No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture;Effective investigation)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1967 and lives in Staro Oryahovo.

The applicant was driving his car along a road in the region of Varna on the evening of 10 March 2014. As established subsequently by the prosecution and the domestic courts in criminal proceedings opened into the incident that took place that evening, his car was weaving in an unsteady manner and he was spotted by patrolling police officers parked on the side of the road. They signalled for him to pull over, but instead of complying he sped away. According to the applicant’s own statements given in the context of those proceedings, he was afraid that the police would charge him or take his licence away as he had consumed alcohol earlier that evening. The prosecution and the courts established that the officers chased after him in their car, using flashing police lights and their siren. He only stopped when his car reached a field and could not go further. The police car stopped too.

The parties have presented differing accounts of the circumstances in which the applicant was arrested.

According to the applicant, one of the officers kicked him in the left leg and then pushed him violently to the ground as he was trying to get out of his vehicle. The applicant fell on his back and then three officers continued to kick him. The assault lasted a few minutes, after which they handcuffed him. One of the officers hit him on the head with a rubber truncheon before they drove him to the police station.

According to the police officers, the applicant had jumped out of his car after it had come to a halt and had started running through the field in an attempt to escape. The officers had run after him, the applicant had slipped and fallen and the police had caught up with him. As he had resisted arrest, wriggling and struggling, they had used force which had consisted in twisting his arms in order to handcuff him. Once they had managed to handcuff him, the officers had driven him to the police station.

According to written statements made during the criminal proceedings by several police officers present at the police station when the applicant was taken there, he told everyone present at the time that his clothes were muddy because he had tripped and fallen, which was also why he had a limp. As stated by the officers and by the applicant himself in the course of those proceedings, he made no complaints at that point in time. According to police records of the evening when the applicant was arrested, he refused to take an alcohol test or to sign the arrest report and was given a fine for refusing the alcohol test. As it emerges from the officers’ statements, they discovered that he had no identity documents on him and called his brother, who brought them to the police station accompanied by a friend. The records indicate that the officers released the applicant immediately after checking his papers.

According to a written statement made on 11 March 2014 by the applicant’s brother to the police in the context of an official follow-up conducted into the events, on leaving the station, he asked him what had happened but the applicant stated that he did not wish to speak about it and preferred to be left alone in his home. Instead, his brother drove him to the local medical centre as he had noticed that the applicant was having difficulties breathing. On examination, a doctor noted a suspected broken left ankle and told the applicant to go to hospital. No ambulance was provided and the applicant’s brother drove him there. It follows from medical documents that the doctors operated on him immediately as they had established that he had a broken rib which had pierced one of his lungs.

The applicant’s hospital record, signed by the doctor who had treated him and the head of the unit, stated that the applicant had been in hospital between 11 and 14 March 2014 and that he had a broken rib and a broken ankle. Upon his discharge on 14 March 2014, a different doctor examined the applicant and issued him with a medical certificate which recorded that he had a broken rib, a bruise of about 8 mm on his right eyebrow, and a fracture of the fibula close to the ankle that was in a cast. It also contained the phrase that it was not excluded that the injuries had been sustained in the manner suggested by the applicant, namely as a result of being hit or kicked. The certificate stated that no other traumatic injuries were present.

On 11 March 2014 the police officer in charge of radio communications between patrolling officers and who was on duty on the night of the incident produced a written report to provide information for his superior and to receive whatever orders were deemed necessary. As well as repeating the account of the two arresting officers, he stated that he personally had seen the applicant at the station and that the applicant had told him that he had fallen while running and that his back was hurting. The officer had offered to call in medical staff from the local medical centre to check the applicant on the spot, but he had refused, saying that he did not need a doctor and wished to be released instead.

A different police officer was sent to the local medical centre. In a written report he drew up on 11 March 2014 on his visit, he confirmed the existence of a record there that the applicant had visited it the previous evening and had been checked by a doctor who had directed him to the hospital for treatment of a suspected fractured ankle. Another officer visited the hospital the same day. In a written report he listed his findings, namely that the applicant had been admitted and treated for a broken rib and broken leg the previous night. The report indicated that in a conversation with the applicant conducted during that visit, the latter had told the officer that he could not remember the events in detail, but that he was certain that after the car chase two police officers had beaten and then handcuffed him before taking him to the police station. The applicant also gave a handwritten statement to an officer that day. In it he referred to the car chase, stated that he had wanted to escape as he had felt drunk, that when he had got out of his car the policemen had grabbed him, that one of them had pulled him to the ground and that the other one had handcuffed him. He concluded by saying that the injuries had most likely been caused during his arrest, given that immediately beforehand he had only been driving his car and did not remember breaking his leg and rib when he had brought the car to a stop.

On the same day the applicant’s brother also gave a written statement to the police (see paragraph 11 above).

The two police officers involved in the car chase and the arrest also gave written statements on 11 March 2014. In addition to the description above (see paragraph 9), the officers stated that once the applicant had been handcuffed and put inside the police car, he had leaned on one of them and moaned. When asked if he had a problem and wished to be taken to a medical centre, he had refused and said, “It’s nothing”. At the police station the applicant had refused to be tested for alcohol or to sign the arrest report.

On 13 March 2014 the Varna District Prosecutor, acting on his own initiative, opened criminal proceedings in relation to the conduct of the two officers who had arrested the applicant. The order for the opening of those proceedings indicated that it was “against the guilty official from the Ministry of the Interior who, acting in the context of his professional functions, had caused bodily harm to the applicant on 10 March 2014 in Varna”. A number of investigative steps were carried out. The investigating authorities questioned several police officers as witnesses, including the two involved in the applicant’s arrest and those who had been at the police station on the night of the incident. The latter all stated that they had seen the applicant at the police station on the night in question. He had been calm, had smelt of alcohol and been visibly intoxicated, his clothes had been muddy and he had limped. The applicant, his brother and the friend of the brother who had accompanied him to collect the applicant from the police station, were also interviewed. The brother and his friend stated that the applicant had not told them anything about the circumstances of his arrest and that the brother had learned that the applicant had been beaten by the police from the doctors at the hospital.

A forensic medical expert was appointed on 30 May 2014 to establish the nature of the injuries sustained by the applicant and the type of instrument used. The expert was given a list of specific questions that needed to be answered. The forensic medical report, containing a comprehensive and independent assessment, concluded that the three injuries recorded in the medical certificates drawn up in the immediate aftermath of the events (see paragraph 12 above) were incompatible with the applicant’s allegations that the officers had hit him all over his body for a few minutes. In particular, being kicked by someone wearing boots or being hit for several minutes would have left the applicant with many more traces on different parts of his body, not just the three strictly localised injuries mentioned above. The report further indicated that the injuries could have been received as a result of falling over while moving in accelerated fashion, for example by running and falling.

In a decree of 31 October 2014 for terminating the criminal proceedings, the prosecution established that the version of events given by the applicant at different stages of his questioning were not consistent. In particular, he had stated initially that he had sprained his ankle after tripping and falling, but had later changed his story and said that the injury had been the result of an intentional and prolonged beating by police officers. Furthermore, when questioned on 27 March 2014, the applicant had stated that the police officers had started hitting and kicking him after he had left his car voluntarily. When interviewed again on 28 May 2014, he had asserted that the officers had brutally pulled him out of the car and had thereafter only kicked him rather than hit him. He had tried to use his arms to protect his head from the kicks. He had stated that he could not remember or recognise the police officers who had beaten him, whether in a personal confrontation or from pictures. He had also complained that three officers had beaten him, while it had been unequivocally established that there had only been two patrolling officers. In addition, when on 6 October 2014 the investigator had handed the investigation file over to the applicant, he had signed the related acknowledgement, indicating that he did not wish to acquaint himself with the evidence, read the documents in the file, which was voluminous, and that he had no requests, comments or objections to the investigation.

The prosecutor concluded in the decree for termination of the proceedings that the applicant’s complaints were not supported by the evidence. The force used by the officers had been necessary for neutralising and detaining him in the circumstances, given that he had effectively been running away from the police and actively disobeying their orders to stop. The force had involved one officer holding the applicant on the ground, using one knee to press on his body, while the second officer had helped by handcuffing him. There was no evidence pointing to the officers having used violence or undue force when apprehending the applicant. The applicant challenged the prosecutor’s decision in court.

The prosecutor’s decision to terminate the proceedings was confirmed at two levels of jurisdiction. In particular, the first-instance court, the Varna District Court, observed in its decision of 24 November 2014 that two officers had arrested the applicant after a long car chase, when he had tried to escape despite clear orders to the contrary. The officers had worn police uniforms that had been clearly visible and identifiable and had been driving a police car with flashing police lights and a siren while chasing the applicant. He had not only refused to stop but had actively avoided being caught. As to the differing versions of the events thereafter, the court found that the applicant’s submissions were inconsistent and not supported by the evidence. As a consequence, the court gave no weight to his testimony, finding that it was incompatible with the rest of the evidence.

The second-instance court, the Varna Regional Court, upheld those findings in a final decision on 9 January 2015.


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

The applicant, Ms Jolanta Kužmarskienė, is a Lithuanian national who was born in 1973 and lives in Joniškis. She was represented before the Court by Ms D. Balčiūnienė, a lawyer practising in Joniškis.

The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

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

In 2010 Šiauliai Remand Prison (hereinafter, “the prison”) published a recruitment notice for a psychologist. The applicant applied for the position.

On 14 June 2010 the prison’s human resources division sent the applicant for a medical examination at the Central Medical Expert Commission of the Medical Centre of the Ministry of Interior (hereinafter, “the Commission” – see paragraph 23 below).

On 7 July 2010 the applicant went for the examination, but after her height was measured the process was terminated and the applicant was told that she was unfit for the position because she was too short. The Commission noted that the applicant’s height was 151 cm and she was informed that she was diagnosed as being physically underdeveloped due to lack of proteins and minerals (sulėtėjusi raida dėl baltymų ir energetinių medžiagų trūkumo). The Commission also stated that domestic regulations provided that women smaller than 155 cm were unfit for work within the security and lawenforcement services (see paragraph 25 below).

In July 2010 the applicant wrote to the Minister of Interior and the Minister of Health and complained about the fact that she had been found unfit for service by the Commission. The Ministry of Health replied that the Commission’s decisions could be appealed against in accordance with the rules of administrative procedure (see paragraph 40 below).

The applicant also complained to the Parliamentary Ombudsperson, who in November 2010 established that the Commission had performed the medical examination in accordance with the provisions of domestic law (see paragraph 24 below). The Ombudsperson held, however, that the Ministry of Interior and the Ministry of Health had not replied to a question about the specific reason for setting the height requirements and decided that the applicant’s requests had not been fully examined. The Ombudsperson thus suggested that the Ministry of Interior and the Ministry of Health should in the future oblige employees to follow the requirement to provide comprehensive information.

The applicant also complained to the Equal Opportunities Ombudsperson, who in November 2010 held that the domestic regulation in question was more favourable to men than women. According to medical experts, men were considered small if their height was between 168 and 171 cm while women were considered small if their height was between 155 and 156 cm. The contested regulation provided that men were unfit for service in the security and law-enforcement bodies if they were smaller than 160 cm while women were considered unfit for such service if they were smaller than 155 cm. The Equal Opportunities Ombudsperson also stated that there was no explanation why officers who did not carry out operational duties were considered unfit for service if they were short.

On 31 July 2010 the applicant lodged a complaint with the Vilnius Regional Administrative Court. She asked the court to annul the Commission’s decision that she was unfit for the position and the diagnosis that she was physically underdeveloped. On 1 December 2010 the Vilnius Regional Administrative Court decided that there had been no medical examination of the applicant, except for measuring her height. The court also raised doubts as to whether a domestic regulation which referred merely to height for acceptance into government service, without any additional examination (see paragraph 25 below), was in accordance with the Constitution and the Law on Equal Opportunities and decided to refer the matter to the Supreme Administrative Court. The examination of the applicant’s case was suspended awaiting the decision of the latter court (see paragraph 28 above).

On 2 November 2011 the Supreme Administrative Court noted that the Interior Ministry Service Statute provided that a person aiming to be employed by the domestic security and safety services had to be healthy enough to perform such functions (see paragraph 22 below). However, there was no evidence that a person’s height, if not related to other health issues, was a reasonable ground to diagnose such a person as being physically underdeveloped. The court did not question the possibility of setting various requirements (including height) to hold certain positions, but held that the contested provision was contrary to the Interior Ministry Service Statute as it did not differentiate the height requirements according to profession and was not based on any inability to perform certain functions.

The proceedings before the Vilnius Regional Administrative Court resumed. On 8 November 2011 the applicant was asked to set out her complaint in a more specific way (patikslinti skundo reikalavimą) and to ask the court to annul the prison’s decision on terminating the employment procedure. On the same day, the prison was asked to provide the court with a document, stating who, when and by what decision terminated the employment procedure.

On 22 November 2011 the applicant, following the Vilnius Regional Administrative Court’s proposal, stated her complaint in more specific terms and asked the court to also annul the prison’s decision to terminate the procedure to employ her. On 29 November 2011 the Vilnius Regional Administrative Court set a time-limit for the applicant to remedy shortcomings in her complaint. The court stated that the applicant had complained about the decision to terminate the procedure to employ her; however, the prison administration had indicated that there had been no separate decision on that issue. The court held that in such cases only a final decision by the director of the institution in question could be complained of and that a decision by the Commission was only an intermediate document. The court thus suggested that the applicant again state her complaint more specifically and asked the prison to take a decision on terminating the employment procedure. There is no information that the prison had taken that decision in writing (see paragraph 15 below).

The applicant set out her complaint again on 7 December 2011. She asked the court to oblige the prison to take a decision on terminating her employment procedure; to annul that decision; to annul the Commission’s decision that she was unfit for service; and to annul the Commission’s diagnosis that she was physically underdeveloped.

On 27 December 2011 the Vilnius Regional Administrative Court decided to terminate the part of the case in which the applicant sought to annul the Commission’s decision and decided to annul instead the prison’s decision on terminating the employment procedure. The court observed that the Commission had taken its decision without any medical advice and thus it had been unlawful and unfounded. The court further referred to the Supreme Administrative Court’s decision of 2 November 2011 (see paragraph 11 above and paragraph 27 below) and held that the regulation that had been found to be contrary to the Interior Ministry Service Statute was not applicable from the date of issuance of the court’s decision, 10 November 2011. The court also referred to a Supreme Administrative Court case where the rules for appealing against decisions by the Commission had been explained (see paragraph 41 below). As a result, the Vilnius Regional Administrative Court held that in the applicant’s case the decision which had affected her the most was that of the prison and not the Commission’s and thus the latter could not be the subject of examination by the court. The court also noted that the prison’s decision to terminate the procedure for the applicant’s employment had not been set down in writing, but decided that the date it had been taken was when the prison had received the Commission’s decision, which was 13 July 2010. The court referred the matter back to the prison so it could examine the applicant’s employment application afresh and send her for a special medical examination.

In January 2012 the applicant, the prison and the Commission lodged appeals with the Supreme Administrative Court.

The applicant sought to annul both the Commission’s decision and that of the prison to terminate the employment procedure. The applicant disagreed with the Vilnius Regional Administrative Court’s conclusion that the Commission’s decision had not affected her situation. She argued that the Commission’s decision had been the ground for the prison to terminate the employment procedure. She also noted that the prison had not issued a written decision on terminating the employment process and that the procedure to complain about such a decision was unclear. She also stated that she had not asked the court of first instance to refer the matter of her employment back to the prison because by that time the judicial proceedings had taken more than a year and the position at the prison had probably already been taken.

The prison argued that the Commission’s decision had been an independent act with legal consequences for the applicant, namely it had prevented her from being a candidate for the position of psychologist. It did not agree that the negative consequences had been caused by its own decision, which had not even been set down in writing. The Commission stated that the applicant’s complaint should have been dismissed as unfounded because it was not clear how an employing institution should act if there was a decision by the Commission that a person was unfit for service and that person thought otherwise. In accordance with the case-law of the Supreme Administrative Court, a person in such a situation would lose the possibility to question the lawfulness of the Commission’s decision.

On 21 June 2012 the Supreme Administrative Court amended the Vilnius Regional Administrative Court’s decision and held that the Commission’s decision could not be regarded as an independent document because it had not been an individual administrative act and the Commission was not a public authority. The court also stated that the Commission’s decision had only been an intermediate step in the employment procedure and could not be contested before the domestic courts. Even if it had been held that the Commission’s decision could be a matter for an administrative case, the applicant’s right to continue the employment procedure would not in fact have been protected because the court could not impose an obligation on the institution where the applicant had aimed to be employed on the grounds of the Commission’s allegedly unlawful decision. The court also held that examination of a case by a court was pointless if a person’s rights could not be defended. The decision which the applicant could have challenged was the one by the prison. The court stated, however, that the applicant had submitted contradictory claims (reiškė prieštaringus reikalavimus), that is, on the one hand she had asked that the prison be obliged to take a decision on terminating the employment procedure and, on the other hand, that the prison annul its decision on terminating the procedure. The court also noted that the applicant had not indicated any remedy in defence of her rights before the court of first instance; however, that court had not held that circumstance to be a shortcoming in the claim. In order to defend the applicant’s rights to the maximum, it had applied the provisions of administrative law and had chosen the remedy that had best met the applicant’s requirements. That was why the employment matter had been referred back to the prison. The court held that a decision stating that the applicant’s rights had been breached had no consequences and was not the right way to protect her rights. The court also underlined that the applicant had not wanted to continue the employment procedure and that she had lodged her complaint with the domestic courts without any indication of possible measures of redress. As a decision by a domestic court that merely indicated that someone’s rights had been breached did not lead to any material or legal consequences for that person, such complaints were not subject to examination by the administrative courts. The court therefore decided to terminate the case.

Article 29 of the Constitution provides that everyone is equal before the law, courts, and other state institutions and officials. Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions or views.

Article 5 § 1 (1) of the Law on Equal Opportunities provides that when implementing equal treatment provisions, an employer, regardless of the person’s age, sexual orientation, disability, racial or ethnic origin, religion or beliefs, must apply the same recruitment criteria and employment conditions when employing or recruiting someone to public service, except in cases provided for by law. Those include restrictions on the grounds of age, a requirement to know the official State language, a prohibition on taking part in political activities, different rights applied on the basis of citizenship and special measures applied in the healthcare, work safety, employment and labour market sphere, which at the same time also aim to create and apply conditions and opportunities guaranteeing and promoting the integration of the disabled into the labour market.

At the material time, Article 6 § 1 (4) of the Interior Ministry Service Statute (Vidaus tarnybos statutas) provided that a person aiming to be employed by the domestic security and safety services had to be healthy enough to perform such functions. The health requirements are set by the Minister of Interior and the Minister of Health.

Article 10 § 1 of the Prison Department Statute of Service (Tarnybos Kalėjimų departamente prie Lietuvos Respublikos teisingumo ministerijos statutas) provided that people aiming to be employed at the Prison Department had to be citizens of Lithuania, at least 18 years old, with a sufficient knowledge of the Lithuanian language and a sufficient level of education, personal qualities, physical ability and health. Article 10 § 4 provided that candidates’ health had to be examined by the Medical Centre of the Ministry of Interior at the request of the Prison Department. Article 11 § 1 (1) provided that a person could not be accepted for work by the Prison Department or related institutions if he or she was found to be unfit for service by the Commission. Article 11 § 3 provided that appeals against decisions regarding a refusal of employment could be made to a court, in accordance with the Law on Administrative Proceedings.

Point 2 of the order of the Minister of Interior of 5 August 2008, No. 1V-299 (Lietuvos Respublikos vidaus reikalų ministro įsakymas „Dėl specializuotosios medicininės ekspertizės organizavimo ir atlikimo tvarkos aprašo patvirtinimo“, hereinafter, “the order”) provided that the Commission was part of the Medical Centre of the Ministry of Interior, performing specialised medical expert examinations. An expert examination is a decision by Commission doctors indicating a health disorder in accordance with the international statistical classification of health disorders and problems. A person under examination is a person who aims to be employed by the domestic security and safety services, an officer, former officer or student who is sent for examination by the Commission. The status of a person being examined by a medical expert, including the carrying out of laboratory and functional analyses, is equivalent to that of a patient and the provisions of the Law on Patients’ Rights and Compensation for Health Damage are applicable.

At the material time, Point 17 § 2 of the order of the Minister of Interior and the Minister of Health of 21 October 2003, No. 1V-380/V-618 (Lietuvos Respublikos vidaus reikalų ministro ir Lietuvos Respublikos sveikatos apsaugos ministro įsakymas „Dėl sveikatos būklės reikalavimų asmenims, pretenduojantiems į vidaus tarnybą, pageidaujantiems mokytis vidaus reikalų profesinio mokymo įstaigose, kitose mokymo įstaigose Vidaus reikalų ministerijos siuntimu, bei vidaus tarnybos sistemos pareigūnams sąvado patvirtinimo“) provided that if a lack of proper development had led to a man being shorter than 160 cm or a woman being shorter than 155 cm, then they were unfit for service in the security and law-enforcement bodies. No exceptions to this rule were provided.

Point 17 of the order of the Minister of Interior and the Minister of Health of 6 April 2012, No. 1V-291/V-308, now provides that if a man is smaller than 165 cm or a woman smaller than 151 cm because of inadequate development then they are unfit for service in domestic law-enforcement, security or safety bodies.

The Supreme Administrative Court has decided that Point 17 § 2 of the 2003 order (see paragraph 25 above) was contrary to the Interior Ministry Service Statute in so far as it did not differentiate height requirements according to profession and was not based on any inability to perform certain functions (Supreme Administrative Court decision of 2 November 2011, no. I-662-11/2011, taken in the applicant’s case – see paragraph 11 above).

Article 112 § 1 of the Law on Administrative Proceedings (hereinafter, “the Law”) provided that a civil or specialised court had the right to suspend the examination of a case and address a request to an administrative court to decide whether a normative administrative act (or part of it) that had to be applied in a specific case complied with a law or Government regulation. Article 112 § 2 provided that the civil or specialised court would renew its examination of the case after the administrative court’s decision.

At the material time, Article 115 § 1 (2) of the Law provided that one possible decision for the administrative court was to hold that a normative administrative act (or part of it) was contrary to the law or Government regulation and to annul it.

In addition, Article 116 § 1 of the Law provided that a normative administrative act (or part of it) became null and void and inapplicable from the date of the official issue of the administrative court’s decision to recognise that act (or part of it) as unlawful.

The Supreme Administrative Court has held that public administration bodies have to follow the principle of the rule of law and that ultra vires acts must be declared unlawful (decisions of the Supreme Administrative Court of 25 July 2005, No. I1-2/2006; of 28 November 2008, No. I444-4/2008; and of 11 May 2011, No. I444-14/2011).

Article 3 § 1 of the Law provided that administrative courts decided legal disputes in the field of public administration.

Article 5 § 1 of the Law provided that any person with an interest in a case had the right to lodge a complaint with a court in order to defend his or her rights or interests.

Article 23 § 2 (7) of the Law provided that such a complaint had to set out the applicant’s claims.

Article 37 § 2 (1) of the Law provided that complaints had to be refused if they were not subject to examination by a court.

Article 101 § 1 of the Law provided that a court had to terminate any case if it was not in its jurisdiction, except for cases that were within the jurisdiction of the civil courts.

Article 2 § 1 of the Law on Public Administration provided that public administration was an activity of a public administration body intended to implement laws and other regulations. It comprised the taking of administrative decisions, overseeing the implementation of laws and administrative decisions, the provision of administrative services provided for in laws, the administration of the provision of administrative services and the internal administration of a public administrative body.

Article 6 § 2 of the Law on Public Administration provided that normative administrative acts could only be enacted by public administration bodies.

Article 2 § 3 of the Law provided that administration bodies were those that performed the functions of public administration.

Point 79 of the order (see paragraph 24 above) provided that the Commission’s decisions could be appealed against in court, in accordance with the Law.

The Supreme Administrative Court has held that only the final decision of an institution could be examined by an administrative court. Many documents are drawn up in the course of administrative procedure, but they are usually intermediate documents and do not decide any issues related to a person’s material legal rights. An administrative court cannot examine a document if it has no legal consequences. A Commission decision is only an intermediate document that has no legal consequences (decision of the Supreme Administrative Court of 20 June 2011, No. A26169/2011).

At the material time, Article 24 § 1 of the Law on Patients’ Rights and Compensation for Health Damage provided that compensation for pecuniary and non-pecuniary damage caused by breaching a patient’s rights was provided in accordance with that law itself and the Civil Code. Article 24 § 2 provided that a patient or other persons who had a right to compensation had to send a claim to the Commission on Damage Caused to Patients’ Rights. Article 24 § 3 provided that the Commission on Damage Caused to Patients’ Rights was a compulsory institution for out-of-court settlements for disputes related to violations of patients’ rights and assessments of the amount of damages. Article 24 § 8 provided that any patient or other person who disagreed with a decision by the Commission on Damage Caused to Patients’ Rights could lodge a court complaint within thirty days of the decision or the date they found out about the decision.

The Supreme Court has held that a doctor’s main duty is to provide qualified and diligent health-care services to patients (decisions of the Supreme Court of 14 October 2008, No. 3K-3-478/2008; of 12 February 2010, No. 3K-3-77/2010; and of 12 April 2010, No. 3K3158/2010).

Article 15 § 1 (3) of the Law (see paragraph 28 above) provides that administrative courts decide cases concerning damage caused by the unlawful acts of public authorities, as provided for in Article 6.271 of the Civil Code (see paragraph 47 below).

Article 88 of the Law provides that an administrative court can take the following decisions in respect of a case: 1) reject the complaint as unfounded; 2) satisfy the claim and annul the contested regulation (or any part thereof), or oblige the relevant administrative entity to end the violation in question or execute any other requirement set by the court; 3) satisfy the claim and oblige the administrative body of a municipality to implement the law, or execute a Government or other regulation; 4) satisfy the claim and settle the dispute in any other manner set by the law; 5) satisfy the claim and award damages for unlawful acts by the public authority (Article 6.271 of the Civil Code).

Article 6.248 § 1 of the Civil Code provides that civil liability only arises where a person is at fault and a debtor is presumed to be at fault, except where laws or contracts provide otherwise.

Article 6.271 § 1 of the Civil Code provides that damage resulting from unlawful acts of institutions of public authority must be compensated for by the State from the State budget, irrespective of the responsibility of a particular public servant or other employee of public authority institutions. Damage resulting from unlawful actions of municipal authority bodies must be redressed by the municipality from its own budget, irrespective of whether an employee is at fault. Article 6.271 § 2 provides that for the purposes of the Article, the notion “an institution of public authority” means any public-law body (a State or municipal institution, official, public servant or any other employee of those institutions, and so forth), as well as a private person executing the functions of a public authority. Article 6.271 § 3 provides that for the purposes of the Article, the notion “act” means any act (active or passive) by an institution of public authority or its employees, that directly affects people’s rights, liberties and interests (legal acts or individual acts enacted by the institutions of state and municipal authority, administrative acts, physical acts, and so forth, with the exception of court judgments – verdicts in criminal cases, decisions in civil and administrative cases and orders). Article 6.271 § 4 provides that civil liability on the part of the State or a municipality subject to the Article arises when the employees of public authority institutions fail to act in the manner prescribed by law for those institutions and their employees.

The Supreme Administrative Court has held that in order for a right to compensation for damage to arise the law does not require that unlawful acts by public institutions are annulled or declared void in accordance with the law (decisions of the Supreme Administrative Court of 30 March 2007, No. A10-332/2007; of 2 November 2009, No. A556-1241/2009; of 28 January 2010, No. A822-207/2010; of 30 November 2010, No. A8221419/2010; and of 16 January 2014, No. A-492-80/2014).

The Supreme Administrative Court has held that when considering the issue of compensation for damage, courts have to examine the factual grounds of such damage, irrespective of the presence of a dispute with regard to the lawfulness of such grounds (decision of the Supreme Administrative Court of 16 June 2006, No. A4-1030/2006).

The Supreme Administrative Court has held that courts have to fully examine the lawfulness of acts that might have caused someone damage, irrespective of separate court proceedings on the lawfulness of such acts (Supreme Administrative Court decision of 16 June 2006, No. A5561655/2008).


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Kristina Pardalos;Paul Mahoney;Pauliine Koskelo

On 30 May 1995 the Vlora Commission recognised the applicants’ inherited property rights over a plot of land measuring 10,000 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law.

To date, no compensation has been paid.


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)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1955 and lives in Kharkiv.

On 5 May 2004 the applicant was arrested by four police officers on suspicion of bribe-taking. The police officers took him to the Kharkiv Dzerzhynskyy District Police Station, where he was held overnight. According to the applicant, the police officers beat him for several hours, forcing him to confess.

On 6 May 2004 the applicant was taken to the Kharkiv City Prosecutor’s Office. He complained of ill-treatment to a senior prosecutor from the above office. The prosecutor referred the applicant for a forensic medical examination.

On 7 May 2004 the applicant was diagnosed with concussion and admitted to hospital.

On 8 May 2004 the applicant underwent a forensic medical examination, which established that he had numerous bruises on his face, chest, legs and arms, as well as a damaged tooth.

On 11 May 2004 criminal proceedings were instituted against the applicant on charges of bribe-taking. They were eventually terminated on 27 April 2007 for lack of corpus delicti.

On 2 June 2004 the applicant lodged another complaint of ill-treatment with the Kharkiv City Prosecutor’s Office.

On 23 June 2004 the applicant lodged a complaint with the Kharkiv Regional Prosecutor’s Office about the failure to examine his complaint of 2 June 2004.

On 12 August 2004 the Kharkiv Dzerzhynskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. That decision was quashed by the higher prosecutor on 7 October 2004 and an additional inquiry was ordered.

On 28 October 2004 the Kharkiv Dzerzhynskyy District Prosecutor’s Office ordered a forensic medical examination of the applicant, which was conducted between 28 December 2004 and 13 January 2005. The experts’ opinion confirmed the previous medical findings (see paragraphs 7 and 8 above) and concluded that the injuries had been the result of blows with blunt objects and had been inflicted during the period indicated by the applicant. The experts further opined that it could not be excluded that the injuries had originated in the circumstances indicated by the applicant, as they could all have been inflicted by fists.

On 23 September 2005 the Kharkiv Frunzenskyy District Prosecutor’s Office refused to institute criminal proceedings concerning the applicant’s allegations of ill-treatment. That refusal was quashed by the Kharkiv Regional Prosecutor’s Office on 31 May 2006.

On 15 June 2006 the Kharkiv Frunzenskyy District Prosecutor’s Office again refused to institute criminal proceedings concerning the applicant’s allegations of ill-treatment. In a letter dated 10 August 2008, the Kharkiv Regional Prosecutor’s Office informed the applicant that the decision of 15 June 2006 had been quashed and that the prosecutor who had conducted the inquiry would be subjected to disciplinary sanctions for the improper performance of his duties.

On 29 March 2007 the Kharkiv City Prosecutor’s Office issued a decision refusing to institute criminal proceedings concerning the applicant’s allegations. That decision was subsequently quashed.

On 8 January 2008 the Kharkiv City Prosecutor’s Office again refused to institute criminal proceedings concerning the applicant’s allegations of ill-treatment. That decision was quashed by the Kharkiv Kyivskyy District Court on 17 October 2011 and the case was remitted for further inquiries.

On 17 February 2012 the Kharkiv City Prosecutor’s Office once again refused to institute criminal proceedings concerning the applicant’s allegations of ill-treatment.

On 19 June 2012 the above decision was quashed by the Kharkiv Kyivskyy District Court, which sent the case file back to the prosecutor for further inquiries. The court noted, inter alia, that it had previously remitted the case for further inquiries, but that its instructions had not been followed. Furthermore, the applicant had not been questioned and the medical evidence had not been assessed. The first-instance court’s decision was upheld on appeal by the Kharkiv Regional Court of Appeal on 9 July 2012.

On 31 August 2012 the Kharkiv City Prosecutor’s Office refused to institute criminal proceedings concerning the applicant’s allegations of ill-treatment. The applicant challenged that decision in the Kharkiv Kyivskyy District Court on 20 September 2012.

On 19 November 2012 a new Code of Criminal Procedure came into force. On 12 December 2012, in accordance with the provisions of the new Code, the Kharkiv Dzerzhynskyy District Prosecutor’s Office entered the relevant information in the newly established “Integrated Register of pre-trial investigations” and started criminal proceedings in respect of the applicant’s allegations of ill-treatment.

On 6 February 2013 the prosecutor issued a decision to terminate the above-mentioned criminal proceedings.

On 4 March 2013 the Kharkiv Dzerzhynskyy District Court rejected the applicant’s complaint against the decision of 6 February 2013.

On 4 April 2013 the Kharkiv Regional Court of Appeal quashed the prosecutor’s decision of 6 February 2013.

On 7 June 2013 the applicant asked the Kharkiv Regional Prosecutor’s Office to supervise the investigation into his allegations of ill-treatment.

On 14 July 2013 the Kharkiv Dzerzhynskyy District Prosecutor’s Office issued a decision to terminate the criminal proceedings for lack of corpus delicti in the actions of the police officers.

On 30 September 2013 the Kharkiv Regional Prosecutor’s Office informed the applicant about the decision of 14 July 2013.

On 8 October and 3 December 2013 the applicant asked the Kharkiv Dzerzhynskyy District Prosecutor’s Office to send him a copy of the decision of 14 July 2013.

On 12 February 2014 the prosecutor sent the applicant a copy of the decision of 14 July 2013.

On 21 February 2014 the applicant challenged the decision of 14 July 2013 before the investigating judge of the Kharkiv Dzerzhynskyy District Court.

On 15 April 2014 the Kharkiv Dzerzhynskyy District Court quashed the decision of 14 July 2013 and remitted the case to the prosecutor for further investigation. The court concluded that the investigator had not followed the instructions of the appellate court indicated in its decision of 4 April 2013 on remittal of the case for further investigation, and had terminated the criminal proceedings without conducting the necessary inquiries or carrying out a .


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

A list of the applicants is set out in the appendix.

Mr Halit Muhaxhiri maintained that he was a national of Kosovo, while all other applicants maintained that they were nationals of Serbia. Additional personal details, the dates of introduction of their complaints before the Court, and information regarding their legal counsel, respectively, are also set out in the appendix.

The Serbian Government (“the Government”) were initially represented by their former Agent, Ms V. Rodić, who was subsequently substituted by their current Agent, Ms N. Plavšić.

Following the intervention of the North Atlantic Treaty Organisation (“NATO”) in June 1999, Kosovo was placed under international administration.

On 18 June 2004 the Serbian Ministry for Work, Employment and Social Policy, in response to a prior query, informed Kosovo’s Ombudsman that the pension system in Serbia was based on the concept of “ongoing financing”. Specifically, pensions were secured through current pension insurance contributions. Consequently, as the Serbian authorities had been unable to collect any such contributions in Kosovo since 1999, persons who had received their pensions from the Kosovo Branch Office of the Serbian Pensions and Disability Insurance Fund (“SPDIF”) could not expect to continue receiving them. The Ministry also reminded the Ombudsman that Regulation no. 2001/35 on pensions in Kosovo provided for a separate pension system for persons living in the territory (see paragraph 80 below).

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

The first applicant was born in 1946 and lives in Novi Pazar.

On 9 March 1999, following the death of her husband, the first applicant – together with her daughter Ms Beharka Renda, née Skenderi – was granted a survivor’s pension by the SPDIF Branch Office in Kosovo, with retroactive effect as of 27 November 1998.

On 16 October 2002 the first applicant informed the SPDIF that she had moved from Kosovo to Novi Pazar, and sought payment of her pension at her new address.

Between 2001 and 2004 the first applicant repeatedly complained to the SPDIF that she had never received any pension payments.

In March 2006 the first applicant lodged a civil claim with the First Municipal Court in Belgrade, seeking payment of her accrued pensions with statutory interest and the reinstatement of her entitlement pro futuro.

On 8 May 2006 the said court found that it did not have territorial jurisdiction and forwarded the case file to the Second Municipal Court in Belgrade.

On 11 September 2006 the Second Municipal Court suspended the proceedings. It explained that the international status of Kosovo was yet to be resolved and that in the meantime the Serbian authorities were unable to collect any pension insurance contributions in that territory. The status of Kosovo was therefore a preliminary question which had to be settled before the first applicant’s claim could be adjudicated.

On 17 September 2007 the District Court in Belgrade quashed the Second Municipal Court’s decision of 11 September 2006, holding that the status of Kosovo was not a valid reason to suspend the proceedings.

On 13 October 2008 the Second Municipal Court reaffirmed the suspension of the first applicant’s civil case, pending the outcome of her complaints lodged with the SPDIF. It also reiterated that the status of Kosovo was a preliminary issue which had to be resolved first.

On 4 March 2009 the District Court quashed that decision, reiterating that the status of Kosovo was not a valid reason to suspend the proceedings in question.

On 21 December 2011 the Court of First Instance in Belgrade, which had jurisdiction to deal with the matter following the reorganisation of the Serbian judiciary, ruled against the first applicant. It explained that she had not exhausted the administrative remedies before the SPDIF and had, in any event, failed to properly substantiate her calculation of the accrued pension.

On 17 May 2012 the Court of Appeal, which also had jurisdiction to deal with the matter following the above-mentioned reorganisation of the Serbian judiciary, quashed that judgment on the grounds of inadequate reasoning.

On 23 November 2012 the Court of First Instance again ruled against the first applicant, this time primarily based on her failure to exhaust administrative remedies before the SPDIF.

On 11 July 2013 the Court of Appeal ruled partly in favour of the first applicant (Gž. 2179/13). In so doing, it ordered the SPDIF to pay her the pension arrears between 9 March 2003 and 25 October 2012 with statutory interest, as well as the costs of the proceedings. The court opined that the suspension of payment of the first applicant’s pension had been unlawful from a domestic legal perspective and had also been in breach of Article 1 of Protocol No. 1, as explained by the European Court of Human Rights in its judgment in the case of Grudić v. Serbia (no. 31925/08, 17 April 2012). The first applicant’s claim regarding the payment of her accrued pension between 27 November 1998 and 9 March 2003, however, was rejected based on Article 376 of the Obligations Act, which provided for a three-year prescription period (see paragraph 67 below). Finally, the Court of Appeal dismissed the first applicant’s request for the reinstatement of her pension pro futuro on procedural grounds.

As of 23 September 2013 the SPDIF resumed payment of the first applicant’s pension.

In the meantime, on 27 May 2010, the first applicant also lodged an appeal with the Serbian Constitutional Court (see paragraph 78 below). However, on 4 November 2010 her appeal was rejected because her representative did not have adequate authorisation.

The second applicant was born in 1943 and lives in Tutin.

On 3 June 1980, following the death of her husband, the second applicant was granted a survivor’s pension by the SPDIF Branch Office in Kosovo.

The second applicant regularly received her pension until January 1999, when the monthly payments stopped without an explanation from the SPDIF.

Thereafter, the second applicant repeatedly sought the resumption of her pension payments. Finally, on 6 March 2003 she lodged a formal request with the SPDIF.

On 21 March 2005 and 1 June 2006 the second applicant again made requests to the same effect.

In the absence of any action on the part of the SPDIF, on 27 December 2006 the second applicant brought an administrative dispute (pokrenula upravni spor) before the District Court in Novi Pazar (see paragraphs 73-75 below).

On 26 June 2007 the said court ruled in favour of the second applicant and ordered the SPDIF to decide on her request.

On 13 February 2008 the SPDIF suspended the proceedings, holding that the pensions-related situation in Kosovo was in a state of flux and that crucial information was lacking. The second applicant’s request was thus deemed not ready for consideration.

On 3 December 2008 that decision was quashed on appeal, for procedural reasons, at a higher administrative level and remitted for re-examination.

On 23 April 2009 the second applicant brought another administrative dispute before the District Court, seeking, this time, that the court itself decide on the merits of her claim addressed to the SPDIF.

On 10 November 2011 the SPDIF rejected the second applicant’s request to have the payment of her pension resumed, “in the absence of proper substantiation”.

On 12 January 2012 that decision was upheld on appeal at a higher administrative level.

On 3 April 2014 the Administrative Court in Kragujevac, which had jurisdiction to deal with the matter following the reorganisation of the Serbian judiciary, quashed the impugned decisions of the SPDIF on procedural grounds and remitted the case for re-examination.

On 30 July 2014 the SPDIF ordered payment of the second applicant’s pension which had accrued between 6 March 2002 and 9 July 2008. Regarding the reinstatement of her pension thereafter, the SPDIF decided that the matter would be considered following receipt of evidence from the United Nations Interim Administration Mission in Kosovo (“UNMIK”) as to whether the second applicant was a beneficiary of a separate “Kosovan pension” as of 2008, which was when she had reached the age of sixty-five (see paragraph 80 below).

On 13 January 2015 the SPDIF rejected the second applicant’s request to have the payment of her pension resumed because, based on an UNMIK certificate, she had been a recipient of a Kosovan pension as from 10 July 2008. The SPDIF based its conclusion on Article 119 of the Pensions and Disability Insurance Act (see paragraph 64 below).

On 23 January 2015 the second applicant appealed against that decision at a higher administrative level, arguing that the so-called “Kosovan pension”, in the amount of 75 euros (EUR), was not in fact a pension at all but a benefit offered to all persons aged sixty-five or over residing in Kosovo.

The third applicant was born in 1950 and lives in Gnjilane.

In 1988, following the death of her husband, the third applicant was granted a survivor’s pension by the SPDIF Branch Office in Belgrade.

At some point thereafter the third applicant moved from Belgrade to Kosovo.

The third applicant regularly received her pension until January 1999, when the monthly payments stopped without an explanation from the SPDIF.

Thereafter, the third applicant repeatedly sought the resumption of her pension payments. On 14 February 2006 she lodged a formal request to that effect with the SPDIF.

Having received no response and following an additional request which was also ignored, on 18 July 2006 the third applicant brought an administrative dispute before the District Court in Belgrade.

On 21 July 2006 the said court declined its territorial jurisdiction and forwarded the case file to the District Court in Gnjilane (provisionally based in Vranje).

On 27 March 2008 and 12 May 2009 the third applicant requested information from the District Court in Gnjilane regarding the status of those proceedings.

On 28 July 2014 the SPDIF resumed payment of the third applicant’s pension as of 14 February 2005 onwards.

The fourth applicant was born in 1943 and lives in Gnjilane.

On 1 January 1997 the fourth applicant was granted a disability benefit.

The fourth applicant regularly received his benefit until January 1999, when the monthly payments stopped without an explanation having been offered.

Thereafter the fourth applicant repeatedly sought the resumption of his benefit payments. On 24 March 2006 he lodged a formal request to that effect with the SPDIF.

Having received no response and following an additional request which was also ignored, on 15 August 2006 the fourth applicant brought an administrative dispute before the District Court in Belgrade.

On 14 September 2006 the said court declined its territorial jurisdiction and forwarded the case file to the District Court in Gnjilane (provisionally based in Vranje).

On 27 March 2008 and 12 May 2009 the fourth applicant requested information from the District Court in Gnjilane regarding the status of those proceedings.

On 22 July 2010 the Administrative Court in Belgrade, which had jurisdiction to deal with the matter since the reorganisation of the Serbian judiciary, apparently rejected the fourth applicant’s claim because he had not shown that he had properly made use of the administrative remedies available to him before applying for judicial review.

The fifth applicant was born in 1942 and lives in Jagodina.

On 24 July 1991 the fifth applicant was granted an old-age pension by the SPDIF Branch Office in Kosovo.

The fifth applicant regularly received his pension until March 1999, when the monthly payments stopped without an explanation from the SPDIF.

Thereafter the fifth applicant repeatedly sought the resumption of his pension payments. On 28 January 2008 he lodged a formal request with the SPDIF.

Having received no response, on 7 October 2008 the fifth applicant again addressed the same request to the SPDIF.

On 1 June 2012 the SPDIF rejected the fifth applicant’s claim because he had apparently failed to provide adequate supporting documentation.

On 7 August 2012 that decision was upheld on appeal at a higher administrative level.

Article 110 provides, inter alia, that a person’s pension and disability rights must be terminated if it transpires that he or she no longer meets the original statutory requirements. However, should an entitled pensioner secure an additional pension from another pension and disability insurance fund established by one of the other States within the territory of the former Yugoslavia, his or her pension paid by the SPDIF must, unless stipulated otherwise by an international agreement, be reassessed (recalculated) based on the pensionable employment period (penzijski staž) already taken into account by the former.

Article 119 provides that when a pensioner is entitled to two or more pensions within the territory of the Republic of Serbia, only one of those pensions may be paid, in accordance with the pensioner’s own preference.

Article 123 provides that pension instalments which have not been paid owing to circumstances caused by the pensioner can be sought only for the twelve months preceding the date on which he or she lodged a request to that effect.

The Opinions state, inter alia, that the pension system in Serbia is based on the concept of “ongoing financing”. Specifically, pensions are secured through current pension insurance contributions. Since the Serbian authorities have been unable to collect any such contributions in Kosovo since 1999, persons who have been granted SPDIF pensions in Kosovo cannot expect, for the time being, to continue receiving them. It is further stated that Regulation 2001/35 on pensions in Kosovo, adopted by UNMIK, provides for a separate pension system for persons living in the territory (see paragraph 80 below).

Article 376 §§ 1 and 2 provides, inter alia, that the prescription period for seeking civil compensation is three years from the date on which the claimant first learnt of the damage in question, but that, in any event, the absolute deadline is five years from the time the damage occurred.

In response to the situation in Kosovo, this Opinion states, inter alia, that a person’s recognised right to a pension may only be restricted on the basis of Article 110 of the Pensions and Disability Insurance Act (see paragraph 63 above). Recognised pension rights cannot depend on whether current pension insurance contributions can be collected in a given territory.

The Opinion further explains that administrative proceedings (upravni postupak) and, if necessary, judicial review proceedings (upravni spor) would be the appropriate avenue to challenge any restriction of a person’s pension rights.

Lastly, the Opinion notes that, in this context, the civil courts are competent to adjudicate only cases involving claims of malfeasance (nezakonit i nepravilan rad) on the part of the SPDIF.

Article 208 § 1 provides, inter alia, that in simple matters an administrative body must issue a decision within one month of the date on which the claimant lodged his or her request. In all other cases, the administrative body must render a decision within two months thereof.

Article 208 § 2 enables a claimant whose request has not been decided within the time-limits established in the previous paragraph to lodge an appeal as if his or her request has been refused. Where an appeal is not allowed, the claimant has the right to directly bring an administrative dispute before the competent court of law.

Articles 5 and 6 provide, inter alia, that judicial review proceedings may be brought against the State body or public authority that issued the disputed administrative decision.

Article 24 provides that should a second-instance administrative body fail to decide on an appeal lodged more than sixty days earlier, and should it again fail to do so in another seven days upon receipt of the claimant’s repeated request to that effect, the latter may directly institute judicial review proceedings, as if his or her appeal had been rejected.

Article 41 § 3 provides that the competent court may not only quash the impugned administrative decision but may also rule on the merits of the plaintiff’s claim, should the facts of the case and the very nature of the dispute in question allow for that particular course of action.

The substance of Articles 19 § 1, 42 and 43 of this Act corresponds, in the relevant part, to that of Articles 24 and 41 § 3 of the Administrative Disputes Act 1996.

The Administrative Disputes Act 2009 entered into force on 30 December 2009 thereby repealing the Administrative Disputes Act 1996.

Article 170 provides:

“[a] constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed”.

As of 8 August 2014, the Constitutional Court considered a total of eleven appeals related in one way or another to the general issue of payment or reinstatement of pensions suspended by the SPDIF (see Už. nos. 537/08, 169/09, 2720/09, 2591/10, 2931/10, 758/11, 1582/11, 1810/11, 3007/11, 2391/12 and 2650/12, decisions rendered between 3 February 2009 and 30 May 2013). In a total of six out of those eleven cases the Constitutional Court found violations of the appellants’ constitutional rights. In two cases the violations concerned the length of proceedings before the SPDIF or the competent courts; in three cases they concerned the inconsistent domestic case-law as regards whether persons seeking reinstatement of their pensions should provide the supporting documentation themselves or whether it should be obtained by the SPDIF proprio motu; and in one case the Constitutional Court quashed an earlier decision adopted by an appellate court for lack of proper reasoning. The said appellate court had rejected the request for payment of accrued pensions because the claimant had allegedly failed to make proper prior use of the administrative remedies which it deemed relevant. In decisions Už. nos. 1582/11, 758/11 and 3007/11 of 20 March 2013, 24 April 2013 and 25 April 2013, respectively, the Constitutional Court also referred to the Grudić judgment, stating that it had taken that case-law into account but that the appellants had simply not complained that their property rights had been breached. Their complaints had focused instead on the inconsistent domestic case-law, as mentioned above. The other appeals were dismissed for various procedural reasons. In any event, the Constitutional Court always considered only the complaints as specified by the appellants and “could not go beyond that”.

These regulations provide for a separate system whereby all persons aged sixty-five or over “habitually residing” in Kosovo have the right to a “basic pension”.

On 13 June 2008 the Kosovan Assembly adopted this Act, which essentially endorsed the system as set up by the two Regulations cited above but transferred the functional competencies from UNMIK to the Kosovan authorities.

These regulations provide, inter alia, that the basic pension referred to in paragraph 80 above, in the amount of EUR 40 monthly, could be increased to EUR 75 monthly in respect of all pensioners aged sixty-five or over, habitually residing in Kosovo, who could, inter alia, prove that they had been paying pension insurance contributions to the SPDIF for at least fifteen years and were not in receipt of another pension on the same basis.

These regulations essentially affirm those described in paragraph 80 above, but raise the pension in question from EUR 75 to EUR 80 monthly.

Articles 3 (1.4) and 7 § 1 state, inter alia, that a “basic age pension”, that is a “minimal regular monthly pension”, shall be paid to all “permanent citizens” of Kosovo aged sixty-five or over, regardless of whether they had ever been employed.

Articles 3 (1.5) and 8 § 1 provide for an “age contribution-payer pension”, that is a “regular monthly pension” for “employed citizens” of Kosovo, who had paid their contributions to the SPDIF prior to 1 January 1999. Article 8 § 2 envisages that all persons entitled to a contribution-based pension shall be categorised by the Ministry taking into account the applicable pensionable employment period, as well as other relevant criteria.

Article 13 provides, inter alia, that pension adjustments, taking into account the living costs and the rate of inflation, shall be regulated by the Kosovan authorities on an annual basis.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in 1970 and lives in Ljubljana.

On 29 July 2003 the applicant instituted proceedings before the Ljubljana District Court against the State claiming non-pecuniary damages inflicted on her by involuntary confinements in the Ljubljana Psychiatric Hospital in December 1999 and between July and September 2000.

At the first hearing held on 3 May 2005 the applicant lodged a request to delegate territorial jurisdiction to another court.

On 24 June 2005 the Supreme Court upheld her request and delegated jurisdiction to the Kranj District Court.

On 16 March 2006 the Kranj District Court held the first main hearing.

On 26 March 2006 the applicant lodged a request with the Kranj District Court a motion to have the presiding judge excluded.

On 5 May 2006 the Vice-President of the District Court upheld the applicant’s request.

Between August 2006 and March 2008 the court held further four hearings.

On 12 May 2007 the applicant lodged a second request to have the then presiding judge excluded and a request to transfer the case to another court with the subject-matter jurisdiction.

On 31 May 2007 the Supreme Court dismissed the applicant’s request to transfer the case to another court.

On 28 September 2007 the President of the District Court dismissed the applicant’s request for the exclusion of the presiding judge.

On 18 March 2008 the applicant lodged a request to have the president of the District Court and the presiding judge excluded.

On 9 April 2008 the President of the Ljubljana Higher Court dismissed the applicant’s request to have the President of the Kranj District Court excluded.

On 21 April 2008 the President of the Kranj District Court dismissed the applicant’s request to have the presiding judge excluded.

In the meantime, on 5 April 2008, the Kranj District Court imposed a fine of 500 euros (EUR) on the applicant for abuse of her procedural rights by having lodged the requests concerning the exclusion of the presiding judge. The applicant appealed.

On 5 November 2008 the Ljubljana Higher Court upheld the applicant’s appeal and annulled the order to fine the applicant. The court held that the district court failed to establish that by lodging the requests the applicant had abused her procedural rights.

On 16 September 2009 the applicant lodged a supervisory appeal. On 6 October 2009 the President of the Kranj District Court replied that a hearing would be scheduled for 22 October 2009.

A further hearing was held on 22 February 2010.

On 9 March 2011 the Kranj District Court issued a judgment in which it upheld the applicant’s claim in part. Both parties appealed.

On 18 January 2012 the Ljubljana Higher Court upheld the appeals, quashed the judgment of the lower court and modified it by dismissing the claim in respect of the confinement in December 1999 as time-barred and decided that the claim for non-pecuniary damages in respect of the confinement between July and September 2000 was well-founded but that the first instance court needed to decide on the amount of compensation in a new set of proceedings.

The applicant lodged a motion for leave to file an appeal on points of law in respect of the question whether her claim for damages due to the December 1999 confinement was time-barred.

On 19 July 2012 the Supreme Court allowed the applicant’s appeal on points of law.

On 31 January 2013 the Supreme Court granted the applicant’s appeal on points of law and quashed the respective part of the decision of the higher court.

On 13 March 2013 the Ljubljana Higher Court quashed the decision of the district court in respect of the 1999 confinement and remitted the case back to the district court.

On 30 January 2014 the applicant lodged a further supervisory appeal which was dismissed on 14 February 2014.

On 10 February 2014 the Kranj District Court held the first main hearing after the remittal and postponed the hearing for an indefinite period in order to obtain an expert opinion on the applicant’s mental health at the time of the confinement.

On 14 March 2014 the applicant lodged a motion for a deadline with the Ljubljana Higher Court.

On 25 March 2014 the Ljubljana Higher Court granted the applicant’s motion for a deadline and ordered the district court to deal with the case with priority.

The proceedings are still pending before the Kranj District Court which still needs to decide on the applicant’s claim in respect of the confinement in 1999 and on the amount of compensation in respect of the 2000 confinement.

On 24 March 2006 the applicant amended her claim in the above proceedings by claiming further non-pecuniary damages due to the length of proceedings. This part of the claim was separated from the main claim and referred to the Ljubljana District Court.

On 18 March 2009 the applicant raised the claim to EUR 5,000.

On 21 May 2009 the Ljubljana District Court dismissed the applicant’s claim as premature since the main proceedings were still pending. The applicant appealed.

On 20 January 2010 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged a motion to file an appeal on points of law.

On 30 September 2010 the Supreme Court allowed the applicant’s appeal on points of law in respect of the question whether it was possible to claim compensation for a violation of one’s right to a trial without undue delay before the termination of the main proceedings.

On 27 September 2012 the Supreme Court held that even though the proceedings had been instituted before 1 January 2007 when the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) became operational, the latter was applicable to the applicant’s case and therefore it was not possible to claim compensation before the termination of the main proceedings. It further held that since the appeal on points of law was explicitly excluded as a legal remedy in the proceeding under the 2006 Act, the applicant’s appeal on points of law should be rejected on procedural grounds as not allowed. The applicant lodged a constitutional complaint.

On 27 December 2013 the Constitutional Court dismissed the applicant’s constitutional complaint by reference to Section 55.b of the Constitutional Court Act.