 2014 Ms Gribanova submitted to the Court that there were grounds to believe that N. and M. had been transferred to Uzbekistan on one of the two direct flights from Kaliningrad which had been scheduled after the Court’s indication of interim measures. She also submitted that at the time of their abduction N. and M. had not been in possession of their passports, so they could not have crossed the border without the knowledge and passive or active involvement of the Russian authorities.

On an unspecified date Ms Gribanova was visited by a man who introduced himself as N.’s “mate”. He said that N.’s father had informed him that N. was in Uzbekistan.

On an unspecified date M.’s relatives informed Ms Gribanova that he had been transported to Uzbekistan on 2 June 2014.

In mid-October 2014 Ms Gribanova was contacted by some people who introduced themselves as N. and M.’s relatives. They asked her to return N. and M.’s passports. They explained that N. and M. were standing trial in Uzbekistan and therefore needed them. She refused to hand them over unless they made a written statement confirming that the passports had been taken by them and why. The people disappeared and never contacted her again.

At the end of June 2014 the Kaliningrad regional department of the interior informed Ms Gribanova that enquiries had been made after she had reported that N. and M. had been abducted, but that their abduction by unknown persons and transportation to Uzbekistan had not been confirmed. In particular, N.’s relatives in Uzbekistan had submitted that he had been living in Kaliningrad, and there had been no information regarding N. and M.’s possible arrest by Russian law-enforcement bodies or their departure from the Kaliningrad region. Nor were their names on the list of deceased persons.

Between July 2014 and January 2015 the investigating authorities on several occasions refused to initiate criminal proceedings into N. and M.’s disappearance, for lack of corpus delicti. However, the decisions were overruled each time by the head of the Investigation Committee, and the matter was sent for additional investigation.

In one of the refusals to initiate criminal proceedings, namely a decision taken on 20 November 2014, the investigator referred to information provided by the information centre of the Kaliningrad department of the interior, to the effect that N. had been arrested in Uzbekistan on 11 June 2014.

On 31 March 2015 an investigator from the local investigation committee initiated criminal proceedings into N. and M.’s abduction by unknown persons. The Government did not inform the Court of the outcome of those proceedings.

Ms Gribanova submitted that on 16 June 2015 she had been summoned by the investigator in charge of the case to give evidence as a witness.

On 17 June 2015 she appeared before the Investigation Committee and claimed that she could not be questioned as a witness. She applied to be acknowledged as representing N. and M. She was allegedly told that the investigator possessed information to the effect that M. had been detained by the Uzbek authorities in Tashkent, Uzbekistan, shortly after his disappearance from Kaliningrad.

In various proceedings in Russia N. and M. were questioned about their family situation, among other things.

N. submitted that all his relatives lived in Uzbekistan. He had been married but was divorced. He had a son from his marriage. He was not in contact with his former wife or their son. Since 2003 he had been living with his female partner B., an Uzbek national, with whom he had two daughters. Between 2011 and 2013 B. and their daughters had lived in Kaliningrad. In August 2013 B. and the children had returned to Uzbekistan, because one of their daughters needed to undergo an operation there. N. was in regular telephone contact with his parents, sisters and brothers. He submitted that he was not aware of any persecution of his family members in Uzbekistan.

M. submitted that all his relatives lived in Uzbekistan. He was married to Kh., an Uzbek national, and they had two sons. In 2011 his wife came to Russia to visit him and stayed with him. Their children stayed in Uzbekistan with their grandparents. In March 2013 his wife returned to Uzbekistan. He was in regular telephone contact with his wife and their two young children, as well as his father and brothers and sisters.


CASE OF McHUGH AND OTHERS v. THE UNITED KINGDOM

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)

The applicants were all incarcerated at the relevant time following criminal convictions for a variety of offences. They were automatically prevented from voting, pursuant to primary legislation, in one or more of the following elections: elections to the European Parliament on 4 June 2009; the parliamentary election on 6 May 2010; and elections to the Scottish Parliament, the Welsh Assembly or the Northern Irish Assembly on 5 May 2011 (for further details see the appended table).


George Nicolaou;Guido Raimondi;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant, Mr Nikolajs Zikovs, is a Latvian national who was born in 1983 and is currently serving a prison sentence in Riga Central Prison. He is represented before the Court by Mr V. Sruoģis, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.

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

On 19 February 2011 the applicant went to the cinema. He got into an argument with another man. A fight ensued and the applicant fired several shots, killing the other man. The police arrived immediately and took the applicant into custody.

On 21 February 2011 a judge remanded him in custody.

On 24 February 2011 a search of the applicant’s car was conducted by the State Police without a judge’s authorisation. Several objects and documents were seized: a laptop, a thesis written by the applicant, sporting equipment, and several objects the applicant described as being of an intimate nature.

On 18 May 2011 the applicant was charged with aggravated murder.

On 26 October 2011 the prosecution announced the end of the pre-trial investigation and decided to transfer the case to court (lēmums par kriminālprocesa nodošanu tiesai). The case file was sent to the Riga Regional Court (Rīgas apgabaltiesa).

On 22 May 2012 the Riga Regional Court convicted the applicant of aggravated murder and sentenced him to seventeen years’ imprisonment, three years’ police supervision, and confiscation of property.

On 31 May 2013 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) upheld the judgment of the first-instance court. However, upon repeated requests by the applicant, the following objects and documents were excluded from the evidence relied on by the first-instance court for the purposes of the applicant’s conviction: the record of the inspection of the applicant’s car (automašīnas apskates protokols), the objects and documents seized therein (apskates laikā izņemtie priekšmeti un dokumenti), and their inspection record (mantu apskates protokols). The Criminal Cases Chamber relied on sections 159 (1) and (2), 160 (3), 179 (1) and 180 of the Criminal Procedure Law and found that, in actual fact, during the inspection of the applicant’s car a search, not a (visual) inspection, had been carried out, in breach of the relevant domestic provisions pertaining to inspections. Moreover, the search of the applicant’s car was carried out in breach of section 180 of the Criminal Procedure Law pertaining to searches. The evidence obtained therefrom was accordingly declared inadmissible.

On 20 September 2013 the applicant asked the prosecuting authorities to institute criminal proceedings against the police officers who were involved in the search of his car. He did not ask that the unlawfully seized material be returned to him, but he relied on Article 8 of the Convention and Article 96 of the Constitution. His complaint was forwarded to the Internal Security Bureau of the State Police (Valsts policijas Iekšējās drošības birojs) and he was informed about it.

On 2 October 2013 the Internal Security Bureau replied that no ancillary decision under the section 533 (1) of the Criminal Procedure Law had been made by the court. Accordingly, the State Police had no legal grounds to examine investigative activities undertaken by its officers during the pre-trial investigation. The applicant was informed that he could enquire with the Chairperson of the Criminal Cases Chamber of the Supreme Court. The applicant did not do so.

On 22 November 2013 the Senate of the Supreme Court upheld the appellate court’s ruling of 31 May 2013 and adopted a final decision in the applicant’s criminal case.

Article 92 provides, inter alia, that “everyone whose rights are violated without justification has a right to commensurate compensation”.

Article 96 guarantees “inviolability of private life, home and correspondence”.

However, Article 116 permits restrictions on the exercise of rights set out in, inter alia, Article 96 in circumstances provided for by law in order to “protect the rights of other persons, the democratic structure of the State, public safety, welfare and morals”.

Section 1635 defines a delict as any wrongful act as a result of which damage (which may include non-pecuniary damage) has been caused to a third person. The person who has suffered the damage has the right to claim satisfaction from the person who caused it.

Section 1779 provides that everyone is under an obligation to make good damage caused by his or her act or failure to act.

These provisions as well as sections 2347-2351 relating to compensation for bodily injury (before and after the amendments that were effective from 1 March 2006) are quoted in full in Zavoloka v. Latvia (no. 58447/00, § 19, 7 July 2009).

The relevant provision relating to searches can be found in Nagla v. Latvia (no. 73469/10, § 36, 16 July 2013).

In addition, section 533 (1) provides that a court may adopt an ancillary decision by which violations of law are notified to the competent authority or official and they are requested to remedy the situation.