Violations of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan

The applicant was born in DATE and lives in Ploieşti .

NORP The applicant suffers from haemophilia A which was diagnosed at birth . Haemophilia A is a congenital hereditary disorder characterised by delayed clotting of the blood and severe bleeding following even minor injuries . It requires treatment with the specific coagulant , factor VIII .

The applicant was working as an official in a local hospital .

Starting in DATE , ORG and ORG ( “ the Board ” ) attached to ORG examined the applicant once a year and issued him each time with a temporary certificate stating that he suffered from a seconddegree disability .

This certificate served as the basis for obtaining from GPE ( “ the Bureau ” ) the entitlements provided for by PERSON no . CARDINAL on special protection for disabled persons DATE which included free medical assistance , transport and telephone rental – together with tax relief under PERSON no . CARDINAL in the form of exemption of the disabled person 's salary from income tax .

On DATE the ORG confirmed the applicant 's seconddegree disability by means of a certificate bearing the handwritten endorsement “ valid for PERSON no . CARDINAL ” . According to the information supplied by the applicant , endorsements of this kind were commonly added by ORG , since the same certificate was used to obtain the entitlements under PERSON no . CARDINAL and tax relief under PERSON no . CARDINAL .

NORP In a letter of DATE the ORG informed the applicant that its accounting department had decided to suspend his entitlements under PERSON no . TIME , on the ground that the certificate issued on CARDINAL DATE referred only to PERSON no . CARDINAL and could therefore be used only to obtain the entitlements provided for by that law .

NORP By letter of CARDINAL DATE ORG informed the applicant that “ in the absence of any provision to the contrary , there [ was ] no legal impediment preventing persons who [ held ] a certificate attesting to a degree of disability requiring special protection from enjoying all the entitlements and concessions for which they [ were ] eligible by law ” .

On DATE the ORG confirmed the applicant 's seconddegree disability . The certificate it issued on that occasion was again marked “ valid for PERSON no . CARDINAL ” .

Following a sharp deterioration in his condition owing to his lack of treatment the applicant , in a memorial lodged with ORG on DATE , challenged the suspension of his entitlements under PERSON no . TIME .

In a reply dated DATE ORG informed the applicant that no statutory provision barred the aggregation of entitlements under LAW . CARDINAL and CARDINAL , and that persons suffering from a second - degree disability should be able to benefit from the entitlements available under both laws .

In an administrative action brought before ORG on DATE against the ORG and ORG , the applicant requested recognition of his status as a disabled person requiring the special protection provided for by PERSON no . CARDINAL/CARDINAL and claimed compensation for the pecuniary and nonpecuniary damage caused by the suspension of his entitlements DATE which , he alleged , had resulted in a serious and rapid deterioration of his condition . He requested that ORG be ordered to pay him the sum of CARDINAL NORP lei ( ROL ) , representing the cost of the treatment he would have received free of charge had the ORG not suspended his entitlements under PERSON no . CARDINAL , and a sum of ROL CARDINAL corresponding to the value of the transport and telephone rental which he was no longer entitled to receive free of charge .

Following a hearing held on DATE , the applicant 's lawyer requested that delivery of the judgment be adjourned to enable him to file written pleadings .

The Court of Appeal delivered its judgment on DATE . It observed that ORG had issued the applicant with DATE certificates stating that he had a second - degree disability . The court therefore considered that the applicant had been recognised as having the status he requested during the period in question ; accordingly , it rejected the first request as unfounded .

As to damages , the court held that it did not have jurisdiction to consider the issue and returned the case file to ORG .

DATE the applicant received in - patient treatment for haemorrhaging in ORG in GPE .

During the proceedings before ORG , on DATE , CARDINAL May and DATE , the applicant 's lawyer requested an adjournment to enable him to add evidence to the case file and file written pleadings .

In a judgment of DATE ORG in its turn declined jurisdiction in favour of ORG . ORG , called upon to resolve the conflict of jurisdiction , delivered a judgment on DATE in which it held that FAC had jurisdiction . The case was re - entered in that court 's list .

The Court of Appeal heard evidence from CARDINAL witnesses called by the applicant and ordered a medical expert report on the applicant 's health .

The expert report was prepared by the forensic medical service of the city of Ploieşti . It noted numerous episodes of internal bleeding which had led to very severe bone deformation , immobilised joints and impaired mobility . In conclusion , the report stated that “ the discontinuation of treatment [ had ] resulted in a sudden worsening of the disease , promoting the onset of very serious complications , namely internal and external bleeding , intracranial bleeding with haematomas , paralysis , phlebitis and asphyxia ” .

During the proceedings before ORG , on DATE , the applicant requested an adjournment to enable him to hire a new lawyer . On DATE his lawyer requested a further adjournment so that he could file written pleadings .

In a judgment of DATE ORG , basing its findings on the certificates issued by ORG in DATE and DATE , found that , for the period in question , the applicant had been recognised as having a second - degree disability . It dismissed the applicant 's claim for damages on the ground that he “ [ had ] not dispute[d ] using a statutory remedy [ section CARDINAL of Government Ordinance no . CARDINAL of DATE , replacing PERSON no . CARDINAL ] his assignment to CARDINAL of the categories of disability ” and pointed out that he could “ dispute and request revision of his classification in a given category if it no longer corresponded to the reality ” . The court added that the applicant could only bring an action before the courts seeking to assert his rights if the competent authorities , after deciding to assign him to a different disability category , subsequently refused to award him the entitlements provided for by law . The court concluded that , in so far as the applicant “ [ had ] not furnish[ed ] proof that he now belonged to the category of persons with a more severe disability , which might have qualified him for a wider range of entitlements ” , his complaint was unfounded . It dismissed the action accordingly .

The applicant appealed to ORG on the ground that ORG had misconstrued the subject of his action , that it had omitted to rule on his complaint concerning the suspension of his entitlements under PERSON no . CARDINAL and that the second - degree disability he had been recognised as suffering from made him eligible for the aggregate of entitlements under the CARDINAL laws .

At a hearing held on DATE the applicant requested that examination of his appeal be adjourned on account of his state of health , which allegedly prevented him from attending the hearing . The hearing was scheduled for CARDINAL DATE and then for DATE . It took place on the latter date .

From DATE the applicant received in - patient treatment in the emergency ward of ORG .

In an order dated DATE ORG decided that the applicant should be granted a retirement pension on grounds of invalidity .

On DATE the ORG found that the applicant 's condition had worsened and that he now suffered from a first - degree disability .

In a judgment of CARDINAL DATE ORG dismissed the applicant 's appeal and upheld ORG judgment of DATE . It considered that “ since the appellant [ had ] not dispute[d ] [ the certificate attesting to his disability ] before ORG , in accordance with the statutory provisions , ORG [ had ] correctly held that he could not claim the entitlements provided for by Ordinance no . CARDINAL/CARDINAL ” .

Following further episodes of bleeding the applicant was again admitted to the emergency ward of ORG , where he remained from DATE and from DATE . CARDINAL May and DATE he again received in - patient treatment in ORG in GPE .

LAW ( Law no . CARDINAL ) provides , in its relevant parts :

“ Individuals or legal entities who consider that their rights have been infringed by an administrative act or by the unjustified refusal of an administrative authority to respond to a request concerning those rights may bring an action before the competent court seeking to have the act in question set aside , to have the alleged right recognised and to be awarded compensation for any damage sustained . ”

“ The court shall give an urgent ruling on the action ... ”

The relevant extracts from Law no . CARDINAL on special protection for disabled persons read as follows :

“ Classification in one of the categories of disabled persons requiring special protection shall be based on a certificate issued by CARDINAL of the medical expert reports and occupational rehabilitation boards attached to the county hospitals ... ”

“ Disabled persons shall have the right to :

( a ) medical assistance and medication free of charge ... in the case of persons whose DATE income is below the gross minimum wage guaranteed by the ORG ...

( e ) free use of urban ... and inter - urban public transport ...

( f ) exemption from payment of the costs of telephone installation , transfer and rental ... ”

The relevant provisions of Government Emergency Ordinance no . CARDINAL of DATE on special protection and access to employment for disabled persons , which replaced PERSON no . TIME , read as follows :

“ Classification in one of the categories of disabled persons requiring special protection ... shall be based on a certificate issued by the [ county ] boards on medical expert reports and disability issues . ”

“ ... adults suffering from a disability shall qualify for the following entitlements :

( g ) free use of urban public transport ...

( h ) free use of inter - urban public transport ...

( j ) medical assistance in accordance with the provisions of ORG and the regulations of ORG and ORG . ”

“ The boards on medical expert reports and disability issues shall be attached [ from DATE ] to the county disabled persons ' bureaux . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE . He works as a notary .

On DATE a certain PERSON filed with ORG a request that the co - ownership of an estate be dissolved .

The court held hearings on DATE , CARDINAL DATE , DATE , DATE , DATE and CARDINAL DATE .

On DATE the applicant purchased a share in that estate .

On DATE he requested the court to allow him to participate in the proceedings .

On DATE , as a party to the proceedings , he requested the court to appoint a guardian ad litem for those co - owners whose place of residence was not known and for the heirs of a late co - owner . The applicant further raised a claim to establish the title to the disputed property and to evict CARDINAL individuals .

On DATE the court granted the applicant leave to participate in the proceedings .

In DATE the case was transferred to ORG .

Hearings were held on DATE and DATE .

On DATE the court refused to allow the former co - owners of the applicant 's share to participate in the proceedings . On DATE ORG dismissed an appeal against that decision lodged by Mr X.

ORG held hearings on DATE , as well as on CARDINAL DATE and DATE .

On DATE it refused certain co - owners ' request for an interim measure . They appealed and on DATE ORG quashed that decision and ordered the re - examination of the request . On CARDINAL and CARDINAL DATE ORG ordered interim measures .

On DATE the court stayed the proceedings , considering that it was first necessary to carry on inheritance proceedings concerning the estate of a late co - owner in order to establish the identity of the heirs and their shares in the estate . The applicant and certain other co - owners appealed and on DATE ORG quashed that decision . In its decision it also ordered ORG to exclude from those proceedings the issue of the ownership title to the estate and to initiate separate proceedings in this respect . It considered that in the light of a suspicion that PERSON and certain other participants in the proceedings could not be co - owners of the estate it was necessary to establish who had the genuine ownership title to the share allegedly owned by them .

ORG carried out that order on DATE . On DATE the court stayed the proceedings concerning the dissolution of the co - ownership until the proceedings concerning the establishment of the title to the disputed share were completed .

On DATE the ORG declared its lack of jurisdiction over the case and transferred it to ORG .

On DATE ORG refused the applicant 's request , lodged on DATE , to appoint a guardian ad litem . On DATE ORG quashed that decision and ordered the re - examination of the request .

On DATE ORG , on the request of CARDINAL of the defendants , excluded the judges of ORG from participation in the proceedings concerning the establishment of ownership title . The court found , inter alia , that the applicant used to work as a judge on that circuit and was acquainted with the judges of that court .

On DATE ORG held a hearing , at which it decided to examine the case - file of the proceedings concerning the dissolution of the co - ownership and consider whether the case dealt with by it could be joined to those proceedings .

On DATE and DATE the court held hearings .

On DATE it gave judgment . The court dismissed the applicant 's claim . He and other plaintiffs appealed .

On DATE ORG quashed the judgment of ORG and remitted the case for re - examination .

On DATE ORG gave a final judgment .


Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)

Anatoly Kovler;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicants were born in DATE , DATE , DATE and DATE respectively and live in LOC .

On DATE , PERSON , the then DATE son of the first and second applicants and the brother of the third and fourth applicants , sustained a serious head injury while playing near a construction site in GPE , GPE . After the incident he was taken to ORG ( PERSON centar Vinkovci ) where cranial surgery was performed without the consent of the parents .

On DATE a doctor on duty at FAC informed PERSON Vukovarsko - srijemska ; hereinafter : the “ police ” ) about the incident . The police interviewed the doctor and the second applicant concerning the circumstances of the incident and drafted an official note of their findings .

NORP The police also interviewed TIME , a friend of PERSON , who was an eyewitness to the event . He described how they had been playing near a construction site in their neighbourhood when PERSON had fallen on some metal netting and a piece of metal had pierced his head .

PERSON health deteriorated on DATE when he fell into a coma . He was then transferred to ORG bolnički centar GPE ) for further treatment .

On DATE the police took photographs of the construction site and interviewed PERSON , an employee of the construction company , ORG s.p.o . ( “ company A ” ) , in charge of the construction site at issue .

PERSON died in ORG on DATE .

On DATE the applicants brought a civil action before ORG ( PERSON ) against company ORG , ORG ( PERSON financiranje stambeno - komunalnih djelatnosti ) and ORG , claiming damages for the death of their relative .

They claimed that A. , as the construction company , and ORG , as the investor , were liable for not having secured the construction site despite being aware that people with children lived nearby . They also held ORG responsible for medical negligence in the treatment of PERSON ’s injuries .

A hearing scheduled for DATE was adjourned because the parties informed the trial court that they could not attend the hearing .

At the hearing held on DATE the defendants denied any responsibility for the death of PERSON . At the same hearing the applicants asked the trial court to commission a medical report concerning the circumstances of PERSON ’s treatment . On DATE they further substantiated their request and asked that the medical report be commissioned from ORG ( PERSON fakultet GPE ) .

On DATE ORG ordered the hospital and the police to submit all the relevant documents and reports concerning the death of PERSON . Documents were submitted on DATE and DATE respectively .

On DATE ORG found that the police had failed to submit all the relevant documents and requested them again to submit all their documents and reports . The police complied with ORG order on DATE and submitted the requested documents .

On DATE ORG asked ORG to submit the documents concerning the medical treatment of PERSON . ORG complied with the order and submitted the documents on DATE .

On DATE ORG commissioned a medical report from ORG concerning the circumstances of the medical treatment of PERSON .

On DATE the applicants urged ORG to continue with the proceedings , which had been pending for DATE . They also pointed out that if the medical experts had been unable to submit their report within a reasonable time , the trial court should have commissioned a new report by other experts .

The Medical Faculty of ORG informed ORG on DATE that they had been unable to provide the medical report because they had not had all the relevant documents and reports concerning the medical treatment of PERSON .

At a hearing on CARDINAL DATE a representative of ORG informed the trial court that that ORG had ceased to exist and that its successor was GPE ( Grad Vinkovci ) . A representative of ORG also informed the trial court that it had now become ORG ( NORP zdravlja Vinkovci ) and ORG ( PERSON ) .

On DATE the applicants amended their civil action by naming GPE , ORG and ORG as the defendants .

Another hearing was held on DATE , at which the trial court ordered that a further medical documentation shall be requested from ORG . On DATE ORG complied with that request .

At a hearing on DATE the trial court asked the parties to submit the further documents to which they had referred in their submissions .

On DATE the representative of company A. informed ORG that on DATE insolvency proceedings had been opened in respect of that company in ORG ( Trovački sud u GPE ) .

At a hearing on DATE the trial court informed the parties about the change in the legal status of company A.

On DATE ORG ordered that the proceedings be stayed until the insolvency administrator of company ORG had decided whether to participate in the proceedings . The insolvency administrator informed ORG on DATE that it would participate in the proceedings .

On DATE ORG referred the case to ORG on the grounds that the insolvency proceedings had been opened in respect of company A.

On DATE the applicants lodged an appeal with ORG ( Županijski sud u Vukovaru ) against the decision of ORG , arguing that ORG had been competent in the matter .

On DATE ORG dismissed the applicants’ appeal as ill - founded .

On DATE a hearing was held before ORG at which the parties made preliminary oral submissions .

On DATE the ORG commissioned a new medical report from ORG of ORG ( PERSON društvo za medicinska vještačenja PERSON liječničkog zbora ) concerning the medical treatment of PERSON .

On DATE a medical expert of ORG , GPE , submitted his report to ORG . He found that there had been flaws in the Vinkovci Medical Centre ’s treatment of PERSON , which had eventually resulted in PERSON ’s death . The relevant part of the report reads :

“ If treated properly , with the available medical equipment , the injury [ sustained by PERSON ] could have been treated with minimum , even barely noticeable , consequences .

The decision to carry out an exploration of the skull under full endotracheal anaesthetic without a neurological preparation ( GPE ) , and without the appropriate instruments and a qualified brain surgeon , on a patient who was conscious , had no neurological deficit and whose life was not in imminent danger , was absolutely wrong , all the more so since it was done without the consent of his parents . ”

On DATE ORG lodged an objection against the medical report , arguing that it was substantially flawed . ORG forwarded the objection to ORG for reply .

On DATE the expert witness , GPE , submitted an additional report to ORG , reiterating all his previous findings .

At a hearing on DATE the trial court ordered the applicants to specify their civil action given the fact that insolvency proceedings had been opened in respect of company A. The applicants complied with this order and submitted their specified civil action on DATE .

A hearing scheduled for DATE was adjourned because the defendants failed to appear .

On DATE ORG , acting in the insolvency proceedings concerning company A. , terminated the proceedings and ordered that company A. be deleted from the register of companies .

At a hearing on CARDINAL DATE the applicants were again requested to specify their civil action and to provide evidence as to the legal connection between the defendants against which they had initially lodged their civil action and the defendants indicated in their specified civil action of DATE .

On DATE the applicants submitted an amended civil action to ORG .

At a hearing on DATE the parties made further oral submissions and the hearing was adjourned .

On DATE ORG terminated the proceedings against company A. on the ground that it had ceased to exist . The court also found that it had no competence in the matter and ordered that the proceedings against GPE , ORG and ORG be referred to ORG .

On DATE a hearing was held before ORG at which the parties made further oral submissions .

On DATE ORG asked ORG to commission a further medical report from another expert witness , arguing that the previous medical report had numerous flaws .

At a hearing on DATE the ORG representative asked the trial court to allow her additional time to submit her reply to the objections raised by the defendants . Her request was granted and she submitted her observations on DATE .

On DATE another hearing was held at which the trial court heard oral evidence from the first and second applicants .

On DATE the judge conducting the proceedings inspected the scene of the accident .

On DATE the applicants urged ORG to decide on their civil action , arguing that all the relevant facts had been sufficiently established .

At a hearing on DATE the trial court commissioned another medical report from ORG on the grounds that the defendants had a number of objections concerning the report of ORG .

On DATE CARDINAL medical experts of ORG , DATE and ORG , submitted their medical report to ORG . They found that there had been no flaws in the medical treatment of PERSON in FAC and that the further health complications could not be attributed to the doctors .

The applicants lodged an objection to the findings of the medical experts on DATE . They argued that the CARDINAL medical expert reports , the first drafted by GPE and the second by TIME and ORG , were contradictory and asked that the experts be confronted to clarify and adjust their findings .

At a hearing on DATE ORG dismissed the ORG request and terminated the proceedings on the grounds that all the relevant facts had been sufficiently established .

On DATE ORG adopted a judgment dismissing the applicants’ civil action . In respect of the applicants’ action against GPE , the court noted :

“ Under section CARDINAL of LAW the investor and the constructor have joint liability for all damages to a third party in connection with the construction .

The person who is indicated as the investor in the construction contract has joint liability with the constructor for any damages in connection with the construction ( [ ORG judgment ] Vs NORP of CARDINAL DATE , PSP-CARDINAL/CARDINAL ) .

In the case at issue , regard being had to the contract of CARDINAL DATE , section CARDINAL of LAW is inapplicable in respect of the second defendant – the ORG , now GPE DATE since the second defendant was neither the investor nor the constructor on the construction site at issue . It is undisputed that the second defendant transferred , for a sum of money , the construction to the first - defendant A. and that therefore PERSON was the constructor and the investor .

Moreover , the said contract obliged company A. to ensure that the construction was carried out according to the relevant technical requirements necessary for this type of work . If the construction site was not properly secured ( and this court , based on the evidence from the case file , considers that it was not ) and if there were flaws in the organisation of the work ( security ) which had caused the injury of PERSON , then the sole responsibility would be on A. as the investor and the constructor .

However , during the course of these proceedings , insolvency proceedings were opened in respect of the first defendant , company A. , and this court had no competence to rule on its liability ... ”

As to the applicants’ action against ORG and ORG , ORG held that the medical expert report drafted by TIME and ORG had revealed that all the measures taken by the doctors were appropriate and that they could not be held responsible for PERSON ’s death , and therefore the hospital could not be held responsible either . As to the inconsistencies between this medical report and the CARDINAL drafted by the expert GPE , the court noted :

“ Since the defendants submitted a number of objections to the report drafted by expert GPE from GPE , and since that expert failed to provide a detailed reply to those objections during the proceedings before ORG , this court considered that another medical report should be commissioned from ORG .

The medical experts from that institution , TIME , a specialist in brain - surgery and ORG , a specialist in forensic medicine , drafted an objective medical report , in which they sufficiently substantiated their findings concerning the medical treatment of PERSON . Therefore this court accepts their report . ”

On DATE the applicants lodged an appeal with ORG ( Županijski sud u Vukovaru ) against the firstinstance judgment of ORG , arguing that it had a number of substantive and procedural flaws . They pointed out in particular that ORG had failed to address all the obvious inconsistencies between the CARDINAL medical reports and sought an explanation .

On DATE the applicants lodged a complaint about the length of the proceedings before ORG , arguing that the proceedings had been excessively long .

On DATE ORG dismissed the applicants’ appeal and upheld the first - instance judgment in respect of ORG and ORG . It quashed the first - instance judgment and ordered a retrial in respect of GPE . ORG found that the first - instance court had to establish whether company A. or ORG was the owner of the construction site at the time of the accident . ORG considered that the first - instance court had sufficiently substantiated its decision in respect of the applicants’ complaint concerning the expert reports .

On DATE the applicants lodged an appeal on points of law with ORG ( PERSON ) against the part of ORG judgment concerning ORG and ORG . They argued that the lower courts’ judgments had been based on contradictory medical reports and that the lower courts had failed to address their complaints concerning those inconsistencies .

On DATE ORG dismissed the first and second applicants’ appeal on points of law as ill - founded , endorsing the reasoning of the lower courts . It declared the third and fourth ORG appeal on points of law inadmissible ratione valoris .

On DATE the applicants lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against the judgment of ORG . The applicants contended that their individual rights and the rule of law had been violated by the lengthy and unfair proceedings before the lower courts in which CARDINAL contradictory medical expert reports concerning the death of their child had not been confronted and clarified , and no explanation for that had been given by the lower courts .

On DATE a hearing was held before ORG in the retrial concerning the applicants’ civil action against GPE .

Another hearing was held on DATE . The trial court heard evidence from the parties and their oral submissions , and concluded the hearing .

On DATE ORG dismissed the applicants’ civil action against GPE on the ground that , pursuant to a contract dated DATE between company ORG and ORG , ownership of the construction site had been formally transferred to company A. on DATE , before the accident had occurred . The court therefore noted :

“ Since for the event at issue , in the view of this court , a third person was responsible , company PERSON , and not the defendant GPE , this court dismisses the civil action under LAW as ill - founded . ”

On DATE the applicants lodged an appeal with ORG , arguing that there had been a number of procedural and substantive flaws in the retrial before ORG .

On DATE ORG dismissed the ORG appeal as ill - founded and upheld the judgment of ORG .

The applicants lodged an appeal on points of law with ORG against the judgment of ORG , requesting that the lower courts’ judgments be quashed .

On DATE ORG dismissed the first and second applicants’ appeal on points of law as ill - founded and declared the third and fourth ORG appeal on points of law inadmissible ratione valoris .

DATE . On DATE ORG upheld a lengthofproceedings complaint lodged by the applicants on DATE . It found the length of the civil proceedings excessive and awarded the first and second applicants jointly CARDINAL NORP kunas ( HRK ) in damages .

On DATE ORG issued a separate decision in respect of the costs of the proceedings , ordering the applicants to pay HRK CARDINAL,CARDINAL.CARDINAL to ORG .

On DATE the applicants lodged an appeal with ORG against ORG decision .

On DATE the applicants lodged a constitutional complaint with ORG against ORG judgment of DATE . The applicants argued , inter alia , that the lower courts had minimised any responsibility of those involved in the death of their child . In their view , that had violated their human rights and breached the relevant domestic law .

On DATE ORG dismissed the first and second applicants’ constitutional complaint of DATE as ill - founded and declared the third and fourth ORG complaint inadmissible as it had been lodged out of time . They had had no right to lodge an appeal on points of law and thus the time for lodging a constitutional complaint had started to run from the date of the ORG decision .

On DATE ORG dismissed the applicants’ appeal against the decision of ORG concerning the costs of the proceedings , holding that all the relevant facts regarding the costs had been correctly established .

On DATE ORG dismissed the first and second applicants’ constitutional complaint of CARDINAL DATE as illfounded and declared the third and fourth ORG complaint inadmissible as it had been lodged out of time . The court reiterated its previous arguments .

On DATE the applicants lodged a constitutional complaint with ORG against ORG decision of CARDINAL DATE dismissing their appeal concerning the costs of the proceedings .

DATE . On DATE ORG declared the applicants’ constitutional complaint inadmissible ratione materiae , on the grounds that the decision on the costs of the proceedings had not represented an individual act against which a constitutional complaint could be lodged .

On DATE the ORG found that it had omitted to include the third and fourth applicants’ length - of - proceedings complaint in its decision of CARDINAL DATE . Therefore , finding the length of the civil proceedings excessive , it awarded the third and fourth applicants jointly HRK CARDINAL in damages .

On an unspecified date in DATE the applicants lodged an appeal with ORG against the above - mentioned decision , arguing that the amount awarded was insufficient , and on DATE ORG dismissed their appeal as ill - founded .

The LAW of GPE ( ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE , ORG DATE , CARDINAL , CARDINAL , DATE ) in DATE , under LAW , Part DATE Personal and Political Rights and Freedoms , provides :

“ Every human being has the right to life .

The relevant part of section CARDINAL of LAW ( Ustavni zakon o FAC PERSON , ORG nos . CARDINAL/CARDINAL , CARDINAL , DATE ) reads :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that a decision of a ORG body , a body of local and regional selfgovernment , or a legal person with public authority concerning his or her rights and obligations , or about a suspicion or an accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : a constitutional right ) ...

NORP If another legal remedy exists against the violation of the constitutional right [ complained of ] , the constitutional complaint may be lodged only after that remedy has been exhausted .

NORP In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law is allowed , remedies shall be considered to have been exhausted only after a decision on these legal remedies has been given . ”

The relevant parts of LAW ( NORP zakon PERSON , ORG nos . CARDINAL , CARDINAL/CARDINAL ) provide :

“ ( CARDINAL ) Anyone who , in the design , supervision or construction of a building or in the execution of construction work , by acting contrary to regulations or generally recognised professional standards , endangers people ’s lives or property of considerable value shall be punished by a fine or by imprisonment for a period of DATE .

( CARDINAL ) NORP If the offence referred to in paragraphs CARDINAL and CARDINAL of this Article was CARDINAL of negligence , the perteptrator shall be punished by imprisonment for a period of DATE . ”

( CARDINAL ) A person responsible for a mine , factory , workshop , or another place where work is carried out who does not install safety equipment , or does not maintain it in working condition , or fails to make it available for use if needed , or fails to act in accordance with the regulations on safety measures at work , thereby endangering the life and limb of people or property of considerable value , shall be punished by imprisonment for a period of DATE .

( CARDINAL ) Anyone who commits the criminal offence referred to in paragraphs ... and CARDINAL of this Article by negligence shall be punished by imprisonment for a period not exceeding three years .

( CARDINAL ) NORP If the death of one or more persons has been caused as a result of the criminal offence referred to in Article ... CARDINAL , paragraph CARDINAL , and LAW , paragraphs CARDINAL and CARDINAL , of this Code , the perpetrator shall be punished by imprisonment for a period of DATE .

“ ( CARDINAL ) A doctor who , in rendering medical services , applies an obviously inadequate remedy or method of treatment , or fails to apply relevant hygienic measures , or in general acts carelessly , thus causing the deterioration of an illness or the impairment of a person ’s health , shall be punished by imprisonment for a period of DATE .

( CARDINAL ) If the offence refered to in DATE and QUANTITY of this Article was CARDINAL of negligence , the perpetrator shall be punished by a fine or by imprisonment for a period of DATE . ”

( CARDINAL ) NORP If the death of one or more persons has been caused as a result of the criminal offence referred to in ... Article CARDINAL , paragraphs CARDINAL and CARDINAL ... of this LAW , , the perpetrator shall be punished by imprisonment for a period of DATE

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provided :

“ ( CARDINAL ) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only . ...

( CARDINAL ) In respect of criminal offences subject to public prosecution , the qualified prosecutor shall be the ORG Attorney and in respect of criminal offences subject to private prosecution , the qualified prosecutor shall be a private prosecutor .

( CARDINAL ) Unless otherwise provided by law , the ORG Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person .

The relevant provisions of LAW ( Zakon o obveznim odnosima , ORG , ORG . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL/CARDINAL ) provided :

“ ( CARDINAL ) For any physical pain or mental suffering concerning the ... death of a close person ... the court shall , if appropriate under the circumstances of a given case , and particular if the intensity of the pain or fear and their duration so require , award nonpecuniary damages ... ”

“ ( CARDINAL ) In the event of the death of a person entitled to damages , the court can award appropriate non - pecuniary damages to the members of his or her immediate family ( spouse , child , or parent ) .

( CARDINAL ) The same damages can also be awarded to the person ’s brothers and sisters if sufficient family ties existed between them .

The relevant provisions of LAW ( Zakon o sudovima , ORG nos . DATE , CARDINAL/CARDINAL and CARDINAL ) provided :

“ ( CARDINAL ) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her , may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next level of jurisdiction .

( CARDINAL ) If the request concerns proceedings pending before ORG of GPE , ORG or ORG , the request shall be decided by ORG .

( CARDINAL ) The proceedings for deciding on a request under sub - section ( CARDINAL ) of this section shall be urgent . The rules of non - contentious procedure shall apply mutatis mutandis in those proceedings and , in principle , no hearing shall be held .

( CARDINAL ) If the court referred to in LAW finds the request well founded , it shall set a time - limit within which the court before which the proceedings are pending shall decide on a right or obligation of , or a criminal charge against , the person who lodged the request , and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time .

( CARDINAL ) The compensation shall be paid out of the ORG budget within DATE on which the party ’s request for payment is lodged .

( CARDINAL ) An appeal , to be lodged with ORG within DATE , lies against a decision on the request for the protection of the right to a hearing within a reasonable time . No appeal lies against a ORG decision , but a constitutional complaint may be lodged . ”


CASE OF GEORGEL AND GEORGETA STOICESCU v. ROMANIA

Preliminary objection dismissed (victim);Violation of Art. 8;Violation of Art. 6-1;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE . She was retired and living in GPE before her death on DATE .

On DATE the applicant , aged DATE at the time , was attacked , bitten and knocked to the ground by a pack of around CARDINAL stray dogs in front of her home in the GPE neighbourhood , a residential area in GPE . As a result of DATE , the applicant suffered a head injury and fractured her left thigh bone which required CARDINAL days’ hospitalisation in ORG in GPE . After being discharged from hospital she was prescribed medical treatment which proved to be too expensive for her .

Following the incident , the applicant started suffering from amnesia and shoulder and thigh pains and had difficulty walking . In addition , she lived in a constant state of anxiety and never left the house for fear of another attack . By DATE she had become totally immobile .

At the time of the incident the applicant and her husband were retired and their entire DATE income amounted to the equivalent in NORP lei ( ROL ) of QUANTITY . They claim that this amount was wholly insufficient for her medical treatment , and that they had to live at subsistence level . As a result , the applicant had lost weight .

The applicant ’s state of health continued deteriorating with the result that DATE after the incident , on DATE , she was declared disabled by a medical panel of ORG and was offered financial aid and free access to medical assistance and medicines .

On DATE the applicant , represented by her husband , filed a civil action with ORG ( PERSON CARDINAL ) requesting damages of ROL CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL ) under the provisions of LAW on civil liability for torts , and claiming that , as a result of the attack , she had become disabled . The applicant filed the action against ORG because , according to the words embossed on the stamp used on a letter from ORG ( PERSON ) , the latter was a body under the authority of ORG .

At the first hearing the court noted that the applicant had not paid the statutory court fee and ordered the payment of ORG ) . Being unable to pay this sum , which amounted to her entire family income for DATE , the applicant paid MONEY ( EUR CARDINAL ) , which she borrowed from various acquaintances .

By a judgment of DATE the court declared the applicant ’s civil action invalid for non - payment of the full court fee .

On DATE ORG ( ORG ) allowed an appeal by the applicant against the judgment of DATE . ORG held that the first - instance court should have decided the case within the limits of the court fee paid and that in any event , the applicant was exempted by law from paying a court fee for this type of action . The court further held that the amount already paid should have been treated as a deposit , to be returned at the end of the proceedings . With respect to the merits of the case , the court held that the ORG , a public body under the authority of ORG , had indeed not taken all necessary measures to avoid endangering the lives of the population and to preserve their health and physical integrity , and had thus violated the provisions of ORG decision no . CARDINAL . According to that decision , the ORG had a duty to capture , control and sterilise all stray dogs in order to prevent any danger they may pose to the life , health and physical integrity of the population . The court further held that the attack had endangered the applicant ’s life and health , causing her physical and psychological suffering and depriving her of a normal life because she was so traumatised that she did not dare leave her apartment for fear of another attack .

Lastly , ORG ordered ORG to pay the applicant non - pecuniary damages , within the limits of the deposit paid , namely , ROL CARDINAL,CARDINAL,CARDINAL ( approximately LAW ) , which was PERCENT of the damages claimed by the applicant .

The Bucharest City Hall lodged an appeal on points of law ( recurs ) against the judgment of DATE , claiming that it did not have legal capacity as defendant because the ORG was placed under the authority of ORG , and not ORG .

By a final judgment of DATE , ORG allowed the appeal on points of law and dismissed the applicant ’s action on the grounds that it had been lodged against a party who did not have legal capacity as defendant . The court found that the ORG had been created by decision no . CARDINAL of ORG and that therefore the latter institution was the one against which the applicant should have brought her court action .

On DATE the applicant , represented by her husband , filed a civil action with the GPE ORG requesting damages of ROL CARDINAL ( ORG CARDINAL ) from the ORG and ORG . The applicant did not pay the court fee .

On DATE ORG dismissed the action , holding that ORG did not have legal standing as defendant . With regard to the ORG , the court found that on DATE ORG had adopted decision no . CARDINAL by which the ORG was closed down and the control of stray dogs was transferred to the mayor ’s offices of the CARDINAL GPE districts .

By a final judgment of CARDINAL DATE , ORG dismissed an appeal on points of law lodged by the applicant and upheld the judgment of the first - instance court .

NORP Under LAW of ORG of DATE ( Law no . DATE ) , local self - government was conferred on the local councils as legislative authorities and the mayor ’s offices as executive authorities .

That Act was replaced on DATE by a new LAW ( Law no . CARDINAL/CARDINAL ) . LAW of that LAW provides :

“ The local public administration authorities which ensure local self - government in municipalities and towns are the municipal authorities and the local town councils as legislative authorities , and the ORG offices as executive authorities . ”

Section CARDINAL of Law no . CARDINAL of DATE provided that the local authorities of each department were in charge of ensuring proper veterinary activity and thus entitled , inter alia , to “ organise the capture and destruction of stray dogs ” .

Section CARDINAL of Law no . PERSON was amended on DATE to provide that the local authorities were in charge of “ organising the capture of stray dogs and employing , for this purpose , specific techniques authorised by international veterinary norms ” .

On DATE Emergency Decree no.CARDINAL/CARDINAL on the stray dogs management programme entered into force . Its relevant provisions provide :

“ CARDINAL . The local councils must create , within DATE from the entry into force of this decree , specialised services in order to manage the stray dogs situation .

Stray dogs shall be captured and transported to the shelters of specialised services set up for [ this purpose ] , where they will be kept for DATE [ ... ] .

( CARDINAL ) Following an examination by the veterinary doctor , any stray dogs that are aggressive or suffer from chronic or incurable illnesses shall be euthanised immediately [ ... ] .

( CARDINAL ) Dogs which have not been claimed or adopted after the expiry of the DATE time - limit referred to in DATE above shall be euthanised .

Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL on the protection of animals , which entered into force on DATE , provided that the rules governing stray dogs on the territory of GPE would be adopted by means of a specific law .

On DATE Law no . CARDINAL/CARDINAL , amending Law no . CARDINAL , entered into force . It forbade , inter alia , the euthanasia of stray dogs .

In DATE a draft PERSON on stray dogs was put on the agenda of ORG . The draft , which provided , inter alia , for a duty on the authorities to capture and euthanise all stray dogs in order to preserve the safety and health of the population , was rejected by the ORG on CARDINAL DATE .

It is currently pending before ORG , without any date set for its discussion so far , according to the web page of ORG .

Article CARDINAL of Decision no . CARDINAL of DATE of ORG on the breeding , maintenance and circulation of animals in GPE provides as follows :

“ With effect from the date of the present decision , ORG shall be renamed ORG , a public body with legal status functioning under the authority of ORG and staffed by CARDINAL employees . ”

Annex no.CARDINAL , LAW , of Decision no . CARDINAL of DATE of ORG on the breeding , maintenance and circulation of animals in GPE provides , in its relevant parts , as follows :

“ a ) The service provider within ORG has a duty to capture stray dogs on the basis of written complaints received from private or legal persons .

c ) The captured animals shall be sterilised , vaccinated , disinfested and identified in an integrated database , with the exception of those that are to be euthanised .

d ) Dogs shall be returned to the area in question upon request by the community ( private or legal persons ) ; these dogs shall have the protected status of community dogs ( câini comunitari ) .

e ) Responsibility for community dogs shall be assumed by the community requesting the ORG return . ”

Article CARDINAL of Decision no . CARDINAL of DATE , issued by ORG regarding the programme for the sterilisation of stray dogs in GPE , provides :

“ Bearing in mind that ORG is placed under the authority of ORG , the analysis , supervision and monitoring of compliance with the programme for the sterilisation of stray dogs in GPE shall henceforth be entrusted to the commission created for this purpose by ORG .... ”

Article CARDINAL of Decision no . CARDINAL of DATE of ORG on the improvement of the ORG ’s activities provides :

“ ORG shall cease its activity with effect from DATE .

From that date onwards , the organisation , control and monitoring of animals shall be undertaken by the mayor ’s offices of GPE districts nos . CARDINAL to CARDINAL , each within its own area of authority . ”

LAW no . CARDINAL of DATE of ORG on the functioning of the ORG provides as follows :

“ With effect from DATE , ORG , as a legal person having the aforesaid purpose , shall be placed under the authority of ORG . ”

Article CARDINAL of LAW , ratified by GPE on DATE ( ORG GPE , CARDINAL DATE ) , provides :

“ When a ORG considers that the numbers of stray animals present it with a problem , it shall take the appropriate legislative and/or administrative measures necessary to reduce their numbers in a way which does not cause avoidable pain , suffering or distress .

a Such measures shall include the requirements that :

i if such animals are to be captured , this is done with the minimum of physical and mental suffering appropriate to the animal ;

ii whether captured animals are kept or killed , this is done in accordance with the principles laid down in this Convention ;

b Parties undertake to consider :

i providing for dogs and cats to be permanently identified by some appropriate means which causes little or no enduring pain , suffering or distress , such as tattooing as well as recording the numbers in a register together with the names and addresses of their owners ;

ii reducing the unplanned breeding of dogs and cats by promoting the neutering of these animals ;

iii encouraging the finder of a stray dog or cat to report it to the competent authority . ”

Since DATE the NORP and foreign printed , on - line and audiovisual media have regularly reported on the large number of stray dogs on the streets and the problems that have ensued : attacks by stray dogs resulting in serious injuries to many people or even death in some cases ; huge indignation caused in GPE and abroad by a number of actions taken by the authorities and with the purpose of euthanising some of the stray dogs ; organisation of donation campaigns in favour of the sterilisation of stray dogs , and so on .

By DATE , the population of stray dogs in the city of GPE alone numbered CARDINAL .

In DATE the mayor of GPE decided to have recourse to euthanasia , in the light of statistics for the city of GPE indicating that the population of stray dogs had doubled DATE ; that in DATE CARDINAL persons had received medical care following attacks by stray dogs ; that from DATE CARDINAL persons had been bitten by stray dogs ; and that the persons most vulnerable to such attacks and seriously injured were children and elderly people . The international media widely reported on the mayor ’s attempt to tackle this issue , as well as on the other solutions envisaged by candidates in local elections throughout the country , and on the criticism of euthanasia measures by certain international public figures , such as the actress PERSON , who in DATE had donated MONEY to GPE for the purpose of sterilising stray dogs instead of killing them .

The euthanasia campaign in GPE was stopped in DATE , after CARDINAL dogs had been euthanised .

In DATE the media reported that the population of stray dogs had again risen alarmingly , and that CARDINAL complaints of dog attacks were being registered DATE by the animal control service in GPE .

The issue of the situation of stray dogs in GPE , as a public health issue , and the proposed ways of tackling it by legislative measures , was reportedly raised by various NORP politicians with ORG bodies .

Specific incidents were also widely and regularly covered by the media from DATE . Thus , national newspapers such as GPE , GPE and PERSON reported on their internet pages the death of a CARDINAL - year - old NORP businessman after being bitten by a stray dog in the centre of GPE and the death of a DATE boy and DATE schizophrenic , both bitten by stray dogs in GPE . Several news agencies , such as GPE and ORG , and most newspapers reported on the death in similar circumstances of a DATE girl and of CARDINAL other elderly persons in various major cities throughout GPE . In DATE , an elderly woman was bitten to death by stray dogs in the centre of GPE .

According to the news agency ORG , the number of persons bitten by stray dogs in GPE has kept on increasing DATE ; for instance , it is reported that DATE and DATE , CARDINAL persons were bitten by stray dogs in GPE alone .

The Government have not submitted any official statistics or reports on the issue of stray dogs in GPE .

On DATE , the advisory body to the prefect , ORG , met and discussed , inter alia , the issue of stray dogs on the streets of GPE . In a statement published on the website of ORG following this meeting , the prefect stated that the problem of stray dogs was not yet solved and mentioned that :

“ ... although they have been sterilised and have an identification microchip , they can still bite and therefore pose a threat to our health , our children ’s health and to visitors to GPE . ”

The Prefect of GPE further stated that the data received from ORG of GPE were worrying and showed that a total of CARDINAL persons had been bitten by stray dogs in GPE during DATE , of which CARDINAL were children . He also quoted a report by ORG , according to which PERCENT of the dogs collected by that authority from the streets of GPE in DATE were infested with leptospirosis , an infectious disease transmissible to humans and which can cause meningitis , liver damage and renal failure .

On DATE , in a press release published on the website of ORG , the same prefect stated that there were CARDINAL stray dogs in GPE and that CARDINAL people were bitten DATE .

NORP In an interview of DATE the prefect of GPE indicated that , according to the latest statistics , the number of stray dogs in the streets of GPE was DATE , according to the NGOs , and CARDINAL , according to the local administration , that in DATE around CARDINAL , CARDINAL persons had been bitten in GPE by stray dogs , that in DATE the number of persons bitten by stray dogs was CARDINAL , and the costs for the treatment of these persons was QUANTITY per year . The prefect further indicated that he had proposed a draft law allowing the euthanasia of stray dogs in certain circumstances .


The applicant , PERSON , has both NORP and NORP nationality . He was born in DATE and is living in GPE , the GPE . He is represented before the ORG by Mr GPE , a lawyer practising in GPE .

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

In DATE the applicant , when living in GPE , entered into a traditional / religious marriage ( i.e. a non - civil marriage ) with a NORP woman . Out of this relationship twins were born in DATE , PERSON and GPE PERSON . In DATE the relationship between the applicant and his partner ended . The applicant submits that their mother did not wish to continue to take care of the twins and that he has since taken care of them . He has not been in contact with the mother since and her whereabouts are unknown to him .

In DATE the applicant entered the GPE for the first time . On DATE he was expelled from the GPE on the grounds that he was staying in the country illegally .

On DATE the applicant married Ms. PERSON , a NORP national . The wedding took place in GPE and the couple lived there for a short period together with the applicant ’s children . At DATE the applicant ’s wife decided to move back to the GPE . The applicant followed her and entered the GPE on DATE .

On DATE the applicant obtained a residence permit to stay with his wife . CARDINAL child was born to the applicant and Ms. PERSON . Their marriage lasted until DATE , when it was dissolved . On CARDINAL May CARDINAL the applicant obtained NORP nationality .

On DATE the applicant married Ms. PERSON . They were divorced on DATE .

In DATE the applicant entered into a traditional / religious marriage with Ms. PERSON of NORP nationality . Ms. PERSON has since obtained NORP nationality . On DATE they concluded a cohabitation contract ( samenlevingscontract ) .

The applicant submits that his CARDINAL former partners , Ms. PERSON and Ms. PERSON , did not want to have his children brought into the family and refused to take care of their upbringing , whereas Ms. PERSON had no objection to taking care of them and loves them as if they were her own . The applicant further submits that he was unable to let the children come to the GPE earlier as this would have been refused on the grounds of his lack of sufficient means of subsistence as required under NORP law .

Upon the applicant ’s departure from GPE , his CARDINAL children were initially , and temporarily , housed with a friend of the applicant ’s in GPE . After DATE the children could no longer be taken care of by that friend and had to move to the house of another friend - a Mr Aboya - who , after having started a family of his own , no longer wanted to take care of the applicant ’s children .

The applicant submits that his friends merely provided temporary accommodation for his children and were not effectively exercising parental authority over them . He took parental decisions , and he also paid all his children ’s living expenses . From DATE he has been visiting his children CARDINAL times per year , being employed by an airline company enabling him to travel at cheaper rates .

The relation between the applicant and PERSON worsened when he discovered that in the latter ’s family , funds , which he had sent for his children , were used for other purposes . Thus , money intended to cover school fees was allegedly appropriated by PERSON , as a result of which the children were unable to go to school in GPE .

In DATE the then DATE twins travelled to the GPE on a tourist visa . They have been living with the applicant and Ms. PERSON ever since . On DATE the applicant applied for a residence permit ( vergunning tot verblijf ) for his children .

On DATE the ORG Secretary of ORG ( ORG ) rejected the request , finding that the conditions under which family reunification could be allowed had not been fulfilled . Thus , no evidence had been produced either as to the existence of family ties prior to the applicant ’s residence in the GPE , or of contacts between the father and the children having been maintained . Neither was there any evidence that the applicant had supported his children financially . The ORG Secretary noted , inter alia , that the applicant , since his arrival in the GPE , had formed a new family twice . The situation in GPE was not found to be of such a nature that the children could not return there , and neither had they become integrated in the GPE to such an extent that a return to GPE could not be expected of them .

On DATE the applicant filed an objection ( bezwaar ) with the ORG Secretary against his decision . On DATE the ORG Secretary rejected the objection , finding that the family ties between father and children had been broken in view of the fact that the applicant ’s leaving the twins in the care of friends for DATE could not be considered to have been a temporary measure . The ORG Secretary concluded that even if the situation in GPE was less favourable for the children than the one in the GPE , they should nevertheless be presumed capable of fending for themselves without requiring intensive supervision and , if necessary , with financial support from the GPE .

On DATE the applicant lodged an appeal with ORG ( ORG ) sitting in GPE . He argued that the interpretation given by the domestic authorities of “ family ” was not in line with LAW and the case - law of the Court . He further emphasised the difficulties which his children would face if returned to GPE , with no adequate accommodation or care , whereas he was capable of taking care of them in the GPE .

On DATE a person responsible for the children at school reported that they were suffering emotional problems as a result of their experiences in GPE and that especially PERSON would benefit from a social rehabilitation programme .

On DATE a hearing took place before ORG during which it appeared that , contrary to earlier statements by the applicant , the children had stayed with their grandmother in GPE for DATE and that regular contacts also existed between the children and their mother .

ORG rejected the applicant ’s appeal on DATE . It held that the burden of proof as to the continued existence of family ties lay with the applicant and that he had failed to produce sufficient evidence of such family ties . In addition , no evidence confirming the applicant ’s financial support or the actual exercise of parental authority over the children had been produced .

In respect of LAW found that the current level of family life between the applicant and his children had been created at a time when the children were not allowed to be in the GPE . Therefore , the decision to refuse them residence was not aimed at depriving them of a previously granted right to family reunification . ORG concluded that LAW did not impose a positive obligation on the ORG to respect an alien ’s choice to exercise his family life in the GPE . It was further held that sufficient facilities for the care of the children existed in GPE .

On DATE temporary guardianship ( voorlopige voogdij ) of the applicant ’s daughter GPE was attributed by the ORG Judge ( kinderrechter ) of PERSON to a child care organisation , on the grounds that the applicant was not properly fulfilling his parental duties .

On DATE ORG ( PERSON ) filed a request with ORG ( kantongerecht ) of PERSON for the applicant nevertheless to be awarded parental authority ( ouderlijk gezag ) over his daughter GPE .

On DATE ORG judge awarded the applicant parental authority over his daughter GPE and issued a supervision order ( ondertoezichtstelling ) whereby a child care organisation was charged with providing the applicant and his daughter the necessary support .

On DATE ORG ( GPE ) of GPE confiscated the children ’s passports and ordered them to leave the country .

LAW ( Vreemdelingenwet ) provides that a provisional residence visa ( machtiging tot voorlopig verblijf ) is required for an alien who wishes remain in the GPE for a period of DATE .

The policy for admission for family reunification purposes is laid down in LAW of FAC ( Vreemdelingencirculaire ) . This provides , insofar as relevant , that a residence permit for the purposes of family reunification may be granted to a parent of NORP nationality with minor children , when the children factually belong to his / her family and family ties with one of the parents already existed abroad . Family ties are considered to have definitely ceased to exist in case of long - term integration of the child into another family while the parent(s ) no longer exercise parental authority and no longer provide for the cost of upbringing and care of the child .