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

The first applicant is a British national, who was born in 2006 and is presently residing in Bratislava (Slovakia). The application has been submitted on the first applicant’s behalf by the first applicants’ father, the second applicant, who has parental responsibility for the first applicant as a matter of English law.

The second applicant is a British national. He was born in 1965 and lives in Newton St. Cyres (the United Kingdom).

The President granted the applicants’ request for their identities not to be disclosed to the public (Rule 47 § 3).

The applicants were represented before the Court by the Aire Centre in London. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

On 20 April 2012 the Government of the United Kingdom were informed of the case and invited to exercise their right of intervention (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), to which invitation they have not responded.

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

In 2006, prior to the first applicant’s birth, the second applicant married the first applicant’s mother, a Slovak national. The family lived in England.

On 24 July 2007 the mother informed the second applicant that she and the first applicant would not be returning to the United Kingdom from holiday in Croatia and that she intended to take the first applicant to Slovakia and to settle there permanently.

On 13 August 2007 the mother and the first applicant, who was then less than a year old, travelled to Slovakia and have not returned to the United Kingdom since.

On 10 November 2008 an English court granted the couple a divorce, which was finalised on 6 January 2009.

Meanwhile, on 7 November 2007, the second applicant had commenced proceedings in the Slovakian courts for the return of the first applicant to England and Wales under the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

On 14 December 2007 and 31 March 2008, respectively, the Bratislava II District Court (Okresný súd) and, following the mother’s appeal (odvolanie), the Bratislava Regional Court (Krajský súd) ordered the return of the first applicant to England and Wales as the country of the child’s habitual residence. The courts emphasised that the order did not imply that the first applicant should reside with either parent, but merely required that the status quo ante be restored so that questions of residence and contact might be determined by the English courts, which had jurisdiction over them.

The return order became enforceable on 9 June 2008.

On 22 December 2008 the Prosecutor General acceded to a petition by the mother and exercised his discretionary power to challenge the return order by way of an extraordinary appeal on points of law (mimoriadne dovolanie). It was argued that the courts had failed properly to establish whether the first applicant had been wrongfully removed or retained and whether there were grounds for not ordering the first applicant’s return under Article 13 of the Hague Convention.

At the same time, the Prosecutor General suspended the enforceability of the return order.

On 4 February 2009, in response to an enquiry made on the second applicant’s behalf, the President of the District Court provided the office of the President of Slovakia with an update on the state of the proceedings. She added the following comment:

“It does not behove me to judge the actions of the Office of the Prosecutor General. I am not privy to the reasons why an extraordinary appeal on points of law was lodged. I detect a problem in the system, which allows for such a procedure even in respect of decisions on the return of minor children abroad (‘international child abductions’). Irrespective of the outcome of the specific case, the possibility of lodging an appeal on points of law and an extraordinary appeal on points of law in cases of international child abduction protracts the proceedings and negates the object of the [Hague Convention], which is as expeditious a restoration of the original state [of affairs] as possible, that is to say the return of the child to the country of the child’s habitual residence within the shortest possible time.”

On 30 June 2009 the Supreme Court (Najvyšší súd) ruled on the extraordinary appeal by quashing the return order and remitting the matter to the first-instance court for re-examination.

On 29 March 2010 the District Court dismissed the second applicant’s application for the return of the first applicant. Relying on Article 13 of the Hague Convention, it observed that the first applicant had been living in Slovakia for two-and-a-half years and had developed a settled home life there. The return of the first applicant was thus “not in the interests of the child and the child’s healthy mental development”.

On 25 August 2010 the Regional Court quashed the decision of 29 March 2010 following the second applicant’s appeal and remitted the case to the first-instance court, finding that the latter had failed to provide adequate reasons for its decision.

On 8 November 2010 and, respectively, 15 March 2011, the District Court and, following the mother’s appeal, the Regional Court again ordered the return of the first applicant to England and Wales. The courts found that the second applicant had shown that appropriate measures had been taken to secure the first applicant’s rights and interests after his return and that the mother had failed to show that the return of the first applicant was contrary to the Hague Convention.

On 11 April 2011 the mother lodged an appeal on points of law (dovolanie) and subsequently sought to have the enforcement of the return order suspended.

On 22 June and 4 November 2011, respectively, the District Court summoned the mother and interviewed her and the second applicant with a view to having the return order complied with, to no avail.

Following the interview of 4 November 2011, on the same day, the District Court dismissed the mother’s motion for the enforcement proceedings to be suspended. Upon her appeal, that decision was quashed. Subsequently, the enforcement proceedings were terminated in view of the Supreme Court’s decision on the mother’s appeal on points of law (see paragraph 22 below). The second applicant appealed against that decision and the proceedings are still pending.

Meanwhile, on 15 November 2011, the Prosecutor General informed the mother, in response to a petition filed by her, that he had no intention of challenging the new return order by an extraordinary appeal on points of law.

However, on 12 December 2011, following the mother’s appeal on points of law, the Supreme Court quashed the Regional Court’s decision of 15 March 2011 to dismiss her appeal against the new return order and remitted the appeal to the Regional Court for re-examination. It held that the latter had failed to provide adequate reasons for dismissing the mother’s arguments under Article 13 of the Hague Convention.

Following the Supreme Court’s judgment of 12 December 2011, the case was remitted to the first-instance court. The proceedings are still pending.

Meanwhile, on 24 July 2008 and 3 February and 1 October 2009, the High Court of Justice of England and Wales issued three orders to the mother to return the first applicant to the jurisdiction of England and Wales. At the same time, it issued certificates pursuant to Article 41 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Regulation No. 2201/2003”) providing the second applicant with contact rights in respect of the first applicant in Slovakia.

Since the first applicant was taken to Slovakia, the applicants have had intermittent contact.

On 17 July and 24 August 2009, respectively, the District Court and, following the mother’s appeal, the Regional Court ordered the mother to facilitate contact between the applicants.

According to the Government, the mother has not been hindering contact between the applicants. However, in the applicants’ submission, the mother has often obstructed the second applicant’s visits from the first applicant and he continues to experience difficulties seeing the first applicant.

In their observations in reply to the present application, the Government submitted a copy of an undated letter from the mother of the first applicant to the Government in which she declared that both she and the second applicant had equal parental rights and responsibilities in respect of the first applicant and that she therefore disagreed with the first applicant’s introducing an application under Article 34 of the Convention. She considered that such a course of action exclusively benefited the interests of the second applicant and was in fact contrary to the interests of the first applicant.

The relevant provisions of the Hague Convention, the United Nations Convention on the Rights of the Child, the Charter of Fundamental Rights of the European Union and the Regulation No. 2201/2003 have recently been summarised in the Court’s judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 34-42, ECHR 2013).

Article 127 was re-codified by Constitutional Law no. 90/2001 Coll., with effect from 1 January 2001. It reads as follows:

“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person’s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person’s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.

In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.

The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.”

The U.N. Convention on the Rights of the Child entered into force in respect of Slovakia on 6 February 1991 (Notice of the Ministry of Foreign Affairs no. 104/1991 Coll.), while the Hague Convention did so on 1 February 2001 (Notice of the Ministry of Foreign Affairs no. 119/2001 Coll.).

The relevant provisions concerning appeals on points of law are summarised, for example, in the Court’s decision in Ringier Axel Springer Slovakia v. Slovakia (no. 35090/07, §§ 65-8, 4 October 2011, with further references). Appeals on points of law have no automatic suspensive effect, the power to suspend the enforceability of the impugned decision being entrusted to the Supreme Court (Article 243).

Extraordinary appeals on points of law are regulated by the provisions of Articles 243e et seq.

The Prosecutor General has the power to challenge a decision of a court by means of an extraordinary appeal. He or she may do so upon a petition of a party to the proceedings or another person concerned or injured by the decision, provided that the Prosecutor General concludes that: the final and binding decision has violated the law; the protection of the rights and legitimate interests of individuals, legal entities, or the State requires that such an appeal be brought; such protection cannot be achieved by other means; and the matter at hand is not excluded from judicial review (Articles 243e § 1 and 243f § 2).

An extraordinary appeal may only be aimed at a ruling in a decision which has been contested by the party to the proceedings or the person concerned or injured by that decision (Article 243e § 2). Unless a statute provides otherwise, the Prosecutor General is bound by the scope of the petition for an extraordinary appeal (Article 243e §§ 3 and 4).

Further conditions of admissibility of an extraordinary appeal are listed in Article 243f § 1. They comprise (a) major procedural flaws within the meaning of Article 237 (in that respect see, for example, Ringier Axel Springer Slovakia, v. Slovakia, no. 41262/05, § 62, 26 July 2011), (b) other errors of procedure resulting in an erroneous decision on the merits, and (c) wrongful assessment of points of law.

An extraordinary appeal is to be lodged with the Supreme Court within one year of the contested judicial decision’s becoming final and binding (Article 243g).

If the Prosecutor General concludes, upon a petition of a party to the proceedings or another person concerned or injured by the impugned decision, that there is the risk of considerable economic loss or other serious irreparable consequences, the extraordinary appeal may be filed without reasons for appeal being stated. The reasons then must be stated within sixty days of the lodging of the extraordinary appeal with the Supreme Court, failing which the proceedings are to be discontinued (Article 243h §§ 3 and 4).

If the extraordinary appeal on points of law is accompanied by a request that that the enforceability of the contested decision be suspended, its enforceability is to be suspended upon the extraordinary appeal being lodged with the Supreme Court (Article 243ha § 1).

The duration of such a suspension is regulated by Article 243ha § 2, pursuant to which that suspension ceases (a) when the request is dismissed or (b) with the decision on the extraordinary appeal, unless extended by the Supreme Court no later than one year from the lodging of the extraordinary appeal with it.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1953 and lives in Hadžići.

On 22 November 2011 the applicant was arrested and detained on suspicion of having committed war crimes against the civilian population and against prisoners of war during the 1992-95 war.

On 23 November 2011 the State Court of Bosnia and Herzegovina (“the State Court”) reviewed and extended his detention based on the risk of his obstructing the course of justice by exerting pressure on witnesses and co-accused or by destroying evidence. On 1 December 2011 that decision was upheld by the Appeals Chamber of the State Court.

On 21 December 2011 the State Court further extended the applicant’s detention on the same grounds as before. On 5 January 2012 that decision was upheld by the Appeals Chamber of the State Court.

On 29 December 2011 the State Prosecutor issued an indictment against the applicant and seven other co-suspects, which was confirmed by the State Court on 10 January 2012.

Thereafter, the applicant’s detention was regularly examined and extended every two months by the State Court. In addition to those automatic reviews, the applicant repeatedly challenged his detention before the Appeals Chamber of the State Court.

On 23 February 2012 the applicant lodged a constitutional appeal, relying on Article II § 3.(d) of the Constitution (see paragraph 16 below) and Article 5 of the Convention. He alleged, in particular, that his detention had been arbitrary and excessive, and that it had not been based on relevant and sufficient reasons.

On 13 July 2012 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”), in a formation of eight judges, rejected the applicant’s appeal since it could not reach a majority on any of the proposals. The court’s reasoning included all the views expressed at the session on the issues raised in the case. Pursuant to Article VI § 4 of the Constitution (see paragraph 16 below) that decision was final.

On 1 November 2012 the State Court held that the grounds for the applicant’s continued detention had ceased to apply and released the applicant. By the same decision, the court imposed preventive measures on the applicant which included the following: a prohibition on leaving his place of residence without the prior approval of the State Court save for the purpose of appearing before that court; the duty to report once a week to the Hadžići police; a prohibition on associating with other co-accused and on associating or having contact with the witnesses. Furthermore, the applicant’s passport was seized.

The preventive measures were reviewed and extended every two months. On 16 December 2015 they were revoked.

At the date of the latest information available to the Court (22 July 2016), the criminal proceedings against the applicant were still ongoing.


CASE OF NAKONECHNYY AND OTHERS v. UKRAINE

Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

André Potocki;Mārtiņš Mits;Síofra O’Leary

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1956 and lives in Fălticeni.

On 31 July 2008, the applicant was driving to Galați accompanied by C.P. in a car registered in the United States of America. At about 7 p.m. they visited a mutual friend, O.C. Shortly thereafter, all three of them returned to his car, which was parked near O.C.’s home. They found it surrounded by three police cars, approximately ten police officers and dozens of curious civilians.

The applicant overheard one of the police officers informing his colleagues that they had found out the car registered in America had been involved in that accident in which some pedestrians had been injured. He informed the police officers that he was the owner of the car and denied that he had been involved in an accident.

The police officers immediately proceeded to detain the applicant aggressively, without checking his identity papers. Police officer G.S. twisted the applicant’s arm behind his back and hit him in the legs. The blow was so powerful that the applicant had to grab one of the police car’s wing mirrors and window in order to avoid falling down. At the same time he was hit on the head and his mouth was covered because he was shouting for, amongst other things, his identity documents, which were in his car. Police officer I.V.V. also punched the applicant repeatedly.

Once he was in the police car, the applicant was handcuffed with his hands behind his back and two police officers, who remained unidentified, continued to hit him. He lost his dentures and eventually fainted. Police officer R.P. travelled in a separate car and police officer M.G. drove the police car in which the applicant was detained. Consequently, the applicant concluded that those two officers could not have hit him.

At the police station police officer C.M. removed the handcuffs from the applicant.

On 31 July 2008, the applicant was caught speeding and refused to stop his car at a police officer’s request. When the police eventually found his car parked in an area surrounded by blocks of flats, the applicant and his friends became very agitated and the applicant refused to show his identity papers to the police officers. He claimed that he was immune to prosecution because he was an American citizen.

The police officers lawfully took the applicant to the police station in order to establish his identity and to fine him for speeding. According to eyewitness statements, the police officers handcuffed the applicant in a stern, but not abusive manner. They confirmed that the applicant and his friends had been verbally abusive towards the police officers.

On 1 August 2008, following a request by the applicant, the Galați Forensic Medical Service produced an expert report concluding that the applicant had suffered traumatic lesions which could have been sustained on 31 July 2008. It also concluded that he had suffered an injury to the lower lip and damage to the dental prosthesis next to his upper-right canine as a result of his being struck with a solid object, possibly on the chin. In addition, the skin on the bridge of his nose and the left side of his neck had been scratched by a hard and sharp nail-like object. The bruises located on his left shoulder and below his left clavicle had resulted from being struck with a solid object. The bruise on the inside of his right arm had resulted from finger compression. Also his left forearm and the back of his left hand had been scratched with or by solid sharp objects. The report concluded that the contusion of his thorax together with the bruise below his left clavicle would require, in the absence of any complications, four to five days of medical care in order to heal. The rest of the lesions would require one to two days of medical care to heal and he might have to have the prosthesis next to his upper-right canine repaired.

The forensic report stated that on 31 July 2008 the emergency unit of the Galați County Hospital had diagnosed the applicant with cranio-cerebral and thorax trauma, as well as a severe thorax contusion. The thorax X-ray that had been produced on the same date did not show any broken ribs or post-traumatic lung damage. Also the dental emergency unit attached to the same hospital had diagnosed the applicant with a contusion in the chin area as a result of a blow which had damaged the dental work on his upper-right canine. It stated that the repairs to his upper-right canine could require the destruction of his fixed maxillary prosthesis.

On 14 August 2008 the applicant underwent an encephalography at the Baia Mare County Hospital. He was advised to rest for ten days on account of anxiety.

At the applicant’s request, on 18 August 2008 the Suceava Forensic Medical Service produced a forensic expert report. The report stated that according to a dental specialist, the dental-alveolar lesions suffered by the applicant as a result of the assault of 31 July 2008 would require twentyeight to thirty days of medical care to heal and repair.

The forensic report further stated that according to the medical documents presented by the applicant, he had been prescribed treatment with pain killers for five days for his dental-alveolar lesions. In addition, his fixed maxillary prosthesis needed to be repaired as a result of the damage caused to his upper-right canine; the report estimated that the repairs would take thirty days.

On 4 August 2008 the applicant brought criminal proceedings against the police officers who had been involved in the incident of 31 July 2008 for violent behaviour. In addition, he requested that those responsible for the impugned events be brought to justice. He claimed that on 31 July 2008 he had been ill-treated by police officers and had suffered physical injuries, including damage to his dental prosthesis.

On 11 August 2008 O.C. and A.C., friends of the applicant and C.P., submitted two statements before the Galați Police Department. O.C. stated that when the applicant had returned to his car, police officers had already been waiting for him, claiming that the car had been involved in an accident, even though there had been no visible damage to the car. Although the applicant had attempted to present his identity papers to the police, they had abusively and violently grabbed him and handcuffed him. Subsequently, the applicant had been thrown into a police car and hit until he fainted. When O.C. had attempted to find out what police station the applicant was being taken to, one of the officers had elbowed him in the chest.

A.C. stated that on arrival at the police station she had noticed a smell of alcohol on the breath of one of the prosecution witnesses. The witness had been collected by the police officers from the terrace of a restaurant located near the scene of the incident. He had been insulting the applicant on account of his American citizenship. He had admitted that he had been drinking and when he had started becoming aggressive, one of the officers had asked him to leave the room.

On 14 August 2008 the investigating authorities heard D.Z. as a witness. He stated that he had seen the applicant park his car at the scene of the incident and run together with C.P. through the blocks of flats. The police had arrived shortly afterwards and waited for the applicant to return. When the applicant had returned the officers had asked him politely to identify himself. The applicant had refused vehemently to identify himself and claimed that the police officers could not touch him because he was an American citizen. As the police officers had been unable to reason with him, they had been forced to immobilise him in order to place him in the police car, which the applicant had almost wrecked. At the same time the applicant had continued to verbally offend the officers and him. He had seen the applicant being placed in the police car; the applicant had not been beaten by the police officers. Moreover, the applicant had not been abused, either physically or verbally, by the police officers at the police station.

On 20 August 2008 the investigating authorities heard M.M. and I.P. as witnesses. They both stated that they had seen police officers speak to the applicant and attempt politely to identify him. The applicant had refused to give his identity by shouting that he was an American citizen. The police officers had made several more attempts to politely reason with the applicant and once that had failed they had proceeded to immobilise him and to place him in a police car. Once inside the police car, the applicant had started shouting again, at which point several other bystanders, including M.M., had started to remonstrate with him. Consequently, C.P. had started insulting them. The witnesses further stated that they had not seen the police officers hit the applicant.

On an unspecified date C.P. stated before the investigating authorities that on 31 July 2008 when the applicant had been driving to Galați, she had noticed a police car on the road and had seen a police officer make a signal. However, it had not been the correct signal for a motorist to stop. The applicant had not stopped the car but had continued to drive. When they had arrived in Galați she had seen another police car, but the police had not signaled the applicant to stop.

On 3 February 2009 the prosecutor’s office attached to the Galați District Court discontinued the criminal proceedings brought by the applicant against the police officers, on the grounds that the police officers had not committed the offences of which they had been accused or that the alleged offences were not provided for by criminal law. It held, on the basis of the police officers’ statements corroborated by the statements of M.M., I.P. and D.Z. that the applicant had repeatedly refused to show the police officers his identity papers, despite warnings that he would be taken to a police station if he failed to provide proof of his identity. The police officers had attempted to take the applicant to the police station, but he had resisted. Consequently, the officers had immobilised him. When they had attempted to place him in the police car, he had continued to resist, physically struggling and being verbally aggressive towards them. The prosecutor’s office further held that the time required for medical care could not be confused with the time required for full recovery. In this connection, it noted that in the applicant’s case the reconstruction work that was needed on his upper teeth would take thirty days. Consequently, the thirty days referred to by the forensic expert report of 18 August 2008 could not be understood to mean days of medical care within the meaning of the law. Lastly, the use of force by the police officers had not been disproportionate and had been aimed solely at immobilising him.

The applicant challenged the decision before the superior prosecutor attached to the Galați District Court. He argued that the witnesses who had been heard had committed perjury, probably because they had been influenced by the police.

By a final decision of 19 March 2009 the superior prosecutor dismissed the applicant’s challenge. He held, amongst other things, based on the eyewitness statements, that the police officers’ actions had been in response to the applicant’s aggressive and offensive behaviour. Consequently, the police officers had not overstepped their bounds. Also, the number of days of medical care required by the applicant, according to the forensic expert report produced on 18 August 2008, concerned the period required for the reconstruction of his upper dental prosthesis and not the time it would take for the dental-alveolar lesions to heal.

The applicant appealed against the decision before the domestic courts. He argued that the authorities had failed to investigate how the injuries attested by the forensic expert reports had been caused.

By a judgment of 16 October 2009 the Galați District Court dismissed the applicant’s appeal and upheld the decision of 3 February 2009. It noted, amongst other things, that according to the forensic expert report of 1 October 2008, the applicant had suffered injuries which required, depending on their severity, one to five days of medical care. In addition, according to the criminal investigation carried out in respect of the case, the police officers who had been involved in the events of 31 July 2008 were R.P., I.V.V., M.G., G.S., C.M. and T.R. as well as two Police Academy students, I.M. and A.I. According to the statements of C.M. and T.R., the applicant had been caught speeding. He had ignored T.R.’s signals to stop and had continued to drive. Consequently, C.M. and T.R. had asked their colleagues to locate and stop the applicant’s car. I.M. had made a second attempt to stop the applicant, but he had ignored the police sirens and the signals to stop. The police officers had searched for the applicant’s car and had eventually found it parked near O.C.’s home. According to the statements of R.P., M.G., I.V.V. and G.S., when the applicant returned to his car he refused the police officers’ request to show his identity papers on the grounds that he was an American citizen and was not subject to Romanian law. Even though he was informed that he had broken the law, he continued to refuse to show his identity papers to the police or to accompany them to the police station.

The court also noted that M.G. and R.P. stated that G.S. and I.V.V. had had to handcuff the applicant and force him into the police car, because he had refused to climb into the car and had resisted by grabbing the car door and wing mirror. G.S. and I.V.V. stated that after the applicant had been immobilised and forced into the police vehicle, during the drive to the police station he had continued to bang his head against the windows of the police car. At the police station C.M. had fined the applicant for the offence and prepared a police report, which had eventually been signed by the applicant. C.M. stated that from the time the applicant had arrived at the police station, he had had no further contact with the other police officers and had shown no signs of violence.

The court further noted that according to C.P.’s statement, she had seen the applicant being handcuffed and how several police officers had tried to place him in the police car, even though he had wanted to prove to them that he was an American citizen. She had not been allowed to travel with the applicant to the police station and when she had arrived there his clothes had been dirty and he had blood stains on his face. According to O.C., the applicant had been handcuffed prior to being placed in the police car and had not been asked to identify himself or told why was he being taken to a police station. O.C. had seen the applicant resisting getting into the police car, but the police officers had used force. He also contradicted the applicant’s statement that after leaving the police station they had gone to the Galați County Hospital.

The court also noted that D.Z. had seen the whole incident and had stated that the applicant had refused to identify himself because he was an American citizen and together with C.P. he had insulted the police officers and the other witnesses. Also the applicant had been forcefully placed in the police car because he had been behaving aggressively and had been grabbing the car door and wing mirror. D.Z.’s statement concerning the applicant’s behaviour had also been confirmed by witnesses I.P. and M.M.

The court held that according to the available evidence, in particular the witness statements of D.Z., G.S. and I.V.V., the applicant had had to be handcuffed because he had been behaving aggressively both prior to and after being placed in the police car as well as during the drive to the police station. The court noted that the applicant had claimed that the injuries he had suffered at the hands of the police had amounted to ill-treatment in breach of the guarantees set out in Article 3 of the European Convention on Human Rights. However, the European Court of Human Rights had been reluctant to sanction the behaviour of State agents if they had used force in order to counteract the aggressive behaviour of an arrested person. The applicant’s refusal to show the police officers his identity papers and his aggressive conduct on account of his foreign nationality had not been justified given that he had been informed that he had committed an offence and had a duty to observe the laws of the State. Consequently, the force used by the State agents did not appear excessive.

The applicant appealed on points of law (recurs) against the judgment. He argued that the prosecutor’s office attached to the Galați District Court had not been competent ratione materiae to carry out the criminal investigation in his case. The investigation had been superficial because not all the police officers involved in the events had been identified and because the police officers who had informed their colleagues that the applicant’s car had been involved in a car accident had not been heard. The authorities had refused to allow him to identify the individuals against whom the criminal proceedings had been brought, and witnesses C.M. and A.I. had committed perjury. At the time of the incident he had been denied the right to contact the American Embassy or a lawyer. The statements of witnesses C.P. and O.C. had been incomplete, and the first-instance court had ignored the fact that the authorities had failed to investigate how the injuries attested by the forensic expert reports had been caused.

By a final judgment of 18 February 2010 the Galați District Court dismissed the applicant’s appeal on points of law. It held that the prosecutor’s office attached to the Galați District Court had been competent ratione materiae to carry out the criminal investigation in the case. Also the investigation had not been superficial and the authorities had identified and heard the four police officers who had handcuffed the applicant and had driven him to the police station. Other police officers had been heard, including the two Police Academy students as well as relevant eyewitnesses who were not police officers.

The court also held that the investigation had focused on all the applicant’s allegations and the authorities had heard the defence witnesses requested by him, namely C.P. and O.C. The fact that the authorities had not adduced all the data considered relevant by the applicant was not unlawful, considering that a preliminary investigation could be limited in respect of both quality and quantity by its lawful purpose. Moreover, the applicant’s allegation that some of the witnesses had committed perjury had been refuted by the corroboration of their statements by other evidence. The prosecutor’s office solution remained valid given that most of the witnesses had confirmed that the applicant had refused to go to the police station and had behaved aggressively, both verbally and physically, and that none of the witnesses had confirmed that he had been hit before being placed in the police car. Consequently, the measures taken against him had not been excessive or unjustified and had met the requirements of section 31 of Law no. 218/2002 on the organisation and operation of the Romanian police force.

The court further held that the fact that the statements of the applicant’s friends had contradicted those of the remaining witnesses was a consequence of their friendly relations with the applicant.

The court considered that the authorities had correctly interpreted the available medical documents. The scratches on the left side of the applicant’s neck, on his left forearm and the back of his left hand, as well as the bruises on his left shoulder, below his left clavicle and on the inside of his right arm had been inflicted by the police officers when they had handcuffed him and placed him in the police car. Their actions had been proportionate given his strong opposition. It was clear that handcuffing and the operation of placing a person in a police vehicle, if that person physically resisted the measure, would cause injuries. The superficial nature of the injuries and the areas of the body where the bruises and scratches had been sustained merely confirmed the proportional nature of the police officers’ actions. It was clear that the applicant had exaggerated the nature of his injuries in his complaint against the officers, given that there was no evidence in the file suggesting that he had been repeatedly kicked. It appeared that the internal lip injury and the dental damage suffered by the applicant had been caused by an impact to the chin, possibly when he had been resisting his handcuffing and placement in the car. The police officers could not be considered guilty as long as the applicant had continued to behave violently in the police vehicle. He had not suffered any external lesions in the chin area which could have been caused by an impact with a solid object.

On 31 July 2008 the applicant was fined for speeding and for failure to stop when signaled to do so by a police officer.

By a final judgment of 3 May 2010 the Galați County Court dismissed on the merits the applicant’s action seeking the annulment of the speeding fine imposed on 31 July 2008 and of the suspension of his driving licence.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The first applicant was born in 1952 and lives in Hausen (Canton of Aargau). The second applicant, who was born in 1990, is the son of the first applicant. He lives in Egypt.

The first applicant entered Switzerland in 1997, where he applied for asylum in the same year. At that time, the second applicant remained in Egypt, where he was cared for by his mother. The first applicant’s asylum application was rejected by the competent authorities.

In March 1999 the first applicant married a Swiss national and obtained a residence permit. In 2000 a daughter was born to the couple.

In 2002 the second applicant visited his father in Switzerland for three months based on a tourist visa valid for that period.

In July 2003 the second applicant re-entered Switzerland for purposes of family reunification with his father.

In February 2004 the first applicant was granted a permanent residence permit. In August 2004 he obtained Swiss nationality and has since held nationality of both Switzerland and Egypt.

After encountering difficulties in school and with his step-mother, the second applicant returned to Egypt in January 2005, where he was cared for by his mother and his paternal grandmother.

In 2006 the first applicant separated from his spouse. The latter continued to live in Switzerland with the couple’s daughter.

On 1 March 2006 the first applicant lodged a request for family reunification with the second applicant, who was 15 and a half years old at the time and for whom he had custody according to Egyptian law.

On 15 February 2007 the Migration Office of the Canton of Aargau refused that request.

On 12 March 2007 the applicant lodged an appeal against that decision with the Legal Unit of the Migration Office of the Canton of Aargau.

On 6 June 2007 that authority dismissed the appeal.

On 26 June 2007 the applicant lodged an appeal against that decision with the Court of Appeal in Foreigners’ Law (Rekursgericht im Ausländerrecht) of the Canton of Aargau.

On 7 September 2007 that court granted the applicant’s appeal. In a very detailed decision it noted that the requirements for family reunification under Article 17 § 2 third sentence of the Act on the Residence of Foreign Nationals (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer, ANAG) were not met (see relevant domestic law and practice paragraphs 3133 below). Largely basing its reasoning on Article 8 of the Convention, it considered, however, that the applicants’ interests in respect for their family life prevailed over those of the public. It ordered the Migration Office of the Canton of Aargau to arrange for a residence permit for the second applicant.

Subsequently, the Migration Office of the Canton of Aargau declared that it would grant a permanent residence permit to the second applicant for purposes of family reunification and, on 28 January 2008, transferred the file to the Federal Office of Migration to seek the required consent. On 4 March 2008 the latter refused to give its consent, finding that the requirements for family reunification were not met and that the decision of the court of the Canton of Aargau was in contradiction to the case-law of the Federal Supreme Court.

On 4 April 2008 the first applicant lodged an appeal against that decision with the Federal Administrative Court, both in his own name and in that of his son.

On 30 July 2009 the applicants informed the authorities that the situation of the second applicant had changed. His mother had moved to Kuwait with her new spouse and he was now cared for exclusively by his paternal grandmother.

On 2 February 2010 the Federal Administrative Court dismissed the appeal. It noted, first, that the requirements for family reunification under Article 17 § 2 third sentence of the Act on the Residence of Foreign Nationals were not met (see relevant domestic law and practice paragraphs 31-33 below). It found, second, that the applicants could not rely on Article 8 of the Convention, as the second applicant had reached the age of adulthood and was not dependant on the first applicant (see relevant domestic law and practice paragraph 33 below).

On 8 March 2010 the applicants lodged an appeal against that decision with the Federal Supreme Court.

On 5 July 2010 the Federal Supreme Court dismissed that appeal. It considered, in particular, that the relationship between the two applicants was not paramount (“vorrangig”), even though the first applicant had the right of custody for the second applicant according to Egyptian law. It noted that the first applicant had not applied for family reunification immediately after his arrival in Switzerland, that the second applicant was cared for by his mother and his grandmother in Egypt until he turned 18 years, that the second applicant had lived almost all of his life in Egypt and had more important social and personal ties to his country of origin, which would be negatively affected if he moved to Switzerland, and that he had returned to Egypt after having stayed with his father in Switzerland for one and a half years. It observed that the first applicant had, thus, at that time, preferred that the second applicant lived with his mother and that the second applicant would face even more severe challenges to integration now than he had during his first stay in Switzerland, given his age. While noting that the first applicant had a close relationship to his daughter in Switzerland and that he could, thus, not be expected to relocate to Egypt to live there with the second applicant, the court noted that the applicants had not submitted sufficient reasons to justify the second applicant’s reunion with his father in Switzerland.

Moreover, the Federal Supreme Court considered that the circumstances of the present case differed from those of Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, 1 December 2005. The latter concerned a situation where only one parent, the child’s mother, was still alive. The mother had tried to bring her child to the Netherlands as soon as possible after her arrival. Moreover, the child’s grandmother who cared for her in Ethiopia had taken the child out of school against the mother’s will and planned a forced marriage.

On 7 October 2010 the Court refused to apply Rule 39 of the Rules of the Court.


André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant, Mr Friedrich Vorbeck, is an Austrian national who was born in 1964 and lives in Vienna. He is represented before the Court by Mr G. Beneder, a lawyer practising in Vienna.

The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.

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

The applicant and his former wife, I.M., are the parents of B.M., who was born in 2000 in wedlock. From 10 June 2002 the parents lived in separate households and B.M. lived together with her mother. The parents, however, continued to share custody. On 18 June 2003 I.M. applied for sole custody of B.M. On 22 October 2004 the applicant and I.M. concluded an agreement before the Purkersdorf District Court under which sole custody of B.M. was awarded to I.M.

On 27 September 2005 the applicant and I.M. divorced.

On 4 December 2007 the applicant and I.M. concluded a court settlement concerning the contact rights of the applicant in respect of B.M.

On 7 October 2010 the applicant applied for joint custody over B.M. and requested I.M. to agree to this application. However, I.M. disapproved of the applicant’s application for joint custody as there were ongoing disputes between the parents. The applicant, on the other hand, stated that he wished to be involved in B.M.’s life and to be included in decisions concerning her education, medical issues and other matters.

On 21 December 2010 the District Court heard the applicant, I.M. and B.M.; at the end of the hearing the applicant and I.M. confirmed that they would continue to adhere to the settlement of 22 October 2004 concerning the contact rights of the applicant.

On 16 February 2011 the District Court, having held a further hearing in the course of which the applicant, I.M. and B.M. were examined again, dismissed the applicant’s application for joint custody. It based this decision on Article 177a of the Civil Code, under which joint custody is only possible in the event of both parents consenting. The applicant requested the court to apply to the Constitutional Court for review of the constitutionality of this provision, but the District Court held that a court of first instance did not have the authority to lodge such an application.

The applicant appealed, arguing that Article 177a of the Civil Code was unconstitutional and in violation of his Convention rights; he also asked the Regional Court to request the Constitutional Court for review of the constitutionality of this provision.

On 27 April 2011 the St. Pölten Regional Court rejected the applicant’s request for an application to the Constitutional Court for judicial review in respect of Articles 177 and 177a of the Civil Code, as the Regional Court had no concerns regarding the constitutionality of these provisions. Referring explicitly to the Court’s judgment in the case of Sporer v. Austria (no. 35637/03, 3 February 2011), the Regional Court found that the present case must be distinguished from Sporer. Under Articles 177 and 177a of the Civil Code, which applied in the present case, parents had joint custody of their child. If after divorce one parent were to ask for sole custody then the court, taking into account the well-being of the child, had to transfer custody to one of the parents. By contrast, Article 166 of the Civil Code, which was at issue in Sporer, provided that custody of a child born out of wedlock was from the very beginning to be granted only to the mother of that child. Given that in the event of the termination of joint custody after divorce or following an agreement between the parents, the law did not grant either of the parents a privileged position as regards the award of sole custody, there was no indication that this was discriminatory. If one were to follow the reasoning of the applicant that it should be possible to simply request the re-establishment of joint custody at any moment following a final court decision lifting joint custody or an agreement of the parents to that effect, the binding force of decisions whereby joint custody had been lifted would be rendered meaningless, which was in contradiction to the principle of legal certainty (Rechtskraft).

The Regional Court observed furthermore that the first-instance court had not made any findings as to the ability of the parents to find compromise (Konsensfähigkeit) indispensable for the meaningful exercise of joint custody. From the content of the case file and in particular the expert reports submitted, it could, however, be deduced that at the time of the termination of joint custody, the parents lacked this ability, and there was no indication in the file that the situation had improved in the meantime. In such a situation it was not in the interest of the well-being of a child that once joint custody had been granted, every single issue on which parents did not agree – such as which school a child should attend – had to be determined by decision of the District Court.

On 20 May 2011 the applicant lodged an ordinary appeal (ordentlicher Revisionsrekurs) against the Regional Court’s decision of 27 April 2011 and asked the Supreme Court to apply to the Constitutional Court for review of the constitutionality of Articles 177 and 177a of the Civil Code.

On 30 August 2011 the Supreme Court rejected the applicant’s appeal as inadmissible. The ruling was served on the applicant’s counsel on 29 September 2011. The Supreme Court found that if custody of a child had been granted to one parent, either by a court decision or by agreement between the parents, then in the interest of consistency of education (Erziehungskontinuität) a change of the person having custody could only be granted if there existed a risk to the well-being of the child. It was not decisive whether the circumstances of one parent were better than those of the other. The Supreme Court noted that in his application for joint custody the applicant had not even made the argument that circumstances had changed since the decision on custody of the District Court of 22 October 2004 had become final, and he had not given any other reasons (as required by Article 176 of the Civil Code) to justify a different ruling. The mere presupposition that joint custody exercised by both parents might be better for the well-being of the child was not a sufficient justification for interfering with a binding decision. Furthermore, the ability and intention of both parents to share their responsibility is an indispensable precondition for joint custody. It could be clearly seen from the case file that there was no agreement between the parents regarding the issue of joint custody and that no coordinated action when exercising joint custody could therefore be expected from them.

Following the 2013 amendment to the Civil Code (see para. 17 below), on 18 February 2013 the applicant lodged an application for joint custody of B.M. However, on 28 January 2014, he withdrew this application.

Articles 177 and 177a of the Civil Code, as in force at the material time read as follows:

“(1) If the marriage of the parents of a minor legitimate child is dissolved or annulled, the custodial rights of both parents remain intact. However, they may present an agreement to the court – even modifying an existing agreement – regarding custodial responsibility. In this connection it may be agreed that one parent alone or both parents shall have custody. Where both parents have custodial powers, those of one parent may be limited to specific matters.

(2) Where both parents have custody, they must submit an agreement to the court regarding the parent with whom the child is to stay primarily. This parent must always be put in charge of all custodial matters.

(3) The court must approve the agreement of the parents if it serves the interests of the child.”

“(1) If an agreement under Article 177 on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled, or if [such an agreement] is incompatible with the interests of the child, the court must decide which parent shall henceforth have sole custody, if all attempts to reach an amicable solution fail.

(2) If both parents have custody under Article 177 after their marriage has been dissolved or annulled, and if one parent applies for the withdrawal of that custody, the court must decide which parent shall have sole custody, if all attempts to reach an amicable solution fail.”

It is noted, however, that on 1 February 2013 the relevant provisions of the Austrian Civil Code were amended significantly. The relevant sections read as follows:

“(1) If the marriage or the common household of the parents is dissolved, joint custody is maintained. They can, however, conclude an agreement before a court under which one parent is entrusted with sole custody, or the custody of one parent is limited to certain matters.

(2) In the case that both parents have joint custody after the dissolution of their marriage or the common household, [the parents] have to conclude an agreement before a court regarding in whose household the child will predominantly be cared for.”

“(1) Provided that it is in the best interests of the child, the court has to decide on the provisional regulation of parental responsibility (“the phase of provisional parental responsibility”), if

after the dissolution of the marriage or the common household the parents cannot concur on an agreement, pursuant to section 179, within a reasonable time limit, or

one parent applies for sole custody or his/her participation in custodial rights.

(2) After [the phase of provisional responsibility, which lasts six months], the court has to take a final decision on custody (on the basis of what transpired during the phase of provisional parental responsibility) – including payment of statutory maintenance – [which is in the best interests of the child.] ... If the court awards joint custody, it also has to decide in whose household the child will predominantly be cared for.”


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

The applicant was born in 1966 and lives in Kiev.

The applicant came to Bulgaria in 1995. In 1996 he started a relationship with Ms M., also a Ukrainian national. In 1997 the two of them had a son. In 2003 the applicant was granted permanent resident status.

On 6 November 2006 the head of the Ministry of the Interior’s National Security Service issued an order withdrawing the applicant’s residence permit, ordering his expulsion and imposing a ten-year ban on his re-entering Bulgaria, on the ground that his presence in the country represented a “serious threat to national security”. Factual grounds justifying the order were not indicated; it was merely noted that it was based on “proposal no. B4923”.

That proposal, drawn up by National Security Service and also dated 6 November 2006, was submitted to the Court. It stated that the applicant had allegedly been involved in acts of extortion, smuggling, arms deals and money laundering, that he operated with large amounts of illegally obtained money, that he had established contacts with Bulgarian officials, including police officers, who had been providing him with illegal services, and that he had been in contact with presumed terrorists. While enumerating the applicant’s presumed illegal activities, the proposal referred to specific dates and names, but to no evidence to support the allegations. Lastly, it was stated that the applicant had left Bulgaria on 29 October 2006.

Unaware of the ministerial order of 6 November 2006, on 15 November 2006 the applicant attempted to re-enter the Bulgarian territory but was stopped at the border and not permitted entry. Since then he has been living in Kiev, while Ms M. and his son remained in Bulgaria.

Through his lawyer, the applicant submitted an appeal to the Bulgarian Minister of the Interior against the order of 6 November 2006. The appeal was dismissed on 22 December 2006, the Minister pointing out, in particular, that he considered irrelevant the applicant’s argument that he had settled in Bulgaria with his family.

After that the applicant applied for judicial review of the order of 6 November 2006. In particular, he pointed out in his application that his family resided in Bulgaria and that their separation had been unjustified.

In the course of the judicial proceedings the applicant’s lawyer was shown proposal no. B4923.

In a decision of 30 October 2007 the Supreme Administrative Court held that it was competent to examine the application, with reference to the Court’s judgment in the case of AlNashif v. Bulgaria (no. 50963/99, 20 June 2002) and Article 13 of the Convention, even though, at the time the impugned order had been issued, judicial review had not been available under the legislation then applicable (see paragraph 16 below).

The judicial proceedings ended on 19 March 2009 with a final judgment of the Supreme Administrative Court, which upheld the order of 6 November 2006. After enumerating the applicant’s alleged unlawful activities described in proposal no. B4923, it stated merely that the impugned order did not breach the law. Furthermore, it dismissed the applicant’s arguments relating to his family and private life, stating:

“any restriction of the rights under the Convention is justified [when based] on national security considerations, in cases where foreign citizens’ behaviour threatens the national security and the public order of the State where they reside.”


CASE OF CENTRE FOR LEGAL RESOURCES ON BEHALF OF VALENTIN CÂMPEANU v. ROMANIA

Preliminary objection dismissed (Article 34 - Locus standi);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character)

Alvina Gyulumyan;Angelika Nußberger;Dean Spielmann;Guido Raimondi;Ineta Ziemele;Ján Šikuta;Johannes Silvis;Kristina Pardalos;Ledi Bianku;Luis López Guerra;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

Valentin Câmpeanu, a man of Roma ethnicity, was born on 15 September 1985. His father was unknown, and his mother, Florica Câmpeanu, who died in 2001, abandoned him at birth. Mr Câmpeanu was therefore placed in an orphanage, the Corlate Centre, where he grew up.

In 1990 Mr Câmpeanu was diagnosed as HIV-positive. He was later diagnosed with “profound intellectual disability, an IQ of 30 and HIV” and was accordingly classified as belonging to the “severe” disability group. In time, he also developed associated symptoms such as pulmonary tuberculosis, pneumonia and chronic hepatitis.

In March 1992 he was transferred to the Craiova Centre for Disabled Children and at a later date to the Craiova no. 7 Placement Centre (“the Placement Centre”).

On 30 September 2003 the Dolj County Child Protection Panel (“the Panel”) ordered that Mr Câmpeanu should no longer be cared for by the State. The decision was justified on the grounds that Mr Câmpeanu had recently turned eighteen and was not enrolled in any form of education at the time.

Although the social worker dealing with Mr Câmpeanu had recommended transferring him to the local Neuropsychological Recovery and Rehabilitation Centre, the Panel ordered that a competent social worker should take all measures necessary for Mr Câmpeanu to be transferred to the Poiana Mare Neuropsychiatric Hospital (“the PMH”). According to the relevant law, the decision could be challenged before the Craiova District Court.

Mr Câmpeanu was not present in person and was not represented at the hearing held by the Panel.

On 14 October 2003 Mr Câmpeanu’s health was reassessed by the Dolj County Council Disabled Adults Medical Examination Panel. The assessment resulted solely in a finding of HIV infection, corresponding to the “average” disability group. It was also mentioned that the patient was “socially integrated”.

Subsequently, on an unspecified date in October or November 2003, a medical and welfare assessment of Mr Câmpeanu was carried out by a social worker and a doctor from the Placement Centre as a prerequisite for his admission to a medical and social care centre. Under the heading “Legal representative” they indicated “abandoned at birth”, while the space next to “Person to contact in case of emergency” was left blank. The diagnosis indicated was “severe intellectual disability, HIV-positive”, without any reference to the previous diagnosis (see paragraph 9 above). The following information was included in the assessment report: “requires supervision and intermittent assistance with personal care”, and the report concluded that Mr Câmpeanu was able to take care of himself, but at the same time required considerable support.

By a letter dated 16 October 2003, the PMH informed the Panel that it could not admit Mr Câmpeanu, who had been diagnosed with HIV and mental disability, as the hospital lacked the facilities necessary to treat individuals with such a diagnosis.

Following this refusal, between October 2003 and January 2004 the Panel and the County Department for the Protection of the Rights of the Child (“the Child Protection Department”) contacted a series of institutions, asking for assistance in identifying a social care or psychiatric establishment willing to admit Mr Câmpeanu. While stating that the PMH had refused to admit the patient because he had HIV, the Child Protection Department asked for the cooperation of the institutions concerned, mentioning that Mr Câmpeanu’s condition “did not necessitate hospitalisation, but rather continuous supervision in a specialist institution”.

The Panel eventually identified the Cetate-Dolj Medical and Social Care Centre (“the CMSC”) as an appropriate establishment where Valentin Câmpeanu could be placed. In its request to the CMSC, the Panel mentioned only that Mr Câmpeanu was HIV-positive, corresponding to the average disability group, without referring to his learning difficulties.

On 5 February 2004 Mr Câmpeanu was admitted to the CMSC. According to a report issued by the CMSC and sent to the CLR on 5 March 2004 detailing his condition upon admission, Mr Câmpeanu was in an advanced state of “psychiatric and physical degradation”, was dressed in a tattered tracksuit, with no underwear or shoes, and did not have any antiretroviral medication or information concerning his medical condition. It was noted that the patient “refused to cooperate”.

In her statement to the prosecutor on 22 July 2004 in the context of the domestic proceedings (described in section B below), M.V., the doctor who had treated Mr Câmpeanu at the Placement Centre, justified the failure to provide appropriate medication or information on the basis that she did not know whether, depending on the results of the most recent investigation (see paragraph 9 above), it would be necessary to modify his treatment.

A medical examination carried out upon Mr Câmpeanu’s admission to the CMSC concluded that he suffered from “severe intellectual disability, HIV infection and malnutrition”. At that time, he was 168 centimetres tall and weighed 45 kilograms. It was mentioned that “he could not orient himself in time and space and he could not eat or care for his personal hygiene by himself”.

During the evening of 6 February 2004 Mr Câmpeanu became agitated. According to the above-mentioned report by the CMSC (see paragraph 14 above), on the morning of 7 February 2004 he “became violent, assaulted other patients, broke a window and tore up a mattress and his clothes and sheets”. He was given phenobarbital and then diazepam to calm him down.

On 9 February 2004 Mr Câmpeanu was taken to the PMH for examination, diagnosis and treatment, as it was the nearest psychiatric establishment. He was again diagnosed with “severe intellectual disability”. However, his condition was described as “not a psychiatric emergency”, as “he was not agitated”. Dr L.G. diagnosed him with “medium intellectual disability” and prescribed sedative medicines (carbamazepine and diazepam).

According to the medical records kept at the PMH, no information regarding Mr Câmpeanu’s medical history could be obtained upon his admission to the hospital, as he “would not cooperate”. In the statement she gave to the investigative authorities on 8 December 2005, Dr D.M. from the PMH stated that “the patient was different in that it was not possible to communicate with him and he had mental disabilities”.

Mr Câmpeanu was returned to the CMSC on the same day, by which time his health had worsened considerably. At that time, the CMSC had received a supply of antiretroviral medication and thus his treatment was resumed. Despite these measures, his condition did not improve, and his medical records noted that he continued to be “agitated” and “violent”.

The CMSC decided that because it lacked the facilities needed to treat Mr Câmpeanu’s condition, it was impossible to keep him there any longer. The hospital sent a request to the Placement Centre asking it to refer him to a different establishment. However, the Placement Centre refused the request on the ground that he was already “outside its jurisdiction”.

On 11 February 2004 E.O., the Director of the CMSC, allegedly called the Dolj County Public Health Department and asked it to come up with a solution that would allow Mr Câmpeanu to be transferred to a facility which was more suitable for the treatment of his health problems. It appears that she was advised to transfer him to the PMH for a period of four to five days for psychiatric treatment.

On 13 February 2004 Mr Câmpeanu was transferred from the CMSC to the PMH, on the understanding that his stay at the PMH would last for three or four days with the purpose of attempting to provide treatment for his hyperaggressive behaviour. He was placed in Psychiatric Department V.

On 15 February 2004 Mr Câmpeanu was placed under the care of Dr L.G. Given the fact that Mr Câmpeanu was HIV-positive, the doctor decided to transfer him to Psychiatric Department VI. She continued to be in charge of his psychiatric treatment, as that department had only two general, non-specialist doctors and no psychiatrists on its staff.

On 19 February 2004 Mr Câmpeanu stopped eating and refused to take his medication. He was therefore prescribed an intravenous treatment which included glucose and vitamins. Upon examination by the doctor, he was found to be “generally unwell”.

On 20 February 2004 a team of monitors from the CLR visited the PMH and noticed Mr Câmpeanu’s condition. According to the information included in a report by CLR staff on that visit, Mr Câmpeanu was alone in an isolated, unheated and locked room, which contained only a bed without any bedding. He was dressed only in a pyjama top. At the time he could not eat or use the toilet without assistance. However, the staff at the PMH refused to help him, allegedly for fear that they would contract HIV. Consequently, the only nutrition provided to Mr Câmpeanu was glucose, through a drip. The report concluded that the hospital had failed to provide him with the most basic treatment and care services.

The CLR representatives stated that they had asked for him to be transferred immediately to the Infectious Diseases Hospital in Craiova, where he could receive appropriate treatment. However, the hospital manager had decided against that request, believing that the patient was not an “emergency case, but a social case”, and that in any event he would not be able to withstand the trip.

Valentin Câmpeanu died on the evening of 20 February 2004. According to his death certificate, issued on 23 February 2004, the immediate cause of death was cardiorespiratory insufficiency. The certificate also noted that his HIV infection was the “original morbid condition” and designated “intellectual disability” as “another important morbid condition”.

In spite of the legal provisions that made it compulsory to carry out an autopsy when a death occurred in a psychiatric hospital (Joint Order no. 1134/255/2000 of the Minister of Justice and the Minister of Health), the PMH did not carry out an autopsy on the body, stating that “it was not believed to be a suspicious death, taking into consideration the two serious conditions displayed by the patient” (namely intellectual disability and HIV infection).

Unaware of Mr Câmpeanu’s death, on 21 February 2004 the CLR had drafted several urgent letters and then sent them to a number of local and central officials, including the Minister of Health, the prefect of Dolj County, the mayor of Poiana Mare and the director of the Dolj County Public Health Department, highlighting Mr Câmpeanu’s extremely critical condition and the fact that he had been transferred to an institution that was unable to provide him with appropriate care, in view of his HIV infection; the CLR further criticised the inadequate treatment he was receiving and asked for emergency measures to be taken to address the situation. It further stated that Mr Câmpeanu’s admission to the CMSC and subsequent transfer to the PMH had been in breach of his human rights, and urged that an appropriate investigation of the matter be launched.

On 22 February 2004 the CLR issued a press release highlighting the conditions and the treatment received by patients at the PMH, making particular reference to the case of Mr Câmpeanu and calling for urgent action.

In a letter of 15 June 2004 to the Prosecutor General of Romania, the CLR requested an update on the state of proceedings following the criminal complaint it had lodged with that institution on 23 February 2004 in relation to the circumstances leading up to Valentin Câmpeanu’s death; in the complaint it had emphasised that Mr Câmpeanu had not been placed in an appropriate medical institution, as required by his medical and mental condition.

On the same day, the CLR lodged two further criminal complaints, one with the prosecutor’s office attached to the Craiova District Court and the other with the prosecutor’s office attached to the Craiova County Court. The CLR repeated its request for a criminal investigation to be opened in relation to the circumstances leading up to and surrounding Mr Câmpeanu’s death, alleging that the following offences had been committed:

(i) negligence, by employees of the Child Protection Department and of the Placement Centre (Article 249 § 1 of the Criminal Code);

(ii) malfeasance and nonfeasance against a person’s interests and endangering a person unable to care for himself or herself, by employees of the CMSC (Articles 246 and 314 of the Criminal Code); and

(iii) homicide by negligence or endangering a person unable to care for himself or herself, by employees of the PMH (Article 178 § 2 and Article 314 of the Criminal Code).

The CLR further argued that the Medical Examination Panel had wrongly classified Mr Câmpeanu as being in the medium disability group, contrary to previous and subsequent diagnoses (see paragraph 9 above). In turn, the Child Protection Department had failed to institute proceedings for the appointment of a guardian when Mr Câmpeanu had reached the age of majority, in breach of existing legislation.

Moreover, the Placement Centre had failed to supply the required antiretroviral medication to CMSC staff when Mr Câmpeanu had been transferred there on 5 February 2004, which might have caused his death two weeks later.

The CLR also claimed that the transfer from the CMSC to the PMH had been unnecessary, improper and contrary to existing legislation, the measure having been taken without the patient’s or his representative’s consent, as required by the Patients’ Rights Act (Law no. 46/2003).

Lastly, the CLR argued that Mr Câmpeanu had not received adequate care, treatment or nutrition at the PMH.

On 22 August 2004 the General Prosecutor’s Office informed the CLR that the case had been sent to the prosecutor’s office attached to the Dolj County Court for investigation.

On 31 August 2004 the prosecutor’s office attached to the Dolj County Court informed the CLR that a criminal file had been opened in response to its complaint, and that the investigation had been allocated to the Criminal Investigation Department of the Dolj County Police Department (“the Police Department”).

On 14 September 2004, at the request of the prosecutor’s office, a forensic report was issued by the Craiova Institute of Forensic Medicine. Based on the medical records submitted, the report concluded as follows:

“Medical treatment was prescribed for [the patient’s] HIV and his psychiatric condition, the treatment [being] correct and appropriate as to the dosage, in connection with the patient’s clinical and immunological condition.

It cannot be ascertained whether the patient had indeed taken his prescribed medication, having regard to his advanced state of psychosomatic degradation.”

On 22 October 2004 Valentin Câmpeanu’s body was exhumed and an autopsy carried out. A forensic report was subsequently issued on 2 February 2005, recording that the body showed advanced signs of cachexia and concluding as follows:

“... the death was not violent. It was due to cardiorespiratory insufficiency caused by pneumonia, a complication suffered during the progression of the HIV infection. Upon exhumation, no traces of violence were noticed.”

On 19 July 2005 the prosecutor’s office attached to the Dolj County Court issued a decision not to prosecute, holding, inter alia, that, according to the evidence produced, the medical treatment provided to the patient had been appropriate, and that the death had not been violent, but rather had been caused by a complication which had occurred during the progression of Mr Câmpeanu’s HIV infection.

On 8 August 2005 the CLR lodged a complaint against that decision with the Chief Prosecutor of the prosecutor’s office attached to the Dolj County Court, claiming, inter alia, that some of the submissions it had made concerning the medical treatment given to the patient, the alleged discontinuation of the antiretroviral treatment and the living conditions in the hospitals had not been examined.

On 23 August 2005 the Chief Prosecutor allowed the complaint, set aside the decision of 19 July 2005 and ordered the reopening of the investigation so that all aspects of the case could be examined. Specific instructions were given as to certain medical documents that needed to be examined, once they had been obtained from the Infectious Diseases Hospital in Craiova, the Placement Centre, the CMSC and the PMH. The doctors who had treated Mr Câmpeanu were to be questioned. The circumstances in which the antiretroviral treatment had or had not been provided to the patient while he was in the CMSC and in the PMH were to be clarified, especially as the medical records at the PMH did not mention anything on that account.

On 11 December 2006 the prosecutor’s office attached to the Dolj County Court decided that, pursuant to new procedural rules in force, it lacked jurisdiction to carry out the investigation, and referred the case file to the prosecutor’s office attached to the Calafat District Court.

On 11 January 2006 the Police Department asked the Dolj County Medical Association (“the Medical Association”) to provide it with an opinion on “whether the therapeutic approach [adopted] was correct in view of the diagnosis [established in the autopsy report] or whether it contains indications of medical malpractice”.

On 20 July 2006, the Disciplinary Board of the Medical Association ruled that there were no grounds for taking disciplinary action against staff at the PMH:

“... the psychotropic treatment, as noted in the general clinical observation notes from the PMH, was appropriate ... [and therefore] ... the information received suggests that the doctors’ decisions were correct, without any suspicion of medical malpractice [arising from] an opportunistic infection associated with HIV [being] incorrectly treated.”

That decision was challenged by the Police Department, but on 23 November 2006 the challenge was rejected as out of time.

On 30 March 2007 the prosecutor’s office attached to the Calafat District Court issued a fresh decision not to prosecute. The prosecutor relied in his reasoning on the evidence adduced in the file, as well as on the decision issued by the Disciplinary Board of the Medical Association.

The CLR lodged a complaint against that decision, submitting that the majority of the instructions given in the Chief Prosecutor’s decision of 23 August 2005 (see paragraph 33 above) had been ignored. The complaint was dismissed by the Chief Prosecutor of the prosecutor’s office attached to the Calafat District Court on 4 June 2007. The brief statement of reasons in the decision referred to the conclusions of the forensic report of 14 September 2004 and the Medical Association’s decision of 20 July 2006.

On 10 August 2007 the CLR challenged that decision before the Calafat District Court.

On 3 October 2007 the Calafat District Court allowed the complaint, set aside the decisions of 30 March 2007 and 4 June 2007 and ordered the reopening of the investigation, holding that several aspects of Mr Câmpeanu’s death had not been examined and that more evidence needed to be produced.

Among the shortcomings highlighted by the court were the following: most of the documents which were supposed to have been obtained from the Infectious Diseases Hospital in Craiova and the Placement Centre had not actually been added to the investigation file (the forensic documents on the basis of which Mr Câmpeanu had been admitted to the CMSC and transferred to the PMH; the clinical and paraclinical tests undertaken; the records of questioning of the doctors and nurses who had been responsible for Mr Câmpeanu’s care; and the HIV testing guidelines). Contradictions in the statements of those involved in Mr Câmpeanu’s admission to the CMSC had not been clarified, and neither had the circumstances relating to the interruption of his antiretroviral treatment after being transferred to the PMH. In addition, the contradictory claims of medical personnel from the CMSC and the PMH regarding Mr Câmpeanu’s alleged “state of agitation” had not been clarified.

The investigators had also failed to ascertain whether the medical staff at the PMH had carried out the necessary tests after Mr Câmpeanu had been admitted there and whether he had received antiretrovirals or any other appropriate medication. The investigators had failed to establish the origin of the oedema noted on Mr Câmpeanu’s face and lower limbs and whether the therapeutic approach adopted at the PMH had been correct. Given these failures, the request for an opinion from the Medical Association had been premature and should be resubmitted once the investigation file had been completed.

The prosecutor’s office attached to the Calafat District Court appealed against that judgment. On 4 April 2008 the Dolj County Court allowed the appeal, quashed the judgment delivered by the Calafat District Court and dismissed the CLR’s complaint concerning the decision of 30 March 2007 not to prosecute.

The court mainly relied on the conclusions of the forensic report and the autopsy report, and also on the decision of the Medical Association, all of which had stated that there had been no causal link between the medical treatment given to Mr Câmpeanu and his death.

In response to the complaints lodged by the CLR (see paragraph 26 above), on 8 March 2004 the prefect of Dolj County established a commission with the task of carrying out an investigation into the circumstances surrounding Valentin Câmpeanu’s death. The commission was made up of representatives of the Child Protection Department, the Public Health Department, the Criminal Investigations Department of the Police Department and the prefect’s office. The commission was given ten days to complete the investigation and submit a report on its findings.

The commission’s report concluded that all procedures relating to Mr Câmpeanu’s treatment after his discharge from the Placement Centre had been lawful and justified in view of his diagnosis. The commission found only one irregularity, in that an autopsy had not been carried out immediately after Mr Câmpeanu’s death, in breach of existing legislation (see paragraph 25 above).

On 26 June 2004 the CLR filed a complaint with the National Authority for the Protection and Adoption of Children (“the National Authority”), criticising several deficiencies concerning mainly the failure to appoint a guardian for Mr Câmpeanu and to place him in an appropriate medical institution. The CLR reiterated its complaint on 4 August 2004, submitting that the wrongful transfer of Mr Câmpeanu to the PMH could raise issues under Article 5 § 1 (e) of the Convention.

In response to those allegations, the National Authority issued a report on 21 October 2004 on the circumstances surrounding Mr Câmpeanu’s death. The National Authority acknowledged that the Panel had acted ultra vires when ordering Mr Câmpeanu’s admission to the PMH. However, it stated that in any event, the order had been of no consequence, given that the institution had initially refused to accept Mr Câmpeanu (see paragraph 11 above).

The National Authority concluded that the Child Protection Department had acted in line with the principles of professional ethics and best practice when it had transferred Mr Câmpeanu to the CMSC. At the same time, the National Authority stated that it was not authorised to pass judgment on Mr Câmpeanu’s subsequent transfer to the PMH.

Similarly, the National Authority declined to express an opinion on the allegedly wrongful categorisation of Mr Câmpeanu as belonging to the medium disability group, or on the events which had occurred after his admission to the CMSC.

On 24 March 2004 the Dolj County Public Health Department informed the CLR that a commission made up of various county-level officials had concluded that “no human rights were breached” in connection with Mr Câmpeanu’s death, as his successive admissions to hospital had been justified by Article 9 of Law no. 584/2002 on measures for the prevention of the spread of HIV infection and the protection of persons infected with HIV or suffering from AIDS.

On 16 March 2005, following a criminal investigation concerning the death of seventeen patients at the PMH, the General Prosecutor’s Office sent a letter to the Ministry of Health, requiring it to take certain administrative measures to address the situation at the hospital. While noting that no criminal wrongdoing was detectable in connection with the deaths in question, the letter highlighted “administrative deficiencies” observed at the hospital and called for appropriate measures to be taken as regards the following problems:

“[L]ack of heating in the patients’ rooms; hypocaloric food; insufficient staff, poorly trained in providing care to mentally disabled patients; lack of effective medication; extremely limited opportunities to carry out paraclinical investigations ..., all these factors having encouraged the onset of infectious diseases, as well as their fatal progression ...”

In a decision of 15 June 2006 concerning a criminal complaint lodged by the CLR on behalf of another patient, P.C., who had died at the PMH, the High Court of Cassation and Justice dismissed an objection by the public prosecutor that the CLR did not have locus standi. It found that the CLR did indeed have locus standi to pursue proceedings of this nature with a view to elucidating the circumstances in which seventeen patients had died at the PMH in January and February 2004, in view of its field of activity and stated aims as a foundation for the protection of human rights. The court held as follows:

“The High Court considers that the CLR may be regarded as ‘any other person whose legitimate interests are harmed’ within the meaning of Article 2781 of the Code of Criminal Procedure. The legitimacy of its interest lies in the CLR’s request that the circumstances which led to the death of seventeen patients at the PMH in January and February 2004 be determined and elucidated; its aim was thus to safeguard the right to life and the prohibition of torture and ill-treatment ... by initiating an official criminal investigation that would be effective and exhaustive so as to identify those responsible for breaches of the above-mentioned rights, in accordance with the requirements of Articles 2 and 3 of the European Convention on Human Rights. [It also aimed] to raise the awareness of society as to the need to protect fundamental human rights and freedoms and to ensure access to justice, which corresponds to the NGO’s stated goals.

Its legitimate interest has been demonstrated by the initiation of investigations, which are currently pending.

At the same time, the possibility for the CLR to lodge a complaint in accordance with Article 2781 ... represents a judicial remedy of which the complainant availed itself, also in compliance with the provisions of Article 13 of the European Convention on Human Rights ...”

The CLR submitted an expert opinion, dated 4 January 2012 and issued by Dr Adriaan van Es, a member of the Forensic Advisory Team and director of the International Federation of Health and Human Rights Organisations (IFHHRO), assisted by Anca Boeriu, Project Officer at the IFHHRO. The opinion was based on copies of the evidence which the CLR also submitted to the Court, including the medical records from the CMSC and the PMH.

The expert opinion referred to the “very poor, substandard, often absent or missing” medical records at the PMH and the CMSC, in which the description of Mr Câmpeanu’s clinical situation was “scant”. It noted that while at the PMH the patient had never been consulted by an infectiousdisease specialist. Also, contrary to Romanian law, no autopsy had taken place immediately after the patient’s death.

Concerning the antiretroviral treatment, the documents available did not provide reliable information as to whether it had been received on a continuous basis. Therefore, as a result of inappropriate treatment, Mr Câmpeanu might have suffered from a relapse of HIV, and also from opportunistic infections such as pneumocystis pneumonia (pneumonia appeared in the autopsy report as the cause of death). The opinion noted that pneumonia had not been diagnosed or treated while the patient was at the PMH or the CMSC, even though it was a very common disease in HIV patients. Common laboratory tests to monitor the patient’s HIV status had never been carried out.

The expert opinion stated that certain behavioural signs interpreted as psychiatric disorders might have been caused by septicaemia.

Therefore, the risks of discontinued antiretroviral treatment, the possibility of opportunistic infections and the patient’s history of tuberculosis should have led to Mr Câmpeanu being admitted to an infectious-disease department of a general hospital, and not to a psychiatric institution.

The report concluded that Mr Câmpeanu’s death at the PMH had been the result of “gross medical negligence”. The management of HIV and opportunistic infections had failed to comply with international standards and medical ethics, as had the counselling and treatment provided to the patient for his severe intellectual disability. Moreover, the disciplinary proceedings before the Disciplinary Board of the Medical Association had been substandard and negligent, in the absence of important medical documentation.

The PMH is located in Dolj County in southern Romania, 80 km from Craiova, on a former army base occupying thirty-six hectares of land. The PMH has the capacity to admit 500 patients, both on a voluntary and an involuntary basis, in the latter case as a result of either civil or criminal proceedings. Until a few years ago, the hospital also included a ward for patients suffering from tuberculosis. The ward was relocated to a nearby town as a result of pressure from a number of national and international agencies, including the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

At the time of the relevant events, namely in February 2004, there were 436 patients at the PMH. The medical staff included five psychiatrists, four psychiatry residents and six general practitioners.

According to the CPT’s report of 2004 (see paragraph 77 below), during two consecutive winters, 109 patients died in suspicious circumstances at the PMH – eighty-one between January and December 2003 and twentyeight in the first five months of 2004. The CPT had visited the PMH three times, in 1995, 1999 and 2004; its last visit was specifically aimed at investigating the alarming increase in the death rate. After each visit, the CPT issued very critical reports, highlighting the “inhuman and degrading living conditions” at the PMH.

Following a visit to several of the medical institutions indicated as problematic in the CPT’s reports, among them the PMH, the Ministry of Health issued a report on 2 September 2003. It concluded that at the PMH the medication provided to patients was inadequate, either because there was no link between the psychiatric diagnosis and the treatment provided, or because the medical examinations were very limited. Several deficiencies were found concerning management efficiency and the insufficient number of medical staff in relation to the number of patients.

It appears from the information received from the CLR that the CMSC was a small centre for medical and social care, with a capacity of twenty beds at the beginning of 2004; at the time, there were eighteen patients at the CMSC. Before 1 January 2004 – when it was designated as a medical and social care centre – the CMSC was a psychiatric hospital.

According to its accreditation certificate for 2006 to 2009, the CMSC was authorised to provide services for adults experiencing difficult family situations, with an emphasis on the social component of medical and social care.


Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions);No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

András Sajó;André Potocki;Angelika Nußberger;Branko Lubarda;Carlo Ranzoni;Guido Raimondi;Kristina Pardalos;Krzysztof Wojtyczek;Luis López Guerra;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Pauliine Koskelo;Paulo Pinto De Albuquerque;Síofra O’Leary;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Yonko Grozev;Ksenija Turković

The applicant was born in 1953 and lives in Budapest.

He had been employed as a police officer when, having reached an age when he was entitled to do so, he took early retirement and started receiving a “service pension” (szolgálati nyugdíj) from 1 January 2000, when he was nearly 47 years old. The applicant, however, continued to work: he was employed in the private sector between 2000 and 2012 and from 1 July 2012 until 31 March 2015 he worked, as a civil servant, as the head of the Road Maintenance Department of the Budapest XIII District Municipality. The applicant paid the statutory contributions to the State old-age pension scheme from the first day of his employment (1 August 1973) until 31 March 2015.

On 28 November 2011 Parliament enacted Act no. CLXVII, which entered into force on 1 January 2012. According to section 5(1) of that law, service pensions like that of the applicant were converted into a “service allowance” (szolgálati járandóság), provided that the person concerned was born in or after 1955. Pursuant to section 3(2)(b) of the same Act, for recipients of a service pension who, like the applicant, were born in or before 1954, the service pension was to be converted into an old-age pension.

On 1 January 2013 an amendment to Act no. LXXXI of 1997 on Social-Security Pensions (hereafter “the 1997 Pensions Act”) entered into force, according 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 (see also paragraphs 23-28 below). No such restriction was put in place in respect of those who were in receipt of an old-age pension while being employed within the private sector.

On 18 February 2013 the National Pensions Administration (Országos Nyugdíjbiztosítási Főigazgatóság) sent a letter to the applicant in his capacity as the recipient of an old-age pension, informing him of the amended legislation and instructing him to make a declaration as to whether he was employed in the civil service, in one of the categories concerned by the amendment of 1 January 2013. By a letter of 29 April 2013 the applicant notified the National Pensions Administration of his employment situation. Subsequently, on 2 July 2013, the National Pensions Administration informed the applicant that the disbursement of his pension had been suspended as of 1 July 2013. At that time his pension amounted to 162,260 Hungarian forints (HUF; at that time approximately 550 euros (EUR)) per month.

On 15 July 2013 the applicant lodged an administrative appeal with the National Pensions Administration (see paragraph 21 below) against the suspension of his pension payments in which he argued that his pension constituted an acquired right and that he was being discriminated against since pensioners working in the private sector continued to receive their pensions.

The National Pensions Administration sought further information from the applicant on 23 July 2013. The applicant elaborated on his appeal on 1 August 2013, referring, inter alia, to an application filed by the Ombudsman with the Constitutional Court in May 2013 (AJB-726/2013). In that application the Ombudsman set out the complaints which had been made to his Office about the amendment of the 1997 Pensions Act and raised the issue of a difference in treatment between pensioners employed in the civil service and those employed in the private sector. As far as the Court is aware, this case is currently still pending before the Constitutional Court.

On 27 September 2013 the National Pensions Administration discontinued the proceedings concerning the applicant’s appeal, holding that the applicant had failed to provide the information sought from him on 23 July 2013.

The applicant’s employment with the Budapest XIII District Municipality came to an end on 31 March 2015. On 24 April 2015 the competent authority decided that the disbursement of his pension would be resumed. His pension was increased to HUF 177,705 (at that time approximately EUR 585).