ITEMID: 001-98815
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MAWAKA v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3 (in case of expulsion to the Democratic Republic of the Congo);No violation of Art. 8 (in case of expulsion to the Democratic Republic of the Congo)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 5. The applicant, who is a national of the DRC, was born in 1969 and lives in Rotterdam.
6. From September 1992 until January 1994 the applicant resided in Belgium, at which point he returned to Zaire (as the DRC was then called) after having obtained a laissez-passer from the Zairean Embassy in Brussels.
7. In 1994 the applicant was working in Kinshasa, the DRC, as the personal secretary of a prominent member of the opposition party Union pour la Démocratie et le Progrès Social (“UDPS”), who was also the editor of the opposition newspaper NSEMO. In October 1994 the applicant was contacted by unknown men who asked him to help assassinate his boss. The applicant refused, but a few weeks later his boss disappeared and was then found unconscious and badly beaten. He died a few days later in a local hospital. On 20 November 1994 the applicant was arrested and put in prison; he was never shown an arrest warrant. On 25 November 1994 the applicant was transferred to the central Makala prison in Kinshasa. During the interrogations he was told he had been arrested because he had refused to help assassinate his boss. He was also told he would not live to see 1995. The applicant was beaten during the interrogation. On 26 December 1994 the applicant managed to escape with the assistance of a guard who happened to be from the same tribe as the applicant. He stayed in the guard's house while travel documents were arranged and on 6 January 1995 the applicant flew to Belgium. After arriving in Brussels, the applicant was driven to the Netherlands where he requested asylum on 7 January 1995.
8. The applicant was granted a residence permit for the purposes of asylum for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd) on 2 July 1996 since there were sufficient grounds to believe that he would be persecuted should he return to the DRC.
9. On 27 July 1999 the applicant filed a request for naturalisation. On the basis of this request, the applicant was interviewed by an official from the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) on 13 October 2000. During the interview the applicant was confronted with the fact that, on 2 January 1997, he had been convicted and sentenced to two years' imprisonment in Belgium for participation in a criminal organisation and possession of cocaine, by the Brussels tribunal de première instance.
10. On 4 October 1999 the applicant married Ms M. with whom he had already had a son who was born on 22 May 1999. Ms M., also a national of the DRC, requested a residence permit for the purpose of staying with her spouse (verblijfsvergunning voor verblijf bij echtgenoot) and the permit was granted to her.
11. By letter of 23 November 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie) notified the applicant of her intention (voornemen) to revoke the applicant's residence permit pursuant to article 35 of the Aliens Act (Vreemdelingenwet), which allows the withdrawal of a residence permit on the basis of a criminal conviction of a certain severity.
12. In her letter the Deputy Minister noted that the applicant had enjoyed legal residence in the Netherlands since 2 July 1996 and that his conviction in Belgium dated back to 2 January 1997. She further concluded that, according to Dutch sentencing guidelines, a sentence of 10 months' imprisonment would have been imposed on the applicant had the offence been committed in the Netherlands. The Deputy Minister concluded accordingly that the length of the sentence, compared to the length of time the applicant had been living in the Netherlands, justified revoking the applicant's residence permit. Considering that the applicant had been granted asylum in the Netherlands, the Deputy Minister held that a forced return of the applicant would have to be in compliance with the non-refoulement principle contained in the UN Refugee Convention. In this regard the Deputy Minister considered that an individual report (ambtsbericht) from the Ministry of Foreign Affairs explained that there had already been some doubts, given certain inconsistencies in the applicant's story, when he had applied for asylum and that a new individual report had confirmed these doubts created by the inconsistencies. Moreover, since the applicant had left the DRC, regime changes had taken place in that country in 1997 and 2001. The Deputy Minister considered that since the applicant had not shown that he had anything to fear from the new regime, he had not established that he would still face a real and personal risk of persecution in his country of origin. Finally, the Deputy Minister considered that revoking the applicant's residence permit did not constitute an interference with the applicant's right to respect for family life under the Convention since the interests of public order outweighed the interests of the applicant. Furthermore, it had become known that the applicant and his wife had separated, that he had not had any contact with her or their child for some weeks and that there were no indications that he was actively participating in the upbringing of their son. In any event, since the applicant, his wife and their son all had Congolese nationality, there were no objective obstacles for them to continue their family life in the DRC.
13. In his written comments (zienswijze) of 19 December 2001, the applicant disputed the finding that he would have been sentenced to 10 months' imprisonment in the Netherlands for an offence similar to the one he had committed in Belgium. The applicant argued that there was no set indication of the length of a sentence but that the individual circumstances of the person concerned would always be taken into consideration. It was therefore not possible to determine what kind of sentence he would have received had he been tried by a Dutch court. The applicant further submitted that the grounds on which he had been granted his residence permit were still valid and that the reports used by the Deputy Minister in no way detracted from that. A forced return to the DRC would therefore entail a violation of the Convention. The applicant also submitted that he could exercise his family life only in the Netherlands, since his wife and child were living there.
14. On 4 July 2002 the applicant appeared before an official board of inquiry (ambtelijke commissie) and on 24 July 2002 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie, the successor to the Deputy Minister of Justice – hereafter “the Minister”) issued a decision to revoke the applicant's residence permit. The Minister considered that the estimate of a 10-month sentence in the Netherlands for the Belgian offence was indeed correct, as an advisory letter from the prosecutor at the Regional Court of 's-Hertogenbosch (“Den Bosch”) stated that a 10-month sentence would have represented the minimum length of sentence the prosecutor could have sought based on the facts available to him. The Minister further noted that the applicant's statement regarding his arrest in Belgium before the official board of inquiry differed from the original statement he had given during the interviews that were conducted pursuant to his request for naturalisation on 13 October 2000. From these new statements the Minister concluded that the applicant had been fully aware of his actions when transporting the drugs across the border between the Netherlands and Belgium. The Minister further noted that although the applicant had stated during the hearing before the board that he had had no further contact with judicial authorities, he had in fact been convicted of a number of insurance offences as well as violations of the 1994 Road Traffic Act (Wegenverkeerswet 1994). Concerning the risk of persecution that the applicant would face upon his return to the DRC, the Minister considered that the reports of the Ministry of Foreign Affairs did disclose discrepancies in the applicant's story. The Minister further considered that it had been concluded in the intention to revoke the applicant's residence permit that the situation in the DRC had changed since the applicant had last been in that country and that he had failed to establish that he would still be at risk of persecution there. A forced return to the DRC would thus not be in violation of the UN Refugee Convention, nor would it be contrary to Article 3 of the Convention. Moreover, the applicant had been convicted of a drugs-related offence. For these reasons the Minister considered that the interests of the State in protecting public order outweighed the interests of the applicant. Finally, the Minister noted that the applicant and his wife (with whom he had been reconciled by then) and child all had Congolese nationality and that there were no objective obstacles for them to continue their family life in the DRC.
15. By submissions of 14 August 2002 and 3 September 2003 the applicant appealed against the decision of the Minister to the Regional Court of The Hague. On 26 February 2004 the Regional Court rejected the applicant's appeal. The Regional Court considered that the Minister had been correct in applying article 35 of the Aliens Act and that the estimated sentence of 10 months' imprisonment, had the offence been committed in the Netherlands, was reasonable as well. The Regional Court further determined that the Minister had been correct in taking notice of the reports from the Ministry of Foreign Affairs in finding that the applicant's original story contained inconsistencies. The resulting lack of credibility of the applicant's story was sufficient to show that the applicant would not face a real, personal risk of treatment contrary to Article 3 upon his return to the DRC. The Minister had therefore been entitled to attach more weight to the protection of public order in relation to the interests of the applicant. The Regional Court finally considered that the applicant had failed to establish a possible violation of Article 8.
16. On 22 March 2004 the applicant appealed against the judgment of the Regional Court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State – “the Division”) on essentially the same grounds. The applicant added, however, that according to a letter dated 24 June 1998 from the prosecutor in Den Bosch (which the Minister had neglected to add to the case file and for which the Regional Court had reopened the proceedings so that it could be introduced), the prosecutor in Den Bosch did not have possession of the complete Belgian case file and had thus only been able to estimate the length of the sentence that could be imposed. Furthermore, a judicial sentencing document submitted in the proceedings showed that a similar offence in the Netherlands would attract a custodial sentence of only 8 months and 28 days. A sentence of that duration would not engage the consequences of article 35 of the Aliens Act, meaning that the applicant's residence permit would not be in jeopardy.
17. On 9 June 2004 the Division dismissed the applicant's appeal. The Division considered that the Minister had correctly applied the provisions of article 35 of the Aliens Act in determining the length of imprisonment had the offence been committed in the Netherlands, based on the information obtained from the prosecutor in Den Bosch. In particular, the Division considered that the indication of an 8 month and 28 day sentence applied solely in relation to the possession of cocaine and did not include the charge of participation in a criminal organisation. The remaining grounds of appeal submitted by the applicant were dismissed summarily as not raising any points of law warranting determination.
18. The applicant currently lives in the Netherlands and has since divorced his wife but continues to visit her and their child regularly.
19. After the introduction of the application the applicant informed the Court by a letter of 23 April 2008 that he had spent a number of days in an aliens' detention centre in France after being apprehended there without a valid residence permit.
20. The applicant's original asylum application was submitted under article 15 § 1 of the Aliens Act 1965 (Vreemdelingenwet), pursuant to which aliens coming from a country where they had a well-founded reason to fear persecution on account of their religious or political conviction, or of belonging to a particular race or a particular social group, could be admitted by the Minister of Justice as refugees.
21. Since 1 April 2001 the admission, residence and expulsion of aliens have been governed by the Aliens Act 2000 (Vreemdelingenwet 2000), the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000). The General Administrative Law Act (Algemene Wet Bestuursrecht) is also applicable, except where otherwise stipulated.
22. Pursuant to article 115 § 7 of the Aliens Act 2000, an asylum-based right of abode that was valid at the time that Act entered into force automatically entails a permanent residence permit under that Act.
23. Under the policy laid down in article 35 § 1 (b) of the Aliens Act 2000 in conjunction with article 3.86 § 1 (c) of the Aliens Decree 2000, an alien who has been given a custodial sentence (at least part of which was not suspended) by a Dutch or foreign court in a judgment that has become final and conclusive, for intentionally committing an offence punishable by a custodial sentence of three years or more, could be refused permission for continued residence in the country. Underlying this policy is the principle that the longer an alien has lawfully resided in the Netherlands, the more serious the offence has to be before it may justify refusing continued residence; the authorities thus apply a “sliding scale” (glijdende schaal). The seriousness of an offence is determined on the basis of the sentence attached to it. To determine whether an alien may be refused permission for continued residence, the length of the sentence imposed is compared to the length of time that the alien had been living in the Netherlands when he or she committed the offence.
24. The revocation of a residence permit is also assessed in the light of the principle of non-refoulement and whether returning the alien to his country of origin would be in violation of Article 3 of the Convention.
25. The respondent Government's policy on asylum seekers from the DRC is devised by the Deputy Minister of Justice (Staatssecretaris van Justitie) and, was temporarily – between July 2002 and December 2006 – devised by the Minister for Immigration and Integration. It is based on official country reports published by the Minister of Foreign Affairs and external sources.
26. At the time of the applicant's initial request for asylum, his application was assessed on the basis of the official country reports of 2 June 1992, 14 December 1993, 8 March 1994 and 14 September 1994 in conjunction with the US State Department's Country Reports on Human Rights Practices – Democratic Republic of Congo (formerly Zaire) of 1994 and 1995.
27. In the period when the applicant's residence permit was revoked, applications from the DRC were assessed on the basis of the Netherlands official country report of 8 November 2000. Since then further reports have been issued by the Netherlands Minister of Foreign Affairs in 2005, 2006, 2007, 2008 and the latest in January 2010.
28. The Netherlands authorities operate on the basis that the human rights situation in the DRC remains a cause for concern, but that it is not such that every asylum seeker should automatically be deemed a refugee within the meaning of the 1951 Convention relating to the Status of Refugees. The latest official country report of January 2010 classifies the general security situation as such:
“During the entire reporting period the Congolese authorities were unable to control their territory in large parts of the country, as well as to ensure the safety of citizens and maintain their monopoly on the use of force. In both the North and South Kivu province the security situation remained under pressure due to military operations of the Congolese army against the FDLR, after which the FDLR resorted to large scale retaliations. Other rebel factions, including several Mai-Mai groups, caused a large decrease in security. In the Haut- en Bas-Uélé districts in the Orientale province there was an increase in attacks by the LRA despite military actions by the FARDC. In the district of Ituri militias of the FRPI and FPJC fought with the FARDC and launched assaults on villages. In all areas where FARDC units were stationed and active the security situation was such that soldiers displayed severe misconduct towards the civilian population. The former rebel faction CNDP, which had recently integrated into the FARDC, played a key role in these infractions. At the end of the reporting period the security situation in the Equateur province deteriorated because of violent confrontations between a number of ethnic groups who later turned against the FARDC. In the remaining parts of the country the security situation remained stable, although some security incidents occurred in the Bas-Congo province.”
29. The report describes the overall situation in the DRC as follows:
“Efforts to stabilize the eastern region of the Democratic Republic of the Congo witnessed significant setbacks during the reporting period. The processes relating to the Goma statements of commitment (actes d'engagement) and the Nairobi communiqué stalled, and large-scale hostilities between the Armed Forces of the Democratic Republic of the Congo (FARDC) and the Congrès national pour la défense du peuple (CNDP), led by Laurent Nkunda, resumed on 28 August. The fighting, which spread throughout North Kivu, has further exacerbated the humanitarian crisis, displacing over 250,000 people and bringing the number of internally displaced persons in the eastern part of the country to more than 1.35 million. Exchanges of fire across the border between Rwanda and the Democratic Republic of the Congo, as well as a resurgence of armed groups in Ituri and a resumption of atrocities committed by the Lord's Resistance Army (LRA), further compounded the crisis in the area. While the security situation remained stable elsewhere in the Democratic Republic of the Congo, little progress was achieved in the key peace consolidation tasks, including the delivery of basic services and the extension of State authority. Preparations for local elections continued, but key legislation, without which the necessary preparatory work cannot proceed, has yet to be adopted, risking further delays in the conduct of the elections.”
30. Concerning freedom of speech in the DRC and the treatment of UDPS supporters, the report stated:
“Generally individuals could privately criticize the government, its officials, and private citizens without being subject to official reprisals. However, on February 8, ANR agents in Goma arbitrarily arrested and detained a member of the Union for Democracy and Social Progress/Goma for discussing politics with local citizens. The victim, who was released on February 13 after the UNJHRO intervened, claimed that he was subjected to cruel, inhumane, and degrading treatment while in detention. No action had been taken against the responsible ANR agents by year's end.”
31. Concerning political rights and parties, the report stated:
“The DRC is not an electoral democracy. The 2006 elections were a significant improvement over previous elections, but serious problems remained. The opposition Union for Social Democracy and Progress (UDPS) party did not participate as a result of the party leader's call for a boycott of the recent constitutional referendum. International observers noted voter registration irregularities and corruption. The campaign period included clashes between opposition militants and government forces as well as an attempt on opposition leader Jean-Pierre Bemba's life. The 2007 Senate elections were similarly plagued by political corruption, with allegations of vote buying. Local elections initially scheduled for 2008 were delayed until at least 2009.”
32. Regarding the treatment of failed asylum-seekers upon return to the DRC, the report noted:
“34.02 The UNHCR response on the ill-treatment of failed asylum seekers returned to the Democratic Republic of Congo noted: 'The Congolese human rights NGO 'Voix des Sans Voix' informed the office that rejected asylum-seekers are received upon arrival at the airport by agents of DGM, who question them why they left and applied for asylum. The NGO had an office at the airport and are closely monitoring the situation. They mentioned that there were many failed asylum-seekers who are sent back by western European countries, but they are not aware of any of these persons detained and/or tortured upon return. They reported that some of the failed asylum-seekers had to pay some money to the police (5 to 10 USD).'
34.03 UNHCR's response also recorded that the International Office for Migration (IOM) Kinshasa, the Mission of the United Nations in the Democratic Republic of Congo (MONUC), the Association Africaine de Defense des Droits de l'Homme (ASADOH) and UNHCR staff who were '... at times present at the airport [in Kinshasa] ...' did not hold the information to confirm the existence of instances of the detention, abuse or torture of failed asylum-seekers. The UNHCR response concluded 'With the limited information available to UNHCR, it does not have evidence that there is a systematic abuse, including detention and mistreatment, of failed asylum-seekers returned to the DRC through Kinshasa airport.'
34.04 An e-mail from the British Embassy in Kinshasa via the FCO dated 11 October 2007 stated that at a meeting with a Policy Officer of the Asylum and Migration Affairs Division of the Netherlands MFA, the officer told them that he had spent a week talking to NGOs, international organisations and Embassies, he said that MONUC, UNHCR, IOM and all the NGOs he spoke to said that, while there were obviously serious human rights issues in DRC, returned failed asylum seekers were not targeted, nor were they singled out as a particular group by the authorities. All of his interlocutors had said that the stories of abuse that they had heard had all come from Europe, and that their investigations had shown the allegations to be either false, or doubtful due to lack of evidence.”
NON_VIOLATED_ARTICLES: 3
8


ITEMID: 001-99707
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF NIKIFOROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1972 and is now serving a sentence in Kostroma.
7. On 28 December 2003 the applicant was apprehended, allegedly in an inebriated state, on the railway line by Mr S. and Mr L., police officers from Nerekhta station police department (линейный пост милиции станции Нерехта). Subsequently he was transported to Nerekhta district police station (Нерехтский ГРОВД) and placed in a temporary detention cell.
8. After a while a police officer took the applicant from his cell to the second floor of the police station. The officer pointed to a young man and woman in one of the offices and asked the applicant whether he knew them. The applicant said that he knew the woman. The officer then noticed a blood stain on the sleeve of the applicant's jacket and allegedly accused him of having robbed the man and woman. The applicant was taken to the officer on duty and his jacket was seized as material evidence.
9. The applicant spent the night in the temporary detention wing.
10. On the morning of 29 December 2003 another police officer who did not introduce himself took the applicant from his cell to an office on the third floor of the police station. He told the applicant to write a confession statement which the applicant refused to do. The officer left and then returned with his colleagues. Together they beat the applicant up and later took him back to the cell.
11. Later on that day the applicant was brought before the Justice of the Peace of the 19th Court Circuit who found him guilty of disturbing public order and sentenced him to five days' detention.
12. On 30 December 2003 the applicant was interviewed as a witness in a robbery case. He refused to make any statements and asked for his injuries to be recorded and for an inquiry to be opened into the beatings he had received.
13. On 31 December 2003 an investigator from Nerekhta district police station, Mr S., commissioned a forensic examination of the applicant's injuries with a view to determining their extent and origin.
14. On 19 February 2004 the expert returned the following findings:
“Mr Nikiforov had a fractured nose, abrasions and a bruise on his face [measuring 7 x 4 cm]. The injuries could have been caused by the impact of a hard blunt object or as a result of falling on such an object... It is impossible to establish when Mr Nikiforov's nose was broken because of his belated request for it to be X-rayed...”
15. On 20 February 2004 an investigator of Nerekhta District Prosecutor's Office, Mr V., refused to institute criminal proceedings into the alleged beatings. He found that since the applicant's jacket had been stained with blood at the moment of his arrival at the police station, the injuries must have been caused at some earlier point in time.
16. On 12 May 2004 the Nerekhta District Prosecutor quashed the investigator's decision and directed him to hear the arresting police officers and to examine the detainees' registration log.
17. On 16 May 2004 the investigator Mr V. again refused to institute criminal proceedings. On the basis of an entry in the registration log, he established that from 8.30 to 9.20 a.m. on 29 December 2003 the applicant had not been in the temporary detention wing but with police officer Mr A. However, since both Mr A. and the arresting police officers had denied using any force on the applicant, there were no indications of a criminal offence.
18. On 25 June 2004 a deputy prosecutor of the Kostroma Region quashed the investigator's decision as incomplete. He ordered, in particular, that the officers on duty be heard on the issue of whether any injuries had been present on the applicant's body at the time of his arrival at the police station.
19. On 4 July 2004 the investigator Mr V. refused to institute criminal proceedings for a third time. His decision was an exact repeat of his previous one, save for the statement of the officer Mr P. in which he had claimed that at the time of the applicant's arrival at the police station he had had no visible injuries.
20. On 5 August 2004 the Nerekhta District Prosecutor quashed the investigator's decision, further to the applicant's complaint, and ordered him to verify the origin of the blood stain on the applicant's jacket.
21. On 28 January 2005 the investigator Mr V. refused to institute criminal proceedings for a fourth time. He added the testimony of the officer Mr K. who could not remember whether the applicant had been held in the police station on 29 or 30 December 2003.
22. On 23 May 2005 the Nerekhta District Prosecutor quashed the investigator's decision, noting that the investigator had not established how the injuries had been caused or obtained statements from the applicant's co-detainees.
23. On 28 May 2005 the investigator Mr V. issued a fifth decision refusing to institute criminal proceedings. On 27 September 2005 the regional prosecutor quashed that decision and ordered an additional inquiry.
24. On 25 November 2005 the investigator Mr Ku. issued a sixth decision refusing to institute criminal proceedings, which was set aside by the Nerekhta District Prosecutor on the same day.
25. On 25 January 2006 the deputy Nerekhta district prosecutor, Ms P., refused to institute criminal proceedings for a seventh time. She noted the testimony of the investigator Mr S., the applicant's partner Ms R. and the applicant's sister Ms E., who had all seen the applicant's swollen nose and bruised face on the morning of 29 December 2003. The Deputy Prosecutor acknowledged that light injuries had been inflicted on the applicant after his arrival at the police station on 28 December 2003, but declared the prosecution time-barred because the limitation period for the offence of light injuries was set at two years. The applicant complained to a court.
26. On 30 March 2006 the Nerekhta Town Court ruled in the applicant's favour, finding that the inquiry had been incomplete. It also noted that, although it was established that the applicant had been beaten at the police station, the investigation had failed to use all possible means to identify the perpetrators.
27. On 18 May 2006 the Kostroma Regional Court upheld the Town Court's decision on appeal.
28. On 18 March 2007 the investigator Mr L. from the Nerekhta District Prosecutor's Office issued the most recent decision refusing to institute criminal proceedings. He noted that, according to the arrest record and testimonies of many witnesses, the applicant had had no visible injuries at the time he was placed in the temporary detention wing at 11.50 p.m. on 28 December 2003. On 31 December 2003 a forensic expert had examined the applicant and recorded multiple injuries, including bruising to the eye, a broken nose, chipped tooth and abrasions on his face. Officer A. had admitted taking the applicant out of his cell on 29 December 2003 but denied having beaten him. The investigator thus confirmed that the applicant had suffered bodily injuries shortly after he was detained at Nerekhta district police station. However, the prosecution was time-barred because of the two-year limitation period and no evidence implicating officer A. or any other police officers had been obtained.
29. From 18 March to 2 April 2004 the Nerekhta District Court examined the case against the applicant on the charge of robbery.
30. On 2 April 2004 the District Court convicted the applicant as charged and sentenced him to seven years' imprisonment in a high-security colony. On 5 August 2004 the judgment was upheld on appeal by the Kostroma Regional Court.
31. A criminal case may be instituted on the basis of a criminal complaint if there is sufficient evidence of elements of a crime (Article 140 of the Code of Criminal Procedure). A criminal case may be opened by a prosecutor or by an investigator with the prosecutor's consent (Article 146 § 1 of the CCrP).
32. The victim is the individual who has suffered physical harm, emotional distress or pecuniary damage as a consequence of the crime. The victim has, in particular, the right to give statements, to take part in procedural acts, to put questions to experts, and to lodge requests (Article 42 of the CCrP).
VIOLATED_ARTICLES: 3


ITEMID: 001-84836
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF RYABOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed;Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - claim dismissed
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1972 and lives in the Vologda Region.
8. On 9 December 2002 the applicant was charged with the rape of T., aged seven at the time of the offence in summer 2000. The charge was based on the investigator’s interviews with the girl (T.), the girl’s mother Mrs K. and a neighbour Mrs G., as well as on the findings of the medical examination carried out on the victim on 4 October 2002. The applicant asked the investigator to arrange for a confrontation with the prosecution witnesses and the medical expert. On 10 December 2002 the investigator refused his request. On 9 January 2003 the Vologda Regional Court upheld that decision as lawful, in the final instance.
9. At the beginning of the trial, once the applicant learned that the witness Mrs G. and the medical expert were not present, he asked the court to secure their attendance. The judge replied “Where shall I get them?” and refused his request.
10. The applicant pleaded not guilty. He admitted that in late July 2000 he had gone with T. to the village of Volodino where they had spent a night at his ex-wife’s house but he denied having raped the girl.
11. Before the court Mrs K. testified that in October 2002 she had found a note written by T. In the note the girl wrote that the applicant had raped her in summer 2000 in the village of Volodino. She questioned the girl about the note and T. confirmed its contents.
12. At the trial T. confirmed that the applicant had raped her.
13. On 21 January 2003 the Vologda Regional Court convicted the applicant of aggravated rape, an offence under Article 131 § 3 (v) of the Russian Criminal Code, and sentenced him to twelve years and six months’ imprisonment.
14. The Regional Court considered that the applicant’s guilt had been sufficiently established on the basis of the victim’s statements, which were corroborated by the following evidence:
the findings of the medical examination carried out on 4 October 2002 which described scars on T.’s hymen. The scars might have been caused by impact of a hard object. It was not possible to establish when they had been caused;
the written statement by the neighbour Mrs G. made during the pre-trial investigation. One summer night in 2000, Mrs G. – whose flat was separated from that of the applicant’s ex-wife by a partition – heard a girl shrieking and imploring her father to stop. The girl sobbed for a while. G. shouted at the applicant and told him to stop harassing the girl. At that time she thought that the girl was a daughter of the applicant, V. The sobs subsided but then the girl started crying again and begging her father to stop. The following day G. met the applicant and asked him what had happened. He replied that it was none of her business;
the note written in a child’s handwriting which stated that the author had been raped by “Andryukha” (a diminutive of the applicant’s first name). T. confirmed that she had written the note.
15. In his statement of appeal the applicant complained, in particular, that the trial court had not secured the attendance of Mrs G. and the medical expert.
16. On 7 July 2003 the Supreme Court of the Russian Federation upheld the judgment of 21 January 2003 on appeal. It held that the court’s conclusions had had a substantial basis in the statements by the victim which had been corroborated by other evidence, in particular, the child’s note, Mrs G.’s testimony “before the court” [sic] and the findings of the medical examination.
17. On 25 July 2005 a deputy Prosecutor General lodged an application for supervisory review with the Presidium of the Supreme Court. He submitted that the Vologda Regional Court and the Supreme Court had infringed the applicant’s right to have the witness Mrs G. and the medical expert examined.
18. On 1 March 2006 the Presidium of the Supreme Court granted the prosecutor’s application in part. It found that the appeal court had not given any consideration to the applicant’s argument that his request for examination of the witnesses for the prosecution had been groundlessly rejected. It also found that the appeal court had wrongly stated that Mrs G. had been heard in court. The Presidium quashed the appeal judgment of 7 July 2003 and remitted the case for a new appeal hearing.
19. On 19 July 2006 the Supreme Court held a new appeal hearing. It noted that the applicant had not been able to confront Mrs G. and the medical expert during the pre-trial investigation or in court. It found that the applicant’s rights under Article 6 § 3 (d) had been infringed, quashed the conviction and ordered a new trial.
20. It appears that on 11 September 2006 the Vologda Regional Court issued a new judgment in the applicant’s case. However, a copy was not made available to the Court. Although the applicant indicated his intention to lodge an appeal against it, he did not submit a copy of his statement of appeal. No further information about these proceedings was received.
21. On 21 October 2005 the applicant’s representatives, Mrs Moskalenko and Mrs Arutyunyan, submitted observations in reply to the Government’s memorandum and claims for just satisfaction. They enclosed, in particular, the following documents:
(a) legal-assistance agreement no. 032 of 28 September 2005, according to which the advocate Mrs Arutyunyan undertook to represent the applicant before the European Court for a fee of 21,000 Russian roubles (RUB). The field for the applicant’s signature contained the note “in accordance with the authority form for the European Court” but no signature;
(b) legal-assistance agreement no. 2384 of 28 September 2005, under which Mrs Moskalenko undertook to represent the applicant before the European Court for a fee of RUB 42,000. The field for the applicant’s signature contained the note “in accordance with the authority form for the European Court” but no signature.
22. On 23 November 2005 the Government submitted their comments on the applicant’s claim for just satisfaction. They alleged, in particular, that the above documents were “legally void and issued contrary to fundamental rules of preparation of legal documents” because there was no signature by the applicant or a person authorised to sign on his behalf. In their view, a power of attorney issued for representation of the applicant before courts did not allow Mrs Moskalenko to sign, acting as the agent of the applicant, the legal-assistance agreement which bound the applicant to pay for her services.
23. On 25 November 2005 the Representative before the European Court Mr Laptev (“the Representative”) sent a letter to the director of the Federal Registration Service of the Ministry of Justice, which enclosed a copy of legal-assistance agreement no. 2384 and contained the following request:
“...The said agreement is not signed by either Mr Ryabov or a person authorised by him... In this connection I request [you] to comment on the lawfulness of the actions by the advocate Mrs K. Moskalenko who had compiled on behalf of her client (Mr Ryabov) and apparently without his knowledge, a legal-assistance agreement which imposed on Mr Ryabov, also without his knowledge, the obligation to pay a large amount (42,000 roubles).
On the basis of the Regulations on the Representative of the Russian Federation before the European Court of Human Rights, approved by President’s Decree no. 310 of 29 March 1998, I request [you] to prepare and send the above information to my address by 23 December 2005”. (bold-facing in the original letter)
24. On 9 December 2005 the acting first deputy director of the Economic Security Department of the Ministry of Internal Affairs Major-General S. sent a letter to the director of Advocates Office no. 10 where Mrs Moskalenko worked. He wrote that on 25 November 2005 the Ministry of Internal Affairs had received a request from the Representative, who had asked the Ministry to verify whether Mrs Moskalenko had lawfully listed as taxable income the proceeds from legal-assistance agreement no. 2384 of 28 September 2005 concerning representation of Mr Ryabov before the Court. Referring to section 11 paragraph 1 (4) and (30) of the Police Act, Major-General S. requested the director to produce, within five days, a copy of the legal-assistance agreement, a copy of the power of attorney issued by Mr Ryabov and copies of all the existing documents concerning the implementation of that agreement and payments effected in its pursuance.
25. On 13 December 2005 Mrs Moskalenko replied to Major-General S. that the requested documents were covered by lawyer-client privilege and could not be made available to the police unless a criminal case had been formally instituted.
26. On 19 December 2005 Mr K., a senior operational officer of the Economic Security Department of the Ministry of Internal Affairs, and his superior Mrs P., deputy head of the department, contacted Mrs Moskalenko by telephone and asked her to provide the documents in connection with the inquiry conducted at the request of the Representative.
27. According to the applicant, in late December 2005 he was visited in prison by Mr V., an employee of the Economic Security Department of the Ministry of Internal Affairs, who asked him to reply to the following questions:
“1. How did [the applicant] meet Mrs Moskalenko and Mrs Arutyunyan?
2. Who gave [him] the address of the Centre for Assistance to International Protection and when did it happen?
3. Where and how was the legal-assistance agreement compiled?”
The applicant refused to answer the questions or give any statements in the absence of his lawyers. The meeting lasted approximately one hour.
28. On 20 December 2005 the applicant gave a written statement to the director of Advocates Office no. 10. He stated that he had never made any complaint or inquiries either to the Ministry of Internal Affairs or any other State authorities in connection with his representation by Mrs Moskalenko and Mrs Arutyunyan in the supervisory review and Strasbourg proceedings.
29. On the same date the applicant submitted a new power of attorney for his representation by Mrs Arutyunyan. In the covering letter he asked the Court not to believe the Government’s allegation that the previous power of attorney had been forged.
30. Also on 20 December 2005, the head of the Ministry of Justice’s Department for Inspection and Supervision of Advocates and Notaries Public sent a copy of legal-assistance agreement no. 2384 to the President of the Moscow City Bar. He claimed that the agreement had been entered into in breach of the Civil Code and the Advocates’ Act, as it had not been signed by either Mr Ryabov or a person authorised to act on his behalf. The President of the Moscow City Bar was told to carry out an inquiry into the situation and report to the Ministry of Justice as soon as possible. In reply, the President of the Moscow City Bar informed the Ministry of Justice that “Mrs Moskalenko represented Mr Ryabov before the European Court on the basis of a duly completed form of authority” and that “her actions in the framework of the legal-assistance agreement had been approved by the applicant”. He pointed out that financial aspects of the legal-assistance agreement were covered by lawyer-client privilege.
31. On 9 January 2006 Mrs Moskalenko complained to the Court of a harassment campaign against her in connection with her representation of the applicant in the Strasbourg proceedings. She alleged a hindrance to the applicant’s right of individual petition in breach of Article 34 of the Convention.
32. On 2 February 2006 the Court examined the matter and decided to obtain comments from the Government.
33. According to the applicant, on 23 February 2006 he was taken into the office of a prison operational officer, who did not introduce himself or indicate his rank. He insisted on obtaining a written statement about the applicant’s relationship with Mrs Moskalenko and Mrs Arutyunyan. On the officer’s table the applicant saw documents with the letterhead of the Federal Registration Service with a note: “obtain a statement from the convict Mr Ryabov”. The officer had refused the applicant’s request to see these documents. He had put the following questions to the applicant:
“1. Which amounts did [the applicant] pay to Mrs Moskalenko and Mrs Arutyunyan for his representation?
2. Were these amounts mentioned in any written agreement?
3. When and where was such an agreement prepared?
4. Did [the applicant] agree to pay any amount in addition to that?
5. When and where did [the applicant] first meet his representatives?”
34. On 28 March 2006 the Government submitted their comments on their compliance with Article 34 of the Convention. They also asked the Court to stay the proceedings so as the applicant could choose another representative, and offered their assistance in this matter.
35. On 27 April 2006 the applicant submitted the following handwritten statement to the Court:
“I inform you as follows: on 27 April 2006 I was visited in remand centre no. 3, Moscow, by my lawyer Mrs Moskalenko. She gave me the text and translation of the Government’s comments of 27 March 2006. I am exasperated by Mr Laptev’s letter of 27 March 2006 and would like to state the following:
1. I am well aware of the amounts indicated in the agreements with Mrs Moskalenko and Mrs Arutyunyan. I would be happy to pay double or triple those amounts but I regret that I do not have that much money.
2. I have confirmed on many occasions, orally and in writing, and now confirm again, that I have been satisfied with the work by Mrs Moskalenko and Mrs Arutyunyan. Statements by Mr Laptev are merely an attempt to mar the relationship between me and my lawyers.
3. I assure you that I fully trust my lawyers Mrs Moskalenko and Mrs Arutyunyan as regards my representation before the European Court and other issues. I am categorically opposed to introducing other lawyers into the case, especially those suggested by Mr Laptev.”
36. The relevant parts of section 11 § 1 read as follows:
“For the performance of their duties, the police shall have the following rights:
...
(4) to obtain from citizens and State officials necessary statements, information, certificates, documents and copies thereof;
...
(30) to receive from citizens and organisations information free of charge, except for situations where the law establishes a different procedure for obtaining information.”
37. According to the Regulation on the Representative before the European Court approved by President’s Decree no. 310 of 29 March 1998, the Representative may obtain from federal, regional and municipal bodies the information on legal and factual aspects of the case which is required for effective representation of the Russian Federation before the European Court (section II.5).
38. The Economic Security Department has the following functions:
identification of economic threats to the State;
participation in defining the federal funding priorities;
identification, prevention and detention of most dangerous inter-regional or international tax crimes or crimes against the State;
identification, prevention and detention of most dangerous economic and tax crimes which have attracted public attention;
taking preventive and operational measures for the protection of property against crimes;
organisation of documentary inspections and revisions for detecting inter-regional or international economic or tax crimes;
fighting against money laundering;
fighting against funding of terrorist or extremist activities.
VIOLATED_ARTICLES: 34


ITEMID: 001-94565
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KIMLYA AND OTHERS v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 9 read in the light of Art. 11;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The first applicant, Mr Kimlya, was born in 1977 and lives in Surgut in the Khanty-Mansi Autonomous Region. He is the President of the Church of Scientology of Surgut City.
7. The second applicant, Mr Sultanov, was born in 1965 and lives in Nizhnekamsk in the Republic of Tatarstan. He is a co-founder and member of the third applicant, the Church of Scientology of Nizhnekamsk, a religious group without legal-entity status.
8. In 1994 the first centre for the study of Dianetics (the creed of the Church of Scientology) opened in Surgut and obtained State registration as a social non-governmental organisation under the name of “Surgut Humanitarian Dianetics Centre”.
9. In 1995 a new Russian law on non-governmental associations was enacted. It required all non-governmental associations established before its entry into force to be re-registered before 1 July 1999. The Centre applied for re-registration; however, its application was refused on 23 July 1999 on the ground that the aims of the organisation were religious in nature. On 23 November 1999 the Justice Department of the Khanty-Mansi Region (“the Khanty-Mansi Justice Department”) sought a court decision terminating the Centre’s existence.
10. The Centre applied for registration as a non-commercial partnership regulated by the Civil Code of the Russian Federation. On 4 October 1999 the deputy mayor of Surgut Town Council rejected the application, referring to the religious purposes of the Centre.
11. On 2 January 2000 the first applicant, in community with his fellow believers, resolved to found the “Scientology Group of Surgut City” and to hold regular services on Sundays. At a subsequent meeting on 1 July 2000, the first applicant and other believers passed a resolution to establish a local religious organisation, the Church of Scientology of Surgut City (“the Surgut Church”).
12. On 15 August 2000 the ten founding members, including the first applicant, applied to the Khanty-Mansi Justice Department for registration as a local religious organisation having the status of a legal entity.
13. On 14 September 2000 the Khanty-Mansi Justice Department refused registration in the following terms:
“You have failed to produce a document issued by a local authority certifying that the religious group has existed in the given territory for no less than fifteen years, or a document issued by the managing body of a centralised religious organisation certifying that the religious group is a branch of such an organisation, and this does not comply with the requirements of section 11(5) of the Federal Law on freedom of conscience and religious associations.
The refusal of registration does not prohibit a subsequent new application for registration provided that the grounds for the refusal have been removed.”
14. On 17 October 2000 the first applicant appealed against that decision to the Khanty-Mansi Town Court. He alleged that his constitutional right to freedom of conscience had been violated and that his religious group had been discriminated against. Lacking the status of a legal entity, his religious group could not print, export or import religious books or articles of worship, own property, carry out charitable activities or found organisations for religious purposes.
15. On 25 December 2000 the Khanty-Mansi Town Court dismissed the complaint. It held that the Khanty-Mansi Justice Department had correctly refused registration because the Surgut Church had failed to provide a document confirming it had been in existence in the region for at least fifteen years. As to the first applicant’s reliance on the Constitution, it held: “this reference ... is far-fetched and cannot be taken into consideration.” No further justification was provided.
16. On 21 February 2001 the Khanty-Mansi Regional Court upheld the judgment of 25 December 2000. The court repeated that the applicant’s references to the decisions of the Constitutional Court and the Russian Constitution were “groundless”.
17. Following a request by the first applicant, on 18 January 2002 the Presidium of the Khanty-Mansi Regional Court instituted supervisory-review proceedings, quashed the contested judgments and remitted the matter to the Khanty-Mansi Town Court for a fresh examination. It noted that the Khanty-Mansi Justice Department should have “left the application unexamined” until all the documents required by law had been produced.
18. On 16 May 2002 the Khanty-Mansi Town Court commissioned an expert study of the religious teachings of the Surgut Church and stayed the proceedings in the case. On 24 July 2002 the Khanty-Mansi Regional Court upheld that decision on appeal.
19. On 22 November 2004 the Khanty-Mansi Town Court resumed the proceedings and delivered a new judgment on the same day. It held that the refusal to register the Surgut Church had been unlawful because in the absence of a certificate showing its fifteen-year presence in the region, the Khanty-Mansi Justice Department should have left the application for registration “unexamined”. It ordered the Khanty-Mansi Justice Department to register the Surgut Church.
20. On 18 January 2005 the Khanty-Mansi Regional Court quashed the judgment in so far as it concerned the order to register the Surgut Church, on the ground that the first applicant had not produced all the documents required by Law no. 125-FZ of 26 September 1997 (“the Religions Act”), a circumstance which the Regional Court considered to be an impediment to the registration of the Surgut Church as a legal entity.
21. On 28 October 1998 the second applicant and fellow believers resolved to found the Church of Scientology of Nizhnekamsk as a local religious group.
22. On 23 December 1999 the applicant church applied to the State Registration Chamber of the Republic of Tatarstan (“the Registration Chamber”) for registration as a local religious organisation.
23. In a letter of 17 April 2000, the Registration Chamber informed the second applicant that the term for registration had been extended for six months from 13 January 2000 in order to allow the State authorities to carry out a religious expert examination.
24. In a letter of 7 September 2001, a deputy chairperson of the Registration Chamber informed the president of the applicant church that the application for registration had been rejected as “there [had] so far been no conclusions from the religious expert examination to which the applicant church’s documents [had] been subjected”.
25. The second applicant appealed to a court against the refusal of registration.
26. On 21 December 2001 the Nizhnekamsk Town Court of the Republic of Tatarstan dismissed the second applicant’s claim, arguing that there was no actual dispute as the authorities had yet to carry out the religious expert examination and the application for registration had yet to be examined on the merits.
27. On 21 January 2002 the Supreme Court of the Republic of Tatarstan (“the Supreme Court”) quashed the judgment of 21 December 2001 and remitted the claim to the Town Court for a fresh examination.
28. On 7 March 2002 the Town Court again dismissed the second applicant’s claim. It found that the refusal had been justified because internal Order no. 254 issued by the Ministry of Health of the Russian Federation on 19 June 1996 prohibited the use of Scientology methods in health services.
29. On 18 April 2002 the Supreme Court quashed the judgment of 7 March 2002 and remitted the matter to the Town Court. It found that the absence of a religious expert examination was not a valid ground for the refusal of registration and that an internal order issued by a ministry was hierarchically subordinate to Russian laws and could not have been relied upon to restrict citizens’ rights.
30. On 28 May 2002 the Town Court granted the second applicant’s claim and found that the refusal to register the applicant church had been unlawful. It noted that the application for registration had been made in December 1999, but that “the religious organisation [had] still not been registered owing to contrived reasons, although the federal law contain[ed] an exhaustive list of grounds on which registration [could] be refused”. It also held that there was no doubt as to “the religious nature of the organisation being registered”, that a religious expert examination was not mandatory and that the absence of such an examination could not be cited as a ground for refusing registration as this would encroach on citizens’ rights. On 4 July 2002 the Supreme Court upheld the judgment.
31. In the meantime, on 1 July 2002 the power to approve the registration of religious organisations was transferred from the Registration Chamber to the Main Department of the Ministry of Justice of the Republic of Tatarstan (“the Tatar Justice Department”). Accordingly, on 25 July 2002 the application for registration of the applicant church and related documents were also transferred to the Tatar Justice Department.
32. On 13 August 2002 the Town Court forwarded a copy of its judgment of 28 May 2002 to the Justice Department for execution. However, the Tatar Justice Department refused to proceed with the registration on the ground that it was not the legal successor to the Registration Chamber.
33. The second applicant asked the Town Court to clarify the judgment of 28 May 2002 specifically as to which authority was to execute the judgment in view of the fact that the power of the Registration Chamber to register religious organisations had been transferred to the Tatar Justice Department with effect from 1 July 2002 further to a change in the law.
34. On 4 September 2002 the applicant church again requested the Tatar Justice Department to grant it legal-entity status, pursuant to the judgment of 28 May 2002.
35. On 10 October 2002 the Town Court held that no clarification of the judgment was required as “no ambiguity could be found in the judgment”. It also noted that, in the event of improper execution of a court judgment or a violation of the second applicant’s rights by other State officials, he could lodge a complaint with a court on “general grounds”.
36. The second applicant appealed against the decision of 10 October 2002 to the Supreme Court. However, it appears that the appeal was never examined as by that time the case file had been forwarded to the President of the Supreme Court of the Republic of Tatarstan in connection with the application for supervisory review lodged by the Tatar Justice Department (see paragraphs 38-39 below).
37. On 14 October 2002 the second applicant sued the Tatar Justice Department for its failure to comply with the final judgment of 28 May 2002 and to register the applicant church. It appears that this action was subsequently stayed in connection with the supervisory-review proceedings described below.
38. On 16 October 2002 the head of the Tatar Justice Department wrote to a vice-president of the Supreme Court of the Republic of Tatarstan, requesting him to exercise his supervisory-review powers in respect of the judgment of 28 May 2002 with a view to quashing it.
39. On 12 November 2002 the President of the Supreme Court lodged an application for supervisory review with the Presidium of the court. On 27 November 2002 the Presidium granted the application, quashed the judgments of 28 May and 4 July 2002 and referred the matter back for a fresh examination. It found that a religious expert examination was a mandatory precondition for State registration of a little-known religious organisation such as the applicant church.
40. On 28 November 2002 the Expert Council on State Religious Evaluation of the Council on Religious Affairs, a body attached to the Cabinet of Ministers of the Republic of Tatarstan, submitted its opinion concerning the applicant church further to a request by the Tatar Justice Department. It concluded that Scientology was a religion. However, it did not recommend registration of the applicant church because it had only recently been established in the Republic of Tatarstan.
41. On 8 January 2003 the Tatar Justice Department ruled that the application for registration should be left “unexamined” in the absence of a document confirming the applicant church’s presence in the Republic of Tatarstan for fifteen years.
42. On 25 February 2003 the Town Court carried out a fresh determination of the second applicant’s claim. It found as follows:
“[The second applicant] considers that the refusal of registration was unlawful and that it violated his right to freedom of conscience and religion. The court cannot agree ... Neither [the second applicant] nor anyone else is prohibited or prevented from professing Scientology individually or in community with others. The refusal to grant legal-entity status to an organisation may only violate a citizen’s right to freedom of association ...
The court has established that persons professing Scientology appeared in the town of Nizhnekamsk in the late 1990s. In 1999 the group comprising [the second applicant] decided to establish the religious organisation Church of Scientology of Nizhnekamsk and register it as a legal entity ... The Registration Chamber refused registration by reference to the absence of an opinion resulting from a religious expert examination. [The second applicant] complained to a court ... While the case was being examined, the power to approve registration of the religious organisation was transferred to the [Tatar] Justice Department, which ... left the application for registration unexamined, referring to the fact that the religious group had existed in the town of Nizhnekamsk for less than fifteen years ...
The ground preventing registration is the fact that the religious group has existed for less than fifteen years. Admittedly, pursuant to section 11 of the Religions Act, this ground can be invoked to leave the application unexamined rather than to refuse registration; however, in either case registration of the organisation is not possible. Hence, given that the outcome of the decision by the Registration Chamber is correct (the organisation may not be registered), the court cannot use a formal pretext to require the [Tatar] Justice Department to breach the Religions Act and register the organisation, especially taking into account that [the Tatar Justice Department] has already corrected the Registration Chamber’s mistake and issued a decision in conformity with the Religions Act.”
43. On 3 April 2003 the Supreme Court upheld that judgment.
44. On 28 May 2003 the Town Court dismissed the second applicant’s action against the Tatar Justice Department for its failure to execute the judgment of 28 May 2002 (see above). The court found that the judgment in the second applicant’s favour had been quashed by way of supervisory-review proceedings and that the Supreme Court’s final judgment of 3 April 2003 had removed any basis for requiring the Tatar Justice Department to register the applicant church. On 3 July 2003 the Supreme Court of the Republic of Tatarstan upheld on appeal the judgment of 28 May 2003.
45. In October 2004, jurisdiction over the registration of religious organisations was transferred to the newly created Federal Registration Service. The second applicant sought registration from the local office of this new body. On 18 February 2005 the Chief Directorate of the Federal Registration Service for Tatarstan declined to consider the matter, referring the applicant church to the Tatar Justice Department’s earlier refusals to register it on the basis of the “fifteen-year rule”.
46. The State guarantees equality of rights and freedoms of men and citizens regardless of their individual characteristics, including religious beliefs. The Constitution prohibits all forms of restrictions on human rights on social, racial, national, linguistic or religious grounds (Article 19).
47. Article 28 guarantees the right to freedom of religion, including the right to profess any religion, either alone or in community with others, or to profess no religion at all, to freely choose, hold and share religious and other beliefs and to manifest them in practice.
48. On 1 October 1997 the Federal Law on freedom of conscience and religious associations (“the Religions Act”) came into force. It replaced the USSR Religions Act of 1 October 1990 and the Russian Soviet Federative Socialist Republic (RSFSR) Religions Act of 25 October 1990.
49. In its preamble the Religions Act acknowledges “the special role of [Eastern] Orthodoxy in the history of Russia and in the establishment and development of its spiritual and cultural life” and respects “Christianity, Islam, Buddhism, Judaism and other religions constituting an integral part of the historical heritage of the peoples of Russia”. Section 2(3) provides that “nothing in the laws on freedom of conscience, freedom of religion and religious associations may be interpreted as impairing or infringing the rights of men and citizens to the freedom of conscience and religion guaranteed by the Constitution of the Russian Federation or enshrined in the international treaties to which the Russian Federation is a party”.
50. At the session of the State Duma of the Russian Federation (the lower chamber of Parliament) on 19 September 1997, Mr V. Zorkaltsev, Chairman of the Duma Committee on Affairs of Public Associations and Religious Organisations and one of the drafters of the Law, stated as follows before the Law was put to the vote:
“Nevertheless, I will remind you of the essence of this Law. It is this: the Law will create a barrier on the path to religious expansion in Russia, it will hinder the development of totalitarian sects and restrict the activities of foreign missionaries, while at the same time creating conditions for the activities of our traditional religions and confessions ... We are confident that the application of this Law in practice will help to resolve problems being faced now by society, the State and the [Russian Orthodox] Church ... I would like to refer to the fact that it is noteworthy that all the confessions whose representatives [objected to certain provisions of the Law] have their headquarters overseas. I say that to those who today feel that our Law is unfit and are planning to vote against it. And I want to put this question to you: whose side are you on, dear colleagues?”
51. A “religious association” is a generic term for any voluntary association of Russian nationals and other persons permanently and lawfully residing in the territory of the Russian Federation, formed for the joint profession and dissemination of their creed, which performs services of worship, religious rites and ceremonies, teaches its religion and guides its followers (section 6(1)). “Religious associations” may take the form of either “religious groups” or “religious organisations” (section 6(2)).
52. A “religious group” is a voluntary association of citizens for the profession and dissemination of faith, which carries out its activities without State registration and without obtaining legal personality (section 7(1)). The formation of a religious group, if its subsequent conversion into a religious organisation is envisaged, must be notified to the municipal authority (section 7(2)). Religious groups have the right to perform services of worship, religious rites and ceremonies, to teach religion and to guide their followers (section 7(3)).
53. In contrast to a religious group, a “religious organisation” is a voluntary association of Russian nationals and permanent residents of Russia, formed for the profession and dissemination of faith and duly registered as a legal entity (section 8(1)).
54. The following rights are conferred solely on religious organisations:
– the right to obtain tax exemptions and other benefits, and financial and other forms of aid for the restoration, maintenance and protection of historically important buildings and religious items and for teaching in educational institutions (section 4(3));
– the right to establish educational institutions and, with the consent of the parents and children, to teach religion in extracurricular courses (section 5(3) and (4));
– the right to establish and maintain religious buildings and other places for worship or pilgrimage (section 16(1));
– the right to perform religious rites, on invitation, in health centres, hospitals, children’s homes, old people’s homes, facilities for the disabled and prisons (section 16(3));
– the right to manufacture, acquire, export, import and distribute religious literature, printed, audio and video material and other religious articles (section 17(1));
– the right to carry out charitable activities on their own or through charitable foundations established by them (section 18(1));
– the right to create cross-cultural organisations, educational institutions and media outlets (section 18(2));
– the right to establish and maintain international links and contacts for pilgrimages, conferences and so on, including the right to invite foreign nationals to the Russian Federation (section 20(1));
– the right to own buildings, plots of land, other property, financial assets and religious artefacts, including the right to have municipal and State property transferred to them free of charge for religious purposes and the immunity of such property from legal charge (section 21(1) to (5));
– the right to use State and other property for religious purposes, such right to be granted free of charge (section 22);
– the right to establish companies and engage in business activities (section 23);
– the right to hire employees (section 24).
55. In addition, the following rights are explicitly reserved to religious organisations, to the exclusion of other non-religious legal entities:
– the right to found companies publishing religious literature or producing articles for religious services (section 17(2));
– the right to establish licensed educational institutions for the professional training of clergy and auxiliary religious staff (section 19(1));
– the right to invite to the Russian Federation foreign nationals planning to engage in professional religious activities, including preaching (section 20(2)).
56. Section 9(1) provides that a religious organisation may be founded by no fewer than ten Russian nationals united in a religious group that has confirmation from the local administrative authority of its existence in the given territory for no less than fifteen years or confirmation by a centralised religious organisation of the same creed that it forms part of its structure. A religious organisation must seek State registration from the local department of justice (section 11(2)).
57. If the founders of a religious organisation fail to produce any of the documents required by law, including the confirmation referred to in section 9(1), the registration authority may leave their application for registration unexamined and notify them of this (section 11(9)).
58. State registration of a religious organisation may be refused, in particular, if its purposes or activities contradict the Russian Constitution or laws, or if the organisation’s charter or other founding documents do not comply with the requirements of Russian laws. The refusal may be appealed against to a court (section 12).
59. Examining the compatibility with the Russian Constitution of the requirement of the Religions Act that all religious organisations established before its entry into force should confirm that they have existed for at least fifteen years, the Constitutional Court found as follows (decision no. 16-P of 23 November 1999 in the case of Religious Society of Jehovah’s Witnesses in Yaroslavl and Christian Glorification Church):
“4. ... Article 28 of the Russian Constitution, read in conjunction with Article 13 § 4, Article 14, Article 19 §§ 1 and 2 and Article 30 § 1, shows that freedom of religion includes the freedom to form religious associations and to carry out their activities on the basis of the principle of equality before the law. By virtue of these provisions the federal legislature ... may regulate the legal status of religious associations, including the conditions for granting the status of a legal entity, and the procedure for their founding, establishment and State registration, and determine the scope of the rights of religious associations.
Having regard to Russia’s history of pluriconfessionalism, legislators must respect the provisions of Article 17 § 1 of the Russian Constitution, which guarantees the rights and freedoms of men and citizens in accordance with generally accepted principles and norms of international law and the Russian Constitution. Measures decreed by legislators relating to the founding, establishment and registration of religious organisations must not interfere with the essence of the freedom of religion, the right to freedom of association and the freedom of activity of public associations, and any potential restrictions on those and other constitutional rights must be justified and proportionate to aims considered important by the Constitution.
In a democratic society with its characteristic pluralism, as follows from ... Article 9 § 2 of the Convention ... restrictions may be prescribed by law if this is necessary in the interests of public peace and the protection of public order, health and morals or for the protection of the rights and freedoms of others. The State has the right to lay down certain barriers in order not to automatically provide legal status [to religious associations], not to allow the legalisation of associations of citizens that violate human rights and commit illegal and criminal acts, and in order to obstruct missionary activity (including the problem of proselytism) if it is not compatible with respect for the freedom of thought, conscience and religion of others and other constitutional rights and freedoms, as in the case of the recruitment of other members into the church, or unlawful influence on people in need or poverty, through psychological pressure or the threat of violence. In particular, this is emphasised in the Resolution of the European Parliament of 12 February 1996 on sects in Europe and Recommendation 1178 (1992) [of the Parliamentary Assembly] of the Council of Europe on sects and new religious movements, as well as in the judgments of the European Court of 25 May 1993 ([Kokkinakis v. Greece], Series A no. 260-A) and of 26 September 1996 ([Manoussakis and Others v. Greece], Reports of Judgments and Decisions 1996-IV), which clarify the nature and scope of the State’s obligations flowing from Article 9 of the Convention ...
...
8. ... Pursuant to ... the RSFSR Religions Act (as amended on 27 January 1995), all religious associations – both regional and centralised – had, on an equal basis, as legal entities, the rights that were subsequently incorporated in the [1997 Religions Act] ...
Under such circumstances legislators could not deprive a certain segment of religious organisations that had been formed and maintained full legal capacity of the rights belonging to them, solely on the basis that they did not have confirmation that they had existed for fifteen years. In relation to religious organisations created earlier, that would be incompatible with the principle of equality enshrined in Article 13 § 4, Article 14 § 2 and Article 19 §§ 1 and 2 of the Constitution of the Russian Federation, and would be an impermissible restriction on freedom of religion (Article 28) and the freedom of [voluntary] associations to form and to carry out their activities (Article 30) ...”
60. The Constitutional Court subsequently confirmed this position in its decision no. 46-O of 13 April 2000 in the case of Independent Russian Region of the Society of Jesus, and decision no. 7-O of 7 February 2002 in the case of Moscow Branch of the Salvation Army.
61. On 9 April 2002 the Constitutional Court delivered decision no. 113O in the case of Zaykova and Others. The applicants in that case belonged to the religious group “Church of Scientology of Izhevsk City”, whose application for legal-entity status was refused in the absence of a document confirming its presence in Izhevsk for fifteen years. The Constitutional Court noted that a religious association was not prevented from being formed and operating without State registration, but in such cases it could not enjoy the rights and privileges secured only to religious organisations in section 5(3) and (4), section 13(5) and sections 15 to 24 (paragraph 2 of the decision). It declined, however, to consider the constitutional issue because the applicants had not challenged the refusal in a court of general jurisdiction.
62. Deciding on appeal on a complaint by a Mr K. against the regional justice department’s refusal to register the local organisation of Jehovah’s Witnesses as a legal entity (civil case no. 4507), the Chelyabinsk Regional Court held as follows:
“Article 28 of the Russian Constitution, read in conjunction with Article 13 § 4, Article 14, Article 19 §§ 1 and 2 and Article 30 § 1, shows that freedom of religion includes the freedom to form religious associations and to carry out their activities on the basis of the principle of equality before the law ...
Religious groups may carry out their activities without State registration or the legal status of a legal entity. However, if citizens form a religious group for the purpose of making it into a religious organisation later on, then they must notify the local self-government body of its formation and the commencement of its activities ...
The above-mentioned provisions show that nothing legally hinders a religious association from being formed and operating without State registration for the purpose of joint profession and dissemination of faith. However, in such circumstances a religious association will not have the status of a legal entity and cannot therefore enjoy the rights and privileges secured to religious organisations in the [Religions Act] (section 5(3) and (4), section 13(5), sections 15-24), that is, those collective rights that citizens exercise in community with others, namely within a religious organisation that has legal-entity status, but not on an individual basis or through a religious group.
Therefore, the very fact that the local religious organisation was unlawfully refused registration hinders Mr K. and his fellow believers from exercising their constitutional rights ...”
63. On 22 April 1999 the Ombudsman of the Russian Federation published his opinion of 25 March 1999 on the compatibility of the Religions Act with the international legal obligations of the Russian Federation. The opinion stated, inter alia:
“A number of provisions of the Act are inconsistent with principles set forth in international legal instruments, and, accordingly, can be contested by citizens when lodging complaints with the European Court of Human Rights. In essence, these provisions cannot operate in the territory of the Russian Federation, since the rules established by international treaties [must] prevail over domestic legislation, as is envisaged by the Constitution of the Russian Federation (Article 15 § 4) ...
The distinction between religious organisations and religious groups provided for in the Act is contrary to both the European Convention and the case-law of the Convention bodies, which are an important source of European law. In accordance with section 7(1) of the Act, religious groups, in contrast to religious [organisations], are not subject to State registration and do not enjoy the rights of a legal entity.
Furthermore, the Act discriminates between ‘traditional’ religious organisations and religious organisations that do not possess a document proving their existence in a given territory for at least fifteen years (section 9(1) of the Act). ‘Non-traditional’ religions are deprived of many rights ...”
64. On 20 May 2002 the Ombudsman issued a special report on Russia’s observance of its commitments entered into upon accession to the Council of Europe. The report states, inter alia:
“Among the commitments undertaken by Russia upon entry into the Council of Europe was to bring its legislation on freedom of conscience and religion into line with European norms. The [Religions Act], enacted on 26 September 1997 after the Russian Federation had joined the Council of Europe, did not take into consideration the existing rules or universally recognised principles of international law.
As a Contracting Party to the European Convention on Human Rights, Russia assumed express obligations in the sphere of freedom of conscience and religion. A number of provisions of the [Religions Act] are contrary to principles established in the European Convention for the Protection of Human Rights and Fundamental Freedoms and, accordingly, may be challenged by citizens when lodging applications with the European Court of Human Rights ...
A number of provisions of the Act establish rules that in essence discriminate against certain religions in practice. The distinction between religious organisations and religious groups provided for in the Act is contrary to both the European Convention and the case-law of the Convention bodies, which are an important source of European law. Furthermore, the Act discriminates between ‘traditional’ religious organisations and religious organisations that do not possess a document proving their existence in a given territory for at least fifteen years (section 9(1)). ‘Non-traditional’ religions are deprived of many rights ...
In the current situation one cannot exclude [the possibility] of decisions of the European Court of Human Rights against Russia in cases connected with freedom of religion and religious beliefs.”
65. The Information Report of 2 June 1998 by the Committee of the Parliamentary Assembly of the Council of Europe on the Honouring of Obligations and Commitments by member States of the Council of Europe (“the Monitoring Committee” – doc. 8127) on the honouring of obligations and commitments by the Russian Federation states in its relevant parts as follows:
“26. Another of the commitments Russia entered into was to adopt a new Law on the freedom of religion. Such a new Law has indeed been adopted, but unfortunately, it seems to fall rather short of Council of Europe standards on the matter. ...
27. The new Law on freedom of conscience and on religious associations entered into force on 1 October 1997, after having been revised following a presidential veto of the first version. While the Law does provide adequate protection for an individual’s right to profess or not to profess the religion of his choice, it contains some other provisions which seem to be inconsistent with international standards and with Russia’s international treaty obligations. In particular, the Law establishes two categories of religious associations: the more privileged ‘religious organisations’ and the less privileged ‘religious groups’. Religious groups, unlike religious organisations, do not have the status of a legal person, and do not enjoy the rights associated with this status, such as owning property, concluding contracts, and hiring employees. In addition, they are explicitly barred from operating schools or inviting foreign guests to Russia. Religious organisations have these rights, but to be recognised as such must be either classified as a ‘traditional’ religion or must have existed as a registered religious group on Russian territory for at least fifteen years, the latter to be certified by the local authorities. In fact, with the entry into force of this Law, a third category of religious associations was created: religious groups registered with the authorities on that day (for less than fifteen years) who already enjoy the status of a legal person may keep this status and the associated rights, provided they re-register every year with the authorities. These provisions may lead to discriminatory treatment especially of non-traditional religions, thus undermining the principle of religious equality before the law. A revision of some of these provisions may be called for to ensure compliance with Council of Europe standards. ...”
66. The Report by the Monitoring Committee of 26 March 2002 (doc. 9396) on the honouring of obligations and commitments by the Russian Federation states in its relevant parts as follows.
“95. The Russian Constitution safeguards freedom of conscience and of religion (Article 28); the equality of religious associations before the law and the separation of Church and State (Article 14), and offers protection against discrimination based on religion (Article 19). The Law on freedom of religion of December 1990 has led to a considerable renewal of religious activities in Russia. According to religious organisations met in Moscow, this Law has opened a new era, and led to a revitalisation of churches. It was replaced on 26 September 1997 by a new Federal Law on freedom of conscience and religious associations. This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions.
96. On 6 November 1997, Mr Atkinson and others presented a motion for a recommendation (doc. 7957, which was referred to the Legal Affairs Committee by reference 2238) in which they argued that this new legislation on freedom of conscience and religious associations contravened the European Convention on Human Rights, the Russian Constitution as well as the commitments entered into by Russia on accession. In February 2001, the Ombudsman on Human Rights, Oleg Mironov, also acknowledged that many Articles of the 1997 Law on freedom of conscience and religious associations do not meet Russia’s international obligations on human rights. According to him, some of its clauses have led to discrimination against different religious faiths and should therefore be amended.
97. In its preamble the Law recognises ‘the special role of Orthodoxy in the history of Russia and in the establishment and development of its spiritual and cultural life’ and respects ‘Christianity, Islam, Buddhism, Judaism and other religions constituting an integral part of the historical heritage of the peoples of Russia’. The Law then goes on to draw a distinction between ‘religious organisations’, according to whether or not they existed before 1982, and a third category, called ‘religious groups’. Religious organisations that had existed for less than fifteen years, and religious groups have been subject to legal and tax disadvantages and their activities have been restricted.”
67. Resolution 1278 (2002) on Russia’s Law on religion, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted, inter alia, the following:
“1. The new Russian Law on religion entered into force on 1 October 1997, abrogating and replacing a 1990 Russian Law – generally considered very liberal – on the same subject. The new Law caused some concern, both as regards its content and its implementation. Some of these concerns have been addressed, notably through the judgments of the Constitutional Court of the Russian Federation of 23 November 1999, 13 April 2000 and 7 February 2002, and the religious communities’ re-registration exercise at federal level successfully completed by the Ministry of Justice on 1 January 2001. However, other concerns remain.
2. The Law itself, while posing an acceptable basis of operation for most religious communities, could still be ameliorated. Although the Russian Constitutional Court has already restricted the application of the so-called ‘fifteen-year rule’, which initially severely limited the rights of religious groups that could not prove their existence on Russian territory for at least fifteen years before the new Law entered into force, the total abolition of this rule would be considered as an important improvement of the legislative basis by several of these groups. ...”
68. The report “Freedom of Religion or Belief: Laws Affecting the Structuring of Religious Communities”, prepared under the auspices of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) for the benefit of participants in the 1999 OSCE Review Conference, states, inter alia:
“The most controversial duration requirement in the recent past is that adopted in the 1997 Russian Law on Freedom of Conscience and on Religious Associations. Unless affiliated with a centralised religious organisation, a religious group under this Law cannot acquire full religious entity status unless it has been in the country for fifteen years. What is strikingly unusual about this requirement is that to the best of our knowledge, at the time of its adoption, there were no other OSCE participating States that imposed a waiting requirement (other than document processing periods) with respect to base-level entities ... Russia has taken some steps to mitigate the discriminatory impact on smaller groups by minimising the evidentiary burden required to demonstrate presence in the country for the required period, and by creating a limited entity status for religious groups waiting out their fifteen-year period. But problems remain for smaller groups or for congregations that have split off from the Moscow Patriarchate, and while limited entity status is better than nothing, it imposes significant constraints on a religious group’s ability to expand.
Duration requirements of this type are clearly inconsistent with the OSCE commitment to grant religious groups at least base-level entity status. The wording of this commitment in Principle 16.3 of the Vienna Concluding Document recognises that the precise form of legal personality varies from legal system to legal system, but access to some form of legal entity is vital to OSCE compliance. This is clearly violated by the refusal to register religious groups that do not satisfy the fifteen-year rule. The drafters of the Russian legislation apparently attempted to remedy this defect by creating limited entity status, but this also fails to satisfy the OSCE commitment, because the limited status does not confer rights to carry out important religious functions. Failure to grant such status constitutes a limitation on manifestation of religion that violates Article 9 of the [European Convention on Human Rights]. It can hardly be said that denial of entity status, simply due to an organisation’s failure to ‘exist’ under a preceding, anti-religious, communist government, ‘is necessary in a democratic society’ or a proportionate response to a legitimate State interest ...”
69. The Guidelines for Review of Legislation Pertaining to Religion or Belief, prepared by the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief in consultation with the European Commission for Democracy through Law (the Venice Commission) and adopted by the Venice Commission at its 59th Plenary Session (18-19 June 2004) and welcomed by the OSCE Parliamentary Assembly at its Annual Session (5-9 July 2004), contain, inter alia, the following recommendations:
“Religious association laws that govern acquisition of legal personality through registration, incorporation, and the like are particularly significant for religious organisations. The following are some of the major problem areas that should be addressed:
...
– It is not appropriate to require lengthy existence in the State before registration is permitted;
– Other excessively burdensome constraints or time delays prior to obtaining legal personality should be questioned;
...”
70. The relevant provisions of the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by General Assembly Resolution 36/55 of 25 November 1981, read as follows:
“In accordance with Article I of the present Declaration, and subject to the provisions of Article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms:
(a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;
(b) To establish and maintain appropriate charitable or humanitarian institutions;
(c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;
(d) To write, issue and disseminate relevant publications in these areas;
(e) To teach a religion or belief in places suitable for these purposes;
(f) To solicit and receive voluntary financial and other contributions from individuals and institutions;
(g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;
(h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief;
(i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.”
“The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.”
71. The relevant part of General Comment No. 22: The right to freedom of thought, conscience and religion (Article 18), prepared by the Office of the High Commissioner for Human Rights (30 July 1993, CCPR/C/21/Rev.1/Add.4), reads as follows:
“4. The freedom to manifest religion or belief ... in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. ... [T]he practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.”
VIOLATED_ARTICLES: 11
9


ITEMID: 001-88546
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CLARK v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Henry Clark, is a British national who was born in 1939 and lives in Kent. He was represented before the Court by Mr N. Price, a solicitor in Kent. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 2 July 1993. His claim for widows’ benefits was made on 27 November 2000 and was rejected on 30 November 2000 on the ground that he was not entitled to widows’ benefits, namely Widow’s Payment (“Wpt”) and Widow’s Pension (“WP”), because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.