Strasbourg Observers

The saga continues … Legal standing for NGOs when de facto representing mentally disabled dying in institutions

August 29, 2016

By Helena De Vylder

Once again, in the decision in Bulgarian Helsinki Committee v Bulgaria, the ECtHR had the opportunity to rule on the legal standing of an NGO when de facto representing two mentally disabled adolescents, who died in an institution. The ECtHR applied the criteria it established in Centre for Legal Resources on behalf of Vincent Campeanu v Romania and confirmed in Helsinki Committee on behalf of Ionel Garcea v Romania. The Court found that the applicant organisation in Bulgarian Helsinki Committee does not meet the requirement that it must formally be involved in the domestic proceedings having all the rights parties in criminal proceedings enjoy. Unfortunately, the Court does not attach more importance to the ultimate goal of granting legal standing to de facto representatives. In Campeanu, it held that this was in order to prevent allegations of a serious nature from being examined at the international level, with the risk that the respondent state might escape accountability under the Convention.

Facts and Judgment

Alarmed by a BBC documentary denouncing the situation of children with mental disabilities in an institution in Bulgaria, the NGO Bulgarian Helsinki Committee requested the State Prosecutor to investigate the conditions under which these children were accommodated in the home, and the deaths occurring there. In cooperation with the applicant organization, the State Prosecutor inspected various homes for disabled children. The association monitored the criminal investigations and lodged appeals against a number of decisions not to prosecute and discontinuance orders.

Because a final judgment discontinued the investigations in the cases concerning the death of Aneta Yordanova and Nikolina Kutsarova, the applicant organization took these to the European Court of Human Rights. The organisation argued that in line with Campeanu, the circumstances of the cases were exceptional and required the Court to conduct an examination of the merits, finding that the organisation was acting as the girls’ representative.

In the case of Campeanu, which also considered a mentally disabled young man in an institution, four reasons in particular urged the Court to find exceptional circumstances which allowed the NGO to represent him without formally being enabled to do so: (1) Although formally Mr Campeanu was considered to be a person with full legal capacity, it appears clear that in practice he was not capable of introducing any proceedings by himself; (2) During the domestic proceedings, the organisation’s capacity to act on behalf of Mr Campeanu was not challenged or even questioned; (3) Mr Campeanu had no known next-of-kin, and owing to the failure of the state, no legal guardian had been appointed to take care of his interests, despite the legal requirement to do so; (4) The main complaint concerns Article 2, which Mr Campeanu evidently could not pursue because of his death.

In Bulgarian Helsinki Committee, the ECtHR found three out of the four criteria fulfilled, but ultimately distinguished the present case from Campeanu because the applicant organisation had had no contact with the victims before they died, and the applicant organization had never enjoyed any formal status in the domestic proceedings. According to the Court, this stands in contrast with the situation of the organisation in the case of Campeanu, which visited Mr Campeanu before he died, and whose competence to represent him was never contested by the domestic authorities. Even though the organisation in Bulgarian Helsinki Committee intervened in the domestic proceedings, they lacked any formal status according to Bulgarian law. In such circumstances, the Court dismissed the applications as incompatible ratione personae with the Convention.


The decision is open for criticism on multiple levels.

The decision interprets the – already stringent – criteria in Campeanu in a very formalistic manner, and even restricts them. The Campeanu-judgment was applauded, but at the same time criticized[1] for its very casuist character, leaving hardly any room for future application of the ruling. That this criticism was correct is now proven. Even though the facts of the current case are exceptionally similar, the Court finds a way to distinguish it from Campeanu. In the former judgment, it was determinative that the state never questioned the NGO’s capacity to act, acquiesced in the procedure and dealt with all the applications submitted by the NGO. In Bulgarian Helsinki Committee v. Bulgaria, the state also dealt with the applications submitted by the applicant organisation. Despite the fact that in accordance with Bulgarian law, the NGO lacked any formal status, the organization could int. al. apply for review of the discontinuance orders, request investigations, and contest the decisions not to prosecute. It does not appear from the decision, that the authorities questioned these procedural steps taken by the applicant organisation. On the other hand it is not clear whether the domestic law in Campeanu formally allowed the NGO to represent Mr Campeanu, or whether they just acquiesced. It seems thus like the Court restricts the criteria and will in the future only allow de facto representation by NGOs when national law allows for them too to act in the capacity of representative.

To link the standing before the ECtHR to standing on the national level, is a dangerous practice. An undesirable consequence could be that states will become very careful in granting standing. It might even induce some to take measures not to accept or allow NGOs to represent victims at the national level, in order to circumvent subsequent standing of these same NGOs at the regional or international level. That this is not in the interest of the most vulnerable in society is self-evident.

Furthermore, the decision is all the more odd, seeing that the underlying idea was to prevent allegations of a serious nature from being examined at the international level, with the risk that the respondent state might escape accountability under the Convention. The current decision leads to exactly the opposite effect. The Court creates a difference between applicants based on domestic regulations. The absence of representation before the domestic authorities does not only render the individuals more vulnerable, moreover, it also excludes representation on the international level. This contradicts the requirement that the Convention’s provisions be interpreted so as to give practical and effective protection to individuals. Moreover, it is not in line with the Court’s own case law, which seems willing to open up access to the Court for mentally disabled victims, e.g. the requirement that disabled persons can introduce cases non despite the fact that they lack standing under national law.

[1] E.g. Mental disability advocacy centre, ‘Joint press release: European Court of Human Rights says NGOs can secure justice for otherwise voiceless people who die at the hands of the State’ (17 July 2014), <>; Constantin Cojocariu, ‘Some thought on the significance of Campeanu v Romania, before the Grand Chamber ruling on 17 July 2014 (Pre Dept Vorbind: a bilingual blog about human rights in Romania and Europe, 14 July 2014), <> ; Holger Hembach, ‘Admissibility of an application lodged by an NGO on behalf of the deceased victim – Centre for Legal Resources on behalf of Valentin Campeanu v Romania’ (, 12 August 2014), <>.

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