Remainder inadmissible;Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude;Article 4-2 - Compulsory labour;Forced labour);No violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude;Article 4-2 - Compulsory labour;Forced labour);Pecuniary and non-pecuniary damage - award

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

The applicants, C.N. and V., are French nationals who were born in 1978 and 1984 respectively in Burundi. They are sisters.

The facts of the case, as submitted by the parties, may be summarised as follows.

C. N. (“the first applicant”) arrived in France in 1994, at the age of sixteen. V. (“the second applicant”) and their three younger sisters arrived in France in 1995. The second applicant was ten years old at the time. Their arrival was arranged by their aunt, N., wife of Mr M., a national of Burundi.

The applicants left their country of origin, Burundi, following the civil war in 1993, during which their parents were purportedly killed. On a trip to Burundi, Mrs M. organised a family council. According to a record of the meeting dated 25 February 1995, it was decided to give guardianship and custody of the applicants and their younger sisters to Mr and Mrs M. The family considered that the couple, who lived in France, were the only members of the family “capable of taking care of [the applicants] and giving them a proper education and upbringing”.

Mr M., a former government minister of Burundi, was a UNESCO staff member and, as such, enjoyed diplomatic immunity. The spouses owned a four-bedroom detached house in Ville d’Avray in the Hauts de Seine département. They had seven children, one of whom was disabled.

When they arrived in France the applicants were housed in what they described as a poorly heated unconverted cellar in the basement of the house. The Government pointed out that it was not a cellar as such, but a basement room with a door opening into the garden and a window. The room contained a boiler, a washing machine and two beds. At the beginning of their stay the applicants shared the room with their three younger sisters.

At the same time, Mr and Mrs M. contacted an evangelical church with a view to placing the applicants’ three younger sisters with foster families, except in the school holidays. They were in fact taken in by two families in 1995 and 1996. In June 1996 two of the three sisters went to spend a few weeks with Mr and Mrs M.; the foster family, who had parental authority over them, had to take legal action to get them back in April 1997.

The applicants said that as soon as they arrived they had been made to do all the housework and domestic chores necessary for the upkeep of the house and the M. family of nine. They alleged that they had been used as “housemaids”. The first, older applicant said that she had to look after the family’s disabled son and do the gardening. They were not paid for their work or given any days off.

The applicants affirmed that they had had no access to a bathroom and only an unhygienic makeshift toilet at their disposal. The Government submitted that they were not denied access to the bathroom, but that it was limited to certain times of day. The applicants added that they were not allowed to eat with the family. They were given only pasta, rice and potatoes to eat, and occasionally leftovers from the family’s meat dishes. They had no leisure activities.

The second applicant was a pupil in the Ville d’Avray primary school from May 1995, then in the special general and vocational learning department of a Versailles secondary school from the start of the 1997 school year. As a non-French speaker she had had integration difficulties which she said increased her isolation. Her aunt nevertheless objected to her seeing the school psychologist as suggested by the teaching staff. Nor was the second applicant given any additional help in learning to read French, allegedly because this would have meant paying for her to have school meals. In spite of these difficulties she did well at school. When she got home from school she would have to do her homework then help her sister with the domestic chores.

The first applicant was never sent to school or given any vocational training. She spent all day doing housework and looking after her disabled cousin. The Government pointed out that the applicant had admitted in the course of the subsequent criminal proceedings that she had in fact refused to go to school.

On 19 December 1995 the Hauts de Seine welfare department submitted a report on children in danger to the Nantes public prosecutor according to which there was a risk that the children were being exploited “to do household chores among other things”. Following an investigation by the police child protection services, it was decided not to take any further action.

The first applicant turned eighteen on 23 March 1996. She contended that Mr and Mrs M. did nothing to legalise her situation vis-à-vis the authorities. According to the Government, her situation was not illegal because she was included in her aunt’s diplomatic passport.

From September 1997 the aunt refused to pay the second applicant’s bus fare to school. The applicant explained that when her uncle bought her a bus pass behind his wife’s back, her aunt got very angry and threatened to hit her. When she had no bus pass the second applicant had either to walk to school, which was a forty-five minute walk from where she lived, or to take the bus without a ticket. The applicant said that her aunt also refused to pay for her to have school meals.

In July 1998 the second applicant, after going several months without urgent dental treatment, had had to go to a dentist near the school at her own initiative. She had never received the orthopaedic treatment the dentist prescribed. As to the first applicant, she alleged that she had been hospitalised three times under her cousin’s name after being beaten by one of the of the boys in the family.

The applicants further alleged that they had been physically and verbally harassed on a daily basis by their aunt, who regularly threatened to send them back to Burundi to punish them and made disparaging remarks about their late parents. The second applicant claimed that once, when she was sick in bed, her aunt had threatened to hit her with a broomstick to make her clean the kitchen.

On 4 January 1999 the association “Enfance et Partage” drew the attention of the Nanterre public prosecutor’s office to the applicants’ situation, stating that the conditions they lived in – in the insalubrious, unheated basement of the M. family’s house – were contrary to human dignity, that the first applicant was used as a “housemaid” and had to look after the family’s disabled eldest son, that their aunt refused to buy the second applicant a travel card or pay for her to have school meals, and that both girls complained of ill-treatment and physical aggression by their aunt. The applicants ran away from the house the next day and were taken into the association’s care.

On 7 January 1999 the Nanterre public prosecutor’s office applied to the Director General of UNESCO to have Mr M.’s diplomatic immunity lifted.

On 27 January 1999 that request was granted, exceptionally, as part of an investigation into allegations of ill-treatment. The immunity of Mr M.’s wife was also lifted.

On 29 January 1999 a preliminary investigation was opened on the instructions of the Nanterre public prosecutor’s office.

On 2 February 1999 the police interviewed the two applicants, who confirmed the terms of the report by “Enfance et Partage”. They did, however, explain that their uncle had tried to temper his wife’s behaviour. The second applicant said that when their situation was first reported in 1995 she had not dared to tell the police the truth for fear of reprisals from her aunt.

That same day the association “Enfance et Partage” gave the police photos taken by the applicants in November 1998 of the basement they lived in. The photos confirmed the deplorable conditions of hygiene and insalubrity they lived in.

On 3 February 1999 Mr M. was interviewed by the police. He said he had done nothing wrong and that he had helped the applicants by bringing them to France. He told them that his wife, Mrs M., had left for Burundi on 15 January 1999. He also complained about an article in the press on 28 January 1999 making accusations against him and his wife.

The police established that, contrary to what Mr M. had told them, his wife had gone back to Burundi on 2 February 1999, a few days after the article appeared in the press.

Mr M. denied the investigators access to his house, alleging that his lawyer was not available. He added that renovation work was being done on the house.

On 16 February 1999 a judicial investigation was opened against Mr and Mrs M. for degrading treatment (Articles 225-14 and 225-15 of the Criminal Code) and against Mrs M. for wilful violence on a child under fifteen years of age, by a person in a position of authority, not entailing unfitness for work for more than eight days. An arrest warrant was issued against Mrs M. and Mr M. was placed under judicial supervision.

The applicants joined the proceedings as civil parties.

On 22 April and 3 May 1999 the applicants were heard by the investigating judge. They confirmed their previous statements and added that their situation at the home of Mr and Mrs M. had gradually deteriorated. The second applicant told the judge that at the time of the first report and investigation in 1995-1996 she had said nothing to the police because “things were not [yet] all that bad” with her aunt (a fact confirmed by the first applicant at a later hearing on 30 June 2000). The applicants emphasised the leading role played by their aunt, who had no qualms about hitting them and waking them up in the middle of the night if there was the slightest problem. The first applicant said she had even had to sleep outside the house one night. The applicants confirmed that their uncle had tried to smooth things over, but he was frequently away from home. When present he would often try to reason with his wife, and had even paid their bus fares or bought them clothes without his wife knowing.

On 29 April 1999 Mr M. was charged with infringement of human dignity under Articles 225-14 and 225-15 of the Criminal Code.

On 30 June 1999 the results of the medico-psychological examination of the two applicants ordered by the investigating judge were submitted. They revealed that the applicants showed no signs of serious psychological disorders or psychiatric decompensation, but that the psychological impact of what they had experienced was characterised by mental suffering, combined, in the case of the first applicant, with feelings of fear and a sense of abandonment, as the threat of being sent back to Burundi was synonymous in her mind with a threat of death and the abandonment of her younger sisters. As to the second applicant, the report stated that being sent back to Burundi was felt to be “even worse” than living with Mr and Mrs M.

On 30 June and 14 September 1999 the investigating judge noted that Mrs M. had twice failed to appear. She explained that she had been in Burundi. She was not heard until 15 June 2000.

Investigations carried out at the home of Mr and Mrs M. at the judge’s request revealed that the basement of the house had been completely refurbished after the applicants left.

On 5 February 2001 the investigating judge at the Nanterre tribunal de grande instance ordered Mrs M.’s committal for trial before the criminal court on charges of wilful violence on a child under fifteen years of age, by a person in a position of authority, not entailing unfitness for work for more than eight days (an offence punishable under Article 222-13 of the Criminal Code) in respect of the second applicant, and on charges of subjecting a person who is vulnerable or in a position of dependence to working conditions (in respect of the first applicant) or living conditions (in respect of both applicants) incompatible with human dignity (offences punishable under Articles 225-14 and 225-15 of the Criminal Code). In the same order, the investigating judge requested the termination of the proceedings against Mr M. concerning the charges of offences against human dignity.

On 7 February 2001 the applicants appealed against the decision to terminate that part of the proceedings.

On 18 December 2002 the Investigation Division of the Versailles Court of Appeal ordered further inquiries to determine the exact scope and measure of the lifting of Mr M.’s immunity by the Director General of UNESCO, and whether it applied to the preliminary investigation alone or to the proceedings as a whole.

On 30 April 2003 the Investigation Division of the Versailles Court of Appeal set aside the order of 5 February 2001 terminating part of the proceedings and ordered Mr M.’s committal for trial by the criminal court for having subjected the applicants, and also their three younger sisters, to treatment contrary to human dignity. As to the scope of the lifting of Mr M.’s immunity, the court found that no immunity applied, for the following reasons:

“The explicit terms of the letter addressed to the court on 20 January 2003 by the Protocol Department of the Ministry of Foreign Affairs on behalf of the Minister, who has authority to interpret and measure the scope of the immunity granted to diplomats, dispel all uncertainty about the situation of Mr [M.];

the latter ceased to be a UNESCO staff member on 30 November 2001;

as the deeds in question were not committed in the course of his duties, he no longer enjoys diplomatic immunity;

there is accordingly no obstacle to his prosecution;”

Mr M. appealed against that ruling.

On 12 April 2005 the Criminal Division of the Court of Cassation confirmed that Mr M. did not enjoy diplomatic immunity, but set aside the Court of Appeal’s judgment of 30 April 2003 in so far as it had ordered Mr. M.’s committal for trial for offences committed against the applicants’ three sisters, as this was outside the remit of the investigating judge.

On 22 January 2007 the Nanterre Criminal Court rejected the objections as to admissibility raised by Mr and Mrs M. based on their diplomatic immunity. It adjourned the case to a hearing on 17 September 2007 to rule on the merits.

In a judgment of 17 September 2007 the Nanterre Criminal Court found Mr and Mrs M. guilty as charged. Mr M. was sentenced to twelve months’ imprisonment, suspended, and fined 10,000 euros (EUR). Mrs M. was sentenced to fifteen months’ imprisonment, suspended, and fined EUR 10,000. The couple were jointly ordered to pay the first applicant EUR 24,000 in damages, and the second applicant one symbolic euro, as she had requested. The relevant passages of the judgment read as follows:

“... It appears from the information available that [the applicants], who found themselves in a situation of total dependence at the time, who were orphans and minors and whose papers had been taken away, were housed by their uncle and aunt in deplorable conditions of hygiene in an unheated, insalubrious basement; the photos adduced by counsel for the civil parties ... show the state of the place they lived in from 1995 to 1999; they had no access to the bathroom and had to fetch a pail of water from the kitchen to wash themselves, and the elder sister [the first applicant] was used as a housemaid by the couple [Mr and Mrs M.] with no day off and no pay.

It is further established that they did not pay for [the second applicant’s] school meals or travel card, obliging her to walk several kilometres to school along a road through woods.

It is also established that the accused refused to give them the medical treatment they needed, even though [Mr M.] had registered them with the UNESCO social security scheme.

Although some of the girls’ statements indicate that the role played by [Mr M.] was a rather passive one, probably to avoid having to stand up to his wife’s strong character, he could not have been unaware of the difference in the way his nieces and his own children were treated.

His frequent absences from home could not have made him unaware of the situation. In addition, he refused to let the police take photos of the basement, and then took pains to have it very comfortably refurbished when released from police custody.

That being so, the actus reus and mens rea of the offence against human dignity in respect of the two accused are made out and they must be convicted.”

Mr and Mrs M. appealed against that judgment on 24 and 25 September 2007.

On 29 June 2009 the Versailles Court of Appeal set aside the judgment on the charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions, acquitted the defendants of that charge and dismissed the applicants’ claims for compensation for the damage suffered in respect of that charge. However, it upheld the guilty finding against Mrs M. on the charge of aggravated wilful violence against the second applicant. She was fined EUR 1,500 and ordered to pay one euro in respect of non-pecuniary damage.

The relevant passages of the judgment read as follows:

“The charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions:

It is not disputed that [Mrs M.] went to fetch her nieces at a time when a civil war was raging in Burundi that left 250,000 people dead and orphaned about 50,000 children; ... the elements of the proceedings show that [Mr and Mrs M.] paid their nieces’ fare from Burundi to France; this shows that their concern was to protect these members of their family by placing the children out of harm’s way; ...

Under Article 225-14 of the Criminal Code in force at the material time, offences against human dignity were characterised by the fact of abusing a person’s vulnerability or situation of dependence to subject them to working or living conditions incompatible with human dignity, and were punishable by two years’ imprisonment and a fine of 500,000 francs (FRF); the legislation now in force punishes such offences more severely and gives them a broader definition; ... the new, harsher law cannot be applied retroactively;

In the instant case, while the living and domestic working conditions were poor, uncomfortable and blameworthy, they cannot be qualified as degrading in the context and the circumstances of family solidarity with no intention of economic gain or of exploiting another’s work; the living and working conditions the defendants gave their nieces were not intended to debase them as human beings or to violate their fundamental rights, but obeyed a duty to help them; ...

[Mr and Mrs M.] cannot be blamed for not having asked their own children, who shared their rooms, ... to give up their comfort; and they cannot reasonably be blamed for giving more to their own children than to their nieces; ...

The case materials show that the boiler which heated the house was in the basement where the complainants lived and the temperature recorded in their room during the investigation was in excess of 20oC;

As stated by the defendants’ daughter ... and confirmed by [the second applicant], the aunt had not formally denied them access to the bathroom, but simply wanted to rationalise its use because of the large number of people who had to use it; ...

... even though more could have been done to secure [the first applicant’s] integration, [Mrs M.] did call the welfare services for help; the fact that [the first applicant], who did not speak French and did not want to go to school, was required to play an active part in the housework as the eldest sister, even without pay, did not amount to working conditions incompatible with human dignity, or slave labour, or violation of any fundamental personal rights, but rather to repayment for her having been permanently taken into the home and care of an already large family; there is no evidence in the case file that [Mr and Mrs M.] stood to make any financial gain by taking their nieces into their home and care, for they were an extra financial burden for them, taken on out of moral obligation;

According to the testimony, the living and working conditions were compatible with [the applicants’] human dignity; and it has not been established that the defendants took advantage of the vulnerability of their orphaned nieces or the fact that they were dependent on them;

Therefore, as the mens rea of the charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions has not been made out, the constituent elements of the offence have not been established and the judgment in respect of this charge must be set aside ...

The charges against [Mrs M.] of wilful violence with two aggravating circumstances on [the second applicant], a child under 15 years of age, by a person in a position of authority:

[The second applicant] told the police that her aunt hit her when she asked for a travel card or when her uncle bought her one ...; she also alleged that she was slapped when she accidentally dropped a plate; on one occasion her aunt allegedly threatened to hit her with a broom and on another occasion she violently scratched her hand; ...

There is no doubt that [the second applicant] was under fifteen years of age between January 1995 and 10 December 1998, and that she was an orphan under the authority of her aunt, who had taken her in; the investigation established that [Mrs M.] shouted at [the second applicant], scolded her and threatened to send her back to Africa;

The facts are established ...; the charge is made out in all its elements ... ; the judgment convicting [Mrs M.] of aggravated violence must be upheld ...”

The applicants appealed against that judgment on 3 July 2009. Mrs M. also appealed. The Principal Public Prosecutor did not appeal.

On 23 June 2010 the Criminal Division of the Court of Cassation rejected the appeals lodged by the applicants and Mrs M. The relevant passage from the judgment reads as follows:

“The terms of the impugned judgment place the Court of Cassation in a position to affirm that the Court of Appeal, for reasons which are neither insufficient nor contradictory and which address the essential grounds raised in the pleadings submitted to it, stated the reasons for its decision that, in the light of the evidence before it, the charge of subjecting vulnerable or dependent people, including at least one minor, to living or working conditions incompatible with human dignity had not been made out against the accused, and had thus justified its decision dismissing the claims of the civil parties. ...”

“Abusing a person’s vulnerable or dependent situation to obtain the performance of unpaid services or services against which a payment is made which clearly bears no relation to the amount of work performed is punished by two years’ imprisonment and by a fine of 500,000 francs.”

“Abusing a person’s vulnerable or dependent situation by subjecting him or her to working or living conditions incompatible with human dignity is punished by two years’ imprisonment and by a fine of 500,000 francs.”

“The offences under articles 225-13 and 225-14 are punished by five years’ imprisonment and by a fine of 1,000,000 francs when they are committed against more than one person.”

“Obtaining the performance of unpaid services or services against which a payment is made which clearly bears no relation to the amount of work performed from a person whose vulnerability or dependence is obvious or known to the offender is punished by five years’ imprisonment and by a fine of 150,000 euros.”

“Subjecting a person whose vulnerability or dependence is obvious or known to the offender to working or living conditions incompatible with human dignity is punished by five years’ imprisonment and by a fine of 150,000 euros.”

“The offences under articles 225-13 and 225-14 are punished by seven years’ imprisonment and by a fine of 200,000 euros when they are committed against more than one person.

Where they are committed against a minor, they are punished by seven years’ imprisonment and by a fine of 200,000 euros.

Where they are committed against two or more people, one or more of whom are minors, they are punished by 10 years’ imprisonment and by a fine of 300,000 euros.”

“For the application of articles 225-13 and 225-14, minors or people who have been victims of the acts described by these articles upon their arrival on French national territory are considered to be vulnerable or in a situation of dependence.”

Court of Cassation, appeal no. 08-80787, 13 January 2009:

“... As to the single ground for appeal based on the violation of Article 4 of the European Court of Human Rights, and of Articles 225-14 of the Criminal Code, 1382 of the Civil Code, 2, 591 and 593 of the Code of Criminal Procedure;

In so far as the judgment acquitted Affiba Z... of the charge of subjecting a vulnerable or dependent person to working or living conditions incompatible with human dignity; ...

Considering that according to the case file Affiba Z..., who employed and housed Marthe X..., who was born on 22 March 1979 in Côte-d’Ivoire, from December 1994, the date of her illegal arrival in France at the age of 15 and a half, until 2000, was sent before the criminal court on charges of aiding unlawful entry and residence, employing an alien with no work permit, obtaining unpaid services from a vulnerable person and subjecting that person to working and living conditions incompatible with human dignity; that the impugned judgment, ruling on the appeals lodged by the accused, the civil party and the public prosecutor, upheld the judgment in so far as it found Affiba Z... guilty of the first three charges and acquitted her of the last charge;

Considering that, for the reasons given and adopted, while Marthe X..., whose passport Affiba Z... took from her, had been made to do domestic chores on a permanent basis, with no holidays, in exchange for a little pocket money or subsidies paid in Côte-d’Ivoire, the judgment, in upholding the acquittal, took into account that the young woman had been housed in the same conditions as the family and the accused had shown true affection towards her, and the judges concluded that there had been no offence against human dignity;

However, in so ruling when all forced labour is incompatible with human dignity, the Court of Appeal failed to draw the legal conclusions of its own findings and to justify its decision vis-à-vis the above-mentioned texts; ...

Quashes the above judgment of the Paris Court of Appeal ... in respect of the civil action ...”

The Court refers to paragraphs 49 to 51 of the Siliadin v. France judgment (no. 73316/01, ECHR 2005VII) and to paragraphs 137 to 174 of the Rantsev v. Cyprus and Russia judgment (no. 25965/04, ECHR 2010 (extracts)), which present the relevant provisions of the international conventions concerning forced labour, servitude, slavery and human trafficking (Geneva Convention of 25 September 1926 prohibiting slavery; Convention no. 29 of the International Labour Organisation (ILO) of 28 June 1930, on forced labour; Supplementary Convention on the Abolition of Slavery of 30 April 1956; Convention on the Rights of the Child of 20 November 1989; Additional Protocol to the United Nations Convention against Transnational Organised Crime, known as the “Palermo Protocol”, of December 2000; Council of Europe Convention on action against trafficking in human beings, of 16 May 2005) and the relevant extracts from the Council of Europe’s work on the subject (Recommendations 1523 of 26 June 2001 and 1623 of 22 June 2004 of the Parliamentary Assembly, explanatory report of the Council of Europe Convention on action against trafficking in human beings).

The following extracts from “The cost of coercion: global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work”, adopted by the International Labour Conference in 1999:

“24. The ILO’s definition of forced labour comprises two basic elements: the work or service is exacted under the menace of a penalty and it is undertaken involuntarily. The work of the ILO supervisory bodies has served to clarify both of these elements. The penalty does not need to be in the form of penal sanctions, but may also take the form of a loss of rights and privileges. Moreover, the menace of a penalty can take many different forms. Arguably, its most extreme form involves physical violence or restraint, or even death threats addressed to the victim or relatives. There can also be subtler forms of menace, sometimes of a psychological nature. Situations examined by the ILO have included threats to denounce victims to the police or immigration authorities when their employment status is illegal, or denunciation to village elders in the case of girls forced to prostitute themselves in distant cities. Other penalties can be of a financial nature, including economic penalties linked to debts. Employers sometimes also require workers to hand over their identity papers, and may use the threat of confiscation of these documents in order to exact forced labour.

As regards “voluntary offer”, the ILO supervisory bodies have touched on a range of aspects including: the form and subject matter of consent; the role of external constraints or indirect coercion; and the possibility of revoking freely-given consent. Here too, there can be many subtle forms of coercion. Many victims enter forced labour situations initially out of their own choice, albeit through fraud and deception, only to discover later that they are not free to withdraw their labour, owing to legal, physical or psychological coercion. Initial consent may be considered irrelevant when deception or fraud has been used to obtain it.”


Mr Aleksey Fedorovich Korolkov (“the first applicant”) was born in 1934 and died on 7 February 2005. His wife, Mrs Valentina Fedorovna Korolkova, expressed her wish to pursue the application of her late husband. Mrs Vera Nikolayevna Kamarda (“the second applicant”) was born in 1931 and lives in Dniprodzerzhynsk. Both applicants were represented by Mr P. Kukta. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska.

The facts of the case, as submitted by the parties, may be summarised as follows.

In August 2001 the applicants instituted two separate sets of proceedings in the Zavodskyy District Court of Dniprodzerzhynsk against the State of Ukraine and the President of Ukraine, seeking recovery of their indexed deposits with the State Savings Bank (“the Bank”) made before 2 January 1992, and compensation.

By two judgments of 28 and 30 November 2001, the court ordered the Dnipropetrovsk Regional Department of the Bank to pay, respectively, the second applicant UAH 7,521.19 and the first applicant UAH 1,865.85, which corresponded to the amounts of their indexed deposits.

The relevant parts of the judgement of 28 November 2001, in which the court gave reasons for its decision and stated the decision itself, read as follows:

“... According to Article 41 of the Constitution of Ukraine, the right to use private property is inviolable. Pursuant to Article 22 of the Constitution of Ukraine, all the laws and normative acts adopted after the Constitution shall not diminish the content and scope of the rights and duties of the citizens, provided for in the Constitution of Ukraine. The provisions of the Constitution have the highest legal force...

According to Article 2 of the Law of Ukraine on the State Guarantees of Repayment of Deposits of the Citizens of Ukraine, the State undertakes to maintain and update the real value of citizens’ bank deposits and guarantees compensation pursuant to the relevant rules. The payment of compensation [to Ukrainian citizens] for loss of value of money deposits shall be borne by the State Treasury of Ukraine.

This provision of the Law is decisive for the merits of the [applicant’s] claims. In fact, the [State] Savings Bank [of Ukraine] pleads no defence.

The provisions of Article 7 of the above Law on gradual repayment of the deposits to the citizens of Ukraine concerns the order of enforcement of a court decision on Repayment of an indexed deposit.

Therefore, the claims of Mrs Kamarda for Repayment of the indexed deposit shall be allowed within the limits of the sums, as stated in the compensation accounts...

Pursuant to ..., the court

Decided:

To order the Dnipropetrovsk Regional Department of the State Savings Bank of Ukraine to pay Mrs Kamarda the indexed deposit from the compensation accounts in the Dnipropetrovsk Regional Department nos. ... [in the amount of] UAH 193.79, UAH 1,503.60 and UAH 5,823.80, as well as to pay the State UAH 51 in respect of the court fees.

To reject the remainder of the [applicant’s] claims and [her claim for] compensation for non-pecuniary damage, as well as [her] claims against the Ministry of Justice of Ukraine, the Dniprodzerzhynsk [Town Department of the] State Treasury, and the President of Ukraine.”

The court used similar wording in its judgment of 30 November 2001.

In December 2001 the applicants lodged with the Zavodskyy District Court their appeals against the judgments of 28 and 30 November 2001. In January 2002 they withdrew their appeals.

On 21 January 2002 the Zavodskyy District Bailiffs’ Service of Dniprodzerzhynsk instituted enforcement proceedings.

By two separate decisions of 8 April 2002, the Bailiffs’ Service discontinued the enforcement proceedings on the grounds that the Dnipropetrovsk Regional Department of the Bank was not a separate legal entity and that it was the Cabinet of Ministers of Ukraine which was competent to establish the order of repayment of the indexed deposits under the Law of Ukraine on the State Budget. The applicants did not challenge these decisions before the domestic courts.

In 2002 the first applicant was paid UAH 50 in repayment of his indexed deposit pursuant to the resolution of the Cabinet of Ministers of Ukraine of 5 April 2002. According to the Government, the first applicant failed to claim UAH 50 to which he was entitled in 2003. In December 2002 and August 2003 the second applicant received a total of UAH 100 pursuant to the resolutions passed by the Cabinet of Ministers concerning repayment of indexed deposits to the citizens of Ukraine in 2002 and 2003. There is no information in the case file whether further payments were made in respect of the judgments of 28 and 30 November 2001.

Article 124 of the Constitution provides as follows:

“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”

Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department for that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person responsible for the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation.

Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damage caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts.

Pursuant to Article 1 of the Law, the State undertakes to pay the citizens of Ukraine compensation for the loss of their money deposited before 2 January 1992 with, inter alia, the branches of the Savings Bank of the USSR, which carried out business on the territory of Ukraine. The Ukrainian citizens, who deposited their money with the Savings Bank and the State Insurance Company of Ukraine in 1992-1994, are entitled to compensation, provided that the money has remained in the accounts of the Savings Bank of Ukraine for at least one full year between 1992 and 1995.

Article 7 of the Law provides that the money deposits shall be repaid gradually, taking into account the amount of the deposits, within the limits of funds, allocated for that purpose in the State Budget of Ukraine for a given year.

The persons eligible for repayment of their deposits were defined in regulations approved each year by the Cabinet of Ministers for the forthcoming year. For instance, on 5 April 2002 the Cabinet passed a resolution concerning the repayment in 2002 of the value of deposits made by the Ukrainian citizens before 2 January 1992 in branches of the former Savings Bank of the USSR, which carried out business on the territory of Ukraine. By that resolution, the Government allocated UAH 500,000,000 from the national budget to enable individual deposits to be indexed. Of that amount, UAH 65,000,000 was allocated to the heirs of account holders who had died between 1997 and 2002, on condition that they had not yet received the grant available under Article 8 of the Law of 21 November 1996. The remaining UAH 435,000,000 was to be divided between the other account holders. The amount payable to each beneficiary was, in principle, limited to UAH 50. The Cabinet passed similar resolutions in respect of 2003-2005.


Preliminary objections rejected (victim);No violation of Art. 2;No violation of Art. 6-1

Immediately following its birth in a private clinic, “La Madonnina”, in Cosenza the applicant's new-born baby was admitted to the intensive care unit of Cosenza Hospital suffering from serious respiratory and neurological post-asphyxia syndrome induced by the position in which it had become lodged during delivery. The baby died on 9 February 1987, two days after birth.

On 10 February 1987 the applicants lodged a complaint. The Cosenza public prosecutor's office started an investigation that same day.

On 12 February 1987 Ms Ciglio was questioned as a witness. A team of three expert witnesses was named.

As nothing further happened in the proceedings, the applicants made several requests, notably on 16 October 1987, and 12 April and 30 June 1988, for the investigation to be expedited. On 16 November 1988 the public prosecutor's office itself requested the expert witnesses to lodge their report.

On 19 June 1989 the applicants were informed that at the request of the public prosecutor's office, the investigating judge had notified E.C. – the doctor responsible for delivering the baby and the joint owner of the clinic – that charges would be brought against him.

Subsequently, the scheduled questioning of certain witnesses on 18 July 1989 did not take place, as the judge dealing with the case was on holiday.

Meanwhile, on 7 July 1989, the applicants were joined to the proceedings as civil parties.

On 19 January 1990 the prosecution applied for the complaint to be filed away without further action. That application was dismissed on 24 May 1990.

On 3 October 1990 the investigating judge instructed the public prosecutor's office to make further inquiries. Consequently, on 29 November 1990 the deputy public prosecutor ordered forensic tests. The results were made available on 5 January 1991.

On 12 June 1991 E.C. was committed for trial before the Cosenza Criminal Court on a charge of involuntary manslaughter and the applicants renewed their application to be joined to the proceedings as civil parties.

The first hearing was set down for 2 July 1992 but had to be adjourned because of a lawyers' strike. The next hearing on 15 October 1992 was also adjourned due to a delay in service of a summons on the accused to appear.

A new hearing date was fixed for 15 January 1993. On that date an order was made for the accused's trial in absentia. The trial did not begin, however, until 19 March 1993, as meanwhile the accused had changed lawyers. The hearing scheduled for 29 April 1993 was adjourned until 3 June 1993 as the composition of the bench was not the same as that to which the case had been allocated. The trial thereafter continued with hearings on 27 May, and 10 and 17 June (the latter hearing being adjourned as one of the expert witnesses appointed by the court had to be replaced). A hearing on 15 July 1993 was adjourned to 16 September 1993, again owing to the fact that the composition of the bench was not the same as that to which the case had been allocated. There were further hearings on 14 and 26 October 1993. On the latter date the order for the accused's trial in absentia was revoked, but the hearing had to be adjourned as the expert witnesses failed to attend without due cause (they were ordered to pay a fine and to attend the next hearing on 14 December). A final hearing took place on 17 December 1993. The accused, who had attended the hearings on 26 October and 14 December 1993, was not present at that hearing.

At the hearing on 17 December the Cosenza Criminal Court found the accused guilty in absentia of involuntary manslaughter. Its judgment was lodged with the registry on 19 February 1994. The Criminal Court sentenced the accused to one year's imprisonment and ordered him to pay the civil parties' costs together with compensation to be assessed at a later date.

It found firstly that the accused knew that the birth had to be regarded as high risk since the mother was a level-A diabetic and had a past history of confinements that had been equally difficult because of the size of the foetus. The risks inherent in deliveries in such circumstances, which the expert witnesses appointed by the Criminal Court described as readily foreseeable, meant that precautionary measures should have been taken and that the doctor in charge should have been present. The Criminal Court found, however, that E.C., whom the applicant had consulted during the pregnancy, had made no arrangements for precautionary measures, such as an external examination of the mother, to assess whether the foetus was too large for a natural birth. Above all, he had absented himself during the birth. When the complications had occurred, it had taken the nursing staff six or seven minutes to locate E.C., who was busy seeing patients in another part of the clinic. The intervening delay before E.C. was able to perform the manipulation necessary to extract the foetus had significantly reduced the new-born's chances of survival.

The Criminal Court nevertheless suspended the sentence and ordered that the conviction should not appear on E.C.'s criminal record. In addition, it dismissed the civil parties' application for a provisional award of compensation.

On 17 March 1994 E.C. appealed to the Catanzaro Court of Appeal.

In a judgment of 3 August 1994, which was delivered in absentia and lodged with the registry on 17 August 1994, the Court of Appeal declared the appeal inadmissible. Noting that he had been tried in absentia at first instance, the Court of Appeal held that E.C. had failed to give his lawyer the authority to act required under the rules applicable in such cases. It ordered him to reimburse the costs incurred by the civil parties in the proceedings.

On 7 October 1994 E.C. appealed to the Court of Cassation. In a judgment of 22 December 1994, which was lodged with the registry on 23 January 1995, the Court of Cassation overturned the decision of the Catanzaro Court of Appeal, to which it remitted the case for a retrial. It held that the Court of Appeal had erred in treating E.C. as being absent, as he had been present at the start of the trial and had accordingly to be regarded as having left the court during the trial and not as liable to trial in absentia.

In a judgment of 3 July 1995, which was lodged with the registry on 10 July 1995, the Catanzaro Court of Appeal ruled that the prosecution of the offence was time-barred.

In so doing, it noted that the limitation period for the offence of which E.C. was accused had expired on 9 August 1994, in other words, even before the Court of Cassation had delivered its judgment.

Following E.C.'s conviction at first instance by the Cosenza Criminal Court on 19 February 1994 (see paragraphs 21-22 above), the applicants served a summons requiring E.C. to appear before the civil court of that town.

However, on 27 April 1995 the applicants entered into an agreement with the insurers of the doctor and the clinic under which the insurers were to pay 95,000,000 Italian lire (ITL) for any damage sustained by the applicants. Of that sum, ITL 15,000,000 were designated as reparation for the special loss sustained by Ms Ciglio. At that time, the criminal proceedings were pending in the Catanzaro Court of Appeal following the Court of Cassation's judgment of 22 December 1994 (see paragraph 26 above).

Subsequently, as the parties failed to attend a hearing on 16 November 1995, the case was struck out of the civil court's list. At that stage, the criminal proceedings had only just ended, the Court of Appeal's ruling that the prosecution of the offence was time-barred having become final on 17 October 1995.

Article 112 of the Italian Constitution provides:

“The public prosecutor's office has a duty to prosecute.”

Article 589 of the Criminal Code lays down that the penalty for involuntary manslaughter is imprisonment of between six months and five years.

Furthermore, Article 157 § 1, sub-paragraph 4, of the Criminal Code provides that the limitation period for involuntary manslaughter is five years. That period may be extended by one half as a result of any interlocutory matters arising, but may under no circumstances exceed seven and a half years from the date of the offence.

Lastly, Article 120 of the Code of Civil Procedure provides:

“In cases in which publishing the decision on the merits may contribute to providing reparation for the damage, the court may, on application by an interested party, order the losing party to publish the decision at its own expense in one or more newspapers determined by the court.

If the decision is not published within the period fixed by the court, the interested party may arrange for publication and shall retain the right to recover the costs from the losing party.”

In the resolution cited above, adopted on 18 September 1975, the Committee of Ministers of the Council of Europe recommended that in their internal legislation and practice the governments of the member States be guided by the following principles:

“1. Criminal proceedings should not be instituted or, if appropriate, sanctions shall not be imposed for manslaughter or accidental bodily injury resulting from a minor traffic offence, that is to say, a driving offence that was not such that its author must have been aware of the danger to which he exposed himself or others;

The same should apply, subject to the inexcusable character of the fault committed, in respect of a person who has caused manslaughter or accidental bodily injury if he himself or someone dear to him has been so badly injured that a sanction would be pointless, if not inhuman;

Application of the above-mentioned recommendations should in no way prejudice the rights of the victims to obtain compensation.”


VRANISKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Jovan Vraniskoski, is a Macedonian national who was born in 1966 and lives in Bitola. He is represented before the Court by Mr V. Gorgiev, a lawyer practising in Bitola, and the Skopje Office of the Helsinki Committee.

The applicant was a bishop in the Macedonian Orthodox Church (“the MOC”). On 5 July 2002 the Holy Synod of the MOC (Светиот Архиерејски Синод) dismissed him from this duty on the ground that he had violated the oath (Епископско исповедание/ заклетва) by which he had pledged to safeguard the MOC’s unity and Constitution by his unilateral accession to the Serbian Orthodox Church (“the SOC”). On a later date, the applicant was expelled from the MOC. He was also prevented from carrying out ceremonies and preaching in all churches and monasteries.

On 1 July 2004 the Bitola Court of First Instance (“the trial court”) convicted the applicant of inciting ethnic, racial and religious hatred and intolerance and sentenced him to eighteen months’ imprisonment. It established that the applicant had accepted, although being aware that it would instigate religious hatred and intolerance among believers in the MOC, to be appointed by the SOC as an exarch of the so-called Ohrid Archiepiscopate and to represent the latter as the only valid church in the respondent State. In that capacity, he had undertaken the following.

a) In November 2003, he released a religious calendar in which he had made, inter alia, the following defamatory statements in respect of the MOC:

“... the dissident high episcopacy of the so-called Macedonian Orthodox Church bears full responsibility for the lack of religious education of the people. The bishops of that dissident organisation, since the beginning of the schism in 1967 until the present, behave inadequately given the function which they were bound to by God. They persistently put their own interests before the interests of the church. They were and still remain the last bastion of communism ... The people ... allowed a few so-called archbishops, unrecognised by anyone, to decide about their church ... If people were aware of the [importance of the church], they would never allow some worldlings and heretics to decide on the destiny of the Church.

Unfortunately, the schism in the Orthodox Church, which began in 1967, meant that many religious surrogates were created on our territory.

The latest heresy disseminated by the high episcopacy of the dissident organisation, which calls itself the Macedonian Orthodox Church, is to accept the schism as a normal state of affairs which they defend by non-religious methods ...

The May Assembly of the episcopacy of the Serbian Orthodox Church ... allowed the dissident archbishops in the Republic of Macedonia to reunite ... with the Orthodox Church, on pain of being taken before the Ecclesiastical Court. Two new episcopes, J. and M., were appointed as adjuncts of [the applicant] ...

Being aware that if they targeted the pastor they would destroy the herd, the dissidents, who call themselves the Macedonian Orthodox Church, endeavour to discredit [the applicant], who is the only canonical episcope in the territory of the Republic of Macedonia ...

They are further aware that if the state authorities let Patriarch Pavle (the Patriarch of the Serbian Orthodox Church at that time) and other archbishops of other Orthodox Churches to enter the Republic of Macedonia, the people would soon realise that everything they said about [the applicant] was untrue and a political trick ...”

b) In November and December 2003, he attended the confirmation (хиротонија) of J. and M. into episcopes. Both were proposed by Patriarch Pavle with a view to creating the illusion of a parallel Holy Synod of the MOC. The ceremony took place in a church in Belgrade, Serbia.

c) On 11 January 2004 the applicant held a religious ceremony in an apartment owned by his parents which, according to him, served as a religious object. In doing so, the applicant stirred up considerable religious hatred and intolerance among believers in the MOC and provoked various associations of citizens and other organisations.

The trial court established that, as a historical fact, the Ohrid Archiepiscopate had existed on the territory of the respondent State as an ecclesiastical power until 1767, when it had been abolished by the Ottoman Empire. Since then, the Serbian Orthodox and, briefly, the Bulgarian Orthodox Church, had been in power. The Ohrid Archiepiscopate had further existed between 1958 and 1967, having autonomy under the SOC. The SOC “did not have an interest in the Republic of Macedonia having an independent [autocephalous] MOC, but rather an autonomous church, as was the Ohrid Archiepiscopate ... after the breakup of Yugoslavia and the independence of the Republic of Macedonia, the MOC was constituted, which increased the gap with the SOC” The court further found it undisputed that the MOC was not recognised by the SOC and that due to that dispute, the MOC was not recognised by any of the churches of the Orthodox Communion either.

The court established that the applicant, after being appointed exarch by the SOC, had started acting as a leader of the Ohrid Archiepiscopate as the true Orthodox Church in the respondent State, in parallel to the MOC. At his request, the SOC made J. and M. episcopes with a view to creating a Holy Synod of the Ohrid Archiepiscopate. He designated his parents’ apartment as the seat of the Ohrid Archiepiscopate, where he held religious ceremonies on many occasions. He denied the existence of the MOC, as well as the reputation and dignity of its leaders. His ideas in favour of the restoration of the Ohrid Archiepiscopate under the SOC’s jurisdiction were only supported by a small group of priests and citizens.

The court found that the applicant, in the religious calendar of 2004, had made untrue, disrespectful and defamatory statements about the MOC and its leaders. He had attempted to present himself as a martyr seeking salvation for the Macedonian people, whom he called ignorant and illiterate. The court described the calendar as “bad and vulgar in respect of the religious feelings of the Macedonian people”. It found that, in addition, the applicant had described the religious teaching of the MOC as “heretical”.

The court established that the applicant had released the calendar, although he denied it. The calendar was published by a monastery located in his parents’ weekend house, a fact which could not have been unknown to him. The calendar was fully devoted to him and his activities; it further contained pictures of him taken on different occasions. Its text reflected his ideas on denying the existence of the MOC, which he had continued to express during the trial. The court therefore concluded that the applicant had determined the text of the calendar, and printed and distributed it through his followers.

It further established that the applicant had not succeeded in persuading people to accept his teaching, but rather, had instigated hatred towards himself and his followers. The ensuing revolt and intolerance had derived from an infringement of the religious sensibilities of the people, who had requested the state authorities to intervene. He had even been threatened with assault. In this connection, the court referred to an incident of 18 January 2004 when a considerable number of people had gathered in front of the applicant’s home to protest about his activities.

The trial court rendered the decision after it had heard submissions from the applicant and several witnesses and examined other documentary evidence. It disregarded the applicant’s arguments that several Holy Synods could exist in the respondent State, stating that only the MOC and its Holy Synod existed under the Constitution.

The applicant appealed and complained, inter alia, that the proceedings in question concerned his freedom of religion, which was guaranteed under the Constitution. He was convicted for having expressed different religious opinions than those of the members of the MOC’s Holy Synod. Even though the applicant agreed with the contents of the calendar, he complained that no evidence had been presented that he had published it. He complained that the conduct as a result of which he had been found guilty could not be interpreted as incitement to religious hatred and intolerance, but only as an insult or defamation, which could only be prosecuted by means of a private action.

On 22 June 2005 the Bitola Court of Appeal held a hearing which was attended by the applicant, his lawyer and a representative of the public prosecutor’s office. The court upheld the applicant’s conviction under all three heads. It found no reason to depart from the trial court’s reasoning that the applicant had deliberately undertaken the actions he was convicted of and that he had instigated a schism in the MOC and religious hatred and intolerance among Macedonian churchgoers.

The court held that the applicant had abused the right to freedom of religion by creating a parallel Holy Synod, which was contrary to the Constitution, under which there was only one MOC on the territory of the respondent State. It concluded that the applicant had aimed to implement the ideas of a foreign state on the territory of the respondent State.

On 13 July 2005 the applicant lodged a request with the Supreme Court for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда, hereinafter “extraordinary review request”). He complained that he had been convicted on the basis of having acceded to another religious community and holding a religious ceremony in his home. As regards the calendar, he reiterated that, ultimately, he could only be held criminally responsible for insult and/ or defamation, which were not prosecutable except by means of a private action. He invoked, inter alia, Article 9 of the Convention and Article 19 of the Constitution.

On 13 September 2005 the Supreme Court ruled partly in favour of the applicant and upheld his conviction only in respect of the distribution of the religious calendar. It decided that the applicant’s conduct under b) and c) described in the trial court’s decision did not fall within the scope of section 319 (1) of the Criminal Code (see “Relevant domestic law” below). In this latter context, it found that the applicant’s presence at the confirmation ceremony in Belgrade and the religious ceremony in his home were to be regarded as falling within the right to freedom of thought and religion and were, as such, protected under Article 9 of the European Convention on Human Rights.

As to the religious calendar, it stated inter alia, that:

“... the way in which [the applicant] entered the public arena by way of the religious calendar of 2004, which was distributed in the homes of believers in Bitola and further afield, the formulations he used, his position, the aims he wished to achieve and the consequences of his activities, analysed in the context of the freedom of thought, conscience and religion, as well as the right of freedom of religion of others, is an act which was directed towards the violation of the legal order which guarantees these rights.

A criminal offence is committed when, irrespective of the manner it is undertaken, an action demonstrates that certain expressions were deliberately intended to serve as propaganda instigating ethnic, racial and religious hatred, division and intolerance ...”

The Supreme Court further stated that:

“The conduct of [the applicant], who was appointed exarch of the so-called Ohrid Archiepiscopate by the Patriarch of the Serbian Orthodox Church, with a view to creating a parallel Holy Synod in the Republic of Macedonia, went beyond the freedom of thought, conscience and religion. The facts of the case ... confirm that the public expression of thought, or as the convicted stated – his freedom of religion – by way of the religious calendar of 2004, which was addressed to orthodox believers in the Macedonian Orthodox Church, in the view of the Supreme Court, cannot be regarded as an expression of his personal intellectual stance nor it is an intellectual, theological and scientific opinion addressed to [those believers]. The calendar of 2004, by its contents and aim, was a direct violation of the freedom of others to have their own thought, conscience and religion, namely belief in the Macedonian Orthodox Church and its existence for centuries, in the canons of orthodox communion, in its ceremonies etc. The contents of the religious calendar directly incite and encourage religious intolerance and division among Macedonian believers in the Macedonian Orthodox Church.

The rights of others, namely to the freedom of religion, entail respect for believers as stipulated in Article 9 of the European Convention on Human Rights. That, according to the Supreme Court, was violated with the provocative depiction of events in the calendar. Defamatory statements such as “those who claim that the Macedonian Orthodox Church exists spread heresy” and “the Macedonian Orthodox Church is heretical”, are, at the least, a somewhat unusual form of communication between believers and churches.

[The applicant’s] expression ... acting always as an exarch appointed by the Serbian Orthodox Church, reaches high level of abuse and, as such, demonstrates a denial and violation of others’ freedom of thought and religion and cannot, accordingly, be tolerated in a free and democratic society. His activities are directed towards the believers in the Macedonian Orthodox Church in order to stir up religious hatred and intolerance.”

Article 16, as far as relevant, provides as follows:

“(1) The freedom of conviction, conscience, thought and public expression of thought is guaranteed ...”

Article 19, as far as relevant and modified with Amendment VII, provides as follows:

“(1) The freedom of religion is guaranteed.

(2) The right to express one’s religion, freely and publicly, individually or with others, is guaranteed.

(3) The Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, Evangelic Methodist Church, Jewish Community and other religious communities and groups are separate from the State and equal before the law ...”

Article 50, insofar as relevant, provides as follows:

“(1) Every citizen may seek protection of freedoms and rights set out in the Constitution before courts of general jurisdiction, as well as before the Constitutional Court of the Republic of Macedonia, in a procedure based on the principles of priority and urgency ...”

“The Constitutional Court of the Republic of Macedonia:

(3) protects the freedoms and rights of individuals and citizens concerning the freedom of conviction, conscience, thought and public expression of thought; political association and activity; and the prohibition of discrimination among citizens on the grounds of sex, race, religion, national, social and political affiliation;

Section 319 of the Criminal Code provides, inter alia, that any person incites national, racial or religious hatred, disagreement and intolerance by coercion, ill-treatment, or duress, who insults national, ethnic and religious symbols, or damages monuments and cemeteries, or in any other way incites national, racial or religious hatred, disagreement and intolerance shall be punished with one to five years’ imprisonment.

Section 51 of the Rules of Procedure of the Constitutional Court, insofar as relevant, provides as follows:

“Any citizen who considers that his or her right or freedom set out in Article 110 § 3 of the Constitution of the Republic of Macedonia has been violated by an individual act or action, may seek protection by the Constitutional Court within two months from the day he or she was served with the final individual act ...”