ITEMID: 001-58204
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1998
DOCNAME: CASE OF GUÉRIN v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: John Freeland;N. Valticos
TEXT: 8. Mr Yves Guérin, a French national who was born in 1942, lives in Brest. At the material time, he was a deputy police sergeant.
9. On 28 November 1990 an airport and border police squad based in Menton stopped a vehicle on the motorway between Ventimiglia and Menton. There were six people inside, of whom five did not have valid papers for entry into French territory.
10. The driver, Mr Sérigné Fall, admitted that he had assisted these five to cross the border illegally.
11. He implicated the applicant, who was at that time serving at the Ventimiglia frontier post, alleging that he had allowed him to enter France in exchange for a payment of five hundred French francs (FRF) and the promise of an imitation Rolex watch.
12. On 29 November 1990 the applicant was charged with accepting a bribe and remanded in custody.
13. In a judgment of 6 June 1991 the Nice Criminal Court acquitted Mr Guérin, rescinded the order for his detention and ordered his immediate release.
14. On 11 June 1991 the prosecution appealed.
15. In a judgment of 14 October 1991 the Aix-en-Provence Court of Appeal, giving judgment in the applicant’s absence, set aside the judgment at first instance and sentenced the applicant to two years’ imprisonment.
16. On 28 June 1992 the applicant requested a retrial.
17. The case was heard on 12 October 1992 at a public hearing attended by Mr Guérin.
18. In a judgment of 23 November 1992 the Aix-en-Provence Court of Appeal found the applicant guilty of accepting a bribe, sentenced him to two years’ imprisonment, six months of which were suspended, and issued a warrant for his arrest. Although the applicant had been duly informed of the date of delivery of the judgment, he was not present.
19. On 24 November 1992 Mr Guérin was admitted to a psychiatric institution, where he stayed until 16 December 1992, when the police enforced the warrant for his arrest.
20. On 26 November 1992, acting through a lawyer with the right of audience in the Aix-en-Provence Court of Appeal, the applicant lodged an appeal on points of law within the time-limit of five clear days laid down by Article 568 of the Code of Criminal Procedure (see paragraph 24 below).
In his statement of the grounds of appeal the applicant’s lawyer put forward two arguments, one procedural and one substantive, concerning the elements of the offence. He also explained that “as soon as he knew [the Court of Appeal’s decision], the appellant tried to commit suicide”.
On the first point, he referred to the report adopted by the Commission on 3 September 1992 in the case of Poitrimol v. France and pointed out that the Commission had referred to the Court the question whether the relevant case-law of the Criminal Division was contrary to Article 6 § 1 of the Convention.
On the second point, the lawyer stated that as the applicant lived in Brest he had not attended the hearing at which the judgment convicting him was delivered on account of the distance he would have had to travel and because he was very perturbed by the proceedings against him.
It would also have been materially impossible for him to comply with the warrant for his arrest in the three days between the reading of the judgment and the lodging of the notice of intention to appeal. Moreover, on learning that he had just been convicted, and immediately after instructing his lawyer to lodge an appeal on points of law, he had tried to commit suicide, and for that reason had been treated in a psychiatric institution from 24 November 1992 to 16 December 1992. Having stayed in that institution throughout the period allowed for an appeal on points of law, it had been absolutely impossible for him to comply with the warrant voluntarily before lodging the appeal. Lastly, the arrest warrant had been executed on 16 December 1992 at the clinic where the applicant remained at the disposal of the courts. The lawyer concluded in the following terms:
“There is no doubt that in such conditions applying the case-law established in 1846 in order to declare the appeal inadmissible would mean unjustly depriving Mr Guérin of the right to determination of his appeal.”
21. In a judgment of 19 January 1994 the Court of Cassation declared the appeal inadmissible on the following grounds:
“It is apparent from the notice of intention to appeal that the applicant lodged his appeal through an attorney at a time when he was liable to arrest under a warrant issued at the hearing on 23 November 1992, which was not executed until 16 December 1992. It follows from the general principles of criminal procedure that a convicted person who has not complied with a court order is not entitled to act through a representative in order to lodge an appeal on points of law. It could not be otherwise unless he supplied evidence of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time. In the present case the appellant has not supplied evidence of any such circumstances.”
22. In French law an appeal on points of law, which is an exceptional remedy, may be lodged by any person who has an interest in doing so and gives notice within the time-limit, against any judicial decision given at last instance.
23. Article 576 of the Code of Criminal Procedure, which lays down the formalities to be observed in connection with appeals on points of law, provides:
“Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged.
It must be signed by the registrar and by the appellant himself or by an attorney (avoué) of the court which has given judgment or by a specially authorised agent. In the last-mentioned case, the authority to act shall be annexed to the document drawn up by the registrar…
…”
24. Article 568 of the Code of Criminal Procedure provides:
“The prosecution and all parties shall have five clear days after the date on which the impugned decision was given in which to lodge an appeal on points of law.”
25. Article 569 of the Code of Criminal Procedure provides:
“During the time allowed for an appeal on points of law and, where such an appeal has been lodged, until the Court of Cassation delivers judgment, execution of the judgment of the Court of Appeal shall be stayed, except in respect of orders concerning civil matters, and unless the Court of Appeal upholds the warrant issued by the trial court pursuant to Article 464-1 or Article 465, first sub-paragraph, or unless it issues a warrant itself under the same conditions and according to the same rules.”
26. The suspensive effect of an appeal on points of law is derived from statute and may therefore likewise be restricted by statute, particularly in the interests of speedier and more effective punishment. That is the case where an arrest warrant has been issued by the trial court (see, to that effect, B. Bouloc, Précis de procédure pénale, Dalloz, 16th edition, 1996, § 739).
27. Article 583 of the Code of Criminal Procedure provides:
“If a person sentenced to a term of imprisonment of more than six months has not surrendered to custody and has not obtained from the court which convicted him exemption, on or without payment of a surety, from the obligation to surrender to custody, his right to appeal on points of law shall be forfeit.
The memorandum of imprisonment or the judgment granting exemption shall be produced before the Court of Cassation not later than the time when the case is called for hearing.
For his appeal to be admissible, it is sufficient for the appellant to establish that he has surrendered to custody at a prison, either in the place where the Court of Cassation sits or in the place where sentence was passed. The governor of that prison shall admit him there on the order of the Principal Public Prosecutor at the Court of Cassation or of the head of the public prosecutor’s office at the court of trial or appeal.”
28. The Court of Cassation has ruled on a number of occasions that an appeal lodged by the representative of a convicted person who has not complied with a warrant for his arrest is inadmissible (Cass. crim. 10 December 1986, Dalloz 1987, p. 165). But the convicted person may give notice himself of his intention to appeal (Cass. crim. 7 November 1989, Bull. crim no. 397), subject to the provisions of Article 583, reproduced above.
29. The Criminal Division of the Court of Cassation considers that an appeal is admissible in the following two situations:
(a) where, instead of acting through a representative, the appellant signs the notice of intention to appeal in person (Cass. crim. 28 June 1978, Bull. crim. no. 57) by reporting to the registry before the warrant has been executed (Cass. crim. 7 November 1989, Bull. crim. no. 397) and accepting the risk of being arrested by mentioning his exact address in the notice (Cass. crim. 13 May 1985, Bull. crim. no. 180; Cass. Crim. 7 September 1993, Bull. crim., p. 263, confirmed by a decision of 15 February 1994 published in the Recueil Dalloz, 1994, Somm., p. 187);
(b) where, when acting through a representative, in accordance with Article 576 of the Code of Criminal Procedure, he can prove that there were “circumstances that made it absolutely impossible for him to surrender to custody at the appropriate time” (Cass. crim. 21 May 1981, Bull. crim. no. 168; Cass. crim. 19 January 1984, Bull. crim. no. 27; Cass. crim. 8 March 1985; Cass. crim. 8 March 1996, Bull. crim. no. 94).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99218
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GARAYEV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (in case of extradition);Violation of Art. 13;Violation of Art. 5-1-f
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1981 in Bukhara, Uzbekistan and is currently detained in a remand facility in Baku awaiting extradition to Uzbekistan. He holds a valid Uzbek passport and is considered to be a national of Uzbekistan by both the Azerbaijani and Uzbek authorities. The applicant, however, also claims to be an Azerbaijani national (see below).
7. The applicant's father, Firudin Garayev, of Azerbaijani ethnic origin, was born in 1953 in Beylagan, Azerbaijan. The applicant's mother, Olima Garayeva, of Uzbek ethnic origin, was born in 1960 in Bukhara, Uzbekistan. The applicant had an elder brother, Jeyhun Garayev, and a younger sister, Nargiz Garayeva. The family was living in Bukhara, Uzbekistan at the time the events described below took place.
8. On 21 December 2000 the applicant's entire family, including himself and his then twelve-year-old sister, were arrested in Bukhara on suspicion of killing six persons and mutilating their corpses. It appears that prior to the arrest the Uzbek law-enforcement authorities found remains of mutilated human corpses inside the house of the applicant's family and in a rubbish dump near their house. The applicant's mother was the primary suspect, while all the other family members were suspected of being accomplices. The applicant claimed to have been out of town at the time the alleged crimes were committed.
9. It appears from the case file that their arrest generated much media coverage in Uzbekistan. The media reports also allegedly included false rumours that the applicant's family had been engaged in the trafficking of human organs and even cannibalism. The ethnic origin of the applicant's father and his children was also usually mentioned.
10. According to the applicant, while in detention he and all his family members had been constantly subjected to torture and other forms of illtreatment with the aim of extracting confessions from them. They were kept in separate cells for most of the time. The applicant provided a very detailed account of the types of ill-treatment to which he had been subjected, which included, inter alia, various forms of beating, deprivation of food and drink, and suffocation.
11. It appears that, initially, no charges were brought against the applicant or most of his family members in connection with the murders and on various dates they were all released, with the exception of his mother, owing to lack of evidence. However, after the release all of the family (except the applicant's sister) were arrested again on various grounds.
12. After a few days in detention, the applicant was released on 26 December 2000 owing to lack of evidence in connection with his involvement in the murder. However, only a few minutes after his release, the applicant was stopped on the street by other police officers, who asked him for identity documents. The applicant was then taken to a police station where, after a body search, the police allegedly found some heroin concealed in his shoes. The applicant argued that the drugs had been planted on him by the police, as he had been released from detention only a few minutes earlier and would not have been able to acquire any heroin and hide it in the soles of his shoes during this extremely short time period, especially while suffering from the effects of ill-treatment and having had nothing to eat or drink since his initial arrest.
13. On 30 April 2001 the Tokhuculug District Court of Bukhara convicted the applicant of possession of illegal drugs and sentenced him to four years' imprisonment. He was not provided with legal assistance during these proceedings.
14. The applicant was released on 2 August 2001 following a presidential pardon.
15. On 27 November 2001 he left Uzbekistan with his sister and has lived in Azerbaijan since then.
16. In the meantime, by a decision of the Bukhara Regional Court of 20 November 2001, the applicant was charged with the murder of six persons and the mutilation of their corpses, under Articles 97 § 2 (aggravated murder) and 134 (abuse of corpse) of the Criminal Code of Uzbekistan. Moreover, by the same decision, the Bukhara Regional Court ordered the application of the preventive measure of remand in custody in respect of the applicant without fixing any term for detention.
17. On 6 August 2002 the Bukhara Regional Prosecutor's Office suspended the pre-trial investigation, finding that the applicant was at large, and declared a search for him in order to secure his presence at the place of investigation.
18. The applicant's father was released from detention on 29 December 2000 but was arrested again on the same day for alleged possession of heroin, in circumstances similar to the applicant's second arrest. On 20 November 2001 the Bukhara Regional Court convicted him of possession of illegal drugs and certain other offences and sentenced him to eleven years' imprisonment.
19. On the same day, 20 November 2001, the Bukhara Regional Court convicted the applicant's mother and brother of murdering six persons and mutilating their corpses, and sentenced each of them to fifteen years' imprisonment under Articles 97 § 2 and 134 of the Criminal Code of Uzbekistan. The court found that the applicant's mother, with the assistance of her eldest son and with the purpose of enrichment at the expense of the victims, had invited a family of her acquaintance to her home, poisoned and killed them, and thereafter dismembered and otherwise mutilated the corpses so that it would be easier to dispose of them.
20. In April 2004 the applicant's father was also convicted under Articles 97 § 2 and 134 of the Criminal Code of Uzbekistan. It was found that he had aided and abetted his wife and eldest son in the killings and mutilation of the victims' corpses. After a series of appeals, his conviction under Article 97 § 2 was quashed and the conviction under Article 134 upheld, and taking into account his previous conviction he was sentenced to a combined sentence of twenty years' imprisonment.
21. The applicant's brother died in prison on 12 February 2008 from heart and lung failure. According to the applicant, his brother's death was a consequence of many years of ill-treatment.
22. The applicant's father was released from prison in May 2008 following a presidential pardon and moved to Azerbaijan.
23. The applicant's mother was released from prison in October 2008, also following a presidential pardon, and moved to Azerbaijan in November 2008.
24. As mentioned above, the applicant has been living in Azerbaijan since 27 November 2001. It appears from the case file that the applicant entered the territory of Azerbaijan legally with his Uzbek passport. However, he had been entitled to stay in Azerbaijan for ninety days only and it appears that after this period he continued to live there without a residence permit.
25. On 9 April 2008 the applicant was arrested by the police in Beylagan on the basis of a search warrant issued by the Uzbek authorities.
26. On 10 April 2008 the Beylagan District Court ordered the applicant's detention with a view to extraditing him. The Beylagan District Court relied on the Bukhara Regional Court's detention order of 20 November 2001 and confirmed its findings. No fixed term for detention was specified, and it was noted that the applicant would be detained until an extradition decision had been given. The decision of the Beylagan District Court was subject to an appeal within three days of its delivery. However, the applicant did not appeal against that decision.
27. On 2 May 2008 the Deputy Prosecutor General of the Republic of Uzbekistan made a formal request for the applicant's extradition relying on the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 22 January 1993 (“the 1993 Minsk Convention”).
28. On 18 June 2008 the Prosecutor General of the Republic of Azerbaijan issued a decision on the applicant's extradition to Uzbekistan under the 1993 Minsk Convention. Inter alia, the decision stated that, according to the information provided by the Uzbek authorities, the applicant was a national of Uzbekistan and that, according to the information received from the Ministry of Internal Affairs of the Republic of Azerbaijan, he was not considered to be an Azerbaijani national in accordance with the Law on Citizenship of the Republic of Azerbaijan.
29. By a letter of 29 July 2008 the Prosecutor General's Office of the Republic of Azerbaijan asked the Uzbek authorities to give assurances in respect of the applicant's criminal case. By a letter of 31 July 2008 signed by the Deputy Prosecutor General of the Republic of Uzbekistan, the Uzbek authorities gave assurance that the criminal case against the applicant did not have any political or racial motivation, that the applicant would not be subjected to torture or any other inhuman treatment and that the applicant's defence rights would be ensured. It stated that, by a law of 11 July 2007 which entered into force on 1 January 2008, the death penalty had been abolished in Uzbekistan. It also added that the applicant would be allowed to leave Uzbekistan after serving his sentence and that he would not be handed over to a third State without the consent of the Republic of Azerbaijan.
30. Subsequently, the applicant was involved in two separate sets of proceedings by means of which he attempted to have the extradition order quashed.
31. After the applicant's father returned to Azerbaijan, he applied for an Azerbaijani national's identity card on the basis of the fact that he had been born in Beylagan, in the Azerbaijan SSR, and had lived in the Azerbaijan SSR until 1975. On 9 August 2008 the applicant's father was issued with an identity card confirming his citizenship.
32. Following his arrest on 9 April 2008, the applicant attempted to apply, through his representative, for an identity card of a national of the Republic of Azerbaijan, on the basis that his father was an Azerbaijani national. His application was rejected as he was obliged to apply for this identity card in person.
33. On an unspecified date the applicant lodged an action with the Absheron District Court, requesting the court to order the Absheron District Police Department to issue him with an Azerbaijani national's identity card. On 26 September 2008 the Absheron District Court allowed the applicant's request, noting that under the domestic law the applicant qualified as an Azerbaijani national by right of blood and instructed the Absheron District Police Department to issue him with an identity card.
34. On the basis of this judgment, and pending its entry into force, on 2 October 2008 the applicant was issued with a temporary identity document valid until 2 November 2008. It appears that, following the appeals mentioned below, the term of validity of this temporary identity document was not extended and that the applicant was never issued with an identity card of an Azerbaijani national.
35. The Absheron District Police Department lodged an appeal against the judgment of 26 September 2008, noting that the applicant was a national of Uzbekistan and that the only reason for his application for an identity card of an Azerbaijani national was to avoid extradition.
36. On 28 November 2008 the Sumgait Court of Appeal quashed the Absheron District Court's judgment of 26 September 2008, finding that the applicant was a foreign national and that he could not be issued with an Azerbaijani national's identity card unless he was granted Azerbaijani citizenship by the President of the Republic, under the Law on Citizenship of the Republic of Azerbaijan.
37. On 19 January 2009 the applicant lodged a cassation appeal against the Sumgait Court of Appeal's judgment of 28 November 2008. On 11 March 2009 the Supreme Court dismissed his appeal and upheld the judgment of 28 November 2008.
38. On 1 August 2008 (with an addendum on 11 August 2008), the applicant appealed to the Sabail District Court against the detention order of 10 April 2008 and the extradition order of 18 June 2008. In his appeal he argued, inter alia, that (a) his detention had no basis under the domestic law and the detention order of 10 April 2008 had unlawfully authorised his detention for an indefinite period; (b) he faced an imminent risk of torture and other forms of ill-treatment if extradited to Uzbekistan; (c) despite the authorities' unlawful refusals to issue him with citizenship documents, under the domestic law he was an Azerbaijani national by right of blood (as the son of an Azerbaijani national) and that therefore his extradition to a foreign country would be contrary to Azerbaijani law and the Minsk Convention.
39. On 3 October 2008 the Sabail District Court quashed the Prosecutor General's extradition order of 18 June 2008, having had regard to the Absheron District Court's judgment of 26 September 2008 which confirmed the applicant's claim to Azerbaijani citizenship (although the Absheron District Court's judgment never entered into force, by this time it had not yet been quashed by the Sumgait Court of Appeal). The Sabail District Court noted that the Prosecutor General's Office could appeal against this decision within a three-day period and, in order to allow time for such an appeal, ordered the applicant's release seven days from the delivery of the decision (on 10 October 2008).
40. The applicant was not released on 10 October 2008, seven days after the delivery of the decision of 3 October 2008.
41. On 10 October 2008 the Prosecutor General's Office lodged an appeal against the Sabail District Court's decision of 3 October 2008. Accompanying the appeal was a request to restore the three-day appeal period owing to the fact that the Prosecutor General's Office did not receive the decision until 8 October 2008. The applicant protested, arguing that the law on criminal procedure did not allow for restoration of the missed threeday period for appeals by the prosecution against court decisions concerning remand in custody. The applicant also claimed that the request for restoration of the three-day appeal period was unsubstantiated, because the representative of the Prosecutor General's Office had been present in the courtroom at the time the decision of 3 October 2008 was announced.
42. On 13 October 2008 the request to restore the appeal period was granted and the appeal of the Prosecutor General's Office was accepted.
43. On 23 October 2008 the Baku Court of Appeal quashed the Sabail District Court's decision of 3 October 2008. The Baku Court of Appeal held that the applicant was a national of Uzbekistan and that he had not been formally granted Azerbaijani citizenship. It noted that in upholding the applicant's citizenship claims the lower court had incorrectly relied on the Absheron District Court's judgment of 26 September 2008, which had not entered into force. Therefore, the Baku Court of Appeal upheld the validity of the extradition order of 18 June 2008 and quashed the Sabail District Court's decision on the applicant's release. However, the Court of Appeal's decision was silent as to the existence of the risk of torture or ill-treatment in the event of the applicant's extradition and as to the lawfulness of his detention with a view to extradition.
44. No appeals are available under domestic law against the Baku Court of Appeal's decision of 23 October 2008.
45. It appears from the case file that on 28 November 2008 the applicant applied for refugee status to the United Nations High Commissioner for Refugees in Azerbaijan. However, it appears that he did not receive any reply to his request.
46. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads as follows:
“No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...”
47. The preventive measure of remand in custody (həbs qətimkan tədbiri) is ordered by a court. The court's decision on remand in custody can be challenged before the court of appeal and the latter court's decision on this matter is final (Article 157.6). Pre-trial detention of defendants in criminal proceedings is subject to automatic review and may not exceed specific time-limits, set out depending on the gravity of charges (Articles 158-159).
48. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings could challenge acts or decisions of the prosecuting authorities before a court. Article 449 provides that the accused (or the suspected) person or his counsel can challenge acts or decisions of the prosecuting authorities concerning, inter alia, his or her arrest or detention. The judge examining the legality of the prosecuting authorities' acts and decisions can quash them if found to be unlawful (Article 451).
49. Chapter LVII of the CCrP deals with legal assistance in criminal matters. Article 495.1 provides that upon receipt of a request for extradition and a copy of a detention order from the competent authority of a foreign State, the prosecuting authority of the Republic of Azerbaijan to which the request is addressed may, if necessary, take measures to have the person arrested and detained before the decision on extradition is taken. Article 496.1 provides that a person who is in the territory of the Republic of Azerbaijan shall be extradited by the prosecuting authority with a view to criminal prosecution or enforcement of a sentence, taking into consideration the requirements of Article 496.2-496.7 of the Code, on the basis of an official request for his extradition from the competent authority of the foreign State concerned.
50. A person detained with a view to extradition can challenge the prosecuting authorities' acts before courts. This action is examined under the procedure established in Articles 442-454 (Chapter LII; see above) of the CCrP (Article 495.5). Article 497.2 provides that a person detained “until the adoption of the decision on extradition” shall be immediately released if the prosecuting authority decides that the extradition is impossible or refuses to extradite him.
51. The Law on Extradition of 15 May 2001 deals with the questions concerning extradition of a person to a foreign State. According to this Law, the Assize Court examines the question of extradition of a person at the request of a foreign State (Article 8.1). The Assize Court's decision on extradition can be challenged in accordance with the provisions of the criminal procedural legislation (Article 8.2).
52. This Convention was signed on 22 January 1993 in Minsk and both Azerbaijan and Uzbekistan are parties to it.
53. Article 58 of the 1993 Minsk Convention provides that a request for extradition must be accompanied by, among other documents, a detention order (Article 58 § 2). Upon receipt of a request for extradition the requested State should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60).
54. The person whose extradition is sought may be arrested before receipt of a request for extradition, if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested before receipt of the extradition request, the requesting State must be informed immediately (Article 61 § 3).
55. A person arrested under Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1).
56. The chief prosecutors of the contracting States are responsible for dealing with matters concerning extradition and criminal prosecution (Article 80).
57. In his report (E/CN.4/2003/68/Add.2) submitted in accordance with Resolution 2002/38 of the United Nations (UN) Commission on Human Rights, the Special Rapporteur on the question of torture, Theo van Boven, described the situation in Uzbekistan as follows:
“68. The Special Rapporteur believes, on the basis of the numerous testimonies (including on a number of deaths in custody) he received during the mission, not least from those whose evident fear led them to request anonymity and who thus had nothing to gain personally from making their allegations, that torture or similar illtreatment is systematic as defined by the Committee against Torture. Even though only a small number of torture cases can be proved with absolute certainty, the copious testimonies gathered are so consistent in their description of torture techniques and the places and circumstances in which torture is perpetrated that the pervasive and persistent nature of torture throughout the investigative process cannot be denied. The Special Rapporteur also observes that torture and other forms of illtreatment appear to be used indiscriminately against persons charged for activities qualified as serious crimes such as acts against State interests, as well as petty criminals and others.”
58. In March 2005 the UN Human Rights Committee considered the second periodic report of Uzbekistan under the International Covenant on Civil and Political Rights and adopted the following observations (CCPR/CO/83/UZB):
“11. The Committee is concerned about allegations relating to widespread use of torture and illtreatment of detainees and the low number of officials who have been charged, prosecuted and convicted for such acts. It is a matter of further concern that no independent inquiries are conducted in police stations and other places of detention to guarantee that no torture or illtreatment takes place, apart from a small number of inquiries with external participation quoted by the delegation...
15. The Committee notes that while under domestic law individuals have access to a lawyer at the time of arrest, this right is often not respected in practice...
16. The Committee remains concerned that the judiciary is not fully independent and that the appointment of judges has to be reviewed by the executive branch every five years...”
59. In his 2006 report “Situation of human rights in Uzbekistan” (A/61/526) the UN Secretary General expressed his concern about the fate of individuals extradited or expelled to Uzbekistan:
“48. The Human Rights Committee, in its concluding observations of 31 March 2005 (CCPR/OP/83/UZB), remained concerned about the high number of convictions based on confessions made in pre-trial detention that were allegedly obtained by methods incompatible with article 7 of the International Covenant on Civil and Political Rights. The Committee expressed concern at the definition of torture in the Criminal Code of Uzbekistan. In addition, the Committee pointed to the allegations relating to widespread use of torture and ill-treatment of detainees and the low number of officials who have been charged, prosecuted and convicted for such acts. The Government of Uzbekistan was due to submit follow-up information by 26 April 2006 on these issues in accordance with the request of the Committee. So far, no such information has been submitted to the Human Rights Committee.”
60. In November 2007 the UN Committee Against Torture considered the third periodic report of Uzbekistan (CAT/C/UZB/3) and adopted, inter alia, the following conclusions (CAT/C/UZB/CO/3):
“6. The Committee is concerned about:
(a) Numerous, ongoing and consistent allegations concerning routine use of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent, often to extract confessions or information to be used in criminal proceedings;
(b) Credible reports that such acts commonly occur before formal charges are made, and during pre-trial detention, when the detainee is deprived of fundamental safeguards, in particular access to legal counsel. This situation is exacerbated by the reported use of internal regulations which in practice permit procedures contrary to published laws;
(c) The failure to conduct prompt and impartial investigations into such allegations of breaches of the Convention...
9. The Committee has also received credible reports that some persons who sought refuge abroad and were returned to the country have been kept in detention in unknown places and possibly subjected to breaches of the Convention...
11. The Committee remains concerned that despite the reported improvements, there are numerous reports of abuses in custody and many deaths, some of which are alleged to have followed torture or ill-treatment...”
61. In its report of November 2007 entitled “Nowhere to Turn: Torture and Ill-treatment in Uzbekistan”, the Human Rights Watch provides the following analysis:
“Prolonged beatings are one of the most common methods used by the police and security agents to frighten detainees, break their will, and compel them to provide a confession or testimony. They often start beating and kicking detainees with their hands, fists, and feet and then continue using truncheons, filled water bottles and various other tools...
Several individuals reported that they were either tortured with electric shocks or forced by police to watch as others were tortured with it...
Police and security officers sometimes use gas masks or plastic bags to effect near asphyxiation of detainees. After forcing an old-fashioned gas mask over the head of the victim, who in some cases is handcuffed to a chair, the oxygen supply is cut...”
62. The 2008 US Department of State Country Report on Human Rights Practice, released on 25 February 2009, provides the following information in relation to Uzbekistan:
“Although the constitution and law prohibit such practices, law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information. Torture and abuse were common in prisons, pretrial facilities, and local police and security service precincts. Informants reported several cases of medical abuse, including forced psychiatric treatment.
November 2007 reports by Human Rights Watch (HRW) and the UN Committee Against Torture (CAT) concluded that torture and abuse were systemic throughout the investigative process and had not improved since a 2003 UN Special Rapporteur on torture report drew the same conclusions. The CAT report stated that despite an amendment to Article 235 of the criminal code addressing elements of the definition of torture, punishment for violations was rare and did not reflect the severity of the crimes...”
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-112088
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ERLA HLYNSDÓTTIR v. ICELAND
IMPORTANCE: 2
CONCLUSION: Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 5. The applicant, Ms Erla Hlynsdóttir, is an Icelandic national who was born in 1978 and lives in Reykjavík. She is a journalist working for the newspaper DV. In February 2009, a Mr A contacted the applicant about a story which he asked to be published by DV. According to Mr A’s account Mr B, a person known for being violent and whose acts of violence had recently been commented on in the press, had attacked him at his strip club, called Strawberries. He had allegedly done so on the order of the owner of a rival strip club. The applicant responded that she would look into the story and would contact Mr B in order to hear his account and also the owner of the rival strip club. Being dissatisfied with the applicant’s reply, Mr A insisted that his version of events be published. The applicant refused to do so and decided to carry out research in relation to Mr A’s account. She interviewed him and recorded the interview on tape.
6. On 26 February 2009 DV published a news report by the applicant entitled “Strip Kings Battle”, on the subject of Mr A’s accusations against Mr B with regard to the alleged assault at the Strawberries strip club. The article referred to interviews with Mr A, Mr B and Mr Y.
7. Mr A was reported to have stated that on the night before 7 February 2009, Mr B had been among the patrons of Strawberries accompanied by two other men. He left the club in the course of the night, but returned just before closing time, when he allegedly attacked the employees of the restaurant. Following this Mr A had tried to show him out. Suddenly Mr B attacked Mr A and struck him with his fist, as a result of which he sustained a cracked skull and severe injuries to his eye. Mr A reported the incident to the police.
8. Mr B., whose interview with the applicant was published in the same news coverage, was reported to have denied all the accusations made by Mr A. According to Mr B, he and his two friends had been out partying and had decided to visit the Strawberries club. They had only been there for a short while when Mr A insisted that they leave. As they refused, the doormen forcibly removed Mr B. In the commotion both he and Mr A had been injured.
9. Mr A instituted defamation proceedings against the applicant before the Reykjavík District Court, arguing that the following statement made by Mr B amounted to unlawful defamation in breach of Articles 234, 235 and/or 236 of the Penal Code and requested that it be declared null and void (dauð og ómerk) under Article 241(1):
“He [the plaintiff] has been spreading all around town the rumour that no one with an attitude would come to Strawberries, because he has the Lithuanian mafia in there, and that I was just taken and beaten up in there. I don’t really get this. He really needs to make up his mind whether he thinks I was beaten up or he was.”
10. He also submitted that the following sub-heading amounted to unlawful defamation and should be declared null and void:
“Rumour about the mafia”
11. Mr A in addition sought 2,000,000 Icelandic krónur (ISK) (corresponding approximately to 13,850 euros (EUR) at the time) plus interest in compensation for damages, an order under Article 241(2) to pay him ISK 500,000 to cover the costs of publication in the press of the court’s reasons and conclusion in the defamation case, plus legal costs.
12. In her pleadings before the District Court, the applicant prayed in aid the freedom of expression guaranteed under Article 73 of the Icelandic Constitution and Article 10 of the Convention as well as the Court’s caselaw. She further relied on section 15(2) of the Printing Act no. 57/1956, according to which the author of a statement was responsible for the publication of its content. The article had indicated the identity of the author of the disputed statements and the transcripts of the interview had shown that they had been quoted from their named author, Mr B. Accordingly the applicant could not be regarded as the author of the allegations. In so far as the sub-heading was concerned, she pointed out that this had only paraphrased Mr B’s remarks.
13. The applicant further disputed that item 1 was defamatory. The first part of that remark had consisted of Mr B’s account that the plaintiff had himself spread the rumour that no one came to the Strawberries club with an attitude, because the Lithuanian mafia was present there. Mr B’s remark did not amount to an allegation that the Lithuanian mafia was present at Strawberries, but that Mr A wanted the rumour to be spread. In fact, it was clear from the interview that those interviewed by the applicant thought that no Lithuanians went to the club but that this was a false rumour that the plaintiff wanted to have spread around town. When considering the remark in its true context, it was clear that in no way did it contain Mr B’s claim that the plaintiff was involved in criminal conduct. Whatever could be said about mafia operations, the remark contained no allegation regarding the plaintiff’s activities that could be singled out as mafia related, i.e. criminal conduct. The main point was whether the plaintiff had been accused of such conduct. This had clearly not been the case. Accordingly, there was no basis for considering that the remarks were covered by the provisions in the Penal Code on protection of reputation. Moreover, the word “mafia” had no defined meaning in the Icelandic language.
14. As regards the second part of the remark, Mr B had stated that Mr A was spreading the rumour that Mr B had been taken and beaten up inside Strawberries. As could be gathered from the interview and the remark itself, it was nowhere stated that the plaintiff had beaten up Mr B or anyone else. However, the interview and the above-mentioned remark stated that the plaintiff had mentioned in many places the story that Mr B had been beaten up inside the club. That statement was true, as Mr B had been in a fight inside the club and the plaintiff had taken the initiative to contact DV and had provided information regarding that incident.
15. Finally, the applicant stressed that the whole dispute had originated in Mr A’s own initiative to have the story published. It would have been reasonable for him to expect that the journalist would seek to provide information about both versions of the events and that the person against whom he had levelled serious accusations would have a different version.
16. By a judgment of 21 December 2009 the District Court found for the plaintiff Mr A and against the applicant, giving the following reasons.
“The defendant bases her claim for acquittal mainly on lack of involvement, as the remarks have been quoted word for word from their named author, [Mr B].
The defendant admitted in court to have written the said article and stated that she believed she had been the author of the disputed sub-heading.
According to an audio recording of the [applicant’s] interview with [Mr B], the disputed statement made by [Mr B] went as follows: ‘He has been spreading rumours all around town about it. That no-one really enters Strawberries with an attitude you see. ‘Cause he has the Lithuanian mafia and I was just taken and beaten up in there, you know.’ A slight change in wording has been made in the [applicant’s] article, not affecting the contents and only involving removing the emphasising words you see and you know. The remark was published within quotation marks in the paper.
Having regard to the Supreme Court’s judgment in case No. 328/2008, the [applicant] is found to be the article’s and sub-heading’s author for the purposes of section 15(2) of the Printing Act No. 57/1956, regardless of whether Mr B can also be found to be the author of the remarks quoted verbatim after him, and the [applicant] is responsible for remarks presented there, as well as sub-headings.
It is clear that the interview with the plaintiff, [Mr A], whether he initiated it or not, had been taken with his consent and wishes, even though he was dissatisfied with the article when it was published in the paper, where also the opinions expressed by other persons in interviews conducted by the [applicant] had been published. In her interview with the plaintiff he had accused [Mr B] of various matters. It ought to have been clear to him that his remarks would be shown to the person concerned and that this person would be given an opportunity to state his version of events. The words that the article’s author had quoted directly from [Mr B], which had been the cause for the plaintiff’s action, are intended to give the article’s readers the impression that the plaintiff is in charge of an organised, international criminal organisation. The journalist has not demonstrated or sought to ascertain that the allegation, which rendered [Mr B]’s words, is true. The allegation contained a defamatory innuendo, see Article 235 of the Penal Code, and should, in accordance with the plaintiff’s claim, be declared null and void, as should the sub-heading ‘Rumour about the mafia’, which referred to the remark.
By virtue of the statements declared null and void the [applicant] has unlawfully injured the plaintiff’s honour. She is therefore obliged to pay him damages in accordance with section 26 (1) of the Damage Compensation Act No. 50/1993. In the present case the amount of ISK 200,000 [approximately EUR 1,100 at the time] is deemed a reasonable level of compensation. ...
With reference to Article 239 of Act No. 19/1940 the plaintiff’s request that the [applicant] be punished for the statements is rejected.
The plaintiff is found to be entitled to the reimbursement of expenses incurred for the publication of the motives and conclusions of the judgment, as he requested under Article 241(2) of the Penal Code. The plaintiff has not presented any particulars in support of his claim as to the size of the amount requested nor supported it with any arguments. This item will therefore be determined on the basis of the court’s own assessment and the amount of ISK 150,000 is considered reasonable.
In light of the foregoing, the [applicant] is required to pay the plaintiff’s legal costs, which it is considered reasonable to assess at ISK 350,000 (inclusive of VAT).”
17. The applicant sought to appeal to the Icelandic Supreme Court but on 25 March 2010 the latter refused her leave to appeal. This was on the ground that the financial value of what was at stake in the appeal (legal costs not being relevant) did not reach the statutory minimum level for grant of leave to appeal and that there were no special circumstances warranting an exception being made to this requirement in the applicant’s case.
18. Article 73 of the Constitution of the Republic of Iceland, Act No. 33/1944 read:
Article 73
“Everyone has the right to freedom of opinion and belief.
Everyone shall be free to express his thoughts, but shall also be liable to answer for them in court. The law may never provide for censorship or other similar limitations to freedom of expression.
Freedom of expression may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in agreement with democratic traditions.”
19. The Penal Code No. 19/1940 contained in Chapter XXV, entitled “Defamation of character and violations of privacy’, the following relevant provisions:
Article 234
“Any person who harms the reputation of another person by an insult in words or in deed, and any person spreading such insults shall be subject to fines or to imprisonment of up to one year.”
Article 235
“If a person alleges against another person anything that might be harmful to his or her honour or spreads such allegations, he shall be subject to fines or to imprisonment of up to one years.”
Article 236
“The making or spreading of an injurious allegation against a person’s better knowledge, this shall be subject to up to 2 years imprisonment.
If an allegation is published or spread in a public manner, even where the person spreading the allegation did not have a probable reason to believe it to be correct, this shall be subject to fines or up to 2 years’ imprisonment.”
Article 241
“In a defamation action, defamatory remarks may be declared null and void at the demand of the injured party.
A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person, on the latter’s demand, a reasonable amount to cover the cost of the publication of a judgment, its main contents or reasoning, as circumstances may warrant in one or more public newspapers or publications.”
20. Section 26(1) of the Tort Liability Act No. 50/1993 provided:
“A person who
a. deliberately or through gross negligence causes physical injury or
b. is responsible for an unlawful injury against the freedom, peace, honour or person of another party
may be ordered to pay non-pecuniary damages to the injured party.”
21. The Printing Act No. 57/1956, Chapter V on the liability for the contents of publications, contained the following relevant provisions.
Section 13
“Any person who publishes, distributes, or is involved in the publishing or distribution, of any publication other than a newspaper or periodical shall bear criminal liability and liability for damages pursuant to the general rules of law if the substance of the publication violates the law.”
Section 15
“As regards liability for newspapers or magazines other than those listed in section 14, the following rules shall apply:
The author is subject to criminal liability and liability for damages if he or she is identified and either resident in Iceland when the publication is published or within Icelandic jurisdiction at the time proceedings are initiated.
If no such author is identified, the publisher or editor are liable, thereafter the party selling or distributing the publication, and finally the party responsible for its printing or lettering.”
22. The Code of Ethics of the Icelandic Journalists Association included the following provisions:
Article 1
“A journalist will endeavour to do nothing which will bring discredit upon his or her profession or professional association, paper or newsroom. A journalist shall avoid any actions which could undermine the public opinion of journalists’ work or damage the interests of the profession. A journalist shall always exhibit fairness in dealings with colleagues.”
Article 2
“A journalist is aware of his or her personal responsibility for what he or she writes. He or she shall bear in mind that he or she will generally be regarded as a journalist in his or her writings and speech, even when he or she is acting outside his or her profession. A journalist will respect the confidentiality of his or her sources.”
Article 3
“A journalist will exercise care in his or her gathering of material, the use of the material and presentation to the extent possible, and show due consideration in sensitive matters. A journalist shall avoid any actions which could cause unnecessary distress or dishonour.”
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-96417
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: COMMITTEE
DATE: 2009
DOCNAME: CASE OF KRESSIN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 4. The applicant was born in 1947 and lives in Bascharage.
5. The applicant had been working as a licensed doctor in Berlin from 1972 to 1994. Since 1994 he has been practising medicine in Luxembourg.
6. He is a member of the Berlin Medical Association (Ärztekammer), a corporation under public law and since 1972 had been paying compulsory contributions to its pension scheme until his change of residence to Luxembourg in 1994.
7. Prior to his move to Luxembourg, he was informed by the Berlin Medical Association's pension scheme (Ärzteversorgung) that he could either terminate his membership or continue to stay as a member on a voluntary basis while paying contributions at the full or a reduced rate. The applicant opted for the continuation of his membership and chose to pay voluntary contributions in an amount equal to half of the maximum contribution rate.
8. Since 1994 he has also paid the full compulsory contribution to the relevant Luxembourg pension scheme.
9. Ever since his move to Luxembourg the Berlin pension scheme has informed the applicant annually in writing about the amount of his future pension entitlement. He objected to the corresponding notifications on several occasions alleging that while the amount of contributions had been increased, his expected pension had been unduly reduced compared to previous years. He was repeatedly informed by the Berlin pension scheme that the decrease of his pension entitlement was due to the agreed adjustment of his contributions since 1994.
10. By letters of 9 and 15 August 2001 the Berlin pension scheme advised the applicant of the option to have the meanwhile accrued contributions transferred to the Luxembourg pension scheme subject to the latter's approval. It further specified that a transfer of the contributions could only be effected by means of a direct payment to the Luxembourg pension scheme and that it was not possible to disburse the amount accrued to the applicant himself. By a letter dated 20 August 2001 the applicant asked for his contributions to be transferred.
11. On 12 October 2001 the Berlin pension scheme informed the applicant that the conditions of a transfer were not fulfilled since the Luxembourg pension scheme was not in a position to accept a direct transfer of the contributions. The applicant notified the Berlin pension scheme on 1 November 2001 that he nevertheless wanted to continue the payment of his voluntary contributions.
12. In reply to a further objection by the applicant on 13 September 2003 regarding the calculation of the amount of his future pension entitlement, the Berlin pension scheme, by letter dated 18 September 2003, specified that the definite amount of the applicant's pension claim would be determined once he had become eligible to the actual payment of pension benefits and could only be challenged together with a corresponding payment order.
13. On 9 October 2003 the applicant brought an action against the Berlin Medical Association (Ärztekammer) with the Berlin Administrative Court claiming the transfer of the total amount of his compulsory and voluntary contributions accrued with the Medical Association's pension scheme including interest and compensation for inflation to the Luxembourg pension scheme. Alternatively, he requested that the Berlin pension scheme be obliged to freeze his pension entitlement at the current amount while maintaining the amount of contributions to be paid by him.
14. By a letter dated 13 October 2003 the Administrative Court informed the applicant that there existed doubts as to the admissibility of his action. It asked in particular for information as to whether there existed a decision of the Berlin Medical Association rejecting the transfer of his contributions and whether he had instituted preliminary administrative proceedings (Widerspruchsverfahren) in this respect. As regards the applicant's alternative action, the Administrative Court pointed out that a corresponding dispute could only be instituted once the applicant was entitled to the payment of the pension. The applicant replied by letter dated 18 October 2003.
15. By letters dated 29 October 2003 and 23 February 2004 the Medical Association submitted its written observations to which the applicant replied by written submissions dated 4 March 2004.
16. At his repeated request, the applicant was informed by the Administrative Court, by letters dated 27 August 2004, 27 January 2005 and 13 December 2005, that it was not yet foreseeable when a decision in the matter would be taken since older pending matters were being treated as a priority.
17. On 4 December 2006 the Berlin Administrative Court assigned the case to a single judge for a decision.
18. On 17 July 2007 a hearing took place. By a judgment of the same day the Administrative Court dismissed the action as primarily inadmissible and did not grant the applicant leave to appeal.
19. As regards the applicant's claim for a transfer of his pension contributions the Administrative Court held that he was lacking the need for judicial relief (Rechtsschutzbedürfnis) since following the failed attempts to transfer the contributions in 2001 the applicant had voluntarily continued to pay the contributions and had not repeated his request to have them transferred by the Berlin pension scheme. It found that the applicant could only have had recourse to the courts after having challenged an administrative decision rejecting his request. The applicant's alternative claim was rejected as manifestly ill-founded by the Administrative Court.
VIOLATED_ARTICLES: 6


ITEMID: 001-5053
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CHEREPKOV v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Russian national, born in 1942. He lives in Vladivostok.
A.
On 5 July 1993 the applicant was elected mayor of the city of Vladivostok, an administrative centre of the Maritime Territory of Russia.
The mandate of the previous Vladivostok Municipal Council (hereinafter referred to as the “VMC”) expired in 1993. From 1994 to 1996 elections to the VMC were fixed and postponed several times. The elections took place in 1996 and 1997, but were found invalid because of certain informalities, including insufficient participation by the electorate and a disputed outcome.
In 1997 and 1998 the VMC was not elected as the local executive and law enforcement authorities were involved in a number of court disputes as to the proper manner in which to hold the elections. During those proceedings a number of administrative decisions were taken, but subsequently quashed. In late 1998 and early 1999 the elections took place several times, but were found invalid because of various informalities including, once more, insufficient participation by the electorate and a disputed outcome.
On 5 July 1998 the applicant’s mandate as the mayor of Vladivostok expired. On 26 September 1998 the Maritime Territory Electoral Registry refused to register him as a candidate in the next mayoral elections. The elections took place on 27 September 1998, but were found invalid due to various informalities. Upon the applicant’s appeal against the decision preventing his candidacy, on 5 October 1998 the Maritime Territory Regional Court upheld that decision. The applicant appealed to the Supreme Court. The applicant contends that the appeal is currently pending.

By a decree of 11 December 1998 the President of Russia authorised the Governor of the Maritime Territory to appoint an acting mayor of Vladivostok on the ground that the applicant’s mandate had expired. On 14 December 1998 the Governor appointed an acting mayor. The applicant applied to court, contesting the lawfulness of that appointment. He stated in particular that his term continued as long as his successor was not elected. On 19 January 1999 the Maritime Territory Regional Court confirmed the lawfulness of the Governor’s decision. On 4 February 1999 the Supreme Court rejected at first instance the applicant’s action whereby he had alleged that the presidential decree of 11 December 1998 had been null and void. On 15 April 1999 the Appellate Chamber of the Supreme Court upheld that decision. On 14 May 1999 the Supreme Court dismissed the applicant’s appeal against the judgment of 19 January 1999.
It appears that to date neither the Vladivostok Municipal Council nor the mayor has been elected.
B. Relevant domestic law
The Constitution of the Russian Federation
Pursuant to Article 5 of the Constitution, the Russian Federation consists of “federal subjects” (субъекты федерации) which can have their own constitutions, statutes and legislation.
Under Article 11 § 1, “State authority” is exercised by the President of Russia, the Parliament, the Government and courts. Pursuant to Article 11 § 2, State authority which is vested in the federal subjects is also exercised by the competent authorities of those entities.
Legislative power is exercised by the Parliament (Article 94).
Under Article 12, local authorities are not considered as having State authority (i.e. legislative, executive or judicial powers) within the meaning of the Constitution.
Federal subjects enjoy a number of autonomous rights, including inter alia the right to exercise, jointly with the competent federal authorities, legislative power in various political, economic, social and legal fields (Articles 72 and 76). Articles 73 and 76 of the Constitution entitle the federal subjects to exercise legislative power in those areas which do not relate to the exclusive competence of the Federation or the joint competence of the Federation and “federal subjects”.
The Maritime Territory is a “federal subject” of Russia (Article 65).
Laws of the Maritime Territory
The status of the Maritime Territory is defined in the Constitution of the Russian Federation and the Statute of the Maritime Territory. The Statute was passed by the Duma of the Maritime Territory (hereinafter referred to as the “DMT”) on 12 September 1995.
Under Article 9 of the Statute, legislative power in the Maritime Territory is exercised by the local residents by way of referendum, and by the DMT. The DMT is the only legislative organ in the territory, and consists of 39 representatives elected for a period of four years (Article 46 of the Statute). The Governor is the head of the executive in the Maritime territory (Article 56 of the Statute).
Under Article 11 of the Statute, the local authorities do not exercise “State authority” (i.e. legislative, executive or judicial powers).
The mandate, functions, powers and controls of the local authorities, including municipal councils and mayors, are defined in the Maritime Territory Local Government Act (hereinafter referred to as the “Act”), which was adopted by the DMT on 26 December 1995. Municipal councils and mayors are elected by local residents (Articles 24 and 26 of the Act), and election procedures are specifically governed by special laws passed by the DMT. Pursuant to Article 29 of the Act, local authorities can adopt regulations and by-laws in the areas in which the Act confers such competence upon them.


ITEMID: 001-102821
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: GONGOR v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicant, Mr Franciszek Gongor, is a Polish national who was born in 1959 and is currently serving a prison sentence in Wronki Prison. He was represented before the Court by Ms E. Draga-Buchta, a lawyer practising in Katowice.
The applicant has been detained continuously since 15 May 2003.
On 15 May 2003 he was committed to Gliwice Remand Centre, where he remained for 10 months. On 4 March 2004 he was transferred to Zabrze Remand Centre, where he was held until 17 January 2005. It appears that, subsequently, the applicant was transferred to Bytom and Łódź Prison Hospitals for medical treatment. From 29 June 2005 until 3 March 2006 the applicant was again held in Zabrze Remand Centre.On 3 March 2006 he was transferred to Wrocław Prison where he received dental treatment. On an unspecified date he was once more transferred to the Zabrze Remand Centre.
On an unspecified date, presumably in October 2009, the applicant was committed to Wronki Prison.
The applicant provided a detailed description of the conditions of his detention only in respect of Zabrze Remand Centre. He submitted, however, that the overall conditions in Gliwice Remand Centre, Wrocław Prison and, more recently, Wronki Prison, were similar.
The applicant claimed that the cells in Zabrze Remand Centre were overcrowded and not ventilated. The opportunities for ensuring personal hygiene were scarce. There was a sink with cold water inside the cell. The toilet annex was insufficiently separated. As a result, there was a constant foul odour in the air. Even though a shower was allowed once a week, most detainees did not have a chance to wash. The bathroom was equipped with 8 shower cabins and it was used for 10 minutes by 20 inmates at a time. As a result, only those who were placed high in the prison hierarchy got to take a shower. To make things worse, there were frequent water cuts. The water pressure was often too low or there was either only cold or hot water in the shower.
There was no social or cultural programme for detainees. The entertainment room was small and equipped with a broken TVset and a table to play tennis but no rackets. The detainees had no access to current newspapers and limited access to the law library.
The conditions described led to frustration and tension among the prisoners.
Furthermore, the applicant maintained that the quality of food offered to the detainees was substandard. The meals were always served cold and their main ingredient was canned meat, full of chemical preservatives. As a consequence, many detainees, including the applicant, suffered from digestive problems.
The applicant also submitted that the medical care provided within the penitentiary system was insufficient. It was very difficult to obtain an appointment with a doctor. In this respect the applicant submitted that he had had to wait 9 months before he could be examined by an inhouse ophthalmologist, one year before he could be admitted to the Wroclaw Prison Hospital, and 7 months before he could be examined by a doctor in the Łódź Prison Hospital. Moreover, a general practitioner was present in the applicant’s ward only once a week.
In his letter of 5 October 2009 the applicant informed the Registry that he had been committed to Wronki Prison. He made a general statement that living conditions and medical care in that establishment were bad. He claimed that his cell was overcrowded, dirty and infested with bugs.
The Government essentially acknowledged that the applicant had been placed in overcrowded cells in Wrocław Prison and in Zabrze and Gliwice Remand Centres. They submitted, however, that in Wronki Prison the applicant was detained in a cell in which the statutory minimum standard of 3 m² per person was respected.
The applicant lodged numerous complaints with the penitentiary authorities about the medical care provided within the penitentiary system and about the overall conditions in the Zabrze Remand Centre.
In a letter of 10 April 2006 the Head of the Zabrze Remand Centre’s Registry stated that during the first period of the applicant’s detention, from 4 March 2004 to 17 January 2005, the population rate was 116%, whereas during the second period from 29 June 2005 to 3 March 2006 it peaked at 130%. He added that the current population level had reached 142.6 % and was rising.
On 11 April 2006 the Deputy Head of the Zabrze Remand Centre’s Quarter Ward stated in his memorandum that the meals served to the detainees were of sufficient nutritional value and quality. Their temperature was measured at the time of distribution and was sustained thanks to the thermos containers used. The order of the cells in which the food was distributed was changed everyday.
On 13 April 2006 the Head of the Zabrze Remand Centre’s Penitentiary Ward submitted that at least twice a week various sociocultural activities were proposed to the detainees. The entertainment room was equipped with a TVset, tennis table, and board games although the capacity of the room was limited to 1015 persons. Consequently, the 150 detainees held in the ward could have access to it only on a rotation basis. Moreover, various national radio programmes were broadcast 12 hours per day via the prison radio station. The administration bought four issues of a daily newspaper to be distributed among all the wards.
In a memorandum of 14 April 2006 the Zabrze Remand Centre’s doctor stated that the applicant received systematic medical care. He was often examined by a general practitioner, as well as by specialists in urology, dermatology, neurology, ophthalmology, and psychiatry.
On 11 August 2006 the Wrocław Regional Court (Sąd Okręgowy), acting as a penitentiary court, examined the applicant’s complaint about the conditions in the Zabrze Remand Centre, in particular overcrowding, lack of sociocultural activities, poor diet and overall conditions of detention. The court acknowledged the problem of overcrowding resulting from the rapid rise in the facility’s population level. It was pointed out that the centre’s administration had complied with the applicable domestic law and had made efforts to deal with the problem, for example by turning an entertainment room into cells. The court further noted that the cells were properly equipped and that the detainees were supplied with necessary hygiene products. The applicant’s cell was ventilated and cleaned regularly. The meals served were of sufficient nutritional value and quality. The detainees had access to the library. They could subscribe to daily newspapers or magazines. Finally, they could listen to the radio. The court held that the applicant’s complaint was manifestly illfounded.
The applicant did not lodge similar complaints with the penitentiary authorities in connection with the more recent period of his detention and with the living conditions in the other prisons and remand centres.
The applicant filed a civil action in tort to seek compensation for the infringement of his personal rights on account of the living conditions in Zabrze Remand Centre.
On 10 August 2003 the Zabrze District Court dismissed the applicant’s civil claim. The applicant did not appeal.
Moreover, the applicant did not bring a similar civil action in relation to the remaining period of his detention.
(See Siedlecki and 9 other applications v. Poland, no. 5246/03).


ITEMID: 001-91782
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MAZUREK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Miroslav Mazurek, is a Slovak national who was born in 1962 and lives in Kežmarok. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant used and reconstructed real property of which he was a co-owner.
On 3 February 1992 two other co-owners sued the applicant and several other persons, seeking their eviction from the property.
On 16 March 1992 the District Court in Poprad, by an injunction, ordered the applicant to refrain from further reconstruction of the building. As a result, the applicant was obliged to live in a rented flat.
On 30 June 2003 the plaintiffs withdrew the action. On 27 October 2003 the District Court discontinued the proceedings on that ground. On 22 December 2003 the applicant appealed.
On 17 March 2004 the Regional Court in Prešov upheld the first-instance judgment, which became final on 15 June 2004.
On 23 July 2004 the applicant, represented by an advocate, lodged a complaint with the Constitutional Court alleging that the proceedings before the District Court had lasted an excessively long time. In particular, the applicant alleged that the District Court had failed to examine the merits of the case for more than eleven years, from 3 February 1992 to 26 May 2003, and that the court had remained entirely inactive from 4 April 1995 to 15 April 2003. The letter indicated that the plaintiffs had withdrawn their action on 30 June 2003 and that at the time when the constitutional complaint was lodged the proceedings had been discontinued by a final decision.
The applicant enclosed with his complaint a copy of the District Court's decision of 27 October 2003. A stamp on the decision indicated that it had become final on 15 June 2004.
On 23 September 2004 the Constitutional Court rejected the complaint as out of time. The Constitutional Court observed that under section 53 (3) of the Constitutional Court Act 1993 a complaint about delays in proceedings (which were to be considered as “notification of other interference” for the purpose of that provision) should be made within two months of the date when the plaintiff could have learned of the interference.
The decision further stated, with reference to section 20 (3) of the Constitutional Court Act 1993, that the Constitutional Court was bound by the applicant's submission, including his allegation that the proceedings had ended following the withdrawal of the action on 26 May 2003. The Constitutional Court held that unjustified delays in the proceedings of which the applicant complained had ended more than two months prior to the introduction of his complaint under Article 127 of the Constitution.
Under section 20 (3), which applies to all types of proceedings before the Constitutional Court, as a general rule the scope of the Constitutional Court's examination of a case is limited by the summary of the application for commencement of the proceedings, as formulated in a standardised and prescribed form by the plaintiff.
Specific rules applicable in respect of complaints under Article 127 of the Constitution are laid down in sections 49 et seq.
Section 53 (3) provides that a constitutional complaint can be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given. As regards measures and other interferences, the above period commences when the complainant could have become aware of them.
In many cases it has been the practice of all chambers of the Constitutional Court to entertain complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such complaints are lodged (see, for example, decision files nos. I. ÚS 34/99, II. ÚS 55/02, III. ÚS 20/00, III. ÚS 150/03, IV. ÚS 96/02, I. ÚS 161/02, IV. ÚS 176/03 and many others).
In his separate opinions in such cases one judge of the Constitutional Court consistently expressed the view that, in accordance with section 53 (3) of the Constitutional Court Act 1993, a complaint about length of proceedings could be lodged within two months of the date when the proceedings ended by a final decision (see, for example, decision file nos. III. ÚS 168/02, III. ÚS 64/03, III. ÚS 109/03, III. ÚS 117/03, III. ÚS 143/03 and III. ÚS 150/03). Reference was made, inter alia, to the Court's practice under Article 35 § 1 of the Convention. The judge argued that the termination of domestic proceedings by a final decision was not an obstacle to the examination by the Constitutional Court of their length where the relevant complaint had been made within the statutory time-limit.
In a reply to the Government Agent's inquiry in the context of the present application, on 1 October 2008 the Vice-President of the Constitutional Court indicated that it was the practice of chambers of the Constitutional Court to examine complaints about delays in proceedings before ordinary courts only in cases where such proceedings were still pending.


ITEMID: 001-90039
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DOGRU v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 9
JUDGES: Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: 5. The applicant was born in 1987 and lives in Flers.
6. The applicant, a Muslim aged eleven at the material time, was enrolled in the first year of a state secondary school in Flers for the academic year 1998-1999. From January 1999 onwards she wore a headscarf to school.
7. On seven occasions in January 1999 the applicant went to physical education and sports classes wearing her headscarf and refused to take it off despite repeated requests to do so by her teacher, who explained that wearing a headscarf was incompatible with physical education classes. The teacher sent two reports to the headmaster dated 22 January and 8 February 1999.
8. At a meeting on 11 February 1999 the school's pupil discipline committee decided to expel the applicant from the school for breaching the duty of assiduity by failing to participate actively in physical education and sports classes.
9. The applicant's parents appealed against that decision to the appeal panel.
10. In a decision of 17 March 1999 the Director of Education for Caen upheld the decision of the school's pupil discipline committee, after obtaining the opinion of the appeal panel which was based on four grounds:
i) the duty of assiduity (as defined in section 10 of the Education (General Principles) Act – Law no. 89-486 of 10 July 1989; Article 3-5 of Decree no. 85-924 of 30 August 1985 on Local State Schools; and the school's internal rules);
ii) the provisions of the school's internal rules stipulating that pupils must wear clothing that “complies with the health and safety rules” and attend physical education and sports classes in their sports clothes;
iii) a memorandum (no. 94-116 of 9 March 1994) on pupils' safety during school activities, which specified that “rigorous compliance with the rules governing teaching staff's liability shall not eclipse the very broad personal discretion left to the individual teacher when dealing with actual concrete situations” and that “while managing his or her class the teacher must be capable of identifying and putting a stop to any behaviour on the part of pupils – other than sudden or unforeseeable conduct – that may present a danger”;
iv) a decision of the Conseil d'Etat dated 10 March 1995 in which it had held that wearing a headscarf as a sign of religious affiliation was incompatible with the proper conduct of physical education and sports classes.
11. The applicant indicated that she subsequently took correspondence courses in order to continue her school studies.
12. On 28 April 1999 the applicant's parents, acting on their own behalf and as their minor daughter's legal guardians, applied to the Caen Administrative Court to have the decision of the Director of Education set aside.
13. On 5 October 1999 the court rejected their application. It considered that, by attending physical education and sports classes in dress that would not enable her to take part in the classes in question, the applicant had failed to comply with the duty to attend classes regularly. It also found that the applicant's attitude had created an atmosphere of tension within the school and that on the basis of all the factors involved her expulsion from the school had been justified, regardless of the proposal she had made at the end of January to wear a hat instead of her headscarf.
14. The applicant's parents appealed against that judgment. On 31 July 2003 the Nantes Administrative Court of Appeal dismissed their appeal, on the same grounds as the lower court, finding that the applicant, by behaving as she had done, had overstepped the limits of the right to express and manifest her religious beliefs on the school premises.
15. The applicant's parents lodged an appeal on points of law with the Conseil d'Etat, relying, inter alia, on their daughter's right to freedom of conscience and expression.
16. On 29 December 2004 the Conseil d'Etat declared the appeal inadmissible.
17. In France, the exercise of religious freedom in public society, and more particularly the issue of wearing religious signs at school, is directly linked to the principle of secularism on which the French Republic was founded.
18. Arising out of a long French tradition, the concept of secularism has its origins in the Declaration of the Rights of Man and of the Citizen of 1789, Article 10 of which provides that “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.” It also appears in the key Education Acts of 1882 and 1886, which introduced state primary education on a compulsory and secular basis. The real keystone of French secularism, however, is the Act of 9 December 1905, known as the Law on the Separation between Church and State, which marked the end of a long conflict between the republicans, born of the French Revolution, and the Catholic Church. Section 1 provides: “The Republic shall ensure the freedom of conscience. It shall guarantee free participation in religious worship, subject only to the restrictions laid down hereinafter in the interest of public order.” The principle of separation is affirmed in section 2 of the Act: “the Republic may not recognise, pay stipends to or subsidise any religious denomination.” A number of consequences flow from this “secular pact” both for public services and users. It implies an acknowledgement of religious pluralism and State neutrality towards religions. In return for protection of his or her freedom of religion, the citizen must respect the public arena that is shared by all. The principle was then enshrined in the Preamble to the Constitution of 27 October 1946, which has had constitutional status since a decision of the Constitutional Council of 15 January 1975, which states: “The Nation guarantees equal access for children and adults to instruction, vocational training and culture. The provision of free, public and secular education at all levels is a duty of the State.” Lastly, the principle acquired actual constitutional status in Article 1 of the Constitution of 4 October 1958, which provides: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.”
19. From the 1980s the French secular model was confronted with the integration of Muslims into society, particularly in schools.
20. The year 1989 saw the first of the “Islamic headscarf” cases. At the beginning of the school year a number of incidents occurred in secondary schools and in particular in Creil Lower Secondary School, in the département of the Oise, when three pupils were suspended for refusing to remove their headscarf despite being requested to do so by the teaching staff and the principal of the school. The case quickly became a highly topical issue. As there was no clear legal answer, and in accordance with a request from the Minister for Education, the Conseil d'Etat, in an advisory opinion of 27 November 1989 (see paragraph 26 below), stated the position that should be adopted when pupils manifested their religion.
21. Some ten years later more and more issues relating to the headscarf had arisen and the advisory opinion does not appear to have provided a lasting solution to the difficulties. According to a report prepared for the Minister for Education in July 2005, “the matter appears to have taken on considerable proportions because having started with three headscarves in Creil in 1989, the Minister referred to 3,000 such cases when addressing the Senate in 1994.” In France, the troubles have given rise to various forms of collective mobilisation regarding the question of the place of Islam in Republican society. It is in this context that, on 1 July 2003, the President of the Republic instructed a commission to study the application of the principle of secularism in the Republic. That commission, known as the “Stasi commission”, after the name of its chairman, produced a report for the President of the Republic on 11 December 2003. The picture it presented of the threat to secularism bordered on the alarming. It said
“instances of behaviour and conduct that run counter to the principle of secularism are on in the increase, particularly in public society. ... The reasons for the deterioration in the situation ... [are the] difficulties in integrating experienced by those who have arrived in France during the past decades, the living conditions in many suburbs of our towns, unemployment, the feeling experienced by many people living in France that they are the subject of discrimination, or are even being driven out of the national community; these people explain that they thus lend an ear to those who incite them to fight what we call the values of the Republic. .... In this context it is natural that many of our fellow citizens demand the restoration of Republican authority and especially in schools. It is with these threats in mind and in the light of the values of our Republic that we have formulated the proposals set out in this report. ... [Regarding the headscarf, the report states that] for the school community ... the visibility of a religious sign is perceived by many as contrary to the role of school, which should remain a neutral forum and a place where the development of critical faculties is encouraged. It also infringes the principles and values that schools are there to teach, in particular, equality between men and women”.
22. It is on the basis of these proposals that the Act of 15 March 2004 was enacted (see paragraph 30 below).
23. Section 10 of the Act of 10 July 1989 provides:
“Pupils must comply with the duties inherent in their studies. These include assiduity at school and compliance with the rules and community life of the school.
In keeping with the principle of respect for pluralism and the principle that State education must be neutral, in lower and upper secondary schools pupils shall have freedom of information and freedom of expression. The exercise of these freedoms shall not interfere with teaching activities.”
24. Article 3-5 of the Decree of 30 August 1985 concerning local state educational establishments provides:
“The duty of assiduity referred to in Article L. 511-1 of the Education Code requires pupils to adhere to the teaching periods determined in the school timetable. This applies to compulsory classes and to any optional classes in which pupils have enrolled. Pupils shall perform the written and oral work requested of them by their teachers, respect the content of the curriculum and sit any tests that are set them. Pupils cannot refuse to undergo health tests or check-ups organised for them. The school's internal rules shall specify the manner in which this Article is implemented.”
25. The internal rules of Jean Monnet Lower Secondary School in force at the material time provided:
“ ...
I c) Attendance. ... Any pupil who misses a lesson or study period without prior authorisation or leaves the school grounds without permission shall be punished for serious misconduct; ...
II b) School dress. ... All pupils are required to dress discreetly and decently and in accordance with the rules of health and safety. ... Discreet signs manifesting the pupil's personal beliefs, such as their religious convictions, shall be accepted in the establishment, but conspicuous signs which are in themselves of proselytising or discriminatory effect shall be prohibited; ...
IV d) All pupils must attend P.E. classes in sports clothes.”
26. On 27 November 1989, at the request of the Minister for Education, the Conseil d'Etat, sitting in plenary, gave a ruling on the compatibility with the principle of secularism of wearing signs at school indicating affiliation to a religious community. It gave the following opinion:
“ ...
1. ...
The principle of secularism in state education, which is one aspect of the secular nature of the State and the principle that all public services must be neutral, requires teachers and the school curriculum to respect both this neutrality and pupils' freedom of conscience. In accordance with the principles laid down in these same laws and with France's international commitments, it prohibits any discrimination in access to education on grounds of a pupil's religious convictions or beliefs.
The freedom thus conferred on pupils includes the right to express and manifest their religious beliefs on the school premises, in compliance with the requirement of respect for pluralism and the freedom of others, without interfering with teaching activities, the content of the curriculum or the requirement of assiduity.
The exercise of that freedom can be restricted if it hinders the public education service in the role devolved onto it by the legislation. In addition to providing the means whereby children can acquire a culture and preparing them for professional life and their responsibilities as men and citizens, that role consists of contributing to the development of the pupil's personality, inculcating respect for the individual, his or her origins and differences, and securing and promoting equality between men and women.
It follows from what has just been said that pupils wearing signs in schools by which they manifest their affiliation to a particular religion is not in itself incompatible with the principle of secularism in so far as it constitutes the exercise of the freedom of expression and manifestation of religious beliefs, but that this freedom should not allow pupils to display signs of religious affiliation, which, inherently, in the circumstances in which they are worn, individually or collectively, or conspicuously or as a means of protest, might constitute a form of pressure, provocation, proselytism or propaganda, undermine the dignity or freedom of the pupil or other members of the educational community, compromise their health or safety, disrupt the conduct of teaching activities and the educational role of the teachers, or, lastly, interfere with order in the school or the normal functioning of the public service.
2. The wearing of signs of religious affiliation in schools may, if necessary, be subject to rules designed to implement the principles set out above...
In secondary schools these rules fall within the province of the board of governors of the school which, ..., adopts, subject to scrutiny of the lawfulness thereof, the school's internal rules...
3. The disciplinary authorities shall decide, subject to the scrutiny of the administrative courts, whether the wearing by a pupil, on the premises of a state school or other educational establishment, of a sign of religious affiliation in breach of one of the conditions posited in point 1 of this opinion or the school's internal rules constitutes a breach justifying the institution of disciplinary proceedings and the application, after compliance with the safeguards instituted by such proceedings and the rights of the defence, of one of the penalties provided for in the applicable provisions, one of which may be suspension from the school.
Suspension from a primary or secondary school is an option, despite the fact that education is compulsory, provided that the child can be educated, ..., either in a state school or a freely accessible school or in the family by the parents, or one of them, or any other person of their choice, and, in particular, that the pupil can be enrolled in a state centre for correspondence courses ....
...”
27. On 12 December 1989 a circular by the Minister for Education, entitled “Secularism, wearing of religious signs by pupils and compulsory education”, was sent to the directors of education, school inspectors and school principals. The relevant parts read as follows:
“Secularism, a constitutional principle of the Republic, is one of the cornerstones of state education. At school, like anywhere else, an individual's religious beliefs are a matter of individual conscience and therefore free choice. At school, however, where young people mix without any discrimination, the exercise of the freedom of conscience, in keeping with the requirement of respect for pluralism and the principle that the public service shall be neutral, requires that the entire educational community be shielded from any ideological or religious pressure.
Having regard to a number of recent events, it is my intention, in compliance with the requirement that each and everyone's rights must be respected, to prevent infringements of the principle of secularism. ...
The controversies caused by certain young girls of the Islamic faith wearing the headscarf have prompted me, in view of the difficulties of interpretation of the relevant law, to refer the matter to the Conseil d'Etat. ...
Where a conflict arises regarding the wearing of religious signs, I would ask you and your teaching staff to adopt the following approach. A dialogue must immediately be sought with the pupil and his or her parents so that, in the interests of the pupil and out of concern for the proper functioning of the school, the pupil agrees to stop wearing the sign(s) in question. ...
Accordingly, pupils must refrain from displaying any conspicuous sign, whether in their dress or otherwise, that promotes a religious belief. Any proselytising behaviour that goes beyond mere religious beliefs shall be proscribed...
A pupil's dress must not in any circumstances prevent him or her from engaging in the normal way in the exercises inherent in physical education and sports classes or tutorials or workshops organised in certain subjects. Likewise, any dress that is liable to hinder the running of a class or the proper conduct of a lesson shall be banned.
Furthermore, the health and safety requirements shall be unequivocally binding on all pupils. Pupils must dress in such a way that they pose no danger to themselves or others in schools. ...
There shall be no interference with any teaching activities, the content of the curriculum or the pupils' duty to attend classes regularly. The freedom of expression conferred on pupils shall not contravene these obligations. ...
Pupils must follow all lessons corresponding to their school level. ... Accordingly, a pupil cannot in any circumstances refuse to study certain parts of the school curriculum or exempt him or herself from certain lessons. ...
Anyone who fails to comply with these obligations shall be liable to penalties.”
28. On 20 September 1994 a further circular by the Minister for Education specified a number of points regarding the wearing of religious signs. The relevant parts were worded as follows:
“For a number of years now many incidents have been occurring in schools on the occasion of ostentatious demonstrations of affiliation to a particular religion or community.
School principals and teachers have repeatedly expressed their desire for clear instructions....
... there is an unacceptable presence, in ever growing numbers, of signs so ostentatious that their signification serves precisely to distance certain pupils from the school's common rules of conduct. Such signs are inherently of proselytising effect, especially if certain lessons or disciplines are challenged as a result, pupils' safety is jeopardised or the principle of coexistence at school is undermined.
I therefore ask you to propose to the boards of governors that, when drafting the internal rules, they impose a ban on such conspicuous signs, while remaining mindful that the presence of more discreet signs that merely denote an attachment to a personal belief cannot be subject to the same restrictions, as has been observed by the Conseil d'Etat and in the case-law of the administrative courts.”
29. Since its opinion of 1989 the Conseil d'Etat has had an opportunity to rule in its judicial capacity and specify the scope of that opinion. It has, for example, annulled the internal rules of schools that have imposed a strict ban on the wearing of any distinctive religious sign in classes or on the school premises on the grounds that the terms used were too general (2 November 1992, no. 130394, Kehrouaa, and 14 March 1994, no. 145656, Melles Yilmaz). Likewise, penalties for merely wearing a headscarf in a school cannot be upheld if it is not established that the behaviour of the pupil in question amounted to an act of pressure or proselytism or interfered with public order in the school (27 November 1996, no. 169522, Mlle Saglamer, and 2 April 1997, no. 173130, époux Mehila). The administrative courts have, however, upheld expulsions from school based on failure to comply with the duty of assiduity, such as a pupil's refusal to remove her veil during physical education and sports classes (10 March 1995, no. 159981, époux Aoukili, and 20 October 1999, no. 181486, Aït Ahmad) or refusal to attend such classes (27 November 1996, no. 170209, Chedouane and Wissaadane; no. 170210, Atouf; and 15 January 1997, no. 172937 Aït Maskour and Others).
30. On 15 March 2004 Parliament enacted Law no. 2004-228, known as the Law “on secularism”, regulating, in accordance with the principle of secularism, the wearing of signs or dress manifesting a religious affiliation in State primary and secondary schools. The legislation inserted a new Article L. 141-5-1 in the Education Code which provides:
“In State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited.
The school rules shall state that the institution of disciplinary proceedings shall be preceded by dialogue with the pupil.”
31. As indicated in the circular of 18 May 2004, that Act concerns only “... signs ..., such as the Islamic headscarf, however named, the kippa or a cross that is manifestly oversized, which make the wearer's religious affiliation immediately identifiable.”
32. According to the report on the application of the Law (see paragraph 21 above), a total of 639 religious signs were recorded in 2004-2005. That total of 639 is less than 50% of the signs recorded the year before. In 96 cases pupils opted for alternative solutions to the pupil discipline committee (enrolment in a private school, correspondence classes) and in 47 cases the pupil was suspended. The report states that the remaining pupils decided to remove the religious sign in question. At the start of the school year 2005-2006, no incident of note was recorded. It has not, however, been possible to obtain relevant official statistics for the school years after 2004.
NON_VIOLATED_ARTICLES: 9