ITEMID: 001-57499
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1976
DOCNAME: CASE OF HANDYSIDE v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 10;No violation of P1-1;No violation of Art. 14;No violation of Art. 18
TEXT: Historical
9. The applicant, Mr. Richard Handyside, is proprietor of the publishing firm "Stage 1" in London which he opened in 1968. He has published, among other books, The Little Red Schoolbook (hereinafter called "the Schoolbook"), the original edition of which was the subject of the present case and a revised edition of which appeared on 15 November 1971.
10. The applicant's firm had previously published Socialism and Man in Cuba, by Che Guevara, Major Speeches, by Fidel Castro, and Revolution in Guinea, by Amilcar Cabral. Since 1971 four further titles have appeared, namely Revolution in the Congo, by Eldridge Cleaver, a book of writings from the Women's Liberation Movement called Body Politic, China's Socialist Revolution, by John and Elsie Collier, and The Fine Tubes Strike, by Tony Beck.
11. The British rights of the Schoolbook, written by Søren Hansen and Jesper Jensen, two Danish authors, had been purchased by the applicant in September 1970. The book had first been published in Denmark in 1969 and subsequently, after translation and with certain adaptations, in Belgium, Finland, France, the Federal Republic of Germany, Greece, Iceland, Italy, the Netherlands, Norway, Sweden and Switzerland as well as several non-European countries. Furthermore it circulated freely in Austria and Luxembourg.
12. After having arranged for the translation of the book into English the applicant prepared an edition for the United Kingdom with the help of a group of children and teachers. He had previously consulted a variety of people about the value of the book and intended publication in the United Kingdom on 1 April 1971. As soon as printing was completed he sent out several hundred review copies of the book, together with a press release, to a selection of publications from national and local newspapers to educational and medical journals. He also placed advertisements for the book in various publications including The Bookseller, The Times Educational and Literary Supplements and Teachers World.
13. On 22 March 1971, the Daily Mirror published an account of the book's contents, and other accounts appeared in The Sunday Times and the Sunday Telegraph on 28 March. Further reports were carried by the Daily Telegraph on 29 and 30 March; they also indicated that representations would be made to the Director of Public Prosecutions demanding that action should be taken against the publication of the book. The Schoolbook was also the subject of further extensive press comment, some favourable and some not, immediately after and around the time of the seizure referred to below.
14. After receipt of a number of complaints, on 30 March 1971 the Director of Public Prosecutions asked the Metropolitan Police to undertake enquiries. As a result of these, on 31 March 1971, a successful application was made for a warrant under section 3 of the Obscene Publications Acts 1959/1964 to search the premises occupied by Stage 1 in London. The warrant was issued in the applicant's absence but in accordance with the procedure laid down by English law and a copy of the Schoolbook was before the judicial authority which issued the warrant. It was executed on the same day and 1,069 copies of the book were provisionally seized together with leaflets, posters, showcards and correspondence relating to its publication and sale.
15. Acting on the advice of his lawyers the applicant continued distributing copies of the book in the subsequent days. After the Director of Public Prosecutions had received information that further copies had been taken to Stage 1's premises after the search, further successful applications were made on 1 April 1971 (in conditions similar to those described above) to search again those premises and also the premises of the printers of the book. Later that day altogether 139 copies of the book were seized at Stage 1's premises and, at the printer's, 20 spoiled copies of the book, together with correspondence relating to it and the matrix with which the book was printed. About 18,800 copies of a total print of 20,000 copies were missed and subsequently sold, for example, to schools which had placed orders.
16. On 8 April 1971, a Magistrates' Court issued, under section 2 (1) of the Obscene Publications Act 1959, as amended by section 1 (1) of the Obscene Publications Act 1964, two summonses against the applicant for the following offences:
(a) on 31 March 1971 having in his possession 1,069 obscene books entitled "The Little Red Schoolbook" for publication for gain;
(b) on 1 April 1971, having in his possession 139 obscene books entitled "The Little Red Schoolbook" for publication for gain.
The summonses were served on the applicant on the same day. He thereupon ceased distribution of the book and advised bookshops accordingly but, by that time, some 17,000 copies were already in circulation.
17. The summonses were answerable on 28 May 1971 at Clerkenwell Magistrates' Court but, on the application of the Director of Public Prosecutions, the case was adjourned until 29 June. On that day the applicant appeared at Lambeth Magistrates' Court to which the case had been transferred, having consented to the case being heard and determined in summary proceedings by a magistrate rather than by a judge and a jury on indictment. He claims that this choice was dictated by his financial plight and the need to avoid the delays inherent in the indictment procedure although this is questioned by the Government. Having been granted legal aid, he was represented by counsel. On 1 July 1971, after witnesses had been called for both prosecution and defence, the applicant was found guilty of both offences and fined £25 on each summons and ordered to pay £110 costs. At the same time the court made a forfeiture order for the destruction of the books by the police.
18. On 10 July 1971 notices of appeal against both convictions were received by the Metropolitan Police from the applicant's solicitors. The grounds stated were "that the magistrate's decision was wrong and against the weight of the evidence". The appeal was heard before the Inner London Quarter Sessions on 20, 21, 22, 25 and 26 October 1971. At this hearing witnesses gave evidence on behalf of the prosecution and on behalf of the applicant. Judgment was delivered on 29 October 1971: the decision at first instance was upheld and the applicant was ordered to pay another £854 costs. The material seized as described above was then destroyed.
The applicant did not exercise his right of making a further appeal to the Court of Appeal since he did not dispute that the judgment of 29 October 1971 had correctly applied English law.
19. Whilst the Schoolbook was not the subject of proceedings in Northern Ireland, the Channel Islands or the Isle of Man, the same was not true of Scotland.
Indeed a Glasgow bookseller was charged under a local Act. However he was acquitted on 9 February 1972 by a stipendiary magistrate who considered that the book was not indecent or obscene within the meaning of that Act. It does not appear from the file whether the case concerned the original or the revised edition.
Further, a complaint was brought under Scottish law against Stage 1 in respect of the revised edition. It was dismissed on 8 December 1972 by an Edinburgh court solely on the ground that the accused could not have the necessary mens rea. In January 1973 the Procurator Fiscal announced that he would not appeal against this decision; he also did not avail himself of his right to initiate criminal proceedings against Mr. Handyside personally.
The Schoolbook
20. The original English language edition of the book, priced at thirty pence a copy, had altogether 208 pages. It contained an introduction headed "All grown-ups are paper tigers", an "Introduction to the British edition", and chapters on the following subjects: Education, Learning, Teachers, Pupils and The System. The chapter on Pupils contained a twenty-six page section concerning "Sex" which included the following sub-sections: Masturbation, Orgasm, Intercourse and petting, Contraceptives, Wet dreams, Menstruation, Child-molesters or "dirty old men", Pornography, Impotence, Homosexuality, Normal and abnormal, Find out more, Venereal diseases, Abortion, Legal and illegal abortion, Remember, Methods of abortion, Addresses for help and advice on sexual matters. The Introduction stated: "This book is meant to be a reference book. The idea is not to read it straight through, but to use the list of contents to find and read about the things you're interested in or want to know more about. Even if you're at a particularly progressive school you should find a lot of ideas in the book for improving things."
21. The applicant had planned the distribution of the book through the ordinary book-selling channels although it was said at the appeal hearing to have been accepted that the work was intended for, and intended to be made available to, school-children of the age of twelve and upwards.
22. Pending the appeal hearing, the applicant consulted his legal advisers concerning a revision of the Schoolbook to avoid further prosecutions; apparently he tried to consult the Director of Public Prosecutions as well, but in vain. It was decided to eliminate or re-write the offending lines which had been attacked before the Magistrates' Court by the prosecution but to do so necessitated, in some cases, re-writing substantially more than these criticised sentences. There were other alterations made to the text by way of general improvement, for example in response to comments and suggestions from readers and the updating of changed data (addresses, etc.).
23. The revised edition was published on 15 November 1971. After consulting the Attorney General, the Director of Public Prosecutions announced on 6 December 1971 that the new edition would not be the subject of a prosecution. This publication took place after the Quarter Sessions judgment but the revision of the Schoolbook had been completed, and the printing of the new version was in train, well before.
Domestic law
24. The action against the Schoolbook was based on the Obscene Publications Act 1959, as amended by the Obscene Publications Act 1964 (hereinafter called "the 1959/1964 Acts").
25. The relevant extracts from the 1959/1964 Acts, read together, are as follows:
"(1) For the purposes of this act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
(2) In this Act 'article' means any description of article containing
or embodying matter to be read or looked at or both, any sound record,
and any film or other record of a picture or pictures.
..."
"(1) Subject as hereinafter provided, any person who, whether for gain or not, publishes an obscene article or who has an obscene article for publication for gain (whether gain to himself or gain to another) shall be liable -
(a) on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months;
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years or both.
... A person shall be deemed to have an article for publication for gain if with a view to such publication he has the article in his ownership, possession or control.
...
(4) A person publishing an article shall not be proceeded against for an offence at common law consisting of the publication of any matter contained or embodied in the article where it is of the essence of the offence that the matter is obscene.
..."
"(1) If a justice of the peace is satisfied by information on oath that there is reasonable ground for suspecting that, in any premises ... specified in the information, obscene articles are, or are from time to time, kept for publication for gain, the justice may issue a warrant ... empowering any constable to enter (if need be by force) and search the premises ... within fourteen days from the date of the warrant, and to seize and remove any articles found therein ... which the constable has reason to believe to be obscene articles and to be kept for publication for gain.
(2) A warrant under the foregoing subsection shall, if any obscene articles are seized under the warrant, also empower the seizure and removal of any documents found in the premises ... which relate to a trade or business carried on at the premises ...
(3) Any articles seized ... shall be brought before a justice of the peace ... who ... may thereupon issue a summons to the occupier of the premises ... to appear ... before a magistrates' court ... to show cause why the articles or any of them should not be forfeited; and if the court is satisfied, as respects any of the articles, that at the time when they were seized they were obscene articles kept for publication for gain, the court shall order those articles to be forfeited.
...
(4) In addition to the person summoned, any other person being the owner, author or maker of any of the articles brought before the court, or any other person through whose hands they had passed before being seized, shall be entitled to appear before the court ... to show cause why they should not be forfeited.
(5) Where an order is made under this section for the forfeiture of any articles, any person who appeared, or was entitled to appear, to show cause against the making of the order may appeal to quarter sessions; and no such order shall take effect until the expiration of fourteen days after the day on which the order is made, or, if before the expiration thereof notice of appeal is duly given or application is made for the statement of a case for the opinion of the High Court, until the final determination or abandonment of the proceedings on the appeal or case.
...
(7) For the purposes of this section the question whether an article is obscene shall be determined on the assumption that copies of it would be published in any manner likely having regard to the circumstances in which it was found, but in no other manner.
...
... Where articles are seized under section 3 ... and a person is convicted under section 2 ... of having them for publication for gain, the court on his conviction shall order the forfeiture of those articles.
Provided that an order made by virtue of this subsection (including an order so made on appeal) shall not take effect until the expiration of the ordinary time within which an appeal in the matter of the proceedings in which the order was made may be instituted or, where such an appeal is duly instituted, until the appeal is finally decided or abandoned;
..."
"(1) A person shall not be convicted of an offence against section 2 of this Act and an order for forfeiture shall not be made under the foregoing section if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art of learning, or of other objects of general concern.
(2) It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings under this Act either to establish or to negative the said ground."
"...
(3) This Act shall not extend to Scotland or to Northern Ireland."
26. At the time of the events under review, the authorities frequently adopted a non-contentious procedure ("disclaimer/caution procedure") rather than instituting, as in this case, criminal proceedings. However it could only be used when the individual admitted that the article was obscene and consented to its destruction. The procedure constituted no more than a matter of practice and was abandoned in 1973 following criticisms expressed in a judicial decision.
The judgment of the Inner London Quarter Sessions
27. At the appeal hearing two principal issues were examined by the court, namely, first, whether or not the Crown had proved beyond reasonable doubt that the Schoolbook was an obscene article within the meaning of the 1959/1964 Acts; and secondly, if so, whether or not the applicant had established the defence under section 4 of the 1959/1964 Acts to the effect that he had shown, on a balance of probabilities, that publication of the book was justified as being for the public good.
28. The court first dealt with the issue of obscenity. Following a decision in another case the court noted that it had to be satisfied that the persons who it was alleged were likely to read the article would constitute a significant proportion. It also accepted the meaning of the words "deprave and corrupt" as it had been explained in that other case and about which there had been no dispute between the parties.
29. Following further previous case-law, the court had decided that expert evidence should be admitted on the question of whether the Schoolbook was obscene. Such evidence, though not normally admissible for this purpose but only in connection with the defence under section 4 of the 1959/1964 Acts, could be heard in the present case which was concerned with the effect of the article upon children.
The court had therefore heard seven witnesses on behalf of the prosecution and nine on behalf of the applicant, being experts in various fields, in particular those of psychiatry and teaching; the views they had expressed were very different. After they had been heard, the applicant had argued that, when one had the sincere opinion of many highly-qualified experts against the prosecution's case, it was impossible to say that the tendency to deprave and corrupt had been established with certainty. The court was unable to accept this submission: in its judgment of 29 October 1971 it pointed out that there was an almost infinite variation in the relevant background of the children who would be in one way or another affected by the book, so that it was difficult to speak of "true facts" in this case. The views of the applicant's witnesses had been those approaching the extreme of one wing of the more broadly varied outlook on the education and upbringing of children, whereas the evidence given on behalf of the prosecution tended to cover the views of those who, although clearly tending in the opposite direction, were less radical. Particularly, when looking at the evidence on behalf of the applicant, the court had been driven to the conclusion that most of the witnesses were so uncritical of the book looked at as a whole, and so unrestrained in their praise of it, as to make them at times less convincing than otherwise they might have been. In summary the court considered that a good deal of the witnesses had been so single-minded in an extreme point of view as to forfeit in a large measure the power to judge with that degree of responsibility which makes the evidence of any great value on a matter of this sort.
30. Concerning the Schoolbook itself, the court first stressed that it was intended for children passing through a highly critical stage of their development. At such a time a very high degree of responsibility ought to be exercised by the courts. In the present case, they had before them, as something said to be a perfectly responsible adult opinion, a work of an extreme kind, unrelieved by any indication that there were any alternative views; this was something which detracted from the opportunity for children to form a balanced view on some of the very strong advice given therein.
31. The court then briefly examined the background. For example, looking at the book as a whole, marriage was very largely ignored. Mixing a very one-sided opinion with fact and purporting to be a book of reference, it would tend to undermine, for a very considerable proportion of children, many of the influences, such as those of parents, the Churches and youth organisations, which might otherwise provide the restraint and sense of responsibility for oneself which found inadequate expression in the book.
The court reached the conclusion that, on the whole, and quite clearly through the mind of the child, the Schoolbook was inimical to good teacher/child relationships; in particular, there were numerous passages that it found to be subversive, not only to the authority but to the influence of the trust between children and teachers.
32. Passing to the tendency to deprave and corrupt, the court considered the atmosphere of the book looked at as a whole, noting that the sense of some responsibility for the community as well as to oneself, if not wholly absent, was completely subordinated to the development of the expression of itself by the child. As indications of what it considered to result in a tendency to deprave and corrupt, the court quoted or referred to the following:
"Maybe you smoke pot or go to bed with your boyfriend or girlfriend - and don't tell your parents or teachers, either because you don't dare to or just because you want to keep it secret.
Don't feel ashamed or guilty about doing things you really want to do and think are right just because your parents or teachers might disapprove. A lot of these things will be more important to you later in life than the things that are 'approved of'."
The objectionable point was that there was no reference there to the illegality of smoking pot which was only to be found many pages further on in an entirely different part of the book. Similarly there was no specific mention at all in the book of the illegality of sexual intercourse by a boy who has attained the age of fourteen and a girl who has not yet attained sixteen. It had to be remembered that the Schoolbook was indicated as a work of reference and that one looked up the part which one wanted rather than read it as a whole book.
"Porn is a harmless pleasure if it isn't taken seriously and believed to be real life. Anybody who mistakes it for reality will be greatly disappointed.
But it's quite possible that you may get some good ideas from it and you may find something which looks interesting and that you haven't tried before."
Unfortunately, the sane and sensible first paragraph quoted above was immediately followed by a passage suggesting to children that in pornography they might find some good ideas which they might adopt. This was to raise the real likelihood that a substantial number of children would feel it incumbent upon them to look for and practise such things. Moreover, just on the previous page there was the following passage: "But there are other kinds - for example pictures of intercourse with animals or pictures of people hurting each other in various ways. Pornographic stories describe the same sort of thing." The court considered that, although it was improbable that young people would be likely to commit sexual offences with animals as a result of this, the possibility that they should practise some other forms of cruelty to one another, for sexual satisfaction, was a real likelihood in the case of a significant number of children if this got into the hands of children at a disturbed, unsettled and sexually excited stage of their lives. Such acts might very well be criminal offences just like smoking pot and sexual intercourse between a boy of at least fourteen and a girl not yet sixteen. The expression "to deprave and corrupt" must include the admission of or the encouragement to commit criminal offences of that kind.
33. The court concluded "in the light of the whole of the book that this book or this article on sex or this section or chapter on pupils, whichever one chooses as an article, looked at as a whole does tend to deprave and corrupt a significant number, significant proportion, of the children likely to read it". Such children would, it was satisfied, include a very substantial number aged under sixteen.
34. The court finally dealt with the issue of the defence under section 4 of the 1959/1964 Acts. It stated that no doubt there were many features about the book which, taken by themselves, were good. The unfortunate thing was that so frequently the good was intermixed with things that were bad and detracted from it.
For example, much of the information about contraceptives (pp. 98-102) was very relevant and desirable which should be laid before very many children who might not otherwise readily have access to it. But it was damaged by the suggestion, backed by the recommendation to take direct action if the school authorities would not give way that every school should have at least one contraceptive vending machine (p. 101).
Similarly, the treatment of the subject of homosexuality (pp. 105-107) was a factual, very compassionate, understanding and valuable statement. But again, no matter how good one assessed the value of this section, it was hopelessly damning by its setting and context, and the fact that it, only, contained any suggestion of a stable relationship in relation to sex and that marriage received no such treatment at all. Moreover, there was a very real danger that this passage would create in the minds of children a conclusion that that kind of relationship was something permanent.
Again, there were passages with regard to venereal diseases (pp. 110-111), contraception (pp. 98-102) and abortion (pp. 111-116), containing dispassionately and sensibly, and on the whole completely accurately, a great deal of advice which ought not to be denied to young children. However, on the balance of probabilities, these matters could not outweigh what the court was convinced had a tendency to deprave and corrupt. The court asked itself whether, granted the degree of indecency which it found, the good likely to result from the Schoolbook was such that it ought, nevertheless, to be published in the public interest; it regretfully came to the conclusion that the burden on the appellant to show that "publication of the article in question is justified as being for the public good" had not been discharged.
Further details concerning the revised edition
35. The passages from the original edition of the Schoolbook whose "extreme" tone or "subversive" aspects had been emphasised by the judgment of 29 October 1971 (paragraphs 30 and 31 above) are repeated either with no, or with no important, changes in the revised edition which was prepared before that date but published on 15 November 1971 (paragraphs 22-23 above).
Of the passages cited by Quarter Sessions as striking examples of the tendency to deprave and corrupt (paragraph 32 above), one was not altered (p. 77, "Be yourself"). On the other hand, the others were fairly extensively softened (pp. 97-98, "Intercourse and petting", and pp. 103-105, "Pornography") and on page 95 of the work there is now a mention of the illegality of sexual intercourse with a girl under sixteen.
Furthermore, the revised edition no longer has any reference to the installation in schools of contraceptive vending machines and points out, on page 106, that homosexual tendencies are often temporary.
NON_VIOLATED_ARTICLES: 10
14
18


ITEMID: 001-85246
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TSERKVA SELA SOSULIVKA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (applicability);Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 5. The applicant, the Ukrainian Greek-Catholic Church of the village of Sosulivka in the Chortkiv Region (Tserkva Sela Sosulivka), is a religious group belonging to the patriarchate of the Ukrainian Greek-Catholic Church («Українська греко-католицька церква села Сосулівка Чортківського району Тернопільської області»). The head of the applicant association is its priest, Father Roman Gamratsey.
6. In accordance with a decision by the Ternopil Regional State Administration (“Ternopil Regional Administration”) on 26 June 1997, the applicant was entitled to use church premises situated in the village of Sosulivka in the Ternopil Region (“церква Покрови Пречистої Діви Марії у с. Сосулівка”) for religious ceremonies. It was required to share the premises with another church of the Ukrainian Orthodox Church of the Kyiv Patriarchate (“UOP KP”; “Української Православної Церкви Київського Патріархату”). In accordance with paragraph 3 of the decision, the Chortkiv District State Administration of the Ternopil Region (“Chortkiv District Administration”) was to conclude separate agreements on the use of the church premises and its property with religious denominations, specifying particular times, procedures and conditions for their use. The decision itself did not provide specific details on how the premises and property were to be used.
7. On 10 July 1997 the applicant concluded agreement on the use of the church premises with the Chortkiv District Administration and agreed to share it with the UOP KP on the conditions specified in this agreement. The agreement contained no details as to how the premises were to be used. The applicant also alleged that the UOP KP continued to use the premises without any agreement with the Chortkiv State Administration and impeded its own use of the premises.
8. On 6 October 2000 the applicant requested the Ternopil Regional Administration to transfer the church premises to it for its sole use and its religious needs. It also informed the Ternopil Regional Administration that the UOC KP had refused to comply with the decision of 26 June 1997 and the agreement concluded with the Chortkiv State Administration on 10 July 1997. In reply, on 20 December 2000 the Department of Religious Affairs of the Ternopil Regional Administration informed the applicant that disputes over the use of religious premises that had been transferred to religious organisations in accordance with agreements on their use were within the competence of the State Bailiffs Service (section 14(3) of the Enforcement Proceedings Act).
9. On 5 February 2001 the applicant lodged complaints with the Higher Arbitration Court against the Ternopil Regional Administration, seeking a transfer of the use of the church premises, as specified in the agreement with the Chortkiv District Administration. In particular, the applicant stated that the church sharing the premises had failed to comply with the decision of 26 June 1997. It further stated that under section 17 of the Freedom of Consciousness and Religious Organisations Act, the State as the owner had to manage the sharing and use of the church premises on the basis of agreements with the occupiers.
10. On 19 February 2001 a judge of the Higher Arbitration Court rejected the applicant's complaint on the ground that it should have been lodged with a court of general jurisdiction, not an arbitration court dealing with commercial matters. In particular, he referred to the fact that the applicant had complained about the lack of arrangements for the use of the premises following the decision of the Ternopil Regional Administration of 26 June 1997 (see paragraph 6 above).
11. On 13 April 2001 the Higher Arbitration Court, sitting in a chamber composed of two judges, examined the applicant's request to review the case in the course of supervisory review proceedings and upheld the decision of 19 February 2001. In particular, it referred to section 17 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991, which stated that disputes over the use of religious premises were to be examined under the Code of Civil Procedure by the courts of general jurisdiction and not by the arbitration (commercial) courts. It further mentioned that the decision of the Ternopil Regional Administration was an “enforceable document” and could have been enforced in accordance with Articles 348 and 349 of the Code of Civil Procedure.
12. The applicant appealed to the President of the Higher Arbitration Court seeking his intervention by means of a supervisory review appeal against the decisions of 19 February and 13 April 2001.
13. On 19 July 2001 the President of the Higher Commercial Court (as the Higher Arbitration Court was now called) rejected the applicant's request owing to the changes introduced to the Code of Commercial Procedure, which made the ruling of 13 April 2001 final and not subject to any appeal.
14. On 24 April 2001 the applicant instituted proceedings in the Ternopil Court (Тернопільський міський суд), the local first instance court of general jurisdiction, against the Ternopil Regional Administration for a transfer of the premises to its sole use.
15. On 4 May 2001 the court rejected this claim, stating that the courts of general jurisdiction had no authority to deal with disputes between legal entities. It also made an order for the dispute to be referred to the Ternopil Court of Arbitration, which, in its view, had jurisdiction over the matter. The applicant did not appeal in cassation and the ruling of 4 May 2001 became final. Instead, it lodged a request with the Ternopil Regional Court for supervisory review of the ruling of 4 May 2001.
16. On 20 June 2001 the Ternopil Regional Court refused to initiate supervisory review proceedings in the case. In particular, the Deputy President of the Ternopil Regional Court informed the applicant that disputes between legal entities were within the jurisdiction of the arbitration courts and that there were thus no reasons for lodging a supervisory review appeal. He referred to Articles 24 of the Code of Civil Procedure and Article 1 of the Code of Arbitration Procedure.
17. On 8 August 2001 the Deputy President of the Supreme Court refused to initiate supervisory review proceedings in the case, informing the applicant that disputes involving ownership claims over church premises were within the jurisdiction of the commercial courts and disputes involving their use were to be examined by the local courts of general jurisdiction. It advised the applicant to clarify its claims.
18. The applicant then instituted proceedings in the Kyiv Commercial Court for the transfer of the premises to its sole use.
19. On 23 October 2001 the court refused to consider the applicant's claims, referring to the ruling of 13 April 2001 and the decision of the TRSA of 26 June 1997 by which the TRSA had already resolved the dispute. The court also made reference to a practice direction that had been issued by the HAC on 29 February 1996 (see paragraph 32 below).
20. On 19 March 2002 the HCC upheld the ruling of 23 October 2001. It also held that the commercial courts had no jurisdiction over the case as it did not concern property issues, but a challenge against a decision taken by a State body, which was a matter to be dealt with in the course of administrative, not judicial, proceedings.
21. On 20 June 2002 the Supreme Court refused to institute cassation proceedings in the case having found no grounds for doing so.
22. The relevant provisions of the Constitution of Ukraine read as follows:
23. In accordance with Article 1 of the Code of Arbitration Procedure, in force at the material time, that is to say before 21 June 2001, legal entities and private entrepreneurs engaged in business activities were entitled to apply to the arbitration courts, in accordance with the relevant jurisdictional rules, for the protection of their legal rights and interests. Any agreement waiving the right to apply to an arbitration court was deemed null and void.
24. Under Article 12 of the Code in force before 21 June 2001, the arbitration courts had jurisdiction over commercial disputes involving execution of the commercial contracts and applications for orders declaring certain normative acts null and void. The following were excluded from the jurisdiction of the arbitration courts: disputes as to technical standards and conditions; prices for particular products, services or goods; bankruptcy cases; and cases involving the Monopolies Commission or the State Accounting Chamber. Disputes concerning the validity of legal acts or concerning public-procurement contracts were within the exclusive jurisdiction of the arbitration courts.
25. Article 14 of the Code established that the Higher Arbitration Court had jurisdiction over complaints against the Regional State Administration. In accordance with the rules on exclusive jurisdiction, under Article 16 of the Code, cases involving the enjoyment of possessions were to be examined in the arbitration court with jurisdiction for the area in which the property was situated. Under Article 17 of the Code, the court was required to transfer the case-file to another court which had jurisdiction over claims which had been lodged with the wrong court. A ruling on the transfer of the case to a different court on jurisdictional grounds could be reviewed in the course of supervisory review proceedings.
26. The relevant extracts from the Code, as amended on 21 June 2001, read as follows:
Transitional Provisions
“1. This law shall become effective from the date of its publication, save for Article 81-1 [of the Code], which shall become effective on 28 June 2002.
...9. Decisions of the judicial divisions of the Higher Arbitration Court of Ukraine or of the Presidium of the Higher Arbitration Court of Ukraine that were not challenged by way of supervisory review proceedings before this Law entered into force, as well as resolutions of the Plenary Higher Arbitration Court of Ukraine, shall be final but may be appealed against to the Supreme Court of Ukraine on the basis of and pursuant to the procedure prescribed by the Code of Commercial Procedure of Ukraine.”
27. In accordance with Article 24 of the Code of Civil Procedure the jurisdiction of the civil courts extended to disputes relating to civil, family, labour and cooperative legal relations, if at least one of the parties to a dispute is a natural person (unless these disputes are within the jurisdiction of other authorities). The jurisdiction of the civil courts also extended to administrative legal relations referred to in Article 236 of the Code of Civil Procedure (complaints against acts of State authorities, juristic persons or public officials, complaints against decisions given in relation to religious organisations and other disputes involving administrative legal relations).
28. In accordance with Article 348 § 17 of the Code of Civil Procedure (which concerns enforcement proceedings), decisions of State bodies, adopted with regard to the ownership and use of religious premises (buildings) and property are regarded as enforceable by the State Bailiffs Service. Decisions of the Regional State Administrations were enforceable, without any court order, as they were equated to writs of execution issued on the basis of a judicial decision (Article 349 of the Code of Civil Procedure).
29. Under the Act, religious organisations have the right to use property, land, buildings and premises owned by the State, non-governmental organisations or citizens (section 17, Chapter III “Property Status of Religious Organisations”). Such property can be transferred to religious organisations under lease agreements.
30. In accordance with section 17 of this Act, the use or ownership of religious premises and property belonging to the State may be transferred without consideration on the basis of a decision of the Regional State Administration. Religious premises and property belonging to the State can be used jointly by two or more religious communities if they consent. In the absence of consent, the State authority has to decide on the arrangements for the use of the premises, by concluding separate agreements with each of the communities. Requests for the transfer of ownership of religious premises or property or for their use without charge shall be examined within one month of the date of receipt.
31. Under the relevant subparagraphs of section 17, agreements on the use of religious premises and other buildings and property may be terminated or suspended in accordance with the procedure and on the grounds specified in the civil legislation of Ukraine. Decisions of the State authorities with regard to the ownership and use of religious premises and property may be appealed against to the courts, in accordance with the Code of Civil Procedure.
32. Under section 18 these organisations have the right to own, use and dispose of their property. These rights are protected by law (section 18). Under section 19 religious organisations have the right to create, in accordance with the provisions of their statutes, publishing, commercial, agricultural and other enterprises and charitable institutions have the rights of a juristic person.
33. In accordance with section 3(14) of this Act, the State Bailiffs Service is responsible for the enforcement of decisions of the State authorities adopted with regard to the ownership and use of religious premises and property.
34. Article 18(1) of the Act states that the State Bailiff shall initiate enforcement proceedings upon request of the creditor or his representative in so far as it concerns the enforcement of one of the decisions mentioned in Article 3 of this, on the basis of the writ of enforcement.
35. The Practice Direction states that disputes that relate to the amendment, termination or enforcement of an agreement on the use of the premises shall not be within the jurisdiction of the commercial (former arbitration) courts (paragraph 5 of the Practice Direction). It further establishes that decisions concerning the transfer of ownership of religious premises or property may be appealed against to the commercial courts (paragraph 8 of the Practice Direction) and are not within the jurisdiction of the courts of general jurisdiction. Moreover, under paragraph 10 of the Practice Direction, the commercial courts must decline jurisdiction to hear actions for recovery of property improperly taken (віндікаційні позови) or actions to eliminate obstacles in free enjoyment of possessions (негаторні позови), if a State authority has already adopted a decision on that issue in an “enforceable document” in accordance with the section 3(14) of the Enforcement Proceedings Act.
36. The relevant extracts from the Report read as follows:
“(...) F. Freedom of conscience and religion
(...) 269. Ukraine undertook to (...) find a legal solution for the restitution of church property. The present Law on freedom of conscience and religious organisations dates back to 1991. Despite the fact that it is regarded as one of the best freedom of religion laws in the region, some of its provisions lack clarity. (...) The law also contains a number of other ambiguous provisions, which leave a wide discretion to the implementing authorities. Hence, the quite progressive law for the time of its adoption now requires significant rewording. (...)
270. The Ukrainian legislation still lacks effective legal tools for restitution of church property. So far restitution was carried out occasionally on the basis of the parliament's 1991 resolution and several presidential decrees. The legal problem of restitution mainly stems from the fact that religious associations have no right to obtain a legal entity status and thus cannot possess property. Most of the organisations, which owned the property that should be restituted, ceased to exist and the Orthodox Church is represented by several organisations. This leads to an ad hoc restitution practice totally depending on the local authorities' preferences and which in most cases entails not the return of the ownership rights but transfer of property into a gratis rent. We, therefore, call on the Ukrainian authorities to elaborate clear rules on the restitution of religious property.”
37. The relevant extracts from the Report read as follows:
“(...) C. Freedom of conscience and of worship
51. One of Ukraine's commitments, listed in paragraph 11, xi. of Opinion No. 190, is to facilitate 'peaceful solution to the disputes existing among the Orthodox churches (...) while respecting the Church's independence vis-à-vis the State; a new nondiscriminatory system of church registration and a legal solution for the restitution of church property should be introduced'.”