ITEMID: 001-58139
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF LARISSIS AND OTHERS v. GREECE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 7;No violation of Art. 9 with regard to the measures taken against the first, second and third applicants for the proselytising of airmen Antoniadis and Kokkalis;No violation of Art. 9 with regard to the measures taken against the first and third applicants for the proselytising of airman Kafkas;Violation of Art. 9 with regard to the measures taken against the second and third applicants for the proselytising of the civilians;No violation of Art. 14+9;Not necessary to examine Art. 10;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Feyyaz Gölcüklü;N. Valticos;R. Pekkanen
TEXT: 7. The first applicant, Mr Dimitrios Larissis, was born in 1949 and lives in Tanagra Viotias. The second applicant, Mr Savvas Mandalarides, was born in 1948 and lives at Agria Volou. The third applicant, Mr Ioannis Sarandis, was born in 1951 and lives in Kamatero Attikis.
At the time of the events in question, the three applicants were officers in the same unit of the Greek air force. They were all followers of the Pentecostal Church, a Protestant Christian denomination which adheres to the principle that it is the duty of all believers to engage in evangelism.
8. In the evidence he gave for the purposes of the prosecution against the applicants (see paragraph 13 below), airman Antoniadis said that he was transferred to the applicants’ unit in 1986, two months after joining the air force, and was placed under the command of the second applicant in the teletyping service. On approximately seven occasions the first and second applicants engaged him in religious discussions, reading aloud extracts from the Bible and encouraging him to accept the beliefs of the Pentecostal Church. The second applicant told him that some members of the sect were able to speak in foreign languages with the assistance of divine power. Whenever airman Antoniadis returned from leave, the second applicant asked him if he had visited the Pentecostal Church. The former testified that he felt obliged to take part in these discussions because the applicants were his superior officers.
9. In his statement before the Athens Permanent Air Force Court (see paragraph 13 below), airman Kokkalis testified that he served in the applicants’ unit between spring 1987 and October 1988, although he was not under the direct command of any of them. During that time the first applicant engaged him in theological discussions on approximately thirty occasions, and the third applicant on approximately fifty occasions, initially concealing the fact that they were not Orthodox Christians but subsequently criticising some of the tenets of that faith and urging airman Kokkalis to accept their beliefs. The third applicant repeatedly asked him to visit the Pentecostal Church in Larissa while he was on leave, telling him that miracles took place there including the acquisition by believers of the ability to speak in foreign languages, and gave him the Pentecostal newspaper Christianismos to read. The applicants were very good officers and were always polite to him, but their approaches bothered him nonetheless.
10. Airman Nikolaos Kafkas was unable to give evidence at the first- instance hearing because his wife was ill, but he told the Courts-Martial Appeal Court (see paragraph 21 below) that he had served in the same unit as the applicants, under the command of the third applicant, between winter 1988 and August 1989. The applicants did not put any pressure on him to become a member of the Pentecostal Church. He himself approached the third applicant and asked why he was so peaceful, to which the latter replied that this was the result of reading the Gospel. When, at the suggestion of the first and third applicants, he started to read the Bible, he noticed a number of points of divergence between it and the teachings of the Orthodox Church. He did not have any discussions with the applicants concerning the Orthodox and Pentecostal Churches, although he did seek their advice whenever he had any questions concerning the Bible and always found their replies convincing. They never gave him any Pentecostal literature or told him to go to the Pentecostal Church. The third applicant never authorised his absence for purposes related to the Pentecostal Church, which he had visited for the first time in September 1989, after he had been discharged from the armed forces.
Airman Kafkas’s father, Mr Alexandros Kafkas, told the first-instance court that his son had been converted from the Orthodox to the Pentecostal Church while serving in the air force under the orders of the third applicant. According to his father, shortly after he joined the unit his behaviour changed. He stopped seeing his friends, spent long periods of time in his room studying the Bible and listening to taped sermons and brought back from the barracks his television and radio sets and the books from which he used to study for university entrance examinations. He told his father that he had met two officers who were real Christians, unlike his father. When his parents followed him on one of his visits to the Pentecostal Church, he left home and went to live in Athens. He returned after twenty days, when he reconverted to the Orthodox Church, explaining to his father that the first and third applicants had converted him to the Pentecostal Church, taking advantage of their rank to exert pressure on him and using special skills of persuasion. They had told him that he would be given leave of absence if he promised to visit their church. When Alexandros Kafkas left to go on a trip, Nikolaos reconverted to the Pentecostal Church. His father concluded that his son had no will of his own and always did as he was told by other members of the Pentecostal Church.
11. According to the statement of Captain Ilias Baïramis, his brother-in-law, Mr Charalampos Apostolidis, a member of the Pentecostal Church, began one day to rage at his wife, telling her that he saw Satan in her. The second applicant was summoned, and as soon as he arrived Mr Apostolidis became calmer. The second applicant then preached a sermon to the members of the Baïramis family and some neighbours who had come to see what was going on, in the course of which he urged them all to convert to the Pentecostal religion.
12. In a statement prepared for the purposes of an administrative inquiry against the applicants, Mrs Anastassia Zounara explained that her husband had joined the Pentecostal Church, which led to the breakdown of her family life with him. In an attempt to understand her husband’s behaviour, Mrs Zounara visited the Pentecostal Church and the applicants’ homes on several occasions over a period of about five months. During this time the applicants, particularly the second and third applicants, used to visit her and urge her to join their Church. They told her that they had received signs from God and could predict the future, and that Mrs Zounara and her children were possessed by the devil. Eventually she developed psychological problems and severed all links with the applicants and the Pentecostal Church.
13. On 18 May 1992, the applicants appeared before the Permanent Air Force Court (Diarkes Stratodikio Aeroporias) in Athens, composed of one officer with legal training and four other officers. They were tried for various offences of proselytism, under section 4 of Law no. 1363/1938 as amended (henceforth, “section 4” – see paragraph 27 below).
14. In a decision delivered on the day of the hearing (no. 209/92), the court rejected the defence’s argument that the law against proselytism was unconstitutional, finding that no issue could arise under the principle nullum crimen sine lege certa because of the non-exhaustive enumeration in the statute of the means by which an intrusion on another person’s religious beliefs could be brought about. It found all three applicants guilty of proselytism, holding in particular as follows.
15. In respect of the first applicant, the court observed:
“The accused, while he was a military officer ... serving in Unit X, committed the offence of proselytism in the military camp of this unit between November 1986 and December 1987 by engaging in several acts which … gave rise to a single, albeit continuing, breach of the relevant criminal provision. He acted with the aim of intruding on and changing the religious beliefs of airman Georgios Antoniadis, an Orthodox Christian who served in the same unit. Abusing the trust placed in him by airman Antoniadis, who was his hierarchical subordinate, the accused tried on approximately twenty occasions to persuade airman Antoniadis to become a member of the sect of the Pentecostal Church by engaging in discussions on theology with him in the course of which the accused contested the correctness of the teachings of the university department of theology concerning God and the Orthodox dogma. He also encouraged airman Antoniadis to read the Bible in the light of the accused’s own beliefs as a member of the Pentecostal Church, questioned the holy traditions and recommended that he visit the church of the Pentecostal sect in Athens.
Acting in the same capacity, the accused committed the offence of proselytism between May 1987 and February 1988 by engaging in several acts which … gave rise to a single, albeit continuing, breach of the relevant criminal provision. He acted with the aim of intruding on and changing the religious beliefs of airman Athanassios Kokkalis, an Orthodox Christian who served in the same unit. On approximately thirty occasions the accused tried to persuade airman Kokkalis to become a member of the sect of the Church of Pentecost by engaging, persistently and importunately, in discussions with him about the correctness of his beliefs as a member of the sect of the Pentecostal Church, questioning the holiness of the Christian Orthodox Church and inviting airman Kokkalis to listen to taped recordings on the beliefs of the Pentecostal sect. The accused took advantage of the trust inherent in the relationship between a subordinate and a superior and of airman Kokkalis’s naïvety, inexperience and youth, telling him that in his Church some people started speaking foreign languages under the effect of the Holy Spirit.
Acting in the same capacity, the accused committed the offence of proselytism between spring 1989 and 18 August 1989, in the place mentioned above, by … acting with the aim of intruding on and changing the religious beliefs of airman Nikolaos Kafkas, who served under his orders in the same unit. Taking advantage of the trust inherent in the relationship between a subordinate and a superior, and of the young man’s naïvety and inexperience, the accused tried to persuade airman Kafkas to become a member of the sect of the Church of Pentecost by continually, persistently and importunately expounding on his beliefs concerning the sect of the Pentecostal Church, reading and explaining the Bible in the light of his beliefs and providing him with copies of a tract entitled Christianismos. The accused succeeded in converting airman Kafkas by taking advantage of the latter's inexperience in theological matters and the influence he had on him due to his position and rank.”
The court also found the first applicant guilty of proselytising another airman, Stefanos Voikos.
16. It sentenced him to five months’ imprisonment for proselytising airman Antoniadis, five months’ imprisonment for proselytising airman Kokkalis, five months’ imprisonment for proselytising airman Voikos and seven months’ imprisonment for proselytising airman Kafkas. Overall, however, because some of these periods were to run concurrently, the first applicant was ordered to spend thirteen months in prison. The court ordered that these penalties be converted to fines and not enforced provided the applicant did not commit new offences in the following three years.
17. In respect of the second applicant, the court held as follows:
“The accused, while he was a military officer ... serving in Unit X, committed the offence of proselytism in the military camp of this unit between November 1986 and December 1987 by engaging in several acts which … gave rise to a single, albeit continuing, breach of the relevant criminal provision. He took advantage of the authority exercisable by him due to the difference in rank over airman Georgiades Antoniadis, who served in the same unit. On approximately seven occasions, on dates which have not been specified, the accused tried to intrude on and change the religious beliefs of airman Antoniadis by means of skilful discussions with him concerning religion. The accused urged airman Antoniadis, because of his youth, to study nothing but the Gospel, where he told him he would find the truth, which differed from the Orthodox dogma. He also tried, by means of skilful interpretation of extracts from the Holy Gospel in accordance with the beliefs of the sect of the Pentecost, to convince him that the Orthodox faith was not correct and that he should adopt the beliefs of the accused, urging him at the same time in a pressing manner to visit during his leave the church of the Pentecostal sect in Athens.
The accused also committed the offence of proselytism in Vólos in 1988 by … taking advantage of the inexperience and intellectual weakness of Mrs Anastassia Zounara. He tried on several occasions, on dates which have not been specified, to intrude on and change her religious beliefs by engaging in a skilful analysis of the beliefs of the sect of the Pentecost and their difference from those of the Orthodox faith. Elaborating on the correctness of the former, he tried persistently to convince her that the followers of the Pentecostal Church bore marks given to them by God, that they could prophesy the future, that she and her children were possessed by the devil who was fighting to keep control over her, that she worshipped idols and demons and that the Pentecostal Church held the truth. He also urged her in a pressing manner to be baptised and become a member of the Pentecostal Church.
The accused also committed the offence of proselytism in Vólos on a date which has not been specified towards the beginning of June 1989. Having been summoned by Captain Ilias Baïramis, the accused went to the house of Mr Apostolos Baïramis, Captain Baïramis’s brother, where Mr Charalampos Apostolidis, the brother-in-law of the Baïramis brothers and a follower of the sect of the Pentecostal Church, was in a delirious state under the influence of his religious beliefs. He was foaming at the mouth, invoking Christ’s name and saying ‘Thank you Christ, because I have known the truth, I see the devil in my wife’s and children’s faces’. The mere fact of the accused’s presence calmed Mr Apostolidis, and the former skilfully took advantage of this by attempting to intrude upon and change the religious beliefs of Apostolos Baïramis and Marigoula, Sotirios and Evangelis Baïrami, who were present during the incident and had been impressed by it, and of a number of neighbours who gathered afterwards. He preached to them, elaborating on the beliefs of the sect of the Pentecostal Church and telling them that these, and not those of the Orthodox Church, were correct and that in 1992 the world would come to an end and the Church would be ‘captured’. He urged them persistently and importunately to believe in the true Christ and told them that, by virtue of being Christian Orthodox, they had taken sides with the devil.”
18. The second applicant was sentenced to five months’ imprisonment for proselytising airman Antoniadis, five months’ imprisonment for proselytising Mrs Zounara, and eight months’ imprisonment for proselytising the Baïramis family and their neighbours, although he was only to serve twelve months overall. The court ordered that these penalties be converted to fines and not enforced provided the applicant did not commit new offences in the following three years.
19. In respect of the third applicant, the court held as follows:
“The accused, while he was a military officer ... serving in Unit X, committed the offence of proselytism in the military camp of this unit between May 1987 and February 1988 by engaging in several acts which … gave rise to a single, albeit continuing, breach of the relevant criminal provision. He acted with the aim of intruding on and changing the religious beliefs of airman Athanassios Kokkalis, an Orthodox Christian who served in the same unit. Taking advantage of the trust inherent in the relationship between a subordinate and a superior, the accused tried more than fifty times to convince airman Kokkalis that the teachings of the Orthodox faith were not correct on a number of issues, such as the virginity of the Holy Mother, the ranks of the priests and the power of the Holy Spirit. He engaged with airman Kokkalis in persistent and importunate discussions regarding the teachings of the sect of the Pentecostal Church, of which the accused was a follower, telling him that the teachings of the sect, rather than those of the Orthodox Church, were correct. He urged him to visit a place in Larissa where the followers of the Pentecostal Church used to gather and to become a member of the sect and he gave him a free copy of a periodical published by the followers of the Pentecostal Church entitled Christianismos. In the course of these encounters the accused intentionally failed to reveal to airman Kokkalis that he was a member of the Pentecostal sect.
Acting in the same capacity, the accused committed the offence of proselytism in the same place for a period of four to five months in 1988, … acting with the aim of intruding on and changing the religious beliefs of Mrs Anastassia Zounara, an Orthodox Christian. He skilfully took advantage of her inexperience in religious matters and her intellectual weakness, resulting from her low level of education, and tried importunately to persuade her to be baptised and become a member of the sect of the Pentecostal Church. He told her constantly that he bore signs given to him by God, that he could foresee the future and that she and her children were possessed. His intention was to undermine her faith in Orthodoxy and convert her to the sect of the Pentecostal Church.
Acting in the same capacity, the accused committed the offence of proselytism in the same place between spring 1989 and 18 August 1989, … acting with the aim of intruding on and changing the religious beliefs of airman Nikolaos Kafkas, an Orthodox Christian who served in the same unit. Taking advantage of the trust inherent in the relationship between a subordinate and a superior and of airman Kafkas’s naïvety and inexperience, the accused tried to persuade him to adhere to the sect of the Pentecostal Church. He engaged in continual, persistent and importunate analysis of his beliefs regarding the sect of the Pentecostal Church, continually reading the Gospel which he interpreted in accordance with his beliefs. He gave airman Kafkas publications of his sect and took him to his place of worship. In this way, he succeeded in converting airman Kafkas, taking advantage of his inexperience in religious matters and the influence he had on him because of his position and rank.”
The court also found that the third applicant had engaged in the proselytising of a warrant officer, Adjutant Theophilos Tsikas.
20. He was sentenced to eight months’ imprisonment for proselytising airman Kokkalis, five months’ imprisonment for proselytising Mrs Zounara, five months’ imprisonment for proselytising Adjutant Tsikas and seven months’ imprisonment for proselytising airman Kafkas. He was to serve fourteen months overall. The court ordered that these penalties be converted to fines and not enforced provided the applicant did not commit new offences in the following three years.
21. The applicants appealed immediately to the Courts-Martial Appeal Court (Anatheoritiko Dikastirio), a court composed of five military judges. Their appeal was heard on 7 October 1992.
22. In a judgment pronounced immediately after the hearing (no. 390/1992), the Appeal Court rejected the defence’s argument to the effect that the accused had merely exercised a constitutional right and upheld most of their convictions, using the same reasoning as the first- instance court. It did, however, reverse the conviction of the first applicant for proselytising airman Voikos and that of the third applicant for proselytising Adjutant Tsikas (see paragraphs 15 and 19 above).
23. The Appeal Court maintained the penalties imposed by the first-instance court on the first and third applicants in respect of the convictions it had upheld. However, because of the quashing of the two convictions, their overall sentences were reduced to eleven and twelve months respectively.
It reduced the second applicant’s sentence to four months’ imprisonment for proselytising airman Antoniadis, four months for proselytising Mrs Zounara, and six months for proselytising the Baïramis family and neighbours. His overall sentence was reduced to ten months’ imprisonment.
24. As none of the overall sentences imposed involved more than one year's imprisonment, they were automatically converted by the court into pecuniary penalties of 1,000 drachmas per day. The court ordered that the penalties should not be enforced provided that the applicants did not commit new criminal offences in the following three years.
25. The applicants appealed in cassation.
In a judgment delivered on 30 July 1993 (no. 1266/1993), the Court of Cassation (Arios Pagos) found as follows:
“It follows from section 4(1) and (2) of Law no. 1363/1938 [see paragraph 27 below] that in order for the crime of proselytism … to be established, there must be a direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion with the aim of undermining those beliefs, provided that the attempt is made using the means enumerated in a non-exhaustive fashion in the above-mentioned section, namely by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of the other person’s inexperience, trust, need, low intelligence or naïvety.
The above-mentioned provisions of this section … are not contrary to [the provisions of the Greek Constitution guaranteeing the principle nullum crimen, nulla poena sine lege]; moreover, they are perfectly consistent with Article 13 of the Constitution [see paragraph 26 below], which provides that all known religions are free since, under Article 13, proselytism is prohibited… The argument to the contrary finds no support in the fact that under [the previous Constitutions] the prohibition of proselytism was designed to protect the then (and still) dominant religion, whereas under the present Constitution that prohibition is associated with freedom of conscience in religious matters relating to all known religions. This reasoning is undeniably consistent with both the letter and the spirit [of section 4], pursuant to which protection from proselytism employing the unlawful means set out therein is provided for the religious convictions of all persons of different persuasions,
i.e. all those belonging to a religion or dogma other than that of the author of the proselytism, and not exclusively those professing the principles of the Orthodox Church.
Furthermore, freedom of conscience in religious matters and of thought, protected as a human right by the present Constitution and by Articles 18 and 19 of the United Nations’ Universal Declaration and Articles 9 and 14 of the European Convention on Human Rights, is not undermined by the above-mentioned criminal provision, since it does not sanction the holding of religious beliefs, which is completely free, but only any attempt to intrude on another person’s religious beliefs with the aim of changing them. Such attempts are quite incompatible with religious freedom, which creates an obligation to respect the religious convictions of all those who hold different beliefs.”
The court therefore dismissed the applicants’ appeal.
26. Article 13 of the Greek Constitution provides, as relevant:
“1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs.
2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.”
27. Section 4 of Law no. 1363/1938, as amended by Law no. 1672/1939, provides as follows:
“1. Anyone engaging in proselytism shall be liable to imprisonment and a fine of between 1,000 and 50,000 drachmas; he shall, moreover, be subject to police supervision for a period of between six months and one year to be fixed by the court when convicting the offender.
2. By ‘proselytism’ is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of the other person’s inexperience, trust, need, low intellect or naïvety.
3. The commission of such an offence in a school or other educational establishment or philanthropic institution shall constitute a particularly aggravating circumstance.”
There is a considerable body of case-law interpreting and applying this section: see the Court’s Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, pp. 13–15, §§ 17–21.
28. In their applications lodged with the Commission on 28 January 1994 (nos. 23372/94, 26377/94 and 26378/94), Mr Larissis, Mr Mandalarides and Mr Sarandis claimed that section 4 of Law no. 1363/1938 was too broad and vague to be compatible with the requirements of legal certainty under Articles 7, 9 § 2 and 10 § 2 of the Convention. In addition, they complained that their convictions for proselytism amounted to violations of their rights to freedom of religion and expression under Articles 9 and 10 of the Convention, and were discriminatory, contrary to Article 14 taken in conjunction with Article 9.
29. On 27 November 1995, the Commission ordered the joinder of the three applications under Rule 35 of its Rules of Procedure and declared them admissible.
30. In its report of 12 September 1996 (Article 31), the Commission expressed the opinion that there had been violations of Article 9 of the Convention in so far as the second applicant was convicted of proselytising the Baïramis family and their neighbours (unanimously) and in so far as the second and third applicants had been convicted of proselytising Mrs Zounara (twenty-four votes to five). However, it found no violation of Article 9 in so far as the first and second applicants were convicted of proselytising airman Antoniadis and the first and third applicants were convicted of proselytising airman Kokkalis (twenty-eight votes to one), and in so far as the first and third applicants were convicted of proselytising airman Kafkas (twenty-three votes to six).
It further concluded that there had been no violation of Article 7 of the Convention (twenty-eight votes to one) and that no separate issue arose under Article 10 of the Convention (unanimously) nor under Article 9 in conjunction with Article 14 in so far as the second applicant was convicted of proselytising the Baïramis family and neighbours and the second and third applicants were convicted of proselytising Mrs Zounara (unanimously). Finally, it concluded that there had been no violation of Articles 9 and 14 taken together in so far as the first and second applicants were convicted of proselytising airman Antoniadis and the first and third applicants were convicted of proselytising airmen Kokkalis and Kafkas (unanimously).
The full text of the Commission’s opinion and of the three separate opinions contained in the report is reproduced as an annex to this judgment.
31. In their memorial and at the hearing before the Court, the Government maintained that no violation of the Convention had arisen in the applicants’ case.
The applicants, however, asked the Court to find violations of Articles 7, 9, 10 and 14 of the Convention and to award them just satisfaction under Article 50.
32. The applicants contended that the law against proselytism failed to comply with Article 7 of the Convention, which provides:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
They argued that the Greek law violated the principle enshrined in Article 7 that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege), since it was impossible to predict whether certain types of behaviour would lead to a prosecution for proselytism. They contended that this deficiency in the law was evident both from the text of section 4(2) (see paragraph 27 above) and the jurisprudence which had arisen from it.
For example, the use of the words “in particular” implied that the subsequent definition was only one form of proselytism punishable under the statute, and other expressions employed, such as “direct or indirect” and “any kind of inducement or promise of an inducement or moral support or material assistance” were so broad and vague as to embrace almost any form of practical evangelism. The case-law which had grown out of section 4 (see the examples set out in the Court’s Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 13, § 18), showed that no one in Greece could possibly determine in advance whether or not his religious actions would constitute the offence of proselytism.
33. The Government and the Commission, referring to the above-mentioned Kokkinakis judgment, were both of the opinion that there had been no violation of this provision.
34. The Court recalls its finding in the above-mentioned Kokkinakis case (op. cit., p. 22, § 52) that the definition of the offence of proselytism contained in section 4, together with the settled body of national case-law interpreting and applying it, satisfied the conditions of certainty and foreseeability prescribed by Article 7.
It is not persuaded that the position in Greek law has become any less clear in the period of under five years since that evaluation. Bearing in mind that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (ibid., p. 19, § 40), it sees no reason to reverse its previous decision.
35. It follows that there has been no violation of Article 7 of the Convention.
36. The applicants claimed that their prosecution, conviction and punishment for proselytism amounted to violations of Article 9 of the Convention, which states:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
The Government denied that there had been any such breach. The Commission found that there had been no violation with regard to the measures taken against the applicants for the proselytising of the airmen, although it found that Article 9 had been violated in so far as the proselytising of civilians was concerned (see paragraph 31 above).
37. The Court must consider whether the applicants’ Article 9 rights were interfered with and, if so, whether such interference was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society” within the meaning of Article 9 § 2.
38. The Court considers, and indeed it was not disputed by those appearing before it, that the prosecution, conviction and punishment of the applicants for offences of proselytism amounted to interferences with the exercise of their rights to “freedom … to manifest [their] religion or belief” (see the Kokkinakis judgment cited at paragraph 32 above, p.18, § 36).
39. The applicants, for the same reasons they had advanced in support of a finding of violation of Article 7 (see paragraph 32 above), contended that the measures taken against them were not “prescribed by law”, as required by Article 9 § 2.
The Government and the Commission were of the contrary opinion, again relying on the Court’s Kokkinakis judgment.
40. The Court recalls that the expression “prescribed by law” in Article 9 § 2 requires, inter alia, that the law in question must be both adequately accessible to the individual and formulated with sufficient precision to enable him to regulate his conduct (see, mutatis mutandis, the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 31, § 49).
41. It refers to its finding in the above-mentioned Kokkinakis case that the measures taken against that applicant under section 4 were “prescribed by law” (op. cit., pp. 19–20, §§ 40–41). As the Court has already concluded in relation to Article 7 (see paragraphs 34–35 above), it is not satisfied that the position in Greek law has changed subsequently or that it should depart from its earlier assessment for any other reason.
42. In conclusion, the measures in question were “prescribed by law” within the meaning of Article 9 § 2.
43. The Government, with whom the Commission agreed, reasoned that the relevant action was taken against the applicants with the aim of protecting the rights and freedoms of others and also, as far as the measures taken following the proselytising of the airmen were concerned, with the aim of preventing disorder in the armed forces and thus protecting public safety and order.
The applicants made no particular submission in this connection.
44
45. The Court emphasises at the outset that while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion”, including the right to try to convince one’s neighbour, for example through “teaching” (ibid., p. 17, § 31).
Article 9 does not, however, protect every act motivated or inspired by a religion or belief. It does not, for example, protect improper proselytism, such as the offering of material or social advantage or the application of improper pressure with a view to gaining new members for a Church (ibid., p. 21, § 48).
46. The Court’s task is to determine whether the measures taken against the applicants were justified in principle and proportionate. In order to do this, it must weigh the requirements of the protection of the rights and liberties of others against the conduct of the applicants (ibid., p. 21, § 47). Since different factors come into the balance in relation to the proselytising of the airmen and that of the civilians, it will assess the two matters separately.
47. The Government contended that the applicants had abused the influence they enjoyed as air force officers and had committed the acts in question in a systematic and repetitive manner. The measures taken against them were justified by the need to protect the prestige and effective operation of the armed forces and to protect individual soldiers from ideological coercion.
48. The applicants submitted that the practice of evangelism within a superior/subordinate relationship could not without more be equated to an abuse of trust. They emphasised that the airmen were adults, able to die for their country, and that there was no evidence that the applicants had used their positions to coerce or override the wills of their subordinates. To interpret Article 9 so as to restrict evangelism to “equals” would be a severe limitation of religious freedom, both within the armed forces and in other contexts.
49. The Commission found that the interference could be justified as ensuring that the three airmen’s religious beliefs were respected, in view in particular of the special character of the relationship between a superior and a subordinate in the armed forces, which rendered the subordinate more susceptible to influence in a variety of matters including religious beliefs.
50. The Court observes that it is well established that the Convention applies in principle to members of the armed forces as well as to civilians. Nevertheless, when interpreting and applying its rules in cases such as the present, it is necessary to bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces (see the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 23, § 54, and, mutatis mutandis, the Grigoriades v. Greece judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, pp. 2589–90, § 45).
51. In this respect, the Court notes that the hierarchical structures which are a feature of life in the armed forces may colour every aspect of the relations between military personnel, making it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him. Thus, what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject, may, within the confines of military life, be viewed as a form of harassment or the application of undue pressure in abuse of power. It must be emphasised that not every discussion about religion or other sensitive matters between individuals of unequal rank will fall within this category. Nonetheless, where the circumstances so require, States may be justified in taking special measures to protect the rights and freedoms of subordinate members of the armed forces.
52. The Court refers to the evidence adduced in the domestic proceedings (see paragraphs 8–10 above).
It notes that airmen Antoniadis and Kokkalis testified that the applicants approached them on a number of occasions in order to persuade them to convert and to visit the Pentecostal Church. Mr Antoniadis stated that he felt obliged to take part in the discussions because the applicants were his superior officers, and Mr Kokkalis said that the applicants’ approaches bothered him. As the Commission found, there is no evidence that the applicants used threats or inducements. Nonetheless, it appears that they were persistent in their advances and that these two airmen felt themselves constrained and subject to a certain degree of pressure owing to the applicants’ status as officers, even if this pressure was not consciously applied.
53. The Court notes that, contrary to the evidence given by his father at first instance, airman Kafkas testified before the Courts-Martial Appeal Court that the applicants did not apply any pressure to him to become a member of the Pentecostal Church and that he himself initiated the religious discussions that took place between them (see paragraph 10 above). However, the Appeal Court, having had the opportunity to assess the evidence, including Mr Kafkas’s demeanour and credibility, upheld the first-instance court’s decision that the first and third applicants had unlawfully taken advantage of the influence they had over Mr Kafkas due to their position and rank (see paragraphs 15, 18 and 22 above). The Court, considering that the domestic courts were better placed than itself to determine the facts of the case, and taking into account the matters referred to in paragraph 51 above, is of the view that Mr Kafkas, like the other two airmen, must have felt to a certain extent constrained, perhaps obliged to enter into religious discussions with the applicants, and possibly even to convert to the Pentecostal faith.
54
55. It follows that there has been no violation of Article 9 with regard to the measures taken against the first applicant for the proselytising of airmen Antoniadis, Kokkalis and Kafkas, those taken against the second applicant for the proselytising of airman Antoniadis or those taken against the third applicant for the proselytising of airmen Kokkalis and Kafkas.
56. The Government reminded the Court that under section 4, only improper proselytism is punishable. They contended that the second and third applicants had systematically exploited the family problems and psychological distress suffered by the Baïramis family and Mrs Zounara and had thus applied unlawful pressure. Furthermore, the penalties imposed on them were not particularly onerous.
57. The Commission, with whom the applicants agreed, considered that the circumstances leading to the conviction of the second and third applicants for proselytising the Baïramis family and Mrs Zounara were similar to those of the Kokkinakis case (cited at paragraph 32 above), in that the “targets” of the proselytism were not military personnel and the domestic courts established the defendants’ guilt by reciting the words of section 4 without adequately explaining in what way the methods employed by the accused had been “improper”. It had not been satisfactorily demonstrated that their convictions on these counts were “necessary in a democratic society”.
58. The Court recalls that the second applicant was convicted under section 4 for preaching on a single occasion to the Baïramis family and their neighbours, following an incident when he had managed to calm a member of the Baïramis family who was in a delirious state. Together with the third applicant, he was also convicted for the proselytising of Mrs Zounara, whom they had attempted to convert on a number of occasions during a period when she was experiencing marital problems (see paragraphs 11, 12, 17 and 19 above).
59. The Court finds it of decisive significance that the civilians whom the applicants attempted to convert were not subject to pressures and constraints of the same kind as the airmen.
With regard to the Baïramis family and their neighbours, none of the evidence indicates that they felt obliged to listen to the applicant or that his behaviour towards them was improper in any way.
As for Mrs Zounara, it was not disputed before the domestic courts that she initially sought out the applicants in an attempt to understand the reasons behind her husband’s behaviour. Whilst it is clear that during the period she was in contact with them she was in a state of distress brought on by the breakdown of her marriage, the Court does not find it established that her mental condition was such that she was in need of any special protection from the evangelical activities of the applicants or that they applied improper pressure to her, as was demonstrated by the fact that she was able eventually to take the decision to sever all links with the Pentecostal Church.
60
61. It follows that there has been a violation of Article 9 with regard to the measures taken against the second applicant for the proselytising of the Baïramis family and their neighbours and those taken against the second and third applicants for the proselytising of Mrs Zounara.
62. The applicants claimed that the measures taken against them had also interfered with their rights to freedom of expression, in breach of Article 10 of the Convention, which states, as relevant:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
63. The Commission, with whom the Government agreed, found that no separate issue arose under this provision.
64. Having regard to its scrutiny of this case in the context of Article 9, the Court also agrees that no separate issue arises in relation to Article 10.
65. The applicants alleged that they had been the victims of discrimination contrary to Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
They contended that the law against proselytism was applied only to members of religious minorities in Greece, no follower of the Orthodox Church ever having been convicted of the offence under section 4.
66. The Government made no particular submission in relation to this complaint.
67. The Commission found that no separate issue arose under Articles 9 and 14 taken together in relation to the measures directed against the second and third applicants for the proselytising of the civilians. As far as the measures taken against the applicants for the proselytising of the airmen were concerned, since no material was provided to substantiate the complaint under Articles 9 and 14, it reached a finding of no violation.
68. The Court notes that the applicants alleged in their memorial that the Greek law against proselytism was applied in a discriminatory manner. However, they have not produced any evidence to suggest that an officer in the armed forces who attempted to convert his subordinates to the Orthodox Church in a manner similar to that adopted by the applicants would have been treated any differently. It follows that no violation of Articles 9 and 14 taken together has been established in connection with the proselytising of the airmen.
69. Having found a violation of Article 9 with regard to the measures taken against the second and third applicants for the proselytising of the Baïramis family and Mrs Zounara, the Court considers that no separate issue arises in that connection under Articles 9 and 14 taken together.
70. The applicants requested just satisfaction under Article 50 of the Convention, which provides:
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
71. The applicants sought 500,000 drachmas (GRD) each to compensate them for moral and material prejudice. This was the amount that the Court had awarded to Mr Kokkinakis in 1993 (op. cit., p. 23, § 60).
72. At the hearing before the Court, the Government submitted that, in the event of the Court finding a violation, such finding would in itself constitute sufficient just satisfaction.
73. On the same occasion, the Commission’s Delegate commented that the fact that the domestic courts had not sought to take the Court’s case-law into account was a particular element to be taken into consideration under Article 50.
74. The Court observes that it has found violations of the Convention in respect only of the measures taken against the second applicant for the proselytising of the Baïramis family and the second and third applicants for the proselytising of Mrs Zounara (see paragraphs 58–61 above). The first applicant is not, therefore, entitled to any just satisfaction under Article 50.
Making its assessment on an equitable basis, it awards GRD 500,000 each to Mr Mandalarides and Mr Sarandis.
75. The applicants also requested 11,800 pounds sterling (GBP) to cover the legal costs and expenses of the proceedings before the Commission and Court in Strasbourg.
76. The Government considered the amount claimed to be excessive and submitted that the sum awarded should not exceed GRD 1,000,000.
77. The Court again notes in this context that it does not find any violation of the Convention in respect of the first applicant and that it finds in favour of the second and third applicants in connection with only one part of their complaints, namely in relation to the measures taken against them for the proselytising of civilians.
In the light of the above, it awards to the second and third applicants part of the costs and expenses claimed, in total GBP 6,000, together with any value-added tax which may be payable, less the amount received by way of legal aid from the Council of Europe.
78. According to the information available to the Court, the relevant statutory rates of interest applicable at the date of adoption of the present judgment are 6% per annum in Greece and 8% per annum in the United Kingdom.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 24 February 1998.
Signed: Feyyaz Gölcüklü
President
Signed: Herbert Petzold
Registrar
In accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A, the following separate opinions are annexed to this judgment:
Initialled: F. G.
Initialled: H. P.
VIOLATED_ARTICLES: 9
NON_VIOLATED_ARTICLES: 14
7
9


ITEMID: 001-76591
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: UGILT HANSEN v. DENMARK
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Snejana Botoucharova
TEXT: The applicant, Erik Ugilt Hansen, is a Danish national who was born in 1946 and lives in Bramminge. He is represented before the Court by Mr Uffe Baller, a lawyer practising in Århus. The Danish Government (“the Government”) are represented by their Agent, Mrs Nina Holst-Christensen, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owned and managed two private limited companies, which each ran two freshwater fish farms.
On 28 September 1993 the applicant was charged with offences against the Act on Freshwater Fish Farms of 5 April 1989 (bekendtgørelse nr. 224) as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment, and with enrichment for himself.
An indictment of 13 October 1993, and supplementary indictments of 18 July 1994, 11 July 1995 and 10 September 1996, amended on 21 September 1998, were submitted to the City Court in Hobro (Retten i Hobro), concerning offences against the said Act and the amended Acts on Freshwater Fish Farms of 31 September 1994 (bekendtgørelse nr. 900) and of 31 March 1998 (bekendtgørelse nr. 204) and the Environmental Protection Act (Miljøbeskyttelsesloven). The supplementary indictments were submitted because the applicant continued to exceed the fixed feed quotas until December 1995.
Having received the indictment of 13 October 1993, the City Court held a hearing on 27 October 1993, after which it adjourned the case in order that the applicant’s counsel submitted a legal opinion. On 31 January 1994 the latter maintained that Ministry of Environment’s interpretation of section 35 of the Environmental Act was not supported by the preparatory notes to the Act, nor by its wording and the administrative practice relating to the Act. Moreover he found that the Minister of Environment did not have the necessary authority to change the legal basis of the applicant’s business by means of the Act on Freshwater Fish Farms. Finally, he claimed that the Environmental Act did not provide the necessary legal authority for the Act on Freshwater Fish Farms.
On 25 July 1994, having obtained observations from various authorities, the Chief Constable of Hobro (Politimesteren i Hobro) submitted his reply to the City Court. Thereafter counsel was requested to file his reply by 12 October 1994, on his request, however, the time-limit was extended.
In the meantime, on 7 June 1994, the City Court of Terndrup (Retten i Terndrup) passed judgment in a similar case, ruling on a number of questions of principle, which were also of importance in the applicant’s case, including whether the 1989 Act had legal authority, how to calculate the fish farmers’ profit and how to assess a proportionate fine. An appeal against the judgment was lodged with the High Court of Western Denmark (Vestre Landsret).
The applicant’s case was adjourned awaiting the outcome of the said appeal, since it was considered to be a so-called “test-case”. The applicant’s counsel represented the defendants in the said case and the applicant did not object to the adjournment of his case.
The appeal proceedings in the test-case were finally determined by a High Court judgment of 21 September 1995, which stated that the Act provided the requisite authority and that the sanction for any violation of it should be imposition of a fine and confiscation of any profit.
As a consequence of the judgment, the Regional Public Prosecutor of Aalborg (Statsadvokaten i Aalborg), who at the relevant time had twenty-three similar cases being prosecuted by him in the first instance, forwarded a memorandum to all the Chief Constables in December 1995, urging them to expedite the “fish farms cases”.
In January 1996, however, a defendant in another test-case alleged that the 1989 Act was anti-competitive and therefore in conflict with EU law. Thereupon the Regional Public Prosecutor of Aalborg requested the Environmental Protection Agency (Miljøstyrelsen) and the Special European Committee on Legal Issues set up by the Danish Ministry of Justice (Justitsministeriets EU-specialudvalg for juridiske spørgsmål) to provide an opinion. Neither found that the Act fell within the scope of Article 34 and 35 of the EC treaty. In November 1996, in the specific testcase, the High Court ruled that it found no reason to refer to question to the European Court of Justice. Against this background, in the winter of 1996, the Regional Public Prosecutor of Aalborg forwarded two memoranda to the Chief Constables urging them to expedite the fish farm cases as much as possible.
In the meantime, in the spring of 1996 in yet another test-case, a defendant had alleged in vain that the 1989 Act was contrary to section 73 of the Danish Constitution. Consequently, in September 1996 the Regional Public Prosecutor of Sønderborg (Statsadvokaten i Sønderborg) forwarded a memorandum to all the Chief Constables providing an account of the latest development in the cases concerning fish farms and urging to expedite them.
It appears that as from the beginning of 1997 difficulties arose as to setting the applicant’s case down for trial because his counsel was busy and that therefore the applicant changed lawyer. On 27 November 1997 the applicant’s new counsel inquired about the length of the proceedings.
On 12 January 1998, the Chief Constable of Hobro replied that subsequent to the test-cases having been determined it had been difficult to set the applicants’ case down for trial, and that this was probably the reason why the applicant had changed counsel.
The trial took place before the City Court in the period between 7 and 28 September 1998. Hearings were held on 7, 8, 9, 21, 22 and 28 September 1998.
The City Court passed judgment on 27 October 1998. The applicant was convicted and sentenced to pay a fine of 625,000 Danish kroner (DKK). In addition, a profit estimated to DKK 2,510,000 was confiscated from the two companies owned by him.
The applicant appealed immediately against the judgment to the High Court of Western Denmark. On 3 November 1998 the prosecution crossappealed.
Shortly thereafter counsel informed the Regional Public Prosecutor that he was of the opinion that the Act on Freshwater Fish Farms had not been notified to the European Commission as prescribed by the 83/189/EEC Council Directive of 28 March 1983. He urged the prosecutor to withdraw the charges against the applicant and stated that otherwise he would request a reference for a preliminary ruling by the European Court of Justice. In this connection a hearing was held on 23 June 1999 and written pleadings were submitted.
Thereafter the case was adjourned in order to await the outcome of two similar criminal cases which on 15 January 1999 had been jointly brought before the Supreme Court (Højesteret) (see UfR. 2001.1046H and UfR. 2001.1056H, dealt with in Pedersen and Pedersen v. Denmark, no. 68693/01, 14 October 2004), because the arguments of the defendants in the said cases and those of the applicant were identical. The applicant’s counsel represented the two defendants Pedersen and Pedersen in their case before the Supreme Court (for a summary of those proceedings, which ended on 16 February 2001, when the Supreme Court passed judgments against the defendants, see Pedersen and Pedersen v. Denmark, cited above, §§ 26-37).
On 6 April 2001 the Prosecutor General forwarded a letter to the Regional Public Prosecutors and others stating that the adjourned cases could now proceed.
On 24 April 2001 the Regional Public Prosecutor requested the High Court to set down the applicant’s case for trial. However, since the Prosecution and the environmental authorities had to discuss and coordinate the claims made in all the cases concerning fish farming, the Regional Public Prosecutor requested that the case should not be scheduled before September 2001.
It appears that at some date between April and September 2001, the High Court scheduled the trial in the present case to take place during four specified days in May 2002.
On 26 September 2001, counsel stated that he was unable to appear on two of the relevant dates scheduled by the High Court. At the same time he made various submissions in favour of adjourning the case awaiting the outcome of a civil case lodged by the applicant concerning administrative decisions relating to the applicant’s profession, which allegedly was of importance to the criminal case against him. The prosecutor submitted his objection thereto on 9 October 2001.
On 12 December 2001 the Prosecutor General issued guidelines to the prosecution (Meddelelse nr. 3/2001) on how to go about with this kind of criminal cases and which sentences to propose.
On 14 March 2002, having regard to the fact that counsel was unable to appear on two of the relevant dates in May 2002, the High Court decided to re-schedule the trial. It refused counsel’s request that the case be adjourned awaiting the outcome of the civil proceedings lodged by the applicant.
In August 2002 counsel requested anew an adjournment of the case. The prosecutor objected thereto on 18 September 2002. On 6 November 2002 the request was refused by the High Court. On the latter date the High Court scheduled the trial to take place during four days commencing on 27 January 2003.
On 24 January 2003 the trial had to be adjourned until further notice as the applicant had a legal cause of absence. It was re-scheduled and took place from 27 until 30 October 2003.
On 5 September 2003 counsel for the applicant submitted further material to the High Court and notified it that he would claim that the length of the proceedings should be taken into account when determining the sentence.
By judgment of 6 November 2003 the High Court of Western Denmark upheld the applicant’s conviction with few amendments and reduced the fine to DKK 534,000 and the amount to be confiscated to a total of DKK 2,136,000.
With regard to the applicant’s complaint under Article 6 of the Convention, the High Court found that the proceedings had commenced on 28 September 1993 and ended with its judgment of 6 November 2003, thus lasting approximately ten years. It found that the case had been comprehensive and complex and taking all circumstances into consideration, including the awaiting of important and relevant “test cases” the High Court found that the length of the proceedings had not exceeded the “reasonable time” requirement within the meaning of Article 6 of the Convention.
On 26 March 2004 the applicant requested leave to appeal against the High Court judgment and on 2 and 21 April 2004 he submitted supplementary pleadings. In the request the applicant did not complain about the length of the proceedings or invoke Article 6 of the Convention. His request was refused by the Leave-to-Appeal Board (Procesbevillingsnævnet) on 24 June 2004 on the grounds that it had been filed after the expiry of the time-limit which was two weeks after the delivery of the judgment. The Board did not find that the time-limit had been exceeded for excusable reasons, or that the case presented any such extraordinary circumstances as would make it incumbent on the Board to grant leave to appeal.
The Administration of Justice Act provides in as far as relevant:
“The High Court notifies the Regional Public Prosecutor of the scheduling of the trial, and informs [him or her] and the accused about assignment of counsel [if any]. The information to the accused thereon may be given through the Regional Public Prosecutor in connection with the serving of the summons”.
According to this provision a [criminal] judgment passed by a High Court, acting as an appeal court, cannot be appealed against. However, the Leave-to-Appeal Board may grant leave to appeal to a court of third instance if the case involves matters of principles or if special circumstances in the case so justify. A request for leave to appeal must be submitted to the Board within a period of two weeks from the passing of the judgment. However, the Board may exceptionally grant leave to appeal if the request is submitted later, albeit within a period of one year from the passing of the judgment.


ITEMID: 001-91000
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CHERVONENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1958 and lives in Moscow.
7. On 2 June 1996 the applicant had a quarrel with his neighbours and stabbed one of them with a screwdriver causing him fatal injury. On an unspecified date criminal proceedings were instituted against the applicant. He was charged under Article 108 § 2 of the RSFSR Criminal Code (Уголовный кодекс РСФСР) with “deliberate infliction of physical injury leading to the victim’s death”.
8. On 29 September 1997 the Kuntsevskiy District Court of Moscow examined the case at first instance. It requalified the applicant’s actions and found him guilty of “murder committed in circumstances where excessive force was used in self-defence” under Article 108 § 1 of the newly enacted Criminal Code of the Russian Federation (Уголовный кодекс РФ), which had entered into force on 1 January 1997. The court sentenced the applicant to a prison term of one year and eight months, which was calculated from 15 September 1996, when he was detained pending trial.
9. On 27 November 1997 the Moscow City Court upheld the judgment of 29 September 1997 at final instance.
10. While serving his sentence the applicant attempted to institute supervisory review proceedings against these decisions. His request was rejected by the Vice-President of the Moscow City Court on 2 March 1998.
11. In May 1998 the applicant was released after having served his sentence.
12. On 8 October 1998 the Vice-President of the Supreme Court of Russia lodged an application for supervisory review (протест в порядке надзора) of the court decisions of 29 September and 27 November 1997. In the application it was stated that although he had been indicted under Article 108 § 2 of the old Criminal Code, the applicant had been tried and convicted under a different provision, namely, Article 108 § 1 of the new Criminal Code. The new charge, as it was further argued, was more serious than the original charge as it implied, unlike the first one, an intention to cause death. However, Article 254 of the Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР) prevented the trial court from amending charges unless it was to the benefit of the accused.
13. On 22 October 1998 the Presidium of the Moscow City Court granted the application for supervisory review. The Presidium decided to quash the court decisions on the grounds put forward in the application and to remit the case for a new examination at first instance.
14. On 16 July 1999 the Kuntsevskiy District Court found the applicant guilty under Article 108 § 2 of the old Criminal Code of “deliberate infliction of physical injury leading to the victim’s death”. The court sentenced the applicant to a prison term of six years. In deciding the actual term to be served, the court deducted from this period the prison term of one year and eight months already served by the applicant. On the same day the applicant started serving the remainder of the prison sentence.
15. On 31 August 1999 the Moscow City Court upheld the judgment of 16 July 1999 at final instance.
16. On 28 December 1999 the Vice-President of the Supreme Court of Russia lodged an application for supervisory review of the court decisions of 16 July and 31 August 1999. The application sought to have the case remitted for a new court examination.
17. On 27 January 2000 the Presidium of the Moscow City Court decided to grant the application. The Presidium found that:
“... the sentence was quashed by the decision of the Presidium of the Moscow City Court of 22 October 1998 ... on the grounds that Article 254 of the Code of Criminal Procedure had been violated as the court qualified [the applicant’s] actions under a provision under which he had not been indicted, thus violating [the applicant’s] right to defence ...
In accordance with Article 353 of the Code of Criminal Procedure, the imposition of a more severe penalty or application of a more serious criminal law on a new examination of a case at first instance [after it has been remitted by the appellate court] is allowed only if the initial sentence was quashed upon the prosecutor’s appeal ... on the grounds of an excessively lenient penalty ...
Therefore, in the new examination of the case the court was not allowed to qualify [the applicant’s] actions under a more serious provision and impose a more severe penalty than initially imposed ...”
18. The Presidium decided once again to quash the court decisions and to remit the case for a new examination at first instance. It ordered the applicant to be released.
19. On 30 August 2000 the Kuntsevskiy District Court of Moscow examined the charges against the applicant and found him guilty under Article 111 of the old Criminal Code of “inflicting serious injuries in circumstances where excessive force was used in self-defence”. The court sentenced him to ten months’ imprisonment. Taking into account the prison terms already served, the court concluded that the punishment had already been executed.
20. No appeal was lodged against the judgment of 30 August 2000, which became final.
21. The RSFSR Criminal Code of 1960 provided that deliberate infliction of physical injury leading to the victim’s death was punishable by five to twelve years’ imprisonment. Article 111 provided that infliction of serious injuries in circumstances where excessive force was used in self-defence was punishable by up to one year’s imprisonment.
22. The Criminal Code of the Russian Federation, in force since 1 January 1997, provides that murder committed in circumstances where excessive force was used in self-defence is punishable by up to two years’ imprisonment (Article 108 § 1). The Code provides that criminal liability and the applicable penalty are determined by the law in force at the time of commission of the criminal act and that retrospective application of a law or penalty is not permissible unless it is to the advantage of the accused (Articles 8 and 9).
23. Article 254 of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР), applicable at the relevant time, provided that a case was examined in court only on the charge put before the court. The charge could be amended by the court provided that this did not worsen the defendant’s situation and did not violate his or her right to defence.
24. Section VI, Chapter 30, of the Code regulated the supervisory review procedure which allowed certain officials to challenge a judgment, which had entered into force, and have the case reviewed on points of law and procedure. The supervisory review procedure is to be distinguished from proceedings which review a case because of newly established facts.
25. Pursuant to Section 356 a judgment entered into force and was subject to execution as of the day when the appeal (cassation) instance issued its judgment.
26. Section 371 provided that the power to lodge an application for a supervisory review (an extraordinary appeal) may be exercised by the President and Vice-Presidents of the Supreme Court of Russia, the Prosecutor General and his Deputies, in respect of any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings may solicit the intervention of such officials for a review.
27. Section 373 laid down a limitation period of one year during which an application calling for the supervisory review of a conviction judgment could be brought, if such an application sought a harsher penalty. The same limitation period applied to an application brought against an acquittal. It ran from the day when the conviction or the acquittal entered into force.
28. According to Sections 374, 378 and 380, the application for supervisory review was considered by the presidium of the relevant court which examined the case on the merits, not being bound by the scope and grounds of the application. The presidium could either dismiss the application and thus uphold the earlier judgment, or grant the application. In the latter case it had to decide whether to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, or for a new court examination at any instance, to uphold a first instance judgment reversed on appeal, or to amend and uphold any of the earlier judgments.
29. Section 382 provided that imposition of a graver punishment or application of a harsher criminal law in the examination of a case at first instance was allowed only if the initial sentence had been quashed upon supervisory review on the grounds seeking imposition of a graver penalty.
VIOLATED_ARTICLES: 6


ITEMID: 001-115165
LANGUAGEISOCODE: ENG
RESPONDENT: AND
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BALL v. ANDORRA
IMPORTANCE: 4
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 6. The applicant was born in 1969 and lives in Sant Julià de Loria (Andorra). On 15 February 2003 he married a woman with whom he had two children, a boy and a girl, born in 1992 and 2003 respectively.
7. On 31 March 2004 the applicant left the household, the children remaining with their mother.
8. On 18 October 2004, the applicant’s wife introduced a petition for legal separation from the applicant. She sought, inter alia, custody of the children, to which the applicant did not disagree.
9. On 13 June 2005 the applicant and his wife were legally separated. The judge (batlle) reviewing the petition at first instance (“the separation judge”) granted custody of the children to their mother and set up a contact schedule governing the applicant’s contact with his children.
10. On 14 July 2006, during the course of proceedings for the adoption of interim measures, the separation judge granted a motion made by the applicant’s wife to immediately and provisionally suspend the contact schedule until the production of a psychological report by an impartial expert. In taking this decision, the separation judge relied on: several criminal claims introduced by the applicant’s wife against the applicant that suggested extremely troubled relations between the parents that were negatively affecting their children; a psychological report submitted by the applicant’s wife, according to which the troubled relationship between the parents was damaging the mental stability of their son; and a brief submitted by the public prosecutor, in which he proposed conducting a psychological test on both children before giving the applicant access to them.
11. On 20 July 2006 the separation judge confirmed his previous decision of 14 July 2006. The judge relied on a psychological report issued by an impartial expert at his request and on the brief submitted by the public prosecutor in concluding that the contact schedule should remain suspended. The applicant was nonetheless allowed to maintain telephone contact with his children and his wife was warned that she had to facilitate this contact.
12. On 19 December 2006 the applicant’s wife filed a petition for divorce. She also sought custody of the children and that, pending the conclusion of the divorce proceedings, the contact schedule set up by the separation judgment remain suspended. For his part, the applicant agreed with the petition for divorce but also sought custody of the children. He also applied for an interim order restoring the contact schedule set up by the separation judgment in respect of his daughter and establishing a contact schedule under the supervision of a judge and professionals appointed for that purpose in respect of his son.
13. On 22 December 2006 the applicant applied to the separation judge to have the contact schedule set up by the separation judgment restored in respect of his daughter and a contact schedule operating under the supervision of a judge and professionals appointed for that purpose established in respect of his son. On 15 February 2007 the applicant’s wife opposed the application. On 21 February 2007 the public prosecutor argued for the restoration of the contact schedule set up by the separation judgment of 13 June 2005.
14. On 21 February 2007 the judge handling the couple’s divorce (“the divorce judge”) dismissed both the applicant’s request for interim measures and his wife’s request to have the contact schedule set up by the separation judgment suspended pending the rendition of a judgment of divorce.
15. On 2 April 2007 the separation judge ruled on the application of 22 December 2006. He restored the contact schedule set up by the separation judgment in respect of the applicant’s daughter and appointed a psychologist to carry out a psychotherapeutic examination and, if necessary, individualised treatment of both parents and their son with a view to restoring the contact schedule between father and son. In this connection, the judge instructed both the applicant and his wife to deposit 1,500 euros (EUR) each within eight days in security for the cost of the examination. Should the applicant or his wife fail to comply, the judge would order that measures be taken to have the decision enforced.
16. The applicant’s wife appealed against the decision of 2 April 2007 before the High Court of Justice.
17. On 19 June 2008 the High Court of Justice partially reversed the separation judge’s decision. It struck down the appointment of the psychologist but upheld the remainder of the decision. The court stated that, the interim measures having expired, the contact schedule set up by the separation judgment should be restored, without prejudice to the possible interim measures regarding parent-child contact that the divorce judge could order pending the rendition of a judgment of divorce.
18. On 25 June 2008 the applicant applied to the separation judge for enforcement of the decisions of 19 June 2008 and 2 April 2007. The applicant’s wife opposed the application and sought to have the enforcement of those decisions suspended until a judgment of divorce had been delivered. The public prosecutor proposed the suspension of the contact schedule until a psychological examination of both parents and their children had been performed.
19. On 24 July 2008 the separation judge relied on a psychologist’s report dated 28 February 2008 to provisionally suspend the contact schedule set up by the judgment of 13 June 2005 and appointed a psychologist with a view to its eventual restoration. According to the psychologist’s report, contact between the applicant and the children was not desirable until comprehensive treatment of the children had been carried out.
20. The applicant appealed against that decision. He sought to have the decision of 24 July 2008 reversed and that of 19 June 2008 applied.
21. On 21 October 2008, while the applicant’s appeal against the decision of 24 July 2008 was still pending, the judgment of divorce was issued. The divorce judge granted custody of the children to their mother and set up a contact schedule governing the applicant’s contact with the children which was to remain suspended pending the decision of a psychologist, who would be appointed by the court upon enforcement of the judgment. The psychologist was to carry out treatment of the children and, if appropriate, the parents, with a view to restoring contact between the children and their father. The judge relied on several psychological reports that advised against immediate contact between son and father and on the son’s testimony, in which he had expressed his desire not to have contact with his father.
22. The applicant appealed against the divorce judgment, seeking to have it partially reversed. He accepted custody of his son being awarded to his former wife. However, he sought to have the requirement of psychological treatment removed and an award of custody of his daughter in his favour. In the alternative, he requested that a contact schedule conforming to that of the separation judgment be established in respect of his daughter.
23. On 12 February 2009 the High Court of Justice decided upon the appeal submitted by the applicant against the provisional suspension of the contact schedule ordered by the separation judge on 24 July 2008. The court stated that since a judgment of divorce had already been delivered, the separation judgment should be set aside and the content of the divorce judgment enforced. Accordingly, the High Court of Justice expressly deprived the separation judge’s decision of 24 July 2008 of any effect.
24. The applicant then lodged a request for clarification with the High Court of Justice. He requested from the court to clarify whether the decision it had delivered on 19 June 2008 in separation proceedings should be enforced having regard to the fact that the divorce judgment of 21 October 2008 was not yet final nor enforceable.
25. On 23 April 2009 the court dismissed the applicant’s request for clarification. It stated that the applicant’s request had exceeded the scope of a request for clarification of a judgment, and that the judgment in the applicant’s appeal had been clear in any event. It considered he was instead requesting a judicial pronouncement as to the procedural effects of his appeal against the divorce judgment that had set up a contact schedule. This notwithstanding, the court went on to state that pending an appeal with suspensive effect, if this was the case, against a divorce judgment, the content of such a judgment would not be enforceable, but added that previous decisions adopted in separation proceedings would not be enforceable either. In fact, the High Court of Justice stated:
“...the suspensive effect of the appeal ... makes it necessary to await the decision of this Chamber before applying the measures established by the judgment appealed against, if that judgment is upheld, or those established by that of this Chamber, if the [divorce] judgment delivered by the [first-instance] judge is reversed”.
26. The applicant submitted an appeal for the annulment of the proceedings, citing Article 10 of the Andorran Constitution (the right to court proceedings).
27. On 28 May 2009 the High Court of Justice dismissed the applicant’s appeal. It found that the applicant’s right to court proceedings had not been infringed by the decision of 23 April 2009, as the court had arrived at the only possible conclusion in the light of the rules of procedure in force. The relevant procedural rules forbade the enforcement of decisions being appealed against with suspensive effect and of decisions rendered in separation proceedings when a judgment of divorce had already been rendered in the case.
28. On 16 June 2009 the applicant lodged a constitutional appeal (recurso d’empara) with the Constitutional Court, founding the appeal on his right to court proceedings and to a fair hearing. He contended that the impossibility of enforcing the decision of 19 June 2008, already final, while an appeal was still pending in the divorce proceedings, had denied him a fair hearing.
29. On 23 July 2009, the High Court of Justice decided on the applicant’s appeal against the divorce judgment of 21 October 2008. The court dismissed all of the applicant’s grounds of appeal, instead upholding the judgment in its entirety.
30. On 12 October 2009 the Constitutional Court declared the applicant’s constitutional appeal inadmissible as devoid of constitutional content. The Constitutional Court stated that the decisions of the High Court of Justice had not been arbitrary and that that court had clearly and logically stated that the legal situation would not be definitely settled until the appeal lodged by the applicant against the judgment of divorce had been decided.
31. The applicant lodged a final appeal (recurso de súplica) with the Constitutional Court, which was dismissed on 21 December 2009 in a decision served on 20 January 2010.
32. The relevant provisions of the Andorran Constitution read as follows:
“Every person shall have the right to a court, to have a ruling founded in the law, and to the due process [of law] before an impartial tribunal established by law. (...)”
“The right to privacy, honour and reputation shall be guaranteed. All shall be protected by law against unlawful interference in their family and private life.”
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-109146
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF BRAUN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: András Sajó;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1944 and lives in Wuppertal.
6. The applicant used to work as secretary on contractual basis at the Education Department of the Turkish Representation in Dusseldorf attached to the Ministry of Education.
7. On 31 December 1996 the Ministry annulled the contract.
8. On 2 June 1997 the applicant lodged a compensation case with the Ankara Labour Court against the Ministry of Education for her labour claims.
9. On 29 December 1998 the labour court issued a decision of non-jurisdiction which was upheld by the Court of Cassation on 10 February 1999.
10. Upon the decision of non-jurisdiction, on 15 March 1999 the applicant brought compensation proceedings before the Ankara Administrative Court for her labour claims, such as bonus, notice and severance pay.
11. On 21 January 2000 the court issued a decision of non-jurisdiction and transferred the case to the Supreme Administrative Court.
12. On 7 May 2002 the Supreme Administrative Court quashed the decision of 21 January 2002 holding that the matter fell within the jurisdiction of it.
13. On 29 November 2002 the Ankara Administrative Court dismissed the case as introduced out of time. Without examining the merits of the case, it established that the sixty days time-limit to bring compensation action before the administrative court had expired on 5 December 1996 whereas the applicant lodged her case with the court on 2 June 1997.
14. In her appeal petition of 21 March 2003 the applicant challenged the judgment of the administrative court and requested a hearing in the appeal proceedings.
15. On 25 October 2005 the Supreme Administrative Court upheld the judgment of 29 November 2002, finding it to have been in accordance with the law and the procedural rules. It decided that it was not necessary to hold a hearing.
16. On 28 June 2006 the Supreme Administrative Court dismissed a request by the applicant for rectification of the judgment.
17. On 22 August 2006 the decision was served on the applicant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1