ITEMID: 001-57562
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF PUDAS v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13 and P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;Gaukur Jörundsson
TEXT: 8. The applicant, Mr. Bengt Pudas, is a Swedish citizen born in 1959. He lives at Hedenäset, which is situated in the Municipality of Övertorneå and the County of Norrbotten, in the North of Sweden.
9. On 1 February 1980, the County Administrative Board (länsstyrelsen) of Norrbotten granted him a taxi traffic licence, and, on 20 May, a licence to carry passengers and their goods on specified interurban routes (linjetrafik). The licences were expressed to be valid until further notice.
10. The applicant commenced his combined taxi and interurban traffic business on 20 May 1980. Two vehicles (a Peugeot 505 - mainly for the taxi traffic; and a seven-seater Citroën - mainly for the interurban traffic) were used in the business, which occupied the applicant, his father and a third driver on a part-time basis. By way of interurban traffic, the applicant offered a service of two journeys a week at scheduled times. This service was available on request and had to be ordered one day in advance.
11. On 2 April 1981, the County Traffic Company of Norrbotten (länstrafiken i Norrbotten AB) (see paragraph 20 below) filed an application with the County Administrative Board (see paragraph 19 below) for a licence to provide interurban transport on routes including those covered by Mr. Pudas’ second licence. The County Traffic Company at the same time requested that this licence be revoked, as well as a licence held since 1973 by a certain Mr. Wälimaa.
In support of its application, the Company submitted that two traffic services in two different regions were to be united into one regular service with a single time-table, to be provided by the bus service business owned by Mr. Wälimaa and others.
The applicant opposed the revocation of his licence.
12. On 17 August 1981, the County Administrative Board granted the County Traffic Company a licence, valid as from 1 September 1981, to provide interurban transport of passengers and goods on the routes indicated in its request. In another decision on the same day, the Board revoked the applicant’s and Mr. Wälimaa’s licences for interurban traffic, inter alia on the following grounds:
"The plans for the future transport service offered by the County Company include a regular bus service which is to be created between the places in question. Such a plan will, in the opinion of the Board, enable a better network of routes to be created for the area and transport to be co-ordinated in one route. Bearing this in mind, it is the opinion of the Board that the transport service in the area will be improved in such a way that the licence applied for by the County Company cannot be refused. Consequently, the former licences, issued to (the applicant) and Mr. Wälimaa, shall be revoked."
By virtue of a subsequent order, Mr. Pudas’ licence was to cease to be valid as from the date on which the revocation of 17 August became final. Shortly thereafter, the County Traffic Company contracted out to the company owned by Mr. Wälimaa and others the running of a bus service on the routes covered by its new licence.
13. The applicant lodged an appeal with the Board of Transport (transportrådet), in which he alleged, inter alia, the following. The County Traffic Company’s application for a licence for the routes covered by his licence had been motivated not by any public interest in improving the transport service, but by an arrangement between the Company and Mr. Wälimaa (see paragraphs 11 and 12 above). Only very serious reasons, such as misconduct of the licence-holder, could justify revocation. When revoking his licence, the County Administrative Board had failed to take due account of his interests. Finally, the transport service on the routes concerned was not likely to be improved simply by being carried out by Mr. Wälimaa and others instead of by himself.
The Board of Transport rejected the appeal on 14 May 1982.
14. Mr. Pudas thereupon lodged a further appeal with the Government (Ministry of Transport and Communications), in which he referred to his arguments submitted to the Board of Transport.
15. The Government dismissed the appeal on 21 October 1982. In response to a further request from the applicant, the Government declined, on 13 January 1983, to review their previous decision.
16. The relevant law is to be found in the Act and the Ordinance of 1979 on Commercial Transport (yrkestrafiklagen 1979:559 - "the 1979 Act", and yrkestrafikförordningen 1979:871 - "the 1979 Ordinance").
Section 4 in Chapter 1 of the 1979 Act defines commercial transport as a transport service of goods or passengers by car, truck or bus offered to the public for a fee. Such service may only be performed by persons possessing a transport licence (Chapter 2, section 1).
17. Under the 1979 Act (Chapter 1, section 5), there are three kinds of passenger transport licences, which can briefly be described as follows:
- transport on request, where the vehicle, with a driver, is put at the customer’s disposal and the price is determined according to the customer’s use of it (beställningstrafik);
- tourist transport, which comprises commissioned tours for sightseeing, etc. (turisttrafik); and
- regular transport on defined routes within or between specified urban areas - interurban traffic (linjetrafik) -, where the vehicle is not put at the customer’s disposal.
Only persons (physical or legal) deemed suitable to conduct the service may obtain a licence. In examining applications, such factors as professional skill and personal and economic circumstances are considered, with a view to ensuring that the transport is effected under safe conditions by economically stable undertakings (Chapter 2, section 3, of the 1979 Act). A further condition is that the intended service is deemed necessary and appropriate (Chapter 2, section 11). The reason for this is the overall objective of establishing an adequate transport network and preventing any harmful surplus service. This objective extends to ensuring that transport operators who work on days and at hours that are not profitable are not exposed to uncontrolled competition from others who only provide a service when profitable.
The licensing authority makes licences to carry passengers on interurban routes subject to specific conditions, concerning such matters as routes and time-tables (Chapter 2, section 23, and Chapter 3, sections 5 and 6, of the 1979 Ordinance). The Board of Transport sets the rates to be charged (ibid., Chapter 3, sections 1 to 3).
18. Norrbotten is one of the vast and sparsely populated counties in Sweden where an adequate transport service is not feasible unless publicly-funded transport is provided. It is estimated that an average of 50 per cent of passenger transport costs in Sweden are borne out of public funds and that this percentage is even higher in the Northern parts of the country.
19. Licences to carry passengers on interurban routes are normally issued and revoked by the County Administrative Board.
20. According to the Act of 1978 on "Principals" for various forms of public transport of passengers (Lag 1978 : 438 om huvudmannaskap för viss kollektiv persontrafik - "the 1978 Act"), each county shall have a "Principal" ("huvudman") responsible for the local and regional public traffic by road (section 1) and, in particular, for ensuring the availability of proper transport facilities at a cost which does not impose an undue burden on taxpayers.
The Principal, which is constituted by the County Council (landstinget) and the local municipalities (kommunerna) together, has overall responsibility for public transport within the county. In some counties the Principal’s tasks are carried out by a public entity (kommunalförbund). However, in most counties, including that of Norrbotten, they are performed by a company, known as the County Traffic Company, which is wholly owned by the County Council and the municipalities.
The Principal may either hold the licences itself or operate a system under which they are held by private transporters. In the former event, the Principal may provide the service under its own management or arrange for private persons to run the traffic under contract. Even where the licence-holder is a private transporter, he is dependent on funding from the Principal in order to cover deficits.
21. A licence must be revoked if it has been misused in such a way that the holder can no longer be deemed suitable to provide the service, though in less serious cases a warning may be issued; it must also be revoked if the service is not maintained (Chapter 3, sections 1 and 2, of the 1979 Act).
A licence must also be revoked where, inter alia, a municipality or a Principal applies for a licence and establishes that the transport facilities in the area will probably be improved if it takes over the licence itself (Chapter 3, section 5, of the 1979 Act). In addition, a licence may be revoked, following an application by a prospective transporter, when there are good grounds to suppose that this will be conducive to the most rational organisation of transport.
22. An appeal against any such decision by a County Administrative Board to revoke a licence lies to the Board of Transport. In its capacity as authority of final instance, the Government (Ministry of Transport and Communications) may review decisions by the Board.
23. Generally speaking, the Swedish administration is not subject to supervision by the ordinary courts. Those courts entertain proceedings against the State only in contractual matters, on questions of extra-contractual liability and, under some statutes, in respect of administrative decisions.
Judicial review of the administration’s acts is therefore primarily a matter for administrative courts. These courts comprise three levels: the county administrative courts (länsrätterna); the administrative courts of appeal (kammarrätterna); and the Supreme Administrative Court (regeringsrätten). They are composed of independent judges and enjoy, as a rule, wide powers which enable them not only to set aside administrative acts but also to vary or substitute them.
This principle is subject to an important exception, in that no appeal may be made against decisions of the Government. There is, however, a limited possibility to file a petition with the Supreme Administrative Court for re-opening of the proceedings (resningsansökan) in respect of decisions of the Government as well as other authorities. Further particulars regarding this remedy appear in the Sporrong and Lönnroth judgment of 23 September 1982 (Series A no. 52, pp. 19-20, § 50).
24. The civil liability of the State is dealt with in Chapter 3 of the Civil Liability Act 1972 (skadeståndslagen 1972:207).
According to section 2, acts of public authorities may give rise to an entitlement to compensation in the event of fault or negligence.
However, under section 7, an action for damages will not lie in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court or the National Social Security Court.
25. Finally, when a new licence has been granted, the former licence-holder may call on the new licence-holder to "redeem" the vehicles and other equipment used in his enterprise. Any such request must be lodged not later than two months after the revocation became effective. Redemption cases are dealt with by the Bus and Taxi Assessment Board in accordance with the provisions of a 1969 Ordinance (kungörelsen 1969 : 690 om buss-och taxivärderingsnämnden). This Board determines the scope of the redemption and the amount to be paid. The assets are to be given a value corresponding to what could be obtained on a sale under normal conditions. If the assessment would produce a manifestly unfair result, the amount may, however, be adjusted.
The Board must give the parties the opportunity to state their case in writing or orally. The Board may also have an enquiry carried out by independent experts. The expenses of the proceedings are to be borne, as a rule, by the new holder of the licence.
The Board is composed of a chairman and two other members. The chairman must be an experienced judge.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59985
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF METROPOLITAN CHURCH OF BESSARABIA AND OTHERS v. MOLDOVA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 9;Not necessary to examine Art. 14+9;Violation of Art. 13;Not necessary to examine Art. 6-1 and 11;Non-pecuniary damage - financial award
JUDGES: Elisabeth Palm
TEXT: 9. The first applicant, the Metropolitan Church of Bessarabia, is an autonomous Orthodox Church having canonical jurisdiction in the territory of the Republic of Moldova. The other applicants are Moldovan nationals who are members of the eparchic council of the first applicant. They are: Mr Petru Păduraru, Archbishop of Chişinău, Metropolitan of Bessarabia and living in Chişinău; Mr Petru Buburuz, prosyncellus, living in Chişinău; Mr Ioan Eşanu, protosyncellus, living in Călăraşi; Mr Victor Rusu, protopresbyter, living in Lipnic, Ocniţa; Mr Anatol Goncear, a priest living in Zubreşti, Străşeni; Mr Valeriu Cernei, a priest living in Sloveanca, Sângerei; Mr Gheorghe Ioniţă, a priest living in Crasnoarmeisc, Hânceşti; Mr Valeriu Matciac, a priest living in Chişinău; Mr Vlad Cubreacov, member of the Moldovan parliament and of the Parliamentary Assembly of the Council of Europe, and living in Chişinău, Mr Anatol Telembici, living in Chişinău; and Mr Alexandru Magola, Chancellor of the Metropolitan Church of Bessarabia, living in Chişinău.
10. On 14 September 1992 the applicant natural persons joined together to form the applicant Church – the Metropolitan Church of Bessarabia – a local, autonomous Orthodox Church. According to its articles of association, it took the place, from the canon-law point of view, of the Metropolitan Church of Bessarabia which had existed until 1944.
In December 1992 it was attached to the patriarchate of Bucharest.
11. The Metropolitan Church of Bessarabia adopted articles of association which determined, among other matters, the composition and administration of its organs, the training, recruitment and disciplinary supervision of its clergy, the ecclesiastical hierarchy and rules concerning its assets. In the preamble to the articles of association the principles governing the organisation and operation of the applicant Church are defined as follows:
“The Metropolitan Church of Bessarabia is a local, autonomous Orthodox Church attached to the patriarchate of Bucharest. The traditional ecclesiastical denomination ‘Metropolitan Church of Bessarabia’ is of a historically conventional nature and has no link with current or previous political situations. The Metropolitan Church of Bessarabia has no political activities and will have none in future. It shall carry on its work in the territory of the Republic of Moldova. The Metropolitan Church of Bessarabia shall have the status of an exarchate of the country. According to canon law, communities of the Moldovan diaspora may also become members. No charge shall be made for the accession of individual members and communities living abroad.
In the context of its activity in the Republic of Moldova, it shall respect the laws of the State and international human rights law. Communities abroad which have adhered for the purposes of canon law to the Metropolitan Church of Bessarabia shall establish relations with the authorities of the States concerned, complying with their legislation and the relevant provisions of international law. The Metropolitan Church of Bessarabia shall cooperate with the authorities of the State in the sphere of culture, education and social assistance. The Metropolitan Church of Bessarabia does not make any claim of an economic or any other kind against other Churches or religious organisations. The Metropolitan Church of Bessarabia maintains ecumenical relations with other Churches and religious movements and considers that fraternal dialogue is the only proper form of relationship between Churches.
Priests of the Metropolitan Church of Bessarabia working in Moldovan territory shall be Moldovan citizens. When nationals of foreign States are invited to come to Moldova to carry on a religious activity or citizens of the Republic of Moldova are sent abroad for the same purpose, the legislation in force must be complied with.
Members of the Metropolitan Church of Bessarabia shall be citizens of the Republic of Moldova who have joined together on a voluntary basis to practise their religion in common, in accordance with their own convictions, and on the basis of the precepts of the Gospel, the Apostolic Canons, Orthodox canon law and Holy Tradition.
Religious services held in all the communities of the Metropolitan Church of Bessarabia shall include special prayers for the authorities and institutions of the State, couched in the following terms: ‘We pray, as always, for our country, the Republic of Moldova, for its leaders and for its army. May God protect them and grant them peaceful and honest lives, spent in obedience to the canons of the Church.’ ”
12. To date, the Metropolitan Church of Bessarabia has established 117 communities in Moldovan territory, three communities in Ukraine, one in Lithuania, one in Latvia, two in the Russian Federation and one in Estonia. The communities in Latvia and Lithuania have been recognised by the State authorities and have legal personality.
Nearly one million Moldovan nationals are affiliated to the applicant Church, which has more than 160 clergy.
The Metropolitan Church of Bessarabia is recognised by all the Orthodox patriarchates with the exception of the patriarchate of Moscow.
13. Pursuant to the Religious Denominations Act (Law no. 979-XII of 24 March 1992), which requires religious denominations active in Moldovan territory to be recognised by means of a government decision, the applicant Church applied for recognition on 8 October 1992. It received no reply.
14. It made further applications on 25 January and 8 February 1995. On a date which has not been specified the Religious Affairs Department refused these applications.
15. On 8 August 1995 the applicant Petru Păduraru, relying on Article 235 of the Code of Civil Procedure (which governs judicial review of administrative acts contrary to recognised rights), brought civil proceedings against the government in the Court of First Instance of the Buiucani district of Chişinău. He asked for the decisions refusing to recognise the applicant Church to be set aside. The court ruled in his favour and, on 12 September 1995, ordered recognition of the Metropolitan Church of Bessarabia.
16. On 15 September 1995 the Buiucani public prosecutor appealed against the Buiucani Court of First Instance’s decision of 12 September 1995.
17. On 18 October 1995 the Supreme Court of Justice set aside the decision of 12 September 1995 on the ground that the courts did not have jurisdiction to consider the applicant Church’s application for recognition.
18. On 13 March 1996 the applicant Church filed a fresh application for recognition with the government. On 24 May 1996, having received no reply, the applicants brought civil proceedings against the government in the Chişinău Court of First Instance, seeking recognition of the Metropolitan Church of Bessarabia. On 19 July 1996 that court gave judgment against the applicants.
19. On 20 August 1996 the applicants again filed an application for recognition, which went unanswered.
20. The applicants appealed to the Chişinău Municipal Court (Tribunal municipiului) against the judgment of 19 July 1996. In a judgment of 21 May 1997, against which no appeal lay, the Municipal Court quashed the impugned judgment and allowed the applicants’ claim.
21. However, following a reform of the Moldovan judicial system, the file was sent to the Moldovan Court of Appeal for trial de novo.
22. On 4 March 1997 the applicants again applied to the government for recognition. On 4 June 1997, not having received any reply, they referred the matter to the Court of Appeal, seeking recognition of the Metropolitan Church of Bessarabia, relying on their freedom of conscience and freedom of association for the purpose of practising their religion. The resulting action was joined to the case already pending before the Court of Appeal.
23. In the Court of Appeal the government alleged that the case concerned an ecclesiastical conflict within the Orthodox Church in Moldova (the Metropolitan Church of Moldova), which could be resolved only by the Romanian and Russian Orthodox Churches, and that any recognition of the Metropolitan Church of Bessarabia would provoke conflicts in the Orthodox community.
24. The Court of Appeal allowed the applicants’ claim in a decision of 19 August 1997. It pointed out, firstly, that Article 31 §§ 1 and 2 of the Moldovan Constitution guaranteed freedom of conscience and that that freedom should be exercised in a spirit of tolerance and respect for others. In addition, the various denominations were free to organise themselves according to their articles of association, subject to compliance with the laws of the Republic. Secondly, it noted that from 8 October 1992 the applicant Church, acting pursuant to sections 14 and 15 of the Religious Denominations Act, had filed with the government a number of applications for recognition, but that no reply had been forthcoming. By a letter of 19 July 1995 the Prime Minister had informed the applicants that the government could not consider the application of the Metropolitan Church of Bessarabia without interfering with the activity of the Metropolitan Church of Moldova. The Court of Appeal further noted that while the applicant Church’s application for recognition had been ignored, the Metropolitan Church of Moldova had been recognised by the government on 7 February 1993, as an eparchy dependent on the patriarchate of Moscow.
The Court of Appeal dismissed the government’s argument that recognition of the Metropolitan Church of Moldova made it possible to satisfy the wishes of all Orthodox believers. It pointed out that the term denomination was not to be reserved for catholicism or orthodoxy, but should embrace all faiths and various manifestations of religious feelings by their adherents, in the form of prayers, ritual, religious services or divine worship. It noted that from the point of view of canon law the Metropolitan Church of Moldova was part of the Russian Orthodox Church and therefore dependent on the patriarchate of Moscow, whereas the Metropolitan Church of Bessarabia was attached to the Romanian Orthodox Church and therefore dependent on the patriarchate of Bucharest.
The Court of Appeal held that the government’s refusal to recognise the applicant Church was contrary to the freedom of religion, as guaranteed not only by the Religious Denominations Act but also by Article 18 of the Universal Declaration of Human Rights, Article 5 of the International Covenant on Economic, Social and Cultural Rights and Article 18 of the International Covenant on Civil and Political Rights, to all of which Moldova was party. Noting that the representative of the government had taken the view that the applicant Church’s articles of association complied with domestic legislation, the Court of Appeal ordered the government to recognise the Metropolitan Church of Bessarabia and to ratify its articles of association.
25. The government appealed against the above decision on the ground that the courts did not have jurisdiction to try such a case.
26. In a judgment of 9 December 1997 the Supreme Court of Justice set aside the decision of 19 August 1997 and dismissed the applicants’ action on the grounds that it was out of time and manifestly ill-founded.
It noted that, according to Article 238 of the Code of Civil Procedure, one month was allowed for an appeal against a government decision alleged to infringe a recognised right. The time allowed began to run either on the date of the decision announcing the government’s refusal or, if the they did not reply, one month after the lodging of the application. The Supreme Court of Justice noted that the applicants had submitted their application to the government on 4 March 1997 and lodged their appeal on 4 June 1997; it accordingly ruled their action out of time.
It went on to say that, in any event, the government’s refusal of the applicants’ application had not infringed their freedom of religion as guaranteed by international treaties, and in particular by Article 9 of the European Convention on Human Rights, because they were Orthodox Christians and could manifest their beliefs within the Metropolitan Church of Moldova, which the government had recognised by a decision of 7 February 1993.
The Supreme Court of Justice considered that the case was simply an administrative dispute within a single Church, which could be settled only by the Metropolitan Church of Moldova, since any interference by the State in the matter might aggravate the situation. It held that the State’s refusal to intervene in this conflict was compatible with Article 9 § 2 of the European Convention on Human Rights.
Lastly, it noted that the applicants could manifest their beliefs freely, that they had access to Churches and that they had not adduced evidence of any obstacle whatsoever to the practice of their religion.
27. On 15 March 1999 the applicants again applied to the government for recognition.
28. By a letter dated 20 July 1999 the Prime Minister refused on the ground that the Metropolitan Church of Bessarabia was not a religious denomination in the legal sense but a schismatic group within the Metropolitan Church of Moldova.
He informed the applicants that the government would not allow their application until a religious solution to the conflict had been found, following the negotiations in progress between the patriarchates of Russia and Romania.
29. On 10 January 2000 the applicants lodged a further application for recognition with the government. The Court has not been informed of the outcome of that application.
30. Since the adoption of the Religious Denominations Act, the government has recognised a number of denominations, some of which are listed below.
On 7 February 1993 the government ratified the articles of association of the Metropolitan Church of Moldova, attached to the patriarchate of Moscow. On 28 August 1995 it recognised the Orthodox Eparchy of the Old Christian Liturgy of Chişinău, attached to the Russian Orthodox Church of the Old Liturgy, whose head office was in Moscow.
On 22 July 1993 the government recognised the “Seventh-Day Adventist Church”. On 19 July 1994 it decided to recognise the “Seventh-Day Adventist Church – Reform Movement”.
On 9 June 1994 the government ratified the articles of association of the “Federation of Jewish (Religious) Communities” and on 1 September 1997 those of the “Union of Communities of Messianic Jews”.
31. Since it was first set up, the Metropolitan Church of Bessarabia has regularly applied to the Moldovan authorities to explain the reasons for its creation and to seek their support in obtaining official recognition.
32. The government asked several ministries for their opinion about whether to recognise the applicant Church.
On 16 October 1992 the Ministry of Culture and Religious Affairs informed the government that it was favourable to the recognition of the Metropolitan Church of Bessarabia.
On 14 November 1992 the Ministry of Financial Affairs informed the government that it could see no objection to the recognition of the Metropolitan Church of Bessarabia.
On 8 February 1993 the Ministry of Labour and Social Protection declared that it was favourable to the recognition of the applicant Church.
In a letter of 8 February 1993 the Ministry of Education emphasised the need for the rapid recognition of the Metropolitan Church of Bessarabia in order to avoid any discrimination against its adherents, while pointing out that its articles of association could be improved upon.
On 15 February 1993 the Secretariat of State for Privatisation stated that it was favourable to the recognition of the Metropolitan Church of Bessarabia, while proposing certain amendments to its articles of association.
33. On 11 March 1993, in reply to a letter from the Bishop of Bălţi, writing on behalf of the Metropolitan of Bessarabia, the Moldovan parliament’s Cultural and Religious Affairs Committee noted that the delay in registering the Metropolitan Church of Bessarabia was aggravating the social and political situation in Moldova, even though its actions and articles of association complied with Moldovan legislation. The committee therefore asked the government to recognise the applicant Church.
34. A memorandum from the Religious Affairs Department, dated 21 November 1994, summarised the situation as follows:
“For nearly two years an ecclesiastical group known under the name of the Metropolitan Church of Bessarabia has been operating illegally in Moldovan territory. No positive result has been obtained in spite of our sustained efforts to put a stop to its activity (discussions between members of the so-called Church, priests, Mr G.E., Mr I.E. ..., representatives of the State and believers from the localities in which its adherents are active, Mr G.G., Minister of State, and Mr N.A., Deputy Speaker; all the organs of local and national administrative bodies have been informed of the illegal nature of the group, etc.).
In addition, although priests and adherents of the Church have been forbidden to take part in divine service, for failure to comply with canon law, they have nevertheless continued their illegal activities in the churches and have also been invited to officiate on the occasion of various public activities organised, for example, by the Ministries of Defence and Health. The management of the Bank of Moldova and the National Customs Service have not acted on our request for liquidation of the group’s bank accounts and strict supervision of its priests during their numerous crossings of the border.
The activity of the so-called Church is not limited to attracting new adherents and propagating the ideas of the Romanian Church. It also has all the means necessary for the work of a Church, it appoints priests, including nationals of other States ..., trains clergy, builds churches and many, many other things.
It should also be mentioned that the group’s activity (more political than religious) is sustained by forces both from within the country (by certain mayors and their villages, by opposition representatives, and even by some MPs) and from outside (by decision no. 612 of 12 November 1993 the Romanian government granted it 399,400,000 lei to finance its activity ...
The activity of this group is causing religious and socio-political tension in Moldova and will have unforeseeable repercussions ...
The Religious Affairs Department notes:
(a) Within Moldovan territory there is no territorial administrative unit with the name of Bessarabia which might justify setting up a religious group named ‘Metropolitan Church of Bessarabia’. The creation of such a group and recognition of its articles of association would constitute a wrongful anti-State act – a negation of the sovereign and independent State which the Republic of Moldova constitutes.
(b) The Metropolitan Church of Bessarabia was set up to take the place of the former Eparchy of Bessarabia, founded in 1925 and recognised by Decree no. 1942 promulgated on 4 May 1925 by the King of Romania. Legal recognition of the validity of those acts would imply recognition of their present-day effects within Moldovan territory.
(c) All Orthodox parishes in Moldovan territory have been registered as constituent parts of the of the Orthodox Church of Moldova (the Metropolitan Church of Moldova), whose articles of association were ratified by the government in its decision no. 719 of 17 November 1993.
In conclusion:
1. If nothing is done to put a stop to the activity of the so-called Metropolitan Church of Bessarabia, the result will be destabilisation not just of the Orthodox Church but of the whole of Moldovan society.
2. Recognition of the Metropolitan Church of Bessarabia (Old Style) and ratification of its articles of association by the government would automatically entail the disappearance of the Metropolitan Church of Moldova.”
35. On 20 February 1996, following a question in Parliament asked by the applicant Vlad Cubreacov, a Moldovan MP, the Deputy Prime Minister wrote a letter to the Speaker explaining the reasons for the government’s refusal to recognise the Metropolitan Church of Bessarabia. He said that the applicant Church was not a denomination distinct from the Orthodox Church but a schismatic group within the Metropolitan Church of Moldova and that any interference by the State to resolve the conflict would be contrary to the Moldovan Constitution. He pointed out that the political party to which Mr Cubreacov belonged had publicly expressed disapproval of the Supreme Court of Justice’s decision of 9 December 1997, that Mr Cubreacov himself had criticised the government for their refusal to recognise “this phantom metropolitan Church” and that he continued to support it by exerting pressure in any way he could, through statements to the media and approaches to the national authorities and international organisations. The letter ended with the assertion that the “feverish debates” about the Metropolitan Church of Bessarabia were purely political.
36. On 29 June 1998 the Religious Affairs Department sent the Deputy Prime Minister its opinion on the question of recognition of the Metropolitan Church of Bessarabia.
It pointed out in particular that not since 1940 had there been an administrative unit in Moldova with the name “Bessarabia” and that the Orthodox Church had been recognised on 17 November 1993 under the name of the Metropolitan Church of Moldova, of which the Metropolitan Church of Bessarabia was a “schismatic element”. It accordingly considered that recognition of the applicant Church would represent interference by the State in the affairs of the Metropolitan Church of Moldova, and that this would aggravate the “unhealthy” situation in which the latter Church was placed. It considered that the articles of association of the applicant Church could not be ratified since they merely “reproduce[d] those of the Orthodox Church of another country”.
37. On 22 June 1998 the Ministry of Justice informed the government that it did not consider the articles of association of the Metropolitan Church of Bessarabia to be contrary to Moldovan legislation.
38. By letters of 25 June and 6 July 1998 the Ministry of Labour and Social Protection and the Ministry of Financial Affairs again informed the government that they could see no objection to recognition of the Metropolitan Church of Bessarabia.
39. On 7 July 1998 the Ministry of Education informed the government that it supported recognition of the Metropolitan Church of Bessarabia.
40. On 15 September 1998 the Cultural and Religious Affairs Committee of the Moldovan parliament sent the government, for information, a copy of a report by the Ministry of Justice of the Russian Federation, which showed that on 1 January 1998 there were at least four different Orthodox Churches in Russia, some of which had their head offices abroad. The Committee expressed the hope that the above-mentioned report would assist the government to resolve certain similar problems, particularly the problem concerning the Metropolitan Church of Bessarabia’s application for recognition.
41. In a letter sent on 10 January 2000 to the applicant Vlad Cubreacov, the Deputy Attorney-General expressed the view that the government’s refusal to reply to the Metropolitan Church of Bessarabia’s application for recognition was contrary to the freedom of religion and to Articles 6, 11 and 13 of the Convention.
42. In a decision of 26 September 2001 the government approved the amended version of Article 1 of the Metropolitan Church of Moldova’s articles of association, worded as follows:
“The Orthodox Church of Moldova is an independent Church and is the successor in law to ... the Metropolitan Church of Bessarabia. While complying with the canons and precepts of the Holy Apostles, Fathers of the Church and the Ecumenical Synods, and the decisions of the Universal Apostolic Church, the Orthodox Church of Moldova operates within the territory of the State of the Republic of Moldova in accordance with the provisions of the legislation in force.”
43. In a letter received by the Court on 21 September 2001 the President of the Republic of Moldova expressed his concern about the possibility that the applicant Church might be recognised. He said that the issue could be resolved only by negotiation between the Russian and Romanian patriarchates, since it would be in breach of Moldovan legislation if the State authorities were to intervene in the conflict. Moreover, if the authorities were to recognise the Metropolitan Church of Bessarabia, this would have unforeseeable consequences for Moldovan society.
44. In its Opinion no. 188 (1995) to the Committee of Ministers on Moldova’s application for membership of the Council of Europe, the Parliamentary Assembly of the Council of Europe noted the Republic of Moldova’s willingness to fulfil the commitments it had entered into when it lodged its application for membership on 20 April 1993.
These commitments, which had been reaffirmed before the adoption of the above-mentioned opinion, included an undertaking to “confirm complete freedom of worship for all citizens without discrimination” and to “ensure a peaceful solution to the dispute between the Moldovan Orthodox Church and the Bessarabian Orthodox Church”.
45. In its annual report for 1997 the International Helsinki Federation for Human Rights criticised the Moldovan government’s refusal to recognise the Metropoltitan Church of Bessarabia. The report stated that as a result of this refusal many churches had been transferred to the ownership of the Metropolitan Church of Moldova. It drew attention to allegations that members of the applicant Church’s clergy had been subjected to physical violence without receiving the slightest protection from the authorities.
46. In its 1998 report the Federation criticised the Religious Denominations Act, and in particular section 4 thereof, which denied any protection of the freedom of religion to the adherents of religions not recognised by a government decision. It pointed out that this section was a discriminatory instrument which enabled the government to make it difficult for the adherents of the Metropolitan Church of Bessarabia to bring legal proceedings with a view to reclaiming church buildings which belonged to them. In addition, the report mentioned acts of violence and vandalism to which the applicant Church and its members were subjected.
47. The applicants reported a number of incidents during which members of the clergy or adherents of the applicant Church had allegedly been intimidated or prevented from manifesting their beliefs.
48. The Government did not dispute that these incidents had taken place.
49. In 1994 the assembly of Christians of the village of Gârbova (Ocniţa) decided to join the Metropolitan Church of Bessarabia. The Metropolitan of Bessarabia therefore appointed T.B. as the parish priest.
50. On 7 January 1994, when T.B. went to the church to celebrate the Christmas mass, the mayor of Gârbova, T.G., forbade him to enter. When the villagers came out of the church to protest, the mayor locked the door and, without further explanation, ordered T.B. to leave the village within twenty-four hours.
51. The mayor summoned a new assembly of the Christians of the village on 9 January 1994. On that date he informed the villagers that T.B. had been stripped of his post as the village priest because he belonged to the Metropolitan Church of Bessarabia. He introduced a new parish priest who belonged to the Metropolitan Church of Moldova. The assembly rejected the mayor’s proposal.
52. The mayor called a new assembly of the Christians of the village on 11 January 1994. On that date he introduced to the villagers a third priest, also from the Metropolitan Church of Moldova. He was likewise rejected by the assembly, which expressed its preference for T.B.
53. In those circumstances, S.M., the chairman of the parish council, was summoned by the mayor and the manager of the local collective farm, who urged him to persuade the villagers to accept T.B.’s removal from office. The chairman of the parish council refused.
54. On 13 January 1994 S.M. was arrested on his way to church. He was pinned down by five policemen, then thrown into a police van and taken first to the town hall, where he was savagely beaten. He was then taken into police custody at Ocniţa police station, where he was upbraided for showing favour to the Metropolitan Church of Bessarabia. He was not informed of the reasons for his arrest. He was released after being detained for three days.
55. Following these incidents T.B. left the parish.
56. In a letter of 20 May 1994 the vice-president of the provincial council for the province (raion) of Făleşti rebuked G.E., priest of the parish of Saint Nicholas and a member of the Metropolitan Church of Bessarabia, for having celebrated the Easter service on 9 May 1994 in the town cemetery, that being an act contrary to the Religious Denominations Act because the Metropolitan Church of Bessarabia was illegal. For the same reason he was forbidden to conduct divine service in future whether inside a church or in the open air. The vice-chairman of the provincial council warned G.E. not to implement a plan he had to invite priests from Romania to attend divine service on 22 May 1994, given that he had not first obtained official authorisation, as required by section 22 of the Religious Denominations Act.
57. In November 1994 G.E. was fined 90 lei (MDL) for officiating as a priest of an unrecognised Church, the Metropolitan Church of Bessarabia. The Court of First Instance upheld the penalty, but reduced the amount of the fine to MDL 54 on the ground that G.E. did not hold any office within the Church concerned.
58. On 27 October 1996, before the beginning of divine service in the parish church, several persons, led by a priest of the Metropolitan Church of Moldova, violently assaulted G.E., drawing blood, and asked him to join the Metropolitan Church of Moldova. They also attacked the priest’s wife, tearing her clothes.
59. G.E. managed to escape into the church, where the service was taking place, but he was pursued by his assailants, who began to fight with the congregation. A policeman sent to the scene managed to persuade the aggressors to leave the church.
60. On 15 November 1996 the parish meeting published a declaration expressing the parishioners’ indignation about the acts of violence and intimidation to which members of the Metropolitan Church of Bessarabia were subjected, requested the authorities to cease to condone such acts and demanded official recognition for their Church.
61. On 6 June 1998 the applicant Petru Păduraru, Metropolitan of Bessarabia, received two anonymous telegrams warning him not to go to Făleşti. He did not lodge any complaint about this.
62. On 11 July 1994 the applicant Ioan Eşanu, priest of the parish of Saint Alexander, was summoned by the president of the Călăraşi provincial council to a discussion about the Metropolitan Church of Bessarabia.
That discussion was also attended by the mayor of Călăraşi, the secretary of the provincial council and the parish clerk. The president of the provincial council criticised the applicant for his membership of the applicant Church, which made him a fellow-traveller of those who supported union with Romania. He then gave him one week to produce a certificate attesting to recognition of the Metropolitan Church of Bessarabia, failing which he would have to leave the parish.
63. In a letter of 24 November 1994 to the Metropolitan of Bessarabia, V.B., a Romanian national, priest of the parish of Cania, reported that he was under intense pressure from the authorities of the province of Cantemir, who had upbraided him for belonging to the applicant Church.
64. On 19 January 1995 V.B. was summoned to the police station in Cantemir, where he was served with a government decision cancelling his residence and work permits and ordering him to leave Moldovan territory within seventy-two hours and to hand over the permits concerned to the relevant authorities.
65. On 5 April 1995 Vasile Petrache, priest of the parish of Saint Nicholas, informed the Metropolitan of Bessarabia that the windows of the church, which was affiliated to the Metropolitan Church of Bessarabia, had been broken during incidents that had taken place on the nights of 27 to 28 March and 3 to 4 April 1995.
66. A similar attack occurred in the night of 13 to 14 May 1995. Vasile Petrache lodged a complaint on each occasion, asking the police to intervene in order to prevent further attacks taking place.
67. In the night of 3 to 4 September 1996 a grenade was thrown by unknown persons into the house of the Metropolitan of Bessarabia, causing damage. The applicant lodged a complaint about this at the police station in Chişinău.
68. In autumn 1999, after the death of Vasile Petrache, the Metropolitan of Bessarabia appointed the applicant Petru Buburuz as the parish priest of Saint Nicholas.
Following that appointment the church of Saint Nicholas was occupied by representatives of the Metropolitan Church of Moldova, who locked it and prevented the adherents of the applicant Church from entering. They also took possession of the parish documents and seal.
69. On 8 December 1999 the police issued a summons against Petru Buburuz for organising a public meeting in front of Saint Nicholas’s church on 28 November 1999 without first obtaining the authorisation required for public meetings.
70. On 28 January 2000 Judge S. of the Buiucani Court of First Instance discontinued the proceedings on the ground that the applicant had not organised a meeting but had merely celebrated a mass in his capacity as priest at the request of about a hundred believers who were present. Judge S. also noted that the mass had been celebrated on the square, as the church door had been locked.
71. In the night of 3 to 4 September 1996 a grenade was thrown into the house of P.G., a member of the clergy of the applicant Church. On 28 September 1996 P.G. was threatened by six persons unknown to him. He immediately lodged a criminal complaint.
72. In a letter of 22 November 1996 to the President of Moldova, the Minister of the Interior expressed his regret about the slow progress of the investigations into P.G.’s complaints and informed him that on that account disciplinary penalties had been imposed on the police officers responsible for the inquiry.
73. In a report of 22 June 1998 to the Metropolitan of Bessarabia the parish clerk complained of the actions of one M., a priest of the Metropolitan Church of Moldova, who was trying, with the help of the mayor of Bălţi, to oust P.B., a priest of the applicant Church, and have the village church closed.
No complaint was lodged with the authorities on this subject.
74. On 23 August 1999, according to the applicants, Police Captain R., claiming to be acting on the orders of his superior officer, Lieutenant-Colonel B.D., placed seals on the door of the church of Cucioaia (Ghiliceni) and forbade V.R., a priest of the applicant Church, who regularly officiated there, to enter and continue to conduct divine service. After a complaint by the people of the village, the applicant Vlad Cubreacov wrote to the Prime Minister on 26 August 1998 to ask him for an explanation.
The incident was also reported in the 26 August 1998 issue of the newspaper Flux.
The Government asserted that following the above complaint the Ministry of the Interior ordered an inquiry. The inquiry showed that it was not a policeman but a member of the Metropolitan Church of Moldova, Archdeacon D.S., who had placed the seals on the church door.
75. On 11 April 1998, at about midnight, the parish priest was woken by persons unknown to him who were trying to force open the presbytery door. He was threatened with death if he did not give up the idea of creating a new parish in Cahul.
76. On 13 April 1998 he was threatened with death by one I.G., a priest of the Metropolitan Church of Moldova. On the same day he complained to the police.
77. After leaving the Metropolitan Church of Moldova in July 1997 to join the applicant Church, the priest of the parish of Mărinici and his family received threats on a number of occasions from various priests of the Metropolitan Church of Moldova. The windows of his house were broken and, on 2 February 1998, he was attacked in the street and beaten by strangers, who told him not to meddle with “those things” anymore.
78. The parish priest consulted a forensic physician, who issued a certificate detailing the injuries that had been inflicted on him. He subsequently lodged a criminal complaint with the Cecani police.
79. The Moldovan newspapers regularly reported incidents described as acts of intimidation against the clergy and worshippers of the Metropolitan Church of Bessarabia.
80. On 6 December 1998 one V.J., a priest of the Metropolitan Church of Moldova, and other persons accompanying him broke open the door of the village church and occupied it. When the parish priest, V.S., a member of the applicant Church, arrived to take the Sunday service he was prevented from entering. The stand-off continued until the villagers belonging to the applicant Church arrived on the scene.
81. In a report sent to the Metropolitan of Bessarabia on 2 February 2001, N.A., priest of the parish of Leova, stated that the church in Leova had suffered acts of vandalism and that he himself and other parishioners had been the target of public acts of intimidation and death threats from one G.C., a priest of the Metropolitan Church of Moldova. Such acts were repeated on a number of further occasions without any protection being offered by the municipal council to parishioners who were members of the applicant Church.
82. The Christians of the village of Floreni joined the applicant Church on 12 March 1996 and formed a local community of that Church on 24 March 1996. They also had a chapel built where mass could be celebrated.
83. On 29 December 1997 the government adopted decision no. 1203, granting the Metropolitan Church of Moldova a right of use in respect of the land on which the chapel built by the Metropolitan Church of Bessarabia was situated. That decision was confirmed by a decree of 9 March 1998 issued by the Floreni municipal council.
84. Following a request by the Metropolitan Church of Bessarabia for the right to use the land concerned, in view of the fact that its chapel was built on it, the National Land Registry replied to the Church’s adherents in the parish of Floreni that “the local public authorities [were] not able to adopt such a decision since the Metropolitan Church of Bessarabia [had] no recognised legal personality in Moldova”.
85. On 17 February 2000 the Metropolitan of Bessarabia asked the government Committee for Humanitarian Aid to authorise entry into Moldovan territory of goods to the value of 9,000 United States dollars (USD) sent from the United States, and to classify the goods concerned as humanitarian aid. That request was refused on 25 February 2000.
86. On 25 February 2000 the applicant Vlad Cubreacov asked the committee to inform him of the reasons for its refusal. He pointed out that the gift (of second-hand clothes), sent by the Church of Jesus Christ of Latter-Day Saints, had been given a transit visa by the Ukrainian authorities, who accepted that it was a humanitarian gift. However, the goods had been held up by the Moldovan customs since 18 February 2000, so that the addressee was obliged to pay USD 150 per day of storage. The applicant repeated his request for the goods to be allowed to enter Moldovan territory as a humanitarian gift.
87. On 28 February 2000 the Deputy Prime Minister of Moldova authorised the entry of this humanitarian gift into Moldovan territory.
88. Vasile Petrache, a priest of the applicant Church, was refused a retirement pension on the ground that he was not a minister of a recognised denomination.
89. Article 31 of the Moldovan Constitution, concerning freedom of conscience, provides:
“1. Freedom of conscience is guaranteed. It must be manifested in a spirit of tolerance and mutual respect.
2. Freedom of worship is guaranteed. Religious denominations shall organise themselves according to their own articles of association, in compliance with the law.
3. Any manifestation of discord is forbidden in relations between religious denominations.
4. Religious denominations shall be autonomous and separated from the State, and shall enjoy the latter’s support, including facilities granted for the purpose of providing religious assistance in the army, hospitals, prisons, mental institutions and orphanages.”
90. The relevant provisions of the Religious Denominations Act, as published in the Official Gazette no. 3/70 of 1992, read as follows:
“The State shall guarantee freedom of conscience and freedom of religion within Moldovan territory. Everyone shall have the right to manifest his belief freely, either alone or in community with others, to propagate his belief and to worship in public or in private, on condition that such worship is not contrary to the Constitution, the present Act or the legislation in force.”
“Intolerance on denominational grounds, manifested by acts which interfere with the free operation of a religious denomination recognised by the State, shall be an offence punished in accordance with the relevant legislation.”
“Denominations shall be free to organise and operate freely on condition that their practices and rites do not contravene the Constitution, the present Act or the legislation in force.
Where that is not the case, denominations shall not qualify for State recognition.”
“In order to be able to organise and operate, denominations must be recognised by means of a government decision.
Where a denomination fails to comply with the conditions laid down by the first paragraph of section 9 of the present Act, recognition may be withdrawn under the same procedure.”
“To qualify for recognition, each denomination shall submit to the Government, for scrutiny and approval, the articles of association governing its organisation and operation. The articles of association must contain information on its system of organisation and administration and on the fundamental principles of its beliefs.”
“Associations and foundations which pursue a religious aim, in whole or in part, shall enjoy religious rights and shall be subject to the obligations arising from the legislation on religious denominations.”
“Leaders of denominations having republican and hierarchical rank ..., and all persons employed by religious denominations, must be Moldovan citizens.
Denominations which wish to take foreign nationals into their employ to conduct religious activities, or to delegate Moldovan citizens to conduct religious activities abroad, must in every case seek and obtain the agreement of the State authorities.”
“Denominations recognised by the State shall be legal persons ...”
“Only denominations recognised by the State and registered in accordance with the relevant legislation may
(a) produce and market objects specific to the denomination concerned;
(b) found periodicals for the faithful, or publish and market liturgical, theological or ecclesiastical books necessary for practice of the religion concerned;
(c) lay down scales of charges for pilgrimages and touristic activities in the denomination’s establishments;
(d) organise, within Moldovan territory or abroad, exhibitions of liturgical objects, including exhibitions of items for sale;
...
For the purposes of the present section, the term ‘liturgical objects’ shall mean liturgical vessels, metal and lithographic icons, crosses, crucifixes, church furniture, cross-shaped pendants or medallions framing religious images specific to each denomination, religious objects sold from door to door, etc. The following items shall be assimilated with liturgical objects: religious calendars, religious postcards and leaflets, albums of religious works of art, films and labels portraying places of worship or objects of religious art, other than those which form part of the national cultural heritage, products necessary for worship, such as incense and candles, including decorations for weddings and christenings, material and embroidery for the production of liturgical vestments and other objects necessary for practice of a religion.”
“Bodies affiliated to religious denominations or institutions and enterprises set up by them may engage staff in accordance with labour legislation.”
“Clergy and employees of religious denominations shall be engaged under a written contract ...”
“Clergy and employees of religious denominations or the institutions and enterprises set up by them shall have the same legal status as the employees of organisations, institutions and enterprises, so that labour legislation shall be applicable to them.”
“Whatever pensions are paid by religious denominations, their clergy and employees shall receive State pensions, in accordance with the Moldovan State Pensions Act.”
91. Article 28/2, as amended by Law no. 942-XIII of 18 July 1996, determines the jurisdiction of the Court of Appeal as follows:
“1. The Court of Appeal shall examine at first instance applications against organs of the central administration and their officials on account of illegal or ultra vires acts which infringe citizens’ rights.”
92. Article 37, on the participation of several plaintiffs or defendants in the same trial, provides:
“The action may be brought by a number of plaintiffs jointly or against more than one defendant. Each of the plaintiffs and defendants shall act independently of the others.
Co-plaintiffs and co-defendants may designate one of their number to prosecute the action ...”
93. Article 235, on the right to appeal against unlawful acts of the administration, provides:
“Any natural or legal person who considers that his rights have been infringed by an administrative act or the unjustified refusal of an administrative organ ... to examine his application concerning a legal right shall be entitled to ask the competent court to set aside the relevant act or uphold the infringed right.”
VIOLATED_ARTICLES: 13
9


ITEMID: 001-22198
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SALLERAS LLINARES v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Luis Salleras Llinares, is a Spanish national. He was born in 1925 and lives in Cadaqués.
In a decision of 17 May 1999 the election committee for the Figueres zone refused to declare eligible the list of candidates for the Cadaqués municipal elections submitted by the applicant in his capacity as representative of the Alternativa pel progrès de Cadaqués list. The election committee based its decision on the fact that he had not carried out certain mandatory formalities which had been pointed out to him in respect of two non-Spanish candidates who were European Union citizens.
The applicant applied to the Administrative Court no. 1 of Gerona for judicial review of the election committee’s decision on the ground, inter alia, that, as he had been travelling, he had not had known of the election committee’s fax requesting him to carry out the formalities in question until twenty-four hours before the deadline for submitting lists of candidates. In a judgment of 21 May 1999 the court dismissed his application. It observed that two candidates on the list, who were not Spanish nationals but were citizens of Member States of the European Union, had failed to provide certain documents required of European Union citizens wishing to stand in municipal elections and proving, among other things, their residence in Spain. The court went on to note that the applicant had had an opportunity of carrying out the formalities in question, but had not done so. It added that if the applicant had to travel, he had a duty, as representative of the electoral list and in accordance with the requirements relating to election proceedings, to take adequate measures to ensure that he was informed of the election committee’s decisions without delay. The applicant lodged an amparo appeal with the Constitutional Court, which was dismissed in a decision of 25 May 1999.
“1. The Cortes Generales represent the Spanish people and are composed of the Congress of Deputies and the Senate.
2. The Cortes Generales exercise the legislative power of the State ...”


ITEMID: 001-86968
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KHUSEIN AZIEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Anatoly Kovler;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky
TEXT: The applicant, Mr Khusein Aziev, is a Russian national who was born on 28 September 1973 in the village of RoshniChu in the Chechen Republic and is currently serving his sentence in the Kemerovo region. He is represented before the Court by Mr I. Timishev, a lawyer practising in Nalchik, the Republic of Kabardino-Balkaria. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk.
The applicant was one of the applicants in the Shamayev case (Shamayev and Others v. Georgia and Russia, no. 36378/02, ECHR 2005III). In his letter of 9 October 2003 he requested that the present application be joined to his complaint in the Shamayev case, cited above. On 26 April 2005, in view of the fact that judgment had already been given in Shamayev, cited above, and that the complaints made by the applicant in the present case differed to a large extent from those raised by his Georgian representatives in Shamayev, the Court decided not to join the two cases under Rule 42 § 1 of the Rules of Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 July 2002 a group of several armed men, including the applicant, were arrested by the Georgian border guards on the Georgian-Russian border (see Shamayev and Others, cited above, §§ 57, 89 and 106).
The applicant was placed in pre-trial detention by the Georgian authorities. Following that measure, the Russian Prosecutor General’s Office requested the applicant’s extradition to the Russian Federation (see Shamayev and Others, cited above, §§ 58 and 6273). The applicant was charged by the Russian authorities with terrorism and banditry with aggravating circumstances (Articles 205 § 3 and 209 § 2 of the Criminal Code); causing bodily harm to members of the police and security forces (Article 317 of the Criminal Code); organising illegal armed groups and participation in such groups, with aggravating circumstances (Article 208 § 2 of the Code); gunrunning with aggravating circumstances (Article 222 § 2 of the Criminal Code); and illegal crossing of the Russian Federation’s border in July 2002, with aggravating circumstances (Article 322 § 2 of the Code). He was extradited on 4 October 2002 (see Shamayev and Others, cited above, §§ 66, 70, 71 and 74).
It appears that upon the applicant’s arrival in Russia, on 5 October 2002, he was assigned a lawyer to represent his interests, Mr Molochkov. After 31 January 2003 the applicant was defended by another lawyer, hired by his family, Mr V. On 19 August 2003 the applicant instructed Mr Timishev to represent him before the European Court.
The applicant produced a letter dated 9 July 2003 which had been sent to the Court on 26 August 2003 by Mr Molochkov in connection with the Shamayev case (see Shamayev and Others, cited above, § 241). In the letter, sent in relation to a request from the Representative of the Russian Federation to the Court, Mr Molochkov stated that he had acted as Mr Aziev’s defence lawyer between 5 October 2002 and 31 January 2003 in connection with the criminal charges brought against the latter. During that period his former client had never complained of a violation of his rights under the Convention, nor had he ever expressed to him a wish to apply to the Court. In the absence of relevant instructions from the applicant, the lawyer could not contact the Court on his own initiative. He had always had adequate time and facilities to prepare his client’s defence and opportunities to meet him without prison wardens being present (ibid., §§ 232 et seq.).
The applicant alleged that Mr Molochkov had taken no steps to defend him. In any event, since he did not speak Chechen, the lawyer would have been unable to hold discussions with him. He had not refused to accept Mr Molochkov’s services; nor had he lodged any complaints against the actions of Mr Molochkov with the domestic courts or any other authorities.
On 24 June 2003 the preliminary investigation was closed. The applicant was committed for trial before the Supreme Court of the Chechen Republic (“the Supreme Court of Chechnya”). On 24 July 2003, citing the “lack of judges of the court available to examine this category of case”, the President of that court decided to refer the case to the Supreme Court of the Russian Federation so that the latter could designate another competent court.
On 21 August 2003 the Vice-President of the Supreme Court of the Russian Federation decided to refer the case to the Stavropol Regional Court.
When he was brought before the Regional Court, the applicant requested that his case be transferred to the Supreme Court of Chechnya under Article 30 § 2 of the new Code of Criminal Procedure (“CCP”). He insisted that, under the CCP, his case fell within the territorial jurisdiction of that court.
By a decision of 6 October 2003 a single judge of the Stavropol Regional Court rejected the request on the ground that Article 36 of the CCP prohibited jurisdiction disputes between courts. As the case had been referred to the Regional Court by the Supreme Court of the Russian Federation following a decision to transfer jurisdiction, the applicant’s request could not be granted.
The applicant lodged an application for supervisory review with the Supreme Court of the Russian Federation. On 26 November 2003 a judge of that court replied to the applicant, pointing out that decisions of the President and VicePresident of the Supreme Court of the Russian Federation were not amenable to appeal and that, accordingly, his complaint concerning the transfer of jurisdiction had been rejected without being examined on the merits.
According to the judge in question, when the preliminary investigation was closed on 24 June 2003 the applicant had requested a jury trial before the Supreme Court of Chechnya (see Article 30 § 2 (b) of the CCP). As assize courts could not be introduced in Chechnya until 1 January 2007 (as provided by the federal Law of 27 December 2002), the fact that the applicant’s case had been referred to the Supreme Court of the Russian Federation with a view to transferring jurisdiction was not contrary to Article 35 of the CCP. The judge maintained that since the applicant and his representative had been informed of the decision of 21 August 2003 to refer the case to the Stavropol Regional Court for examination, there had been no violation of the applicant’s rights.
After the communication of the case to the Russian authorities, the parties informed the Court that on 6 October 2003 the applicant and his representative had stated that he did not want to be tried by jury. Accordingly, the case was to be heard by a single judge. Following several decisions to adjourn the hearing, on 12 November 2004 the Stavropol Regional Court granted the applicant’s request and decided to refer the question of territorial jurisdiction to the Supreme Court.
On 13 January 2005 the Supreme Court ruled that the case was to be heard by the Supreme Court of Chechnya, in view of the applicant’s withdrawal of his request to be tried by jury.
On 20 June 2005 the Supreme Court of Chechnya found the applicant guilty of banditry, illegal handling of firearms, assault on police or military officers and illegal crossing of the state border. The applicant was given a custodial sentence of seventeen years, to be served in a strict-regime correctional facility. On 24 June 2005 the applicant appealed against the conviction, apparently raising a number of procedural irregularities and questioning the interpretation of certain facts by the trial court. He did not submit a copy of his appeal.
On 15 September 2005 the Supreme Court upheld the conviction.
Alleging that while being transferred from the SIZO to the Stavropol Regional Court on 29 October 2003 his client had been ill-treated by the guards escorting him, Mr Timishev applied to the Stavropol district prosecutor’s office to have the perpetrators placed under investigation.
The prosecutor of the Promyshelnny district of Stavropol investigated the complaint. The prosecutor questioned the applicant, several guards who had been on duty on that day and the SIZO officers who had dealt with the applicant’s reception after he had been delivered into their custody after the court hearing. The prosecutor also inspected the journal of medical complaints kept in the SIZO. In his statement given to the prosecutor on 14 November 2003 the applicant stated that the guards had pushed him when he was climbing into the car and then slapped him on the back two or three times. They had also pushed him in the back on arrival at the court building, forcing him to walk faster.
By a decision of 14 November 2003, the application was rejected on the ground that no confirmation of the applicant’s allegations had been established and that the latter had not requested any medical assistance in relation to the incident. The applicant did not appeal against that decision.
In addition, an internal inquiry was carried out by the Stavropol Regional Department of the Interior. In those proceedings the guards in question were identified and questioned. They denied ill-treating the applicant. No complaints from or injuries to the applicant had been registered. The Department concluded that the complaint was unsubstantiated.
Since 1 July 2002 matters relating to criminal procedure have been governed by the Code of Criminal Procedure (CCP) of the Russian Federation (Law no. 174-FZ of 18 December 2001).
Article 30 of the CCP sets out the composition of trial courts. Part 2 (b) of that Article provides that, upon an application by the accused, the trial of serious crimes can be conducted by a bench composed of one federal judge and twelve jurors.
Articles 32, 35 and Article 36 of the CCP lay down rules of territorial jurisdiction. They stipulate that if, inter alia, upon a successful application of a party to the proceedings, a decision has been taken to transfer the case to another court, that decision is final and binding on the court to which the case has been transferred.
The federal Law of 27 December 2002 amended the order of entry into force of the provisions of the CCP. In particular, in so far as it concerned the introduction of jury trial, the Law provided that Article 30 part 2 (b) of the CCP would come into force in the Stavropol region as of 1 July 2002 and in Chechnya as of 1 January 2007.


ITEMID: 001-67584
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KLYAKHIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violation of Art. 13+6;Violation of Art. 8;No violation of Art. 13+8;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 9. The applicant, Konstantin Vladimirovich Klyakhin, is a Russian national, who was born in 1966 and lives in Armavir, Krasnodar Region, in Russia.
The facts of the case, as submitted by the parties, may be summarised as follows.
10. On 13 August 1997 the applicant was detained and intimidated by a group of people, allegedly because they wanted him to testify against his relative K., an official in the Armavir Town Prosecutor's office.
11. On 26 August 1997 the applicant was arrested on suspicion of involvement in a robbery, together with K. and a third person, U. The accusations against the applicant were made by the people who had allegedly intimidated him.
12. From 26 to 29 August 1997 the applicant was interviewed several times by an investigator from the prosecution service, sometimes in the presence of the Armavir Town Prosecutor. A lawyer was appointed, but the applicant refused to accept his services as he did not trust him.
13. On 29 August 1997 the Armavir Town Prosecutor authorised the applicant's detention on suspicion of theft. On 5 September 1997 the applicant was officially charged with involvement in a robbery.
14. The applicant appealed against the decision to detain him on 11 September 1997. On 6 October 1997 the Armavir Town Court rejected his complaint without giving any reasons.
15. The investigation was completed on 24 January 1998 and the applicant was given access to the case file between 24 and 27 January 1998. A lawyer, whom the applicant later dismissed, was present at this stage. The indictment was sent to the Armavir Town Court on 27 or 28 January 1998.
16. On 26 January 1998 the case file was transferred to the Armavir Town Court. After that date all complaints and requests submitted by the applicant to other authorities were forwarded to that court, in accordance with Section 217 of the Code of Criminal Procedure (CCP).
17. On 16 February 1998 the Armavir Town Court scheduled the first hearing for 4 March 1998. The judge ordered the continued detention of the applicant and two other co-accused, K. and U., without giving reasons.
18. On 4 March 1998 a judge of the Town Court adjourned the case because the applicant had not had sufficient access to the case file. Between 19 February and 27 March 1998 the applicant was allowed additional access to the case file and was officially served with the indictment. The applicant submits that he was allowed only short periods over several days to review about 600 pages of documentation in the case file. He also submits that he was handcuffed while accessing it, and had difficulties copying the relevant documents.
19. The scheduled court hearing on 20 April 1998 did not take place, due to the absence of the victims and one of the representatives. On 22 April 1998 the judge ordered a psychiatric report on U. and adjourned the hearing.
20. It appears that further hearings were scheduled, but were adjourned or cancelled on 31 August 1998, 30 September 1998, 5 January 1999 and 20 January 1999.
21. The European Convention on Human Rights entered into force in respect of Russia on 5 May 1998.
22. On 30 September 1998 the Armavir Town Court rejected requests by the applicant and his co-accused K. for release from detention, and stated that “at this stage of proceedings their release could influence further trial hearings”. On 11 November 1998 the Krasnodar Regional Court rejected an appeal by K. against this order.
23. On 21 January 1999 the case was adjourned due to the illness of U. By the same decision, the applicant's further detention on remand was confirmed. On 25 January 1999 the applicant complained to the Armavir Town Prosecutor about his continued detention on remand. On 5 March 1999 he was informed that his detention was lawful and that he could challenge it before the Town Court.
24. The trial resumed on 29 March 1999 and on 6 April 1999 the Armavir Town Court returned the case to the prosecutor's office for an additional investigation.
25. On 8 and 16 April 1999 the applicant lodged complaints with the President of the Armavir Town Court in respect of his detention on remand. No response was received to those complaints.
26. On 27 April 1999 the Armavir Town Prosecutor appealed against the order of 5 March 1999, by which the case had been sent for additional investigation. On 16 June 1999 the Krasnodar Regional Court quashed that order and instructed the Town Court to consider the case on the merits. The Regional Court also ordered the continued detention of the applicant and his co-accused, K. and U., without giving reasons.
27. On 4 August 1999 the hearings resumed, and on 16 August 1999 the applicant was convicted of robbery and sentenced by the Armavir Town Court to five years' imprisonment. He was represented by a lawyer. The applicant appealed, and on 20 October 1999 the Krasnodar Regional Court upheld the Town Court's judgment. The applicant was not present at the appeal hearing and was informed of its outcome on 12 November 1999. The conviction of 16 August 1999 subsequently entered into force and the applicant was sent to a detention centre to serve his sentence.
28. On 2 December 1999 the Presidium of the Krasnodar Regional Court, acting by way of supervisory review of a request lodged by the Chairman of the Krasnodar Regional Court, quashed the conviction of 16 August 1999 (as confirmed on 20 October 1999) for procedural irregularities and remitted the case to the first instance court.
29. The case file was returned to the Armavir Town Court on 20 December 1999. On 30 December 1999 the applicant was returned to the Armavir town detention centre (СИЗО 18/2). A judge was appointed to hear the case on 23 March 2000.
30. On 17 April 2000 the hearing opened, and on 18 April the Armavir Town Court ordered a medical examination of the applicant in a psychiatric hospital. The report was required because of the applicant's “strange behaviour which raised doubts about his mental health”. The behaviour manifested itself in an “inadequate reaction to questions, [and] the constant submission of fictitious and ill-founded requests”. The applicant was not given a copy of that order for several months. He appealed against that decision and his continued detention on remand to the Armavir Town Court on 19, 24 and 25 April 2000, as well as on 12, 23 and 25 May 2000, but received no reply. He also appealed to the Armavir Town Prosecutor on 25 April 2000 and to the Krasnodar Regional Prosecutor's Office on 21 April 2000. Both replied that his complaints had been forwarded to the Armavir Town Court. The Government submitted that these complaints concerned the actions of the trial court judge and did not raise issues concerning the lawfulness of detention.
31. The case file was transferred to the Krasnodar psychiatric hospital on 3 May 2000. On 28 June 2000 the file was returned to the Town Court, no report having been prepared. On 20 July 2000 the judge of the Town Court adjourned the case pending another report on an out-patient basis. The applicant announced in the court room that he would begin a hunger strike, which apparently lasted until 30 July 2000. He alleged that the judge presiding in the case was not impartial, and that he had made threats against the applicant's relatives.
32. The applicant appealed against the order for a psychiatric report to the Armavir Town and Krasnodar Regional Prosecutors, to the Regional Court, to the Krasnodar Qualification Board of Judges and other administrative bodies. On 9 and 24 August 2000 the Qualification Board forwarded the applicant's complaints to the Armavir Town Court. On 28 September 2000 the Regional Court informed the applicant that his complaint had been forwarded to the Town Court, which was to forward the case file for an appeal hearing before the Regional Court. No hearing took place.
33. On 29 September 2000 the Chairman of the Armavir Town Court replied to the applicant and to the Krasnodar Qualification Board that no violations of the domestic law had been committed in the handling of the case. He dismissed the applicant's allegations that the presiding judge had threatened his relatives as “fictitious and ill-founded”. The letter concluded that there were no reasons to question the impartiality and qualifications of the presiding judge.
34. On 9 October 2000 a medical commission examined the applicant in the detention centre and found him to be of sound mind.
35. Between February and December 2000, the applicant submitted nine requests to the Armavir Town Court for additional access to the case file. His request was granted for a period from 8 to 15 December 2000, when he was allowed to have access to and make hand-written copies of relevant documents. The applicant submits that he was allowed about one and a half hours to consider the case file of some 500 pages.
36. On 18 December 2000 the case was adjourned. On 21 December 2000 the applicant appealed against the adjournment to the Krasnodar Regional Court, but his appeal was not examined.
37. On 23 January 2001 the hearing in the Armavir Town Court resumed and on 9 February 2001 the applicant was convicted of attempted robbery and sentenced to four years' imprisonment. The applicant did not appeal against the conviction, which entered into force ten days later. The applicant was released from detention on 9 February 2001, as he had by that time spent three years, five months and 13 days in detention and was granted an amnesty. The two co-accused, K. and U., were also sentenced to prison terms, but did not have to serve their sentences as they also benefited from an amnesty.
38. The applicant claimed that in June 1998 the administration of SIZO - 18/2, where he had been detained on remand, refused to forward his application to the Court. The applicant forwarded the letter through his relatives, who posted it on 24 July 1998.
39. The explanatory notice attached to the Court Registry's letter of 14 August 1998 was not given to the applicant.
40. The applicant further claims that on 25 March 1999 he forwarded a letter, with enclosures, to the Court, and that this letter never arrived. On 10 June 1999 the applicant sent the letter again via his mother.
41. A letter from the applicant to the Court dated 8 June 2000 was posted on 20 October 2000. The applicant lists a number of enclosures to that letter, none of which arrived. The applicant sent them again on 29 December 2000 through his relatives.
42. The applicant was not permitted by the prison administration to retain the correspondence from the Court, which was given to him for a day and then taken away.
43. The Government submitted that the applicant sent two letters addressed to the European Court while in prison - on 8 June 2000 and on 5 January 2001. Both were posted promptly by the prison authorities, and proof of posting exists. The applicant received three letters from the Court in response, dated 8 September 1998, 9 August 1999 and 11 January 2000, all of which were transmitted to him immediately in their entirety upon receipt. As proof, the Government submitted a copy of the correspondence log maintained by the prison authorities which confirmed the applicant's receipt of the Court's three letters.
44. According to the Government, in December 2003 the national legislation was amended to end censorship of correspondence with the European Court of Human Rights in detention centres.
45. It also appears that in December 2000 the applicant attempted to sue the postal service for failure to deliver his letter of 8 June 2000 to the European Court. On 16 January 2001 the Armavir Town Court refused to consider the merits of his claim for pecuniary and non-pecuniary damages against the Armavir postal service. On 15 March 2001 the Krasnodar Regional Court quashed and remitted the decision of 16 January 2001. It further appears that on 11 May 2001 the Armavir Town Court rejected the applicant's claim on the merits, and the applicant did not appeal against that judgment.
46. The Code of Criminal Procedure (CCP), in force at the relevant time, provided in Article 96 that custody could be imposed as a measure of restraint for offences punishable by imprisonment of more than one year.
47. The CCP provided in Article 217 that, after the investigation had been completed, the prosecutor should approve the bill of indictment and forward the case to the court. Thereafter, all complaints and requests should be forwarded directly to the trial court.
48. Under Articles 220-1 and 220-2 of the CCP, an appeal against an order extending a period of detention lay with a court.
49. Articles 223-1 and 230 of the CCP provided that, when the accused was in detention, the judge should set the date for the first hearing within 15 days of receiving the case file from the prosecutor. At the same time, the judge should also decide whether the accused should be remanded in custody.
50. Article 331 of the CCP excluded appeals against certain orders (определения и постановления) of the trial court, such as setting dates for the hearing, forwarding the case for additional investigation, or requesting an in-patient psychiatric report. This Section was found unconstitutional by the Constitutional Court on 2 July 1998, to the extent that it prevented persons in detention from appealing against court orders which had the effect of extending their detention.
51. Articles 17 and 21 of the Federal Law of 15 July 1995 No. 103-FZ “On pre-trial detention” provides that detainees have an unlimited right to submit complaints and letters to governmental and non-governmental bodies. Complaints addressed to the prosecutor, courts and other authorities charged with supervising the legality of detention are not subject to censorship and should be forwarded to the addressee in a sealed envelope. Other letters and complaints are subject to censorship by the administration and are to be forwarded by it within three days of their submission. Any decision by the administration of a detention centre may be appealed in the hierarchical order to a prosecutor and a court. Similar provisions are contained in Section 9 of the Internal Rules of pre-trial detention centres, dated 1995 and 2000 (Правила внутреннего распорядка следственных изоляторов уголовно-исполнительной системы Министерства внутренних дел Российской Федерации, утв. приказом МВД РФ от 20 декабря 1995 г. N 486; Правила внутреннего распорядка следственных изоляторов уголовно-исполнительной системы Министерства юстиции Российской Федерации, утв. приказом Минюста РФ от 12 мая 2000 г. N 148, с изменениями от 21 февраля 2002 г.).
VIOLATED_ARTICLES: 13
34
5
6
8
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1
NON_VIOLATED_ARTICLES: 13
8